text:
    SMIZEL v. ODANAH IRON CO.
    1. Negligence — Injury to Employe — Mining Operations — Platform in Shaft — Defects in Construction — Evidence.
    A plank in a platform constructed in a mining shaft was disturbed by blasting at a lower level, and plaintiff, an employe in the mine, while attempting to cross such platform, fell and was injured. Upon the question of fact whether the planks were spiked down, the workman who supervised the construction of the platform, and a shift-boss who was with plaintiff at the time of the injury, testified in the affirmative. The latter further testified that, upon replacing some of the, planks after the explosion, the spikes fitted the same holes they had been drawn out of; that the planks “went down even” at the first effort, with no more force applied than simply stepping upon them. A fellow workman testified that he saw no spikes in the plank, and other witnesses testified that blasts such as the one' used would not be likely to disturb a platform if spiked down. Held, that, upon the whole evidence, the question was for the jury.

      2. Same — Instructions.
    An instruction that the company would be liable to plaintiff for his injuries if the platform in question was insufficient and unsafe for such general use as the company was putting it to, and was liable to be loosened by explosions in the shaft below, was not objectionable as withdrawing from the jury the question as to whether the accident to plaintiff was one which the company might reasonably have anticipated, when it was given in connection with instructions that the burden was upon plaintiff to show that the platform was not such a one as a reasonably prudent company would, under the circumstances, have erected, and that no presumption of want of reasonable care arose from the fact of the planking’s being disturbed by the firing of the blast, and that such care would not require the comx>any to build a platform which could not be disturbed by blasts below, unless experience had shown that such blasts would probably disturb such platform.
    3. Same — Intervening Cause.
    The company was bound so to construct the platform that it should be capable of withstanding the strain to which the ordinary operations of the mine would subject it; and if the platform became loosened under the strain of such ordinary operations, by reason of defects in the original'construction, the company would not be entitled to have the operations themselves treated as an intervening cause of injuries to a workman under whom it gave way.
    Error to Gogebic; Haire, J.
    Submitted January 4, 1898.
    Decided March 15, 1898.
    Case by Wenzel Smizel against the Odanah Iron Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Charles E. Miller (Fish & Cary, of counsel), for appellant.

      J. J. Patek (Charles A. Withey and C. F. Button, of counsel), for appellee.
   Montgomery, J.

This is an action for negligent injury. On the 26th of February, 1890, the defendant was the owner of the Cary Mine. At this mine was a shaft known as “No. 1 Shaft,” which shaft was about 148 feet deep. The first level of said shaft was about 35 feet from the surface, the second level about 50 feet below the first level, and the third level 63 feet below the second level. Shortly before the day in question, the defendant company caused a platform to be built at the second level above mentioned. • The shaft at that point was about 8 by 10 feet across, and the platform was about 10 by 12 feet; the planks of the platform projecting onto the rock at each edge of the shaft. This platform was built of timber 8 by 10 inches in diameter, and three timbers running crosswise of the shaft. On these timbers were laid 2-inch planks. Through this platform was a hole used for the skip-road, which hole was about 4 feet 6 inches square, and near that hole was what was known as the “manhole” or “ladder-way;” being a hole through which men passing up and down the ladder-way might pass, which'was sufficiently large to admit of the passage of a human body of ordinary size. The platform in question extended over the entire shaft, except for the holes above mentioned. As to whether the planks were spiked down is a matter of controversy. Defendant’s counsel contend that the undisputed testimony shows that they were, while plaintiff’s counsel contend that it was a question for the jury.

On the day in question, the plaintiff, together with another workman at the Cary Mine, named Prelomski, were engaged, together with the shift-boss, whose name was Matthews, in building what is known as a “skip-rest,” just beneath the surface of the platform. This skip-rest was built of timbers, and was located about six feet below the level of the platform, and was used for the purpose of allowing the skip to rest thereon while the same was being loaded. At the third level, 63 feet below, the miners were engaged in mining ore by blasting and drilling and picking, and the testimony shows that at the third level a drift had been mined out to the east and to the west of the shaft in question, to the east about 25 feet and to the west about 15 feet, and blasting was going on at the end of one of these drifts, but whether in the east or west drift is not shown by the evidence in this case. While the plaintiff and shift-boss and Prelomski were thus engaged in building the skip-rest, warning was given by the miners below that they were about to fire a blast, and the shift-boss ordered the two men who were working with him to leave the place where they were working, under the platform, and all three went up onto the platform, thence east across the platform into a drift, and through a door into what is known as the “ open pit.” After these three persons had arrived at the open pit, the blast was fired, and the shift-boss stepped out to the shaft, and found it filled with smoke. He then noticed that some of the planking of the platform at the second level had been disturbed by the blast, and he and some miners who were on the west side of the shaft took hold of the planks which had been disturbed, and laid them down fiat upon the platform as they had been originally. The planks which the shift-boss thus rearranged were the long planks, being about 12 feet long. Between the hole made by the skip-road and the edge of the shaft the planks were short, being approximately 6 feet long. The shift-boss testified that he did not notice that any of the short planks were disturbed or overthrown.

After the shift-boss had thus rearranged the platform, he called to the men who were in the open pit to come up the ladder, and go over into another shaft to work; and the shift-boss walked across the platform to the ladder-way, followed by Smizel, the plaintiff, who was in turn followed by Prelomski. As the shift-boss started up the ladder-way, Smizel fell, and it is claimed by him that he stepped upon a plank which had been blown loose by the explosion, which slipped with him, and that he then fell through the hole made in the platform, falling to the bottom of the shaft, by which he was seriously injured. None of the timbers in the platform were disturbed, nor were any of the planks composing the platform broken. The platform in question was built under the supervision of one Thomas Bolitho, who, so far as appears in this case, was entirely competent to do that work. This platform in question was used simply for men to stand upon and to pass over. It is claimed by the defendant that the undisputed testimony shows that a platform such as this was the usual and customary platform used in the mines in this locality for the purpose for which this platform was intended. It is further claimed by the defendant that the probability of the platform’s being disturbed by blasting below, under circumstances such as were shown in this case, was very remote, and that it was not such an occurrence as would be taken into consideration or as would be apprehended by reasonably prudent mining men.

As the plaintiff’s counsel concede the importance of the question of fact as to whether the planks were spiked, it is necessary, to look into the record to ascertain whether defendant’s contention that the evidence was conclusive of the fact should be sustained. Two witnesses for the defendant testify that the planks were spiked, viz., Matthews and Bolitho. Matthews was the shift-boss, who testified that, after the explosion, boards were torn up, and he replaced them. He was asked, “Do you know whether those planks were spiked3?” and answered, “Yes, sir; they were spiked.” He further testified as follows:

l‘Q. What did you do with the spikes when you put them down?
“A. The spikes went right down.
“Q. You mean the spikes fit the same holes they had been drawn out of ?
“A. They might have. The boards went right down just as even as they are there [pointing to the model],
“Q. What I want to find out is, when you jumped onto the plank you jumped on so that the spikes went right down into the timbers again?
“A. Perhaps so. They went down even.”

He also testified that he used no hammer, and that it took him but a very short time to replace the planks. Bolitho, who built the platform, testified that he spiked the plank down. On the part of the plaintiff, Prelomski, who was working with plaintiff, testified:

“I didn’t see any nails in the loose plank after Smizel went through. If there were spikes in it, sure I must have seen it; I would have seen it. ”

On cross-examination he testified as follows:

‘ ‘ Q. Do you know whether there were any spikes in it at that time or not ?
“A. I didn’t see any spikes in the plank.
‘ ‘ Q. Did you look to see whether there were any in it or not ?
“A. If there were spikes there I would have seen it; everybody would have seen it.
“Q. Did you look to see whether there were any spikes in it or not ?
“A. No.
“Q. Did you see any spikes in the other planks ?
“A. No, sir.
Q. Do you know whether there were any or not ?
“A. I didn’t see any.
‘ ‘ Q. Do you know whether there were any ?
“A. I don’t know; I couldn’t say that.
“Q. Could you have seen spikes if there were spikes in the other planks ?
“A. If there was, the spike is so long I could see it.
‘ ‘ Q. Suppose the spikes were the other side down ?
“A. I think if the spikes were in there the planks wouldn’t set level; it would be kind of tipping on each side.
“Q. Did you say that you know there were no nails in that plank ?
“A. I couldn’t say sure, but I didn’t see them.
“ Q. You didn’t look for them, did you?
“A. No.
“Q. You were pretty badly frightened, weren’t you ?
“A. I was scared awful much, but I would see it some way if there were spikes in there. My foot or something would probably touch it.
“Q. You wouldn’t necessarily touch a spike with your foot, would you, that was in this plank ?
“A. I didn’t see it. I went over that plank to get to the ladder-way. I was excited and frightened.
“Q. When you started to go you were in a hurry, weren’t you ?
“A. Sure, there was nothing to look around.
“Q. And you didn’t pay much attention to whether there were nails in the plank or not, as you were in a hurry to get to the ladder ? Isn’t that right ?
“A. I couldn’t say sure.
“Q. There might have heen spikes in that plank without your seeing it, might there not ?
“A. About the spikes I couldn’t say, because I haven’t seen them.
“Q. You couldn’t say whether they were there or not, because you didn’t see them ?
“A. No; I didn’t see them, if there was or not.”

