text:
    NERNST LAMP CO. v. CONRAD.
    Corporations — Foreign Corporations — Interstate Commerce-Statutes — Right to Transact Business — License.
    Without having obtained a statutory license to transact business in Michigan, a foreign corporation was not entitled to recover for electric lamps and lighting supplies sold to defendant under a contract providing that the seller should correct defects of labor and material, furnish solicitors to aid in selling the goods, and supply the merchandise ordered by defendant, where plaintiff maintained a sales manager and a branch office in this State, and the purchaser agreed to furnish current for the lamps, do necessary wiring and maintain the lamps free of charge; and such contract did not constitute interstate commerce within the exception of Act No. 310, Pub. Acts 1907.
    Case-made from Livingston; Miner, J.
    Submitted April 4, 1911.
    (Docket No. 10.)
    Decided May 8, 1911.
    Assumpsit by the Nernst Lamp Company against Carl C. Conrad on open account. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on case-made.
    Affirmed.

      Shields & Shields, for appellant.

      Louis E. Howlett, for appellee.
    The plaintiff is a foreign corporation, with a manufacturing plant in Pittsburg, Pa. It had never been admitted to do business in the State of Michigan prior to March 3, 1910, when it filed a certified copy of its articles of incorporation, its certificate of appointment of an agent in this State to accept service of process, and a sworn statement of two of its officers. On the 16th of March, 1908, it was in the hands of receivers, appointed, we assume, by the circuit court of the United States for the western district of Pennsylvania. It appears that the defendant was doing business in Brighton, in the State of Michigan, under the name of Brighton Electric Light & Power Company, and that he proposed to install in Brighton a system of electric lighting which should use as a fixture the Nernst lamp, a patented article, the manufacture and sale of which was controlled by the plaintiff. The receivers, in their own names, with words descriptive of their character, and the defendant made a contract in writing, dated March 16, 1908, by the terms of which the Nernst Lamp Company was to sell to the defendant Nernst lamps and renewal parts at certain prices, retaining title to all apparatus and property sold until all payments therefor had been made.
    The preamble to this contract reads, in part, as follows:
    “Whereas, the company [meaning the Nernst Lamp Company] is engaged in the manufacture of and sale of the Nernst lamp and its accessories, and has established a district sales office for the sale and maintenance of Nernst lamps, within the district in which, said central station [the defendant] is operating; and whereas, in the furtherance of its business in said district, the company is desirous of introducing its products for use upon the circuits of the central station, and. the central station is desirous of undertaking the introduction of the same upon its circuits at Brighton, Mich.”
    Some of the terms of the contract are here set out:

      “The company agrees, at its own expense, to correct any defects of labor or material which may develop under normal conditions and proper use, provided the central station gives written notice of such defects within thirty (30) days after installation; but no goods are to be returned to the company to be repaired at the company’s expense, or to be replaced with other stock, or to be credited to the central station’s account, until the company shall have had a reasonable opportunity of inspecting the same and permission for such return has been issued either from the Pittsburg office or from the office of the district sales manager.”
    “Thecentral station agrees: (a) To employ competent help to supervise the installation and maintenance of all Nernst lamps installed, and to install and maintain the same in accordance with the system set forth in the company’s bulletin No. a 1 ( a copy of which is hereto attached, and made a part of this contract and marked ‘ Exhibit A’). ( b) To maintain a voltage regulation within five (5) per cent, above or below normal on the circuit or circuits upon which the Nernst lamps are operated, (c) To not furnish Nernst lamps or material to other than parties connected with and using current upon the system owned and operated by the central station and whose lamps the central station maintains in accordance with this contract and marked ‘Exhibit A.’”
    In a supplementary memorandum of agreement the company agreed to furnish the central station free of charge, and at its own expense, the services of one or more solicitors for certain periods, to be determined by the said company, to co-operate with and assist the defendant in the introduction and sale of Nernst lamps on its circuits, and the defendant agreed to aid such solicitors in the introduction and sale of lamps, authorizing them to close contracts for current for use with Nernst lamps at rates provided for in the contract.
    •It was also agreed that:
    “ (5) The central station agrees to push the introduction of Nernst lamps on its circuits, selling such lamps to users of its current at list prices or lower or renting such lamps to its consumers by making a monthly charge which shall not exceed 5% of the cost of the lamps to the central station.
    “ (6) The central station agrees to quote and sell current for use with Nernst lamps at its regular rates, less an extra discount of 10%, such extra discount to be quoted and given as a differential in consideration of consumers purchasing their own Nernst lamps.