This cross-examination materially impairs the force of the testimony of this witness; but should we say that there was no question for the jury on this point? We think not. Defendant called witnesses who testified that blasts such as used in the mine would not be liable to disturb such a platform if spiked down, and the cross-examination of Matthews tends strongly to show that the planks were not spiked. It was certainly a very remarkable fact that these planks, if they were spiked, torn loose as they were, should have been by the first effort replaced in such a way that the spike would exactly fit the hole it had previously made, and that they should go into place with no more force applied than simply stepping on them. This question was, on the whole record, a question for the jury.

An examination of the record satisfies us that it did not appear by the undisputed' testimony that the platform in question was the usual and customary platform used in the locality. On the contrary, there was evidence that such platforms were in many instances constructed with a double thickness of plank. The jury, in answer to a special question submitted to them by defendant, found that the platform was not such a one as was usually and customarily adopted by mining companies in that locality.

The theory on which the case was given to the jury is indicated by the following extract from the charge:

“Now, gentlemen, in this case, the plaintiff claims, and has introduced testimony which he claims tends to show, that in February, 1890, in the State of Wisconsin, he was employed in the Cary Mine by the defendant, the Odanah Iron Company, as a common laborer, and that while so employed he was injured, and that he was injured by reason of the improper construction of a platform in one of the levels at defendant’s mine; and he claims that, by reason of that improper construction of a platform, he was injured, and therefore he claims damages at your.hands. In other words, he claims that the original construction of this platform in question was not proper; was not safe; was not so constructed that it was a safe place to work. The defendant, on the other hand, has introduced testimony which it claims tends to prove that this platform in question was properly constructed; that it was constructed as such platforms are ordinarily and usually constructed, and with due care, -having in view the safety of persons that worked thereon and the uses to which it was to be put. If you find that that is the case, then, even though the plaintiff was injured, he cannot recover, because it would be one of the risks of his employment, and he would have to suffer the consequences if he was so injured.
“That, in general, gentlemen, is the case that we have for you to consider today. I charge you more specifically on that subject, gentlemen, that it was the duty of the defendant in this case to make and keep its shafts where it placed plaintiff to work, and every part thereof, in a condition which was reasonably safe, under all the circumstances surrounding the situation. This applies to defendant’s platform at the second level, where the plaintiff was hurt; and the defendant’s care should have been equal to the risks of the business in which it was engaged. The work of mining is always attended with more or less danger. Those engaged in the business know the fact, and it is their dut3^ to use enough diligence and care in preparing their premises, structure, and appliances so that no more than the usual and ordinary risks would attend the work which they require of the men in their employ. If the defendant failed to do this, and solely because of that failure the plaintiff was injured, substantially as claimed in his declaration, and as shown by the evidence, he is entitled to recover, and your verdict should be in his favor. The defendant was bound to know all the consequences which usually attend such operations as it was carrying on at the time in question; and, if explosions in the drifts below the platform on the second level were liable to disturb and disarrange the platform, it was bound to know it, and to take all necessary and reasonable precautions to prevent such a thing happening in the ordinary course of its business, and to take all precautions that it could well and reasonably take to so construct and keep the platform in question strong, and all parts thereof in place, so that the plaintiff could safely go over it and go upon it, as the work required of him made it necessary. If the defendant failed to do this,and failed to exercise such care as it reasonably should have done under all the circumstances, and because of that the plank or planks of the platform were blown or became disarranged, and the plaintiff, without fault on his part, fell through and received the injuries in question, then your verdict should be for the plaintiff.”

The defendant’s counsel requested the court to direct a verdict for the defendant for the following reasons:

“(a) The proximate cause of the injury to the plaintiff was, as appears from plaintiff’s evidence, a defect in the platform, in that one of the planks thereof had become loosened by an explosion immediately before the injury, so that, when plaintiff placed his weight thereon, the plank slid forward, and the plaintiff was precipitated through the hole thus made in such platform.
“(b) While it is the duty of the master to use reasonable care to provide employés with a safe place to work and with safe implements, still the duty thus imposed is only to use reasonable care under the then existing circumstances ; and it appearing by the undisputed testimony that the alleged defect in the platform was the result of a sudden explosion, and that the defendant had had no time to make a thorough investigation previous to the injury complained of, the defendant cannot be said to have been negligent in this case.
. “(c) The plaintiff and his fellow-servants had as good or a better opportunity to discover the alleged defect in the platform than the defendant had at that time, as appears from the undisputed evidence in this case, and, that being so, the plaintiff cannot recover in this case.”

It is also assumed by counsel that certain specific requests were also presented orally, which the court refused; but this assumption is not borne out by the record. The record discloses that, at the close of the testimony, the defendant’s counsel orally requested the court to instruct a verdict for defendant for certain specific reasons. This was denied, and then the counsel requested the court in writing to direct a verdict for the reasons above set out. It is apparent, therefore, that the only questions which we can consider are whether there was a case for the jury, and, if there was, whether the court committed error in his charge to the prejudice of the defendant. It is contended that the injury to the plaintiff was not the proximate result of fault of construction. It is said that one is responsible for only such consequences of his fault as are natural and probable, and that if his fault happens to combine with something extraordinary, and not likely to be foreseen, he will not be responsible for the unexpected result. We think it would be a misapplication of this principle to rule the present case by it. It is apparent that this platform was built with a knowledge that it was likely to be subjected to the strain caused by explosions in the shaft beneath it. It was built as a structure more or less permanent, and the servants of the defendant had the right to assume that it would stand the test to which the ordinary operations of the mine subjected it. Such ordinary operations cannot be treated as constituting an intervening cause.

It is also contended that the court erred in instructing the jury as follows:

“It is claimed by the plaintiff that this platform in question was not strong, thick, and substantial, as it should have been, and that it was not properly nailed or fastened down, and was insufficient and unsafe for such general use as the defendant was putting it to, and was liable to be blown up, disturbed, and loosened by explosions in the drifts below, such as the defendant caused to be made. If you find this to be true, under the evidence in the case, it was negligence in the defendant, and your verdict should be for the plaintiff. ”

It is insisted that the question whether such an accident is one which would have been likely to happen, and should have been anticipated, was by this instruction withdrawn from the jury. It is scarcely necessary to say that the charge should be' construed as a whole. When so construed, we are satisfied that it is not subject to the criticism stated. In other portions of his charge the court covered this point fully:

“In order for the plaintiff to recover in this case, he must establish by a clear preponderance of the evidence that the platform as constructed ivas not such a one as a reasonably prudent mining company would erect under the circumstances, toith reference to the safety of the parties working thereon or passing over the same.
“The mere fact that the planking of the platform in question was disturbed by the firing of blasts tuould not necessarily raise the presumption that the defendant did not exercise reasonable care in the erection thereof. It ivas only one of the circumstances bearing on the question of whether or not it was properly constructed. * * *
“Reasonable care on the part of the defendant would not require it to build a platform which could not be disturbed by blasts fired in the level below, unless experience had shown that such blasts in the drifts in the level below would probably disturb such platform.”

While numerous errors are assigned on .the charge of the court, we think the foregoing discussion and the special findings of the jury sufficient answer to all.

A motion for a new trial was made and overruled, and error is assigned on the ruling. We are satisfied, on a careful examination of the record, that the verdict is not so clearly against the weight of the evidence as to indicate that it was influenced by passion or prejudice, or was not the result of the deliberate and fair judgment of the jury.

Judgment affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    FREY v. EISENHARDT.
    Estates op Decedents — Partnership—Rights op Surviving Partner.
    A surviving partner cannot, by will, confer upon his executor a right to continue the business for any longer period than he himself might lawfully have continued the same, which is limited to such time as is necessary to close out the business without sacrificing it.
    2. Same — Trade Debts — Property Subject to.
    Where an executor or administrator, instead of closing out decedent’s business with reasonable promptness, assumes, with the consent of the iiarties interested, to conduct the same as a going concern forxa series of years, contracting extensive debts and sustaining heavy losses, only the trade assets — i. e., the property employed in the business or resulting from it — can be subjected to the payment of. such debts.
    3. Same — Widow and Children — Allowances Pending Settlement.
    Nor will decedent’s widow and children be compelled in a court of equity, as a condition'to their being allowed an injunction restraining the application of the general assets to the payment of the trade debts, to refund amounts which had been allowed to them for their support out of the funds of the estate when the same was solvent.'
    4. Same — Trade Assets — What Constitute.
    Premises purchased by two brothers in their individual names, with moneys taken from the funds of a brewing business, in which they were copartners, at a time when the firm was entirely solvent, and occupied for years by their families under circumstances indicating that they regarded them as their respective homesteads, will not be held liable as trade assets for the payment of debts contracted by the administrator of the partners, who ran the business to insolvency, although it appears that water for the use of the brewery was iirocured from a pipe running across the property, that empty beer barrels were at times piled upon the lots, and that employés sometimes boarded with the families.