      " (7) The central station agrees to furnish 220 volt service upon any of the circuits of any of its consumers upon which it is desired to use Nernst lamps and to offer such 220 volt service to all prospective users of Nernst lamps; or, to furnish Nernst lamp converter coils free of charge to consumers purchasing Nernst lamps.
    “'(8) The central station agrees to furnish free of charge and at its own expense all necessary labor and material for wiring for Nernst lamps, provided (a) the consumer purchases such lamps, and (6) the consumer agrees to pay a minimum charge of......per glower unit per month.
    * ‘ (9) The central station agrees to furnish free of charge and at its own expense all necessary material and labor for properly installing Nernst lamps, at existing outlets of consumers, and to offer such free labor and material to all prospective users of Nernst lamps.
    “ (10) The central station agrees to maintain free of charge and at its own expense all Nernst lamps operating on its circuits, and to offer such free maintenance to all prospective users of Nernst lamps, such maintenance to be in accordance with section II of contract of even date.”
    These contracts, in terms, were not binding upon the receivers until executed by the general sales manager. Both were so approved. It appears from the testimony introduced on the part of the plaintiff that the Nernst Lamp Company or the receivers thereof, before, at, and after, the time when these contracts were made, maintained an office in the city of Detroit, called a district sales office, managed by a district sales manager, the territory in the district being Michigan and certain counties in the State of Ohio; that the sales made in this territory went through the district office in Detroit, although occasionally the mail went direct to Pittsburg and was handled and taken care of there; that the managers had solicitors under them, traveling from the Detroit office; that the manager acted sometimes as solicitor, but more often in the capacity of engineer, making plans for the introduction of lighting systems in factories and other buildings. The sales manager handled correspondence and reported to the main office in the city of Pittsburg the work done in his office.
    A witness gave the following testimony:
    “In some cases we sell lamps where we take care of them. The Nernst lamp will burn out and have to be renewed, similar to the arc lamp, where the carbons burn out. We have a boy or boys, who, in case we have a contract with a customer to take care of the lamps, handle it. I sometimes, from my office or elsewhere, sold lamps in my territory in Michigan. And as a part of the contract of sale in this'State the company agrees to maintain them and take care of them. This is not in every case, however; just in some special cases. And the company was engaged in that kind of business in the State of Michigan in 1908 and 1909. * * * The contract made with defendant was similar to those made in the State of Michigan. Following the shipment of some lamps to Mr. Conrad, we sent a man to Brighton for the purpose of assisting in the installation of those lamps. His name was Ross C. Brown. We might have sent another man there, but I do not recall it. They were sent at the expense of the Nernst Lamp Company, and in pursuance with the terms of the contract made with defendant.”
    This suit is brought to recover the price and value of certain goods'ordered from the plaintiff by the defendant, pursuant to the contract. The plaintiff declared on the contract, and also on the common counts in assumpsit, alleging an assignment of the demand by the receivers to the plaintiff company. It is agreed that, if plaintiff is entitled to recover, the judgment should be, or should have been, at the time of the trial in the court below, $324.82. Upon the motion of the defendant, the court directed a verdict for the defendant, upon the ground that the contract was affected by Act No. 310, Pub. Acts 1907, the provisions of which statute make it unlawful for any foreign corporation to carry on business in this State, until it shall have procured from the secretary of State a certificate of authority for that purpose, and containing the further provisions (sections 6, 8):
    “No foreign corporation, subject to the provisions of this act, shall be capable of making a valid contract in this State until it shall have fully complied with the requirements of this act; and at the time holds an unrevoked certificate to that effect from the secretary of State. * * * Nor shall this act be construed to prohibit any sale of goods or merchandise which would be protected by the rights of interstate commerce.”
    No formal assignment of the demand in suit by the receivers to the plaintiff was produced.
   Ostrander, C. J.

{after stating the facts). It is clear that plaintiff corporation, by its receivers, was carrying on its business in this State at the time the contract in question was made.

Was the business so carried on interstate commerce ? The question must be answered by reference to the provisions of the contract, explained and supplemented by the testimony which has been referred to. The contract provides for sales of goods, to be shipped from another State into this State and to be set up, or installed, here. But it does more.

It contemplates the maintenance, within the State, of an agency of the plaintiff, for the purpose of examining, repairing, and replacing the goods sold, for an indefinite period of- time. “Such an agency was maintained. It is not the case of a single transaction, within the State, accompanying or merely incidental to the business of selling goods and installing or setting them up for use, but is the case of conducting, within the State, a regular and continuous business in aid and furtherance of the general business of the plaintiff, and the business so carried on, within the State, is not, or was not, interstate in nature. The facts disclosed distinguish the case and that of International Textbook Co. v. Pigg, 217 U. S. 91 (30 Sup. Ct. 481, 27 L. R. A. [N. S.] 493), and the decision of the trial court is supported by Haughton Elevator, etc., Co. v. Candy Co., 156 Mich. 25 (120 N. W. 18); Imperial Curtain Co. v. Jacob, 163 Mich. 72 (127 N. W. 772). It is unnecessary to consider whether there was sufficient evidence of the right of plaintiff to control and enforce the demand sued upon.