      Cross-appeals from Kent; Grove, J.
    Submitted November 6, 1897.
    Decided March 15, 1898.
    Bill by Caroline B. Frey and others against Jaco,b Eisenhardt and others to enjoin an administrator’s sale. From the decree rendered, complainants and defendants Mary Frey, Mary M. Oswald, and Chrisitan F. Frey appeal.
    Reversed.

      Charles B. Blair, for complainants.

      Crane, Norris & Stevens, for appealing defendants.

      S. Wesselius and Frank W. Nine, for defendant Eisenhardt.

      J. T. Preston and Birney Hoyt, for other defendants.
   Moore, J.

Carl Frey and Christian Frey were partners, doing business at Grand Rapids as brewers, conducting the Coldbrook Brewery, under the name of Frey Bros. Carl Frey died November 12, 1885, leaving a widow and six minor children. Upon his death, John Sehler was appointed his -administrator. Christian Frey continued to conduct the business until his death, which occurred March 12,1886. He left a widow and two minor children. Prior to his death, Christian Frey made a will disposing of his property, and containing this provision:

“I hereby nominate and appoint my brother-in-law, William Burgtorf, executor of this, my last will and testament, to carry out all the provisions of this, my last will, and see that the same is done according to the spirit of the same, and to assist, advise, and assist to manage said property, both real and personal; and if at any time it appears advisable to my said wife and executor to convert my said property, both real and personal, into- money, then they shall act in the premises as to them shall seem to be for the best interest of my said estate; on the other hand, if it shall seem to them best and proper to keep said property and carry on said business, then it shall be their option so to do.”

Burgtorf qualified as executor, and, instead of closing up the business, ran it, in connection with Sehler, administrator of the estate of Carl Frey, until October, 1890, when Jacob Eisenhardt was appointed administrator of both estates. Burgtorf and Sehler, at the time of their resignations, filed with the probate court their final accounts, which were allowed, and they were discharged. It will appear a little later what the condition of the estate was at the commencement and end of Mr. Burgtorf’s ex-ecutorship, and at the commencement of Mr. Eisenhardt’s administration, and at the time of filing his last account. Mr. Eisenhardt, instead of closing out the business at once, continued to conduct it as a brewery business, making large improvements to_ the plant, and incurring many debts.

In December, 1892, the brewery plant was sold at probate sale for 118,000. After this sale, the administrator filed a petition in which he claimed that the indebtedness incurred by him in conducting the business should be paid pro rata out of the fund realized from the sale of the brewery. A contest was made over this claim in the probate court, at which time it was also claimed that the lands belonging to the estate were not liable for debts incurred by the administrator, even though the brewery plant was liable. An arrangement was finally made in August, 1893, between the heirs of Carl Frey and the administrator, that the fund realized from the sale of the brewery might be used to pay debts and expenses of administration, upon condition that the lands now in question' should be exempt from paying any of the outstanding claims. This fund was so used, but the administrator claims that, because the creditors would not consent, he could not carry out the arrangement. In May, 1894, he petitioned the probate court for leave to sell the lands in controversy, to pay the outstanding debts and expenses of administration. The complainants, who were the minor children of Carl Frey, filed this bill to enjoin the court from subjecting the real estate then unsold, which was appraised in the original inventory at less than $6,000, to sale, because of the outstanding debts, and asking that a portion of the property might be found to be the homestead of the widow and heirs of Carl Frey, and another poriion be found to be the homestead of the widow and heirs of Christian Frey, deceased, and that, as to the balance of the real estate, an undivided one-half thereof might be declared to belong to the complainants, because in equity it belonged to them by virtue of the partner’s lien-, which arose on the death of Carl Frey. The widow and heirs of Carl Frey, and the widow and heirs of Christian Frey, have, since the filing of the bill, adjusted their respective rights as between themselves, so that particular feature of the bill is not very important. In the hearing below, it was the judgment of the trial court that the administrator had acted in good faith; that the lands in controversy were partnership lands, and should be subjected to the payment of the outstanding liabilities; and dismissed the bill of complaint. The case comes here by appeal.

The complainants claim as to the estate of Carl Frey that, as there was no will, it was not competent for the administrator to continue the business, but it was his duty to close it out within a reasonable time; and that, if this had been done, the debts would have been paid, and a handsome surplus left to divide among the heirs. It is also claimed that if, because of the provisions of the will of Christian Frey, the administrator was authorized to •continue the business as a going business, any debts incurred would be trade debts, which must be paid out of the trade assets, and that none of the assets outside of the brewery plant could be used to pay the trade debts. They also say that the original debts have been paid, but, if it should be conceded that they have not been, that, because of lapse of time, the real estate cannot now be sold to pay them. The administrator claims that what he did was done in good faith, with the knowledge of the widows and the guardians of the minors, and the approval of the court, and for the purpose of conserving the property; and that the debts made by him and the expenses of administration should be paid , by the property of the estates, even though it takes all of it to pay them. It is the claim of complainants that the estates of Carl Frey and Christian Frey were solvent at the times of the death of the persons constituting the partnership. This is admitted by counsel for the other parties to the litigation. The inventory and appraisal made by Mr. Burgtorf as executor, in April, 1886, shows the assets to be upwards-of $66,000, and the debts to be less than $22,000, leaving a surplus of upwards of $44,000. The inventory and appraisal made by Mr. Eisenhardt, administrator, October 1, 1890, shows the assets to be about $60,000, and the liabilities about $13,000, leaving a surplus of upwards of $47,000. As before stated, Mr. Eisenhardt, instead of closing out the business and converting the assets, made extensive -improvements of the property, and ran it as a going concern. The record discloses the widows knew this was being done, though it is claimed they did not know it was done at a loss. The judge of probate was also consulted from time to time, but no order was ever made extending the time for settling the estates, or authorizing the administrator to conduct the business as a going business. Doubtless this was done with the best of motives, but it was very unfortunate for everybody concerned.

It is urged that, as a result of the administration of Mr. Eisenhardt, a profit was earned to the estate; but a careful analysis of the facts disclosed by the record shows this to be a serious mistake. It has already appeared that, when Mr. Eisenhardt began the management of the estate, it was worth, according to the appraisal, over and above its liabilities, upwards of $47,000. The administrator’s expense account from October 1, J’890, to January T, 1893, in carrying on the business, exceeded the receipts of the business by nearly $10,000. The administrator has sold all the property belonging to the estate when he became administrator, except the real estate involved in this controversy, which was appraised in the original inventory at $5,300, and some accounts and personal property, which he says are worth not more than $750. This real estate has now depreciated in value, so it is now worth, according to the brief for the administrator, $3,850. It is sought by the administrator to have this real estate sold to satisfy debts and expenses of administration which existed January 1, 1893, to the amount of upwards of $8,000. It will be seen by this statement that not only has there been no profit growing out of the administration by Mr. Eisenhardt, but that the surplus of $47,000, less the real estate, now valued at $3,850,. and the small amount of personal property, has disappeared, and that there is an indebtedness of upwards of $8,000 yet unpaid;' so that, after absorbing all of the estate, there would be more than $4,000 of debts remaining. It is true, there has been a large shrinkage in values, but it is also true that the administrator has realized more than enough, out of the sales of real estate, to pay the debts which were in existence when he took possession of the estate.

Carl Frey did not make a will, so that no power was conferred, so far as his estate was concerned, to continue the business. The will of Christian Frey did not direct that the business should be continued, but left it to the discretion of his widow and his brother-in-law, Mr. Burgtorf, to carry on the business; but it did not leave it to the discretion of any one else to do so. The death of Carl Frey dissolved the partnership. The surviving partner had the right to continue the business long enough to close it out, without sacrificing it (Loomis v. Armstrong, 49 Mich. 521; Brown v. Watson, 66 Mich. 225; Van Kleeck v. McCabe, 87 Mich. 602); but he did not have the right to contiriue it for a series of years as a going concern, and he could not confer upon his executor a right he did not possess himself.

When Mr. Eisenhardt took control of the estate, there was, according to his testimony, but $65 in money on hand. There was a large quantity of beer, according to his testimony, some of which was spoiled, and the balance of which was soon spoiled, so it had to be thrown away. He at once, without an order of court, and after the time fixed by sections 5918 and 5919, 2 How. Stat., for the settlement of claims against estates, had expired, began to borrow money to improve the plant, to buy new stock; he expressing his intention to be (after having conferred with the widows and Mr. Blickle, guardian) “to run it as a live business, under the will and authority of Christian Frey and the consent of the guardians and the respective widows, for the joint benefit of both families, so as to enable them to live from the business. These families had no means of support except from the proceeds of these estates, that I know of.” He increased the- debts more than $10,000 the first year, and even more the second year, and continued to run the business as long as he could borrow money to do so. It is said by counsel that his purpose in doing this was to keep the business running until a purchaser could be found, and that, where there is a long-established business, the administrator may continue the business for a time, for the purpose of holding the business, and until a sale can be inade and the business closed; citing Poole v. Munday, 103 Mass. 174; Merritt v. Merritt, 62 Mo. 150; In re Benedict, 13 Abb. N. C. 67; Collinson v. Lister, 20 Beav. 356. They also say it may be done under the terms of a will; citing Packard v. Kingman, 109 Mich. 497. In the' last-named case the testator was careful to provide how the trust might be executed, and for what period of time, and by whom. In deciding what the executors might do in that case, the court was careful to say:

“And while we do not mean to imply that his trustees might enlarge his obligations already existing, by furnishing new and additional financial aid to the corporations mentioned in the bill, we are of the opinion that they might properly, and where it should appear for the best interests of the estate, extend or renew existing obligations of the estate, or borrow money in the usual course of business to meet obligations when due. * * * While we hold that it is within the power of the executors to perform the acts mentioned, and, therefore, that the estate would be bound thereby, we do not overlook the rule that the effect of such contracts is usually to bind the trustee personally, and ■ that the other contracting party must pursue his remedy against the trustee. This doctrine is established by a list of cases, long and generally uniform,” — citing a long list of cases.