The judgment is affirmed.

Bird, Hooker, Moore, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    UNITED STATES FIDELITY & GUARANTY CO. v. MUNROE.
    Principal and Surety — Guardian and Ward — Bond—Expenses op Attorney’s Services — Damages.
    Attorney’s fees paid out by a surety on the bond of an infant’s general guardian, in getting a settlement from the guardian of defalcations committed by such guardian, who was shown to have only an incumbered interest in real property, worth less than the funds appropriated, and a dower interest in real property owned by her ward, were, as a matter of law, necessarily incurred and were recoverable under the terms of the surety’s contract, from the principal.
    Error to Wayne; Donovan, J.
    Submitted April 6, 1911.
    (Docket No. 25.)
    Decided May 8, 1911.
    Assumpsit by the United States Fidelity & Guaranty Company against Mary F. Munroe on a written guaranty. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Moore & Moore and Samuel W. Burroughs, for appellant.

      A. B. Hall, for appellee.
   Hooker, J.

Defendant, being appointed guardian of her minor son, procured plaintiff to sign her bond, and, as an inducement and part of the consideration, executed an application and guaranty, in which she agreed and promised to pay the premium, and—

“ To furnish said company with copies of all important papers connected with the settlement of the estate; to indemnify and keep indemnified the said company from and against any and all loss; costs, charges, suits, damages, counsel fees, and expenses, of whatever kind or nature, which said company shall or may, from any cause, at any' time, sustain or incur, or be put to, for, or by reason of, or in consequence of, said company having entered into or executed said bond; to permit said company or its representative to examine them at all reasonable times; not to sell, dispose of, or convert any of the assets of the estate into cash without an order of court having jurisdiction first had and obtained; to deposit all moneys and funds belonging to the estate now on hand, and also such moneys and funds as may come into my hands from time to time during the administration of said estate from any source whatever in the bank or banks aforesaid, such money to be withdrawn only upon checks drawn by me in fiduciary capacity; to keep just, true, and accurate papers and books of account of my said trust, which papers and books of account shall at all reasonable times be open to the free and full inspection and examination of the representative of said company; to furnish said company with reports froin time to time of receipts and disbursements ; to substitute, in the event of my failure to comply with any condition or covenant herein, other sureties on the bond herein applied for, within 15 days after notice given me by said company of my default, and said company returning the unearned premium; to pay all costs and expenses said company may incur in obtaining a release or discharge as surety upon this bond herein applied for, in case I fail to substitute other sureties as hereinbefore set forth; and at the termination of my trust to furnish said company with satisfactory and conclusive evidence that said trust has been faithfully and legally executed, and all persons interested paid. And I do further covenant and agree that I will at all times keep the funds of the estate separate from my private property; that I will not mingle them with any other property intrusted to my care; that the estate shall always be in such a condition that it can easily be identified; that I will not use any of said funds for my own purpose, and will in all transactions strictly comply with the orders of the court and the requirements of the law in settlement of said estate.”

The bond was signed on November 13, 1901. Defendant’s first account was filed July 8,1905, whereupon, after examining the same, plaintiff was advised by counsel to ask to be released from subsequent liability upon the bond, and caused a petition to be filed to that end on August 29, 1905. An order to show cause issued, and a hearing was continued to September 12, 1905, when defendant tendered her resignation, which was accepted, which made further action upon the petition unnecessary. On October '26, 1905, defendant filed a second and final account, which apparently covered the first, and was the only one considered. In it she claimed that she had used of the ward’s money only $1,243.47. George B. Yerkes, as guardian ad litem for the ward, filed objections, in which he claimed that defendant had appropriated to her own use the ward’s money to the amount of $14,956. Several hearings were had, in which Yerkes acted for the ward, Mr. Maloney for the defendant, and Moore & Moore for plaintiff. The court finally found that defendant had appropriated to her own use $9,700, for which amount plaintiff was then liable to the ward upon the bond. It appeared that the defendant’s property consisted only of a piece of land covered by a mortgage and a dower interest in the land of the ward. Plaintiff’s counsel say that they urged that she convey her dower interest to the ward, and this was finally agreed upon. A deed was drawn and submitted to her counsel for approval, but he refused to consider or approve it until plaintiff should pay him $100, which it did. It paid other incidentals, amounting to $10.60, and $1,200 to its counsel, and for these items it brought this action.