In Collinson v. Lister, supra, it was said that “an executor cannot carry on the trade of the testator, except for the mere purpose of winding it up; but the executor may, and in some cases is bound to, complete contracts entered into by his testator, ” — citing a number of instances. In that case it was held that the executor could not charge the estate as he sought to do.

In Re Benedict, supra, the testatrix had conducted a young ladies’ seminary for about 30 years. Eleven weeks of the school year remained at the time of her death. Her executor kept the seminary in operation for the remaining 11 weeks, and until the end of the school year; and it was held that this was right, for he was thus fulfilling the various contracts to which the decedent had made herself a party.

In Merritt v. Merritt, supra, decedent left half of his estate to his widow, who was also his administratrix. The estate included an hotel furnished and in operation, which was held under a lease requiring $1,000 rent to be paid monthly. When her husband died, she could not dispose of the hotel furniture. It was appraised at upwards of $11,000, but could not be sold at auction for more than $8,000. The administratrix decided to continue the business till a more favorable time for selling arrived. She kept the hotel for a little over a year, and sold the furniture for $30,000, $18,000 of which she collected, but the purchasers became bankrupt before the remaining $2,000 was collected. She accounted to the estate for the $18,000, and it was sought to make her lose the $2,000. The court said: “She was only endeavoring to secure, preserve, and take care of the effects till she could advantageously get them off of her hands. It would be inequitable that she should bear all the loss, and the estate reap all the benefits resulting from her skill and care.”

In Poole v. Munday, supra, the intestate died'in 1862, leaving a widow, and a daughter 18 years old, and a son 20 years and 10 months old. There were no creditors interested. The business was that of wholesale and retail butcher. The widow and children requested the administrator to keep the business going until the son became of age, and it was kept going until March 2, 1863, when it was sold to the son. It was held that, under the circumstances of that case, the account of the administrator must be allowed.

It is not believed, however, that a case can be found anywhere which holds that, if the executor or administrator runs the business as a going concern for a series of years, he can charge the estate with the deficiency if the business results in a loss. The true rule is as follows:

“An administrator is not justified in placing or leaving assets in trade, for this is a hazardous use to permit of trust moneys; besides which, trading lies outside the proper scope of administration functions. Under circumstances not clearly imprudent, however, an executor may pursue an authority which was plainly conferred upon him by the will in this respect; though less as an executor, perhaps, than as one specially honored or burdened by his testator’s personal confidence. Chancery protects the executor who can show his testator’s express sanction, but scarcely beyond this, and chiefly so as to keep the hazardous investment under its prudent direction. To employ trust funds in trade on the representative’s own responsibility has always been treated as essentially a breach of trust; and the courts have resisted much pressure to relax the rule. -* * * For the loss of assets placed or left by him in trade, he may be charged as for his imprudence. * * * But as to withdrawing assets from.a partnership, or closing out a business in which the decedent was engaged, a wider discretion must occasionally be conceded. * * * An administrator is not necessarily wanting in due care, so as to be responsible personally, if he suffer the surviving partner to remain in possession of and sell out the joint stock in the usual course of trade. * * * These principles apply to speculative investments of all kinds with the assets. * * * But if assets came to him thus invested by the decedent, it is a question of prudence when and how he shall withdraw the fund; and though he is not justified in continuing the speculation, and involving the estate more deeply, a reasonable latitude of honest discretion should be allowed him as to closing the transaction. * * * Where the business of the decedent is carried on by executors under a will, or hy representatives duly empowered, * * * the representatives incur a personal liability for the debts thereby contracted. They are not absolved from accounting for the property. But they have a right in equity to indemnify themselves for the payment of such debts out of the property lawfully embarked in the trade. Out of this right springs an equitable right of the trade creditors to resort to such fund for payment, if their remedy against the representative be unavailing. * * * Where, on the contrary, the executor or administrator carries on a trade without any authority to do so, and the business proves disastrous, this will not of right involve the decedent’s estate for the debts; but such assets as may be shown to have been wasted in the trade, those interested in the estate have the right to claim. * * * Acts of the representative ultra vires, or in excess of his express power to trade, do not give those dealing with him an equity against the trade assets.” Schouler, Ex’rs, §§ 325, 326; Ward v. Tinkham, 65 Mich. 698.

As already stated, no order of court was obtained authorizing the executor to continue this business. No guardians ad litem were ever appointed for the minor children. What was done cannot be regarded as done with their consent. Their interests in the estates of their fathers, at the time Mr. Eisenhardt became administrator, upon any reasonable basis, would exceed the value of the real estate now left; and we do not think it competent to subject these lands to sale for trade debts.

It is now claimed that payments have been made to the widows and children out of the funds of the estate, and that the estate should be reimbursed for those amounts, or that the widows and minor children should be compelled to do equity before the claim in tbe bill should be sustained. These payments were made by direction of the probate court, and nearly all of them were made before Mr. Eisenhardt became connected with the estate. When the bulk of the payments were made, the estate was solvent, and had funds with which to pay them. The widows and minors were entitled to their support during the progress of the settlement of the estate, and they cannot now be required to repay this money because the administrator has lost money in the management of the estate. Dunlap v. J. P. Donaldson Co., 74 Mich. 290.

This estate affords an illustration of the dangers growing out of continuing estates along without settling them. Here was an estate worth, after paying all its debts, upwards of $40,000. This estate belonged to two widows and eight minor children. Instead of being settled as it should have been, it was managed first by the administrator of one estate and the executor of the other, and then by the administrator of both estates, for the period of eight years. This management resulted in such a way that the estate is all gone, if the expenses of the management and the debts are all paid. I do not question the good faith of the executor and the administrators, but they did what the law does not permit. As already stated, this estate was solvent, and all of its original debts have been paid. The widows are shown to have been consulted about the continuance of the business. The proceeds of sales already made have been distributed, and it is not necessary to discuss here the effect of that distribution. We understand the rule is that where an administrator or executor, instead of closing out a business, continues it, even when authorized by will to do so, the trade debts will reach only the trade assets; that is, the property that was employed in the business or that was the result of doing the business. Laible v. Ferry, 32 N. J. Eq. 791. See, also, Altheimer v. Hunter, 56 Ark. 159; Lucht v. Behrens, 28 Ohio St. 231.

It becomes important, then, to inquire whether the property described in the bill of complaint is part of the trade assets. It is pretty clearly established by the record that when the firm of Frey Bros, was entirely solvent, as early as July, 1873, money was taken from the business of the firm, and a deed was obtained running not to Frey Bros., as partners, but to Christian Frey and Carl Frey; that a year later the family of Christian Frey took possession of this property, and occupied it as a home until the death of Christian Frey, and since his death it has been occupied continuously by his widow and children. It also appears that as early as August, 1878, another piece of property was bought and paid for in the same way, which was at once occupied by the family of the other brother as its home, until his death, and since his death has been occupied by his widow and children as their home; and by direction of these men at one time quitclaim deeds were drawn for the purpose of creating homesteads of these- properties, but for some reason were not signed. The record discloses that, when this property was obtained, it was for the purpose of having one part of it as the home of Carl Frey and his family, and the other part as the home of Christian Frey and his'family, and it has been so treated by all the parties in interest. While it is true, water has been procured from a pipe running across one of these properties, for the use of the brewery, at times, and at times employés of the brewery have boarded in the families occupying these houses, and while at times empty beer barrels have been piled upon one of the lots, neither of the administrators nor the exeputor have regarded these lands as part of the brewery plant; and, when an order was obtained to sell the brewery plant, no effort was made to treat these lands or city lots as part of that plant. We do not think this property can in any sense be called “trade assets.”

On the other hand, the fund arising from the sale of the brewery plant and the personal property was doubtless trade assets, that could be reached by trade debts.

The decree of the court below should be reversed, and one entered here enjoining the defendants from selling the land described in the bill of complaint, and confirming the title therein as now determined between the widows and minor children. Inasmuch as it was necessary to file this bill to decide the rights, of the respective parties to the real estate, costs will not be granted to either party.

The other Justices concurred.


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    PERKINS v. GROBBEN.
    1. Conditional Sale — Reservation oe Title — Retaking Property — Action eor Purchase Price.
    Under a contract for the sale of personal property which provides that title shall remain in the vendor until the full purchase price is paid, and that, in case of the vendee’s default in the payment of either of three purchase-money notes, the vendor may retake the property, in which case all payments previously made shall be deemed to be for the use, wear, and tear of the property up to the time of retaking, and that the commencement of suit upon the notes shall not be deemed a waiver of the right to retake the property, the vendor is entitled, on the vendee’s default, either to retake the property, and treat the payments up to that time as for the wear and tear thereof, or to sue on the notes, and take and retain possession of the property until the judgment is paid; but he cannot retake the property, apply the invoiced price, less a stated per cent, for alleged depreciation, upon the notes, and bring suit for the balance.

    2. Same — Voluntary Payment — Garnishment—Estoppel.
    A payment enforced by garnishee process is not a voluntary payment such as will estop the debtor from asserting that the creditor had previously satisfied his claim by taking possession of- property on a conditional sale of which the claim was based.

      Error to Kent; Grove, J.
    Submitted January 5, 1898.
    Decided March 15, 1898.

      Assumpsit by Willis J. Perkins, doing business as Perkins & Co., against Louis J. Grobben and William Hitchcock, upon promissory notes. Erom a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Wolcott & Ward, for appellant.

      Pratt & Davis, for appellees.

       The rights and liabilities of the vendor and purchaser on default of payment on a conditional sale are considered in an extensive note to Cole v. Hines, (Md.) 32 L. R. A. 455.

   Moore, J.

In 1893 plaintiff received from defendants, andfilled, an order for shingle-mill machinery to the amount of $2,600. Defendants paid thereon $800 in cash, and gave their notes for $300, $700, and $800. These notes all read alike, except the amounts and times of payment. The first one reads as follows:

“$300. No. 1. Grand Rapids, Mich., Aug. 1, 1893.
‘ ‘ J une 15,1894, after date, we promise to pay to the order of Perkins & Co. three hundred dollars, at Old National Bank, Grand Rapids, Mich.; value received; with interest at eight per cent, per annum until due, and thereafter at eight per cent, until paid.
“This note is one of three notes of even date, given for part of purchase price of two Perkins & Co. Michigan Favorite shingle machines. * * * It is expressly agreed that the title and ownership of all said property shall remain in Perkins & Co. until the full purchase price is paid; and, in case of any default in the payment of this or any or either of said notes, all said notes shall, at the option of Perkins & Co., notice of which is hereby waived, become and be at once due and payable, and said property may be taken back by said Perkins & Co., and in such case all payments made, and amounts collected, on this or any of said notes, shall be deemed to be payments for the use, wear, and tear of the said property up to the retaking thereof. It is further expressely agreed that, upon default in the payment of this or any or either of said notes, Perkins & Co. may commence suit upon the same, which shall not be a waiver of Perkins & Co.’s title to said property, and the same may be retaken by them under this note, or any of said notes, upon default thereon, as herein-before provided. It is further agreed that no agreement in regard to said property, made after this date, or new notes, collateral or additional security, taken by Perkins & Co., shall in any way waive, transfer, or release their title to said property, it being expressly agreed that the title to said property shall, under all circumstances, remain in Perkins & Co. till this and all of said notes are canceled, delivered up, or assigned by Perkins & Co. After maturity of any of said notes, Perkins Co. may keep said property insured at makers’ expense, premium of such insurance to be added to this note.
“GROBBEN & HlTCHCOCK,
“Per William Hitchcock.”
Afterwards a chain was returned by consent of the plaintiff. The defendants not paying the notes, the plaintiff took possession of the machinery, and returned it to Grand Rapids. Plaintiff sent a statement to defendants, crediting them with the amount of the machinery taken, at inventory price, less 50 per cent, on account of being depreciated, the statement showing a balance due plaintiff of $1,116, accompanied by a letter reading as follows
“July 9, 1895.
“Grobben & Hitchcock,
“Leland, Mich.
Gentlemen: We have received and unloaded the shingle machinery, and carefully inspected the same, and inclose you herewith credit memorandum for the valuation we have placed on same. We also hand you herewith a statement of your account with us to date, after crediting you with the machinery received, as per inclosed credit memorandum. We ask you what is your pleasure in regard to the settlement for balance due ? Owing to the ill treatment that we have received at your hands in regard to settlement of your account with us, we do not feel that you are entitled to any extended courtesies in regard to the payment of this balance. We should therefore be pleased to hear from you regarding same by return mail, awaiting the favor of which we remain,
“Very respectfully yours, “Perkins & Co., “Per Everhart.”

Some statement is made in the brief of counsel as to what became of the machinery after it passed into the possession of plaintiff, but we are unable to find from the record what became of it. The defendants paid no attention to the letter of July 9, 1895. In August, 1896, this suit was begun by plaintiff, who declared upon all the common counts in assumpsit, with notice that under the money counts he would give in evidence the three notes in question. After the testimony was all in, the court directed a verdict in favor of the defendants, assigning as a reason that the exercise of the option to take the property was a satisfaction of the debt, the judge expressing himself as follows:

“But the simple question to be determined now is whether or not the plaintiffs, having pursued one remedy, namely, by taking the property, resuming possession of it under their title, have waived all claims to enforce the notes. That is the sole question that is to be determined now. I think it is proper to consider the other question in the same connection as bearing upon what should be the true interpretation of the contract. Then the contract further provides that: ‘ Upon default in the payment of this or any or either of said notes, Perkins & Co. may commence suit upon the same, which shall not be a waiver of Perkins & Co.’s title to said property, and same may be retaken by them under this note, or any of said notes, upon default thereon, as hereinbefore provided.’ Now, there is a stipulation that the plaintiffs may commence suit upon these notes, and not thereby waive their right to resume possession under their title. But the converse of that proposition is not stated. It is not provided that they may take the property, and that shall not be any waiver of their right to sue and collect upon these notes. Now, is there not an implied waiver by virtue of the provision that is contained in it that covers the agreement in relation to the title to the property and the remedies under the contract? Now, the plaintiffs have taken possession of this property under a contract of this nature, which provides expressly that the title remains in them, and that they may take possession on default, and that all payments previously made shall be applied as compensation for the use, wear, and tear. Is it not a proper inference, and is it not a proper conclusion of law, to say that when they exercise that right under that contract to take the property, and apply what has been paid in that way, it determines the whole matter ?
“The law does not favor the enforcement of two remedies. The law recognizes the right of a party to secure his claim by as many securities as he can get'; but it does not recognize his right to enforce more than one to complete satisfaction. I think the true interpretation of this contract is that the parties reserved the right to commence a suit, and provided that it should not be a waiver of their right to take the property, but they did not reserve any right to sue and collect upon these notes after repossessing themselves of the property. And to allow that to be done would be to allow them to take the property, which the law conclusively presumes, under their contract, was full payment, I think, of any bal anee that might be due after such time as the plaintiffs might see fit to make the application of prior payments for the use, wear, and tear of the property. Here they had a contract that might have been enforced five months before, and applied the payment on the wear and tear and use of the property. They saw fit to let it run five months, and then, when they took the property, that application is made. ‘Up to the time of the retaking ’ is the language of the contract. Then, by the very terms of the contract, the money paid prior to the retaking went to the plaintiffs as compensation for the use, wear, and tear of the property. They selected the time of taking it. They might have taken it earlier, and the fact that they took it so much later I think is quite conclusive that they deemed that the prior payments were adequate for the use, wear, and tear of the property up to that time, and that the property at that time was of sufficient value to pay the balance of the claim.”

The case is brought here by writ of error.

Some controversy arose about the question of estoppel because of a payment' of $60 claimed to have been made by defendants after the letter of July 9, 1895. That payment resulted from a garnishee process. The circuit judge was of the opinion that it was not a voluntary payment by defendants, and did not affect the other questions in the case. We think he was right, and shall not discuss that feature of the case further.

It is the contention of the plaintiff that, notwithstanding •he has received back the machinery after it had been used about 60 days, which was billed at $2,600, and has received a payment of $800, he is still entitled to a judgment for the face of the notes and interest, and he urges that this would not be unjust, because the parties have so agreed, and they must be presumed to know the effect of their agreement; and it is also said:

“That the proper construction of the contract is that, under such circumstances, plaintiff cannot lawfully retain the property on being tendered his money, and that, therefore, the mere retaking of the property cannot be treated (as was done by the trial court) as'an application of all prior payments towards the use, wear, and tear, etc., of the machinery, and as an election of remedies so as to prevent his maintaining an action on the notes.”

This was not the construction put upon the contract by the plaintiff when he'credited the defendants with the inventory price of the machinery taken back, less 50 per cent, for depreciation, and wrote them July 9, 1895:

“We also hand you herewith a statement of your account with us to date, after crediting you with the machinery received, as per inclosed credit memorandum. We ask you what is your pleasure in regard to the settlement for balance due? Owing to the ill treatment we have received at your hands in regard to the settlement of your account with us, we do not feel that you are entitled to any extended courtesies in regard to the payment of this balance.”

There was nothing in this letter indicating that plaintiff recognized any obligation to return the property upon a tender of the amount due upon the notes, or that he was holding it for the purpose of enforcing the lien he had upon it for the amount of his debt.

Does the law give the contract any such construction as is now claimed by counsel ? Counsel do not call our attention to any cases directly in point, but cite Hays v. Jordan, 85 Ga. 741; Preston v. Whitney, 23 Mich. 260; Johnston v. Whittemore, 27 Mich. 463; New Home Sewing Machine Co. v. Bothane, 70 Mich. 443; Thirlby v. Rainbow, 93 Mich. 164; White v. Solomon, 164 Mass. 516 (30 L. R. A. 537); and other cases, — claiming that the reasoning employed by the court tends to support their contention. So far as these cases are in point at all, we think they are against the position of the plaintiff. In the last-named case Chief Justice Field wrote an opinion, which was joined in by two of the other judges, in which he said:

, “The contract, I think, is, in effect, a contract for a conditional sale, and. the intention is that the title shall not vest in the defendant until the price is paid. If the price is not paid according to the terms of the contract, the plaintiffs are authorized to retake the manikin without being accountable to the defendant for any of the money paid by him on account of the price. If the plaintiffs exercise this right of retaking the manikin into their possession because the price is not paid, they have both the title and the possession, because they have never parted with the title. What, then, is the rule of damages under such a conditional contract of sale, when the vendee refuses to receive the article, and it is returned to and retained by the vendor ? I think that the construction to be given to the contract is that, if the defendant does not pay the price according to the contract, the plaintiffs may retake the manikin from the possession of the defendant, and retain what he has paid on account of the price, or they may leave the manikin in the possession of the defendant, and sue him for the installments of the price which remain unpaid; but the plaintiffs cannot collect the whole price, and also retake the manikin. They cannot hold the title to the property, and also recover the price of it.”

It is not agreed in the contract that, if the property is retaken, and the payments made up to that time are treated as payments for the use, wear, and tear of the said property, that the vendor may also sue for the amount due on the,notes. After the vendor has taken possession of the property, the contract does not give the vendees any further interest in it. The character of the contract, and the results which may be worked out under it, are not such as to make it desirable to read into it provisions it does not contain. The pontract provides for two ways of enforcing it. The plaintiff might sue on the note, and retain the property until the judgment was paid, ' or might retake the property, and treat the payments up to that time made as payments for the use, wear, and'tear of the machinery, but he cannot do both. The plaintiff has taken possession of the property as the owner thereof. What have the defendants had as the consideration of the note ? They acquired no title or interest in the property, and could not until they paid the notes. They could not call the plaintiff to account for a disposition of the property, if he has made any, because they had no interest whatever in it, having made default in the payment of the notes, the vendor having exercised his right, under the contract, to take possession. The defendants have simply had for the notes the use of the property, and for that use they have paid the $800, which the contract gives the vendor the right to so apply. The vendor is not entitled to the title and possession of the property, and to be paid for it also. Seanor v. McLaughlin, 165 Pa. St. 150; Bailey v. Hervey, 135 Mass. 172; Earle v. Robinson, (Sup.) 36 N. Y. Supp. 178; Campbell, etc., Manfg. Co. v. Hickok, 140 Pa. St. 290; Scott v. Hough, 151 Pa. St. 630; Hine v. Roberts, 48 Conn. 267; Green v. Sinker, Davis & Co., 135 Ind. 434. See, also, Vaughn v. McFadyen, 110 Mich. 234.

Judgment is affirmed.

The other Justices concurred.


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    ROBINSON v. FINCH.
    1. Wills — Construction—Absolute Grant — Subsequent Limitation.
    A devise which, standing alone, would confer an estate in fee, may be modified by a subsequent provision of the will which discloses an intent to limit the estate granted.
    S. Same.
    Thus, a devise absolute in form to A. is effectually limited by a subsequent provision that, in the event of A.’s death without wife or children, such of the estate as should not have been used by A. should go to B.
    3. Same — Omission of Words of Inheritanoe.
    In such a case, upon the death of A. without wife or children, the heirs of B., who had died in the meantime, became entitled to the property, to the exclusion of the heirs of A.; the omission of the word “heirs” in the devise to B. not operating to defeat the manifest intention of the testator to grant an estate of inheritance.
    Appeal from Van Burén; Buck, J.
    Submitted January 5, 1898.
    Decided March 15, 1898.
    Bill by Elizabeth Robinson, for herself and in behalf of others similarly entitled, against Mary Finch, for a construction of the will of Jane North, deceased. From a decree for defendant, complainant appeals.
    Reversed.

      T. J. Cavanaugh, for complainant.

      William N. Cook and Osborn, Mills & Master, for defendant.
   Moore, J.

This case involves the construction of a will reading as follows:

“I, Jane North, of South Haven, Van Burén county, Michigan, do make, publish, and declare this, my last will and testament, in manner following:
“First. All my debts existing at the time of my decease, my funeral expenses, and the cost of executing this, my last will and testament, and all other expenses necessarily incurred in the settlement of my estate, are to be paid out of the proceeds of a certain note-and mortgage given by Anne Reynolds to me, dated June 13, 1879, for two hundred dollars, and out of any other personal property I may die possessed of.'
“Second. After the payment of my just debts and expenses as expressed in the first paragraph herein, I give, devise, and bequeath all the rest, residue, and remainder of my estate, both real and personal, to' my grandson, Thomas Weldon.
“Third. In case my said grandson, Thomas Weldon, shall die leaving no wife and children, then it is my desire that the property herein bequeathed to my grandson, Thomas Weldon, and not used by him or for his education and benefit, shall, after the decease' of my said grandson (in case he shall die leaving no wife and children), be disposed of as follows: To Jane McGinnis, my niece and daughter of my sister Mary McGinnis, the sum of one hundred and fifty dollars, and the remainder of my estate I will to go to Thomas Robinson, son of my sister Betty Robinson, in the county Meath, in town Betooth, Ireland.
“Fourth. I hereby appoint Samuel P. Wilson, of South Haven, Van Burén county, Michigan, the trustee to take full charge and control of the property herein bequeathed to my said grandson, Thomas Weldon, until my said grandson shall become twenty-one years of age.”

Thomas Robinson was dead when this proceeding was begun. The bill was filed by his daughter in her own behalf, and on behalf of her brothers and sisters, and her mother, the widow of Thomas Robinson, and on behalf of Jane McGinnis, named in the will. Thomas Weldon, previous to the commencement of the suit, died, leaving no wife or children, without having disposed of the property mentioned in the will. It is claimed by the defendant that the second clause of the will conveys the title in fee to Thomas Weldon, and it now belongs to the mother of Thomas Weldon, Mary Finch, the defendant, and the judge so found in the court below, from which decree complainant appeals.

It is the contention of the complainant that the meaning of the testatrix must be gathered from reading all of the instrument, and that, when this is done, the title of Thomas Weldon is a defeasible one, and .upon his death the property must be disposed of according to the third paragraph of the will. The first thing to determine is, What was the intention of the testatrix, as expressed in the instrument, taking it in its entirety, giving to the words used the meaning which it is evident the testatrix gave to them? for it is the cardinal principle of interpretation of wills to carry out the intention of the testator, if it is lawful and can be discovered. Bailey v. Bailey, 25 Mich. 185; Eyer v. Beck, 70 Mich. 181; Glover v. Reid, 80 Mich. 233; Schehr v. Look, 84 Mich. 263; Cousino v. Cousino, 86 Mich. 323; Jones v. Deming, 91 Mich. 481. If the construction given to the will by the defendant and the circuit judge is to prevail, it has the effect of expunging the provisions of the third paragraph of the will. If, however, the will is read as an entirety, it undoubtedly means that the testatrix intended, after payment of her debts and expenses, to give all the rest of her estate to Thomas Weldon, subject to the limitation that,-if he died unmarried or without issue, such of the property as he had not used was given, $150 to Jane McGinnis, and the remainder to Thomas Robinson.

Counsel for defendant contend:

“It is the settled rule that when an interest is given or an estate. conveyed by one clause of an instrument, in clear and decisive terms, such interest or estate cannot be taken away or cut down by raising a doubt upon the extent, meaning, and application of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive- as the words of the clause giving that interest or estate;” citing a good many cases in support of this proposition.

We think, however, the true rule is as stated by Chief Justice Marshall in Smith v. Bell, 6 Pet. 68, where the will disclosed a bequest to the wife which, standing alone, would give the estate to her absolutely, but other words in the will indicated that the testator intended to place limitations upon the legacy, to the wife. The opinion reads:

“It must be admitted that words could not have been employed which would be better fitted to give the whole personal estate absolutely to the wife, or which would more clearly express that intention. But the testator proceeds : ‘ The remainder of said estate, after her decease, to be for the use of the said Jesse Goodwin.’ These words give the remainder of the estate, after his wife’s decease, to the son, with as much clearness as the preceding words give the whole estate to his wife. They manifest the intention of the testator to make a future provision for his son as clearly as the first part of the bequest manifests his intention to make an immediate provision for his wife. If the first bequest is to take effect according to the obvious import of the words taken alone, the last is expunged from the will. The operation of the whole clause will be precisely the same as if the last member of the sentence were stricken out; yet both clauses are equally the words of the testator, are equally binding, and equally claim the attention of those who may construe the will. We are no more at liberty to disregard the last member of the sentence than the first. No rule is better settled than that the whole will is to be taken together, and is to be so construed as to give effect, if it be possible, to the whole. Either the last member of the sentence must be totally rejected, or it must influence the construction of the first so as to restrain the natural meaning of its words; either the bequest to the son must be stricken out, or it must limit the bequest to the wife, and confine it to her life. The limitation in remainder shows that, in the opinion of the testator, the previous words had given only an estate for life. This was the sense in which he used them.”

In Hamlin v. United States Express Co., 107 Ill. 443, it is said: “The latter part of the will is to be considered no less than the former part, and, to the extent there is repugnance, the language of the former part is to be read as modified by that of the latter part.” See, also, Barnes v. Marshall, 102 Mich. 248; Gadd v. Stoner, 113 Mich. 689.

It is urged that Jane North did not evince an intention to will any portion of her estate to the heirs at law of Thomas Robinson. It is true, the word “heirs” was not used in the third bequest, but it is also true the word was not used in the second bequest, and the same reasoning would lead to the conclusion that the testatrix did not intend to will any portion of her estate to the heirs at law of Thomas Weldon. A more liberal rule prevails in construing wills than in construing deeds. The language used in the second paragraph of the will, if standing alone, would doubtless convey an estate in inheritance; but, as we have already seen, the instrument, read as an entirety, indicates that limitations were put upon the estate conveyed to Thomas Weldon. It also indicates that, in case Thomas Weldon died without a wife or children, it was intended by the testator to convey, by paragraph 3, an estate of inheritance.

The decree is reversed, with costs of this court, and a decree may be entered in accordance with the prayer of the bill.

The other Justices concurred.


author: Grant, C. J.

text:
    FLANAGAN v. FLANAGAN.
    Divorce — Allegation of Marriage — Sufficiency—Award of Alimony.
    A bill for divorce, alleging that complainant and defendant lived together as husband and wife until defendant deserted and abandoned complainant, and that, some years before such desertion, defendant informed complainant that he had a former wife living, but had obtained a decree of divorce from her, of which he showed a copy, and that, after consultation, they deemed it unnecessary to have another marriage ceremony performed, and continued to live together as husband and wife until the husband’s desertion, — does not show the nonexistence of the marital relation, so as to render illegal a commitment for failure to comply with an order for temporary alimony based thereon.

      Certiorari to St. Clair; Vance, J.
    Submitted January 6, 1898.
    Decided March 15, 1898.
    Bill by Charlotte Flanagan against Howard Flanagan for a divorce. Defendant was adjudged guilty of contempt in refusing to comply with an order for temporary alimony, and was committed to the county jail until such alimony should be paid. He brings certiorari.

    Affirmed.
    Charlotte Flanagan filed a bill for divorce from defendant December 16, 1896, in which she alleged that she was married to him September 22, 1885; that they lived together as husband and wife until December 3, 1896, when he deserted and abandoned her; that October 16, 1893, defendant informed her that he had a former wife living, but that he had obtained a decree of divorce from her, and showed complainant a copy of it; that this was the first knowledge she had that he had been married before; that, after consultation, they deemed it unnecessary to have another marriage ceremony performed, as it would subject both to suspicion, ridicule, and disgrace; that defendant informed her that such ceremony would be unnecessary; that they continued to live together as husband and wife till the date above mentioned, when he went through a ceremony of marriage with another woman; that he now claims that complainant is not his lawful wife; that he is seeking to drive her from the home where she lives, and gain possession for himself; that he has neglected and refused to support her, and has cruelly treated her. . The bill describes the real estate owned by him, prays for a divorce, and that he be enjoined from interfering with her possession, and from incumbering or disposing of his property. An injunction was issued. December 24th she presented a petition for alimony. Due notice of its presentation was given, and on the hearing an order was made granting alimony. Before this hearing defendant filed an answer, in which he denies his. marriage to complainant ; admits his living with her, but alleges that their relations were unlawful; that she knew he had a wife living ; admits his marriage with another woman, and asserts that she is his lawful wife. Upon his refusal to comply with the order for alimony, proceedings were taken against him for contempt. He was found guilty, and committed to jail. These proceedings are before this court for review.

      O’Brien J. Atkinson and W. E. Leonard, for appellant.

      Avery Bros. & Walsh (Sparling, Law & Moore, of counsel), for complainant.
   Grant, C. J.

(after stating the facts). Counsel for defendant claim that the bill itself shows that complainant is not his lawful wife, and insist that the case is within Clancy v. Clancy, 66 Mich. 202, Rose v. Rose, 67 Mich. 619, and Van Dusan v. Van Dusan, 97 Mich. 70.

In Clancy v. Clancy the relation of the parties was evidenced by a written agreement, which the court held not to constitute a marriage, but only a state of concubinage. In Rose v. Rose the bill did not aver a marriage, or that defendant ever promised to recognize complainant as his wife. Their relation was an unlawful one. In Van Dusan v. Van Dusan a marriage was alleged in the bill, but upon the proofs the court found that there was none. Mr. Van Dusan was married when complainant and he entered into their unlawful relations. He after-wards obtained a divorce from his wife, and it was held that the parties did not, after that, change their unlawful relations.

In the present case, complainant alleges that she and defendant did change their relation after he had informed her of his former marriage and his divorce, and recognized the marriage ceremony which had been performed as binding upon them. We are not prepared to say that under these allegations the marital relation did not exist. Proofs are necessary to determine what the relation of the parties actually was, and this was the course pursued in two of the cases above cited.

The order of the court below is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    BAXTER v. DETROIT RAILWAY.
    1. Trial — Remarks of Counsel.
    A judgment for a railroad company in an action to recover for personal injuries will not be reversed because counsel for defendant said to the jury in his argument that they had evidently learned that damage suits for personal injuries had developed into quite a business.
    2. Same.
    A judgment for defendant will not be reversed because the trial court allowed counsel for defendant in his argument to the jury to comment on the fact that counsel for iilaintiff had objected to the admission of a writing signed by one of plaintiff’s witnesses.
    Error to Wayne; Frazer, J.
    Submitted January 6, 1898.
    Decided March 15, 1898.
    Case by. Lillie Baxter against the Detroit Railway for personal injuries. ' From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Ralph Phelps, Jr. (William B. Jackson, of counsel), for appellant.

      Thomas T. Leete, Jr., for appellee.
   Hooker, J.

The plaintiff’s action was brought to recover for personal injuries received when alighting from the defendant’s street car. Testimony was adduced upon her behalf tending to prove that, after the car had stopped, she attempted to alight, when the car was started with a sudden jerk, and she was thrown upon the pavement and injured. Upon the part of the defense, witnesses testified that she attempted to alight before the car stopped, and in disregard of a warning given to her at the time by the conductor “not to get off until the car stopped.” The questions of negligence and contributory negligence were left to the jury, who returned a verdict for the defendant; hence, it is unnecessary to discuss those points which involve only questions pertaining to the méasure and amount of damages recoverable.

Upon the argument, counsel for the defendant made use of the following language:

“Mr. Leete: During your experience, gentlemen of the jury, on this panel, for two or three weeks, you have evidently learned that the damage suits for personal injuries has developed into quite a business. '
“Mr. Jackson: I object to that statement as entirely immaterial and incompetent, and I ask an exception.
“The Court: Note an exception.
“Mr. Leete: As I said a moment ago, and I will repeat it now, — I don’t think it needs to be called to your attention very prominently, — -you have already learned, from your experience in the court-room, that the pressing of damage suits has become quite a business. It was only a few days ago, I think, that if we made the rounds of the court-rooms, we would have found four or five cases of the same kind. (Objected to by plaintiff’s counsel.)
“The Court: That is not proper. (Plaintiff’s counsel excepts to the remark of defendant’s counsel.)”

The court ruled the second statement out as improper. "We see nothing in the former that would be likely to prejudice the plaintiff. The most that it can be construed to mean is that these cases should be scrutinized carefully by reason of their character. Had he said this in terms, which we are of the opinion would have been the better way, no objection would have been made.

“Mr. Leete: A written statement was made in Mr. Saxton’s own parlor as to how this matter happened, and that statement was not satisfactory to him, and it was interlined, and he wrote it in, and this gentleman said he remembered that statement; these interlineations being made. We could not get that statement in evidence because the other side objected to it.”

On cross-examination of this witness, it had appeared that, soon after the accident, he made a written statement of the circumstances, and afterwards some changes were made at the request of the witness. He was asked why the words, “And I myself' thought the car had stopped, until I saw the lady had fallen,” were put in. On the trial he had testified that the car had stopped before she attempted to alight. This paper was offered in evidence, but was objected to. The witness admitted the making of the paper, and this interlineation, and the plaintiff’s counsel did object to the introduction of the writing.

It is said that counsel had no right to comment on a paper not in evidence. We do not understand that he did so. What he did was to comment on the fact that counsel for the plaintiff objected to the admission of a writing signed by one of the plaintiff’s witnesses. We think there was little force in the comment, inasmuch as the identity of the paper was not established, and it was therefore properly excluded. The learned circuit judge refused to allow comment beyond the bare mention of the fact that a statement was made. We have repeatedly said that these matters can usually be safely left to the discretion of the trial judge, and the rule is applicable here.

Error is assigned upon the refusal of the eighth and ninth requests to charge upon the part of the plaintiff. We think they were sufficiently covered by the general charge.

The judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    CULVER v. NESTER.
    1. Attorney and Client — Agent for Sale — Commissions from Purchaser — Good Faith.
    Where an attorney who had been employed to bring about a judicial sale of his clients’ property, the title to which was in dispute, with their knowledge and consent executed a contract with a prospective purchaser whereby he was to receive from the latter, in case he should be the successful bidder at a stated amount, a commission upon the purchase price, such commission being in lieu of direct compensation from the clients, the agreement was not invalid as violating the clients’ interests.
    2. Contracts — Construction.
    Defendant agreed to bid up to 84 per M. for timber of which plaintiff, an attorney, undertook to procure a judicial sale, and to pay to plaintiff, if such bid should be accepted, a commission of 81 per M. Defendant further agreed that, “ at the option of the second party,” he would bid any sum named by ■ him less than 85 per M., and pay as commissions the difference between the sum so bid and 85 per M. Held, that the defendant was not liable to pay the full commission of 81 per M. upon timber bid in by him at a pricé exceeding 81 per M., although the hid accepted was not made at plaintiff’s suggestion.
    3. Same — Judicial Sale — Prevention of Competition — Public Policy.
    There was nothing in such contract which contravened public policy, as it had no tendency to prevent free competition at the sale, but merely imposed an obligation upon defendant to bid up to a certain amount, leaving it optional with him to bid as much more as competition should make necessary without incurring any penalty under the contract.
    4. Same — Report of Arbitrator — Conclusiveness.
    An estimate of the quantity of standing timber, made by the arbitrator named in a contract looking to its purchase, is not conclusive, where there was no such separation of varieties as the contract contemplated, and one of the parties had no part in directing the estimate, and it was not reported to him.

      5. Appeal--Damages.
    A party cannot complain that the method of computing damages adopted by the court resulted in an inadequate award, where such method was the only one open upon the testimony because of the failure of such party to introduce the necessary proofs.
    Error to Baraga; Haire, J., presiding.
    Submitted January 6, 1898.
    Decided March 15, 1898.

      Assumpsit by Rush Culver against Frank P. Nester to recover commissions on a sale of timber to defendant. From a judgment for plaintiff for less than the amount claimed, both parties bring error.
    Affirmed.

      C. F. Button (Kingsley & Kleinhans, of counsel), for plaintiff.

      T. E. Tarsney and W. G. Fitzpatrick, for defendant.
   Montgomery, J.

In March,' 1896, a controversy as to the ownership of certain timber lands in the Upper Peninsula existed. Several parties claimed homestead rights in the lands, and the Michigan Land & Iron Company claimed title thereto. These lands had been, burned over, and the timber thereon, consisting mainly of white pine, was in danger of being ruined if not cut. Plaintiff was the attorney for the homesteaders, and with their assent he made a contract with the defendant. By the terms of this contract, plaintiff undertook to use his best endeavors to cause proceedings to be commenced, and to employ and pay counsel; such proceedings having the purpose of conserving the timber, and causing a sale of it to be made. The agreement then proceeds as follows:

“Now, therefore, this agreement witnesseth: That, in consideration of the premises, the party of. the first part agrees to bid for all the said timber, up to the amount of four dollars ($4.00) per thousand feet, boai’d measure, that shall be ordered sold by the court in such legal proceedings, payment to be made therefor in cash at the time and times when said timber shall be cut and scaled, as ordered by the court. And if the bid of said first party be accepted, and he shall become the purchaser of said timber at such sale, either directly or indirectly, and as such entitled to enter without delay, and cut and remove said timber, and have said pine timber, then the party of the first part hereby agrees to pay to the party of the second part, or his order, a commission of one dollar ($1.00) per thousand feet, board measure, on all the white pine timber which the said first party shall so purchase, up to fifteen million (15,000,000) feet, board measure, provided that a legal title to said timber be acquired on such purchase. If said timber purchased hereunder exceed in quantity fifteen million feet, board measure, the sum of fifteen thousand dollars ($15,000.00) commissions, and no more,, shall be paid said second party by said first party.
“ It is agreed that Ed. Dorgan shall estimate said timber as it stands, or, in the event of his refusal or inability to act, then Henry St. Arnold shall act as alternate; and it shall be the duty of the estimator to estimate the quantity of all the timber sold under the order of the court up to at least fifteen million (15,000,000) feet, board measure, which estimate shall be made as soon as the court approves the bid of said first party and confirms the sale. In case he is the successful bidder, and acquires title, said estimate shall be the basis on which said commission shall be paid, and on the completion of said estimate such commission shall be due and payable at the First National Bank of Marquette, Michigan, as follows.: One thousand dollars ($1,000.00) in cash, and the balance within six months thereafter, without interest.
“It is also agreed by said first party that he will bid a reasonable figure for the Norway pine that may be sold by the court on said lands, in connection with said white pine timber. It is also further agreed by said first party that, at the option of said second party, he will bid any sum named by him less than five dollars ($5.00) per thousand feet for said white pine, and his commission shall be the difference between said sum and five dollars ($5.00) per thousand feet for said timber. No commission to be paid on Norway pine timber.”

Such proceedings were later instituted, and resulted in a sale of the timber. Defendant became the purchaser of a portion of the same, and, on his refusal to pay any commission to the plaintiff, this action was brought. The plaintiff recovered a verdict of $186.50, and both parties bring error.

It is contended by defendant’s counsel that the contract was void, on the grounds of public policy: (1) That it was calculated to restrain free competition in bidding; and. (2) because plaintiff placed himself by the contract in a position where his interests conflicted with those of his clients. It is conceded by counsel for plaintiff that any agreement entered into for the purpose of preventing free competition at a public sale is absolutely void, but it is contended that the agreement in question had no such necessary tendency. ' On the other hand, it is contended that, if the contract be given .the construction contended for by plaintiff’s counsel, it gave the plaintiff a power over defendant’s bid inconsistent with free bidding. There would be some plausibility to this contention if the construction of the contract contended for by plaintiff be adopted; but, if the contract be construed as imposing an obligation upon the defendant to bid up to four dollars, and leaving him at liberty to bid as much more as the competition of the other bidders should m&ke necessary without incurring any penalty under the contract, we think the agreement was valid, as it did not discourage bidding. Wicker v. Hoppock, 6 Wall. 97. In the view we take of the case, it is unnecessary to decide as to the validity of such a contract as plaintiff’s counsel contend this should be construed to be, as we do not adopt their construction, as will be shown later on.

We do not think the contract void on the second ground stated. It appears that certain services were necessary to be rendered in order to induce the bringing about of a sale, and the clients of plaintiff understood, if they did not request, the agreement entered into. Apparently they preferred that this provision should be made for compensating plaintiff, rather than that they should undertake the payment direct for his services.

This brings us to a consideration of the contention of the plaintiff, which is that the contract between the parties should be construed as providing a commission to plaintiff ■of $1 per 1,000 on all white pine purchased, whatever the price paid, except in the event that plaintiff should reqtfest the defendant to bid in excess of $4 per 1,000, and up to $5, in which case the commission to plaintiff was to be correspondingly reduced, but that, if defendant saw fit to bid a price in excess of $4 on his own motion, the plaintiff became entitled to his own commission. We think this is not the correct construction of this agreement, ■and that the circuit judge correctly interpreted it. The amount of the bid is referred to in two places. In the first, Nester agrees to bid up to the amount of $4 per 1,000, and it is provided that, if the bid of the first party be accepted, and he become the purchaser, directly or indirectly, then the party of the first part agrees to pay to the party of the second part a commission of $1- per 1,000. What bid is here referred to? Evidently, a bid not exceeding $4 per 1,000. No other bid is mentioned, and, so far as this clause indicates, the parties did not have in mind the contingency for a higher bid. By the subsequent provision it is agreed by said first party that, at the option of said second party, he will bid any sum mentioned by him less than $5 per 1,000, and said second party’s commission will be the difference between said sum and $5 per 1,000. The purpose of this provision was, doubtless, to give to plaintiff the power to set defendant in motion, and require him to bid up to $5 per 1,000, and to provide what the commission should be in case of a bid in excess of $4. No other provision had been made for any such bid.

Two other questions remain to be noticed. Defendant’s counsel claim that an estimate made by Ed. Dorgan should be treated as conclusive, as he was named as arbitrator in the contract. It appears, however, that the estimate included white pine and Norway, and that they were not separately estimated; that Mr. Culver had no part in directing this estimate, nor was it reported to him. Under these circumstances, we think this estimate was not conclusive.

The circuit judge directed the jury that, in ascertaining the price per thousand bid, the gross price should be divided by the number of thousand feet of white pine, tinder this instruction no allowance was made for the 100,000 feet of Norway. This instruction was inaccurate, and would constitute error if the record disclosed that the plaintiff had furnished any basis on which to estimate the value of the Norway; but the record is silent on this point.

The judgment will stand affirmed. Neither party will recover costs in this court.

The other Justices concurred.