Defendant’s counsel question the foregoing statement in some respects. They say that her property, aside from the dower interest, was worth $11,000, and was mortgaged for a sum not exceeding $5,500; that Moore & Moore did not propose her conveyance of her dower interest to settle her ward’s claim, but that proposition originated and was carried out by and through the efforts of her counsel and Mr. Yerkes, the ward’s next friend; that the statement that Mr. Maloney required $100 as a condition to his approval of the deed is inaccurate. Mr. Maloney’s testimony is as follows:

Q. Will you state the circumstances of your receiving $100?
“A. I sat in my office one afternoon in connection with this matter after the general arrangement had been made. I do not remember whether it was Mr. Moore or Mr. McBryan called me up and asked me to get this deed by which Mrs. Munroe was to convey her dower interest under this court order, and I find that there was a petition filed there to sell her dower interest in this property.
‘ ‘ Q. Who prepared that petition ?
“A. I prepared it.
Q. Did Mr. Moore have anything to do with the preparation of that petition ?
“A. None, whatever, and, as I say, I don’t remember it. I said, 'I have been bothered with this case so much, and I have been called so much, I think you people ought to pay me for my time,’ — I do not know whether Mr. Moore or Mr. McBryan, I am talking now as I have refreshed my recollection — ‘you ought to pay me for my time.’ He said, ‘What do you want?’ I said, ‘Send me a check for $100, and I will send the deed out.’
Q. Did he send it over?
“A. Yes; he said he would call up Mr. Moore, and he called Mr. Moore, and he sent it over, and Bishop and I thought it a good joke.
Q. You think this $100 was ever paid you by the company ?
“A. When I made the suggestion, I made it'more as a joke on my part; but I said I had been annoyed so much by Mr. Moore and Mr. McBryan calling me up over the telephone. I had been annoyed; he called me up seven or eight times a week. Their number is 388, and every time I would go out and come back I would find a note on my desk to call that number.
“Q. This is the $100 charged your client?
“A. Yes, sir.
“Q. And you made this charge to this company ?
“A. Undoubtedly.
“Q. Is there anything else you think of ?
“A. The only thing I think of is there was not any time in connection with this account when the bonding company was in danger.”

They claim that plaintiff was never in any danger, and that no interference by the plaintiff was necessary, and that Mr. Yerkes and Mr. Maloney would have taken care of their interests; that—

“Mrs. Munroe’s contract was to hold the plaintiff harmless in case it lost anything (and there is no claim that it lost anything), and the jury had a right to say whether there was reasonable ground to believe that they would lose anything.”

The undisputed evidence shows that, aside from her dower interest, defendant had an equity of $5,500 nominal, and undoubtedly less actual, value, if dependent upon a forced sale. Her dower was subject to the danger of her death, which would have instantly terminated it. We think that plaintiff was justified in going to such expense as was necessary to ascertain what the situation was, to protect itself against further liability, and avoid liability already incurred, so far as it could be done by legitimate means, and that under the application and guaranty it had a right of action for such reasonable expenses and attorney’s fees as were paid in the legitimate pursuit of immunity from an obviously threatened loss. It was error to allow the jury to find that expenses were unnecessary, or that the right to recover them could be lost by the action of other attorneys, especially in view of the fact that action by filing petition preceded their intervention, and that the settlement and execution of the deed seems to have depended at last on payment of $100 by plaintiff to the defendant or her attorney.

If there was a question of the reasonableness of the charges, it was for the jury; but, as the jury did not reach that question, there is no occasion to discuss it further.

The judgment is reversed, and a new trial ordered.

Ostrander, C. J., and Bird, Moore, and McAlvay, JJ.. concurred.


author: Ostrander, C. J.

text:
    CASGRAIN v. HAMMOND.
    Pledges — Equity—Principal and Agent.
    Evidence examined and considered insufficient to establish the fact that defendant held stock of complainant as a pledge to secure a debt of complainant’s husband.
    Appeal from Wayne; Rohnert, J.
    Submitted April 5, 1911.
    (Docket No. 19.)
    Decided May 8, 1911.
    Bill by Annie H. Casgrain against Charles F. Hammond to establish title to certain stock certificates. From a decree for defendant, complainant appeals.
    Reversed.

      Lucking, Emmons & Helfman, for complainant.

      Thomas A. E. Weadock, for defendant.
   Ostrander, C. J.

The issue between the parties arises out of facts which will be briefly stated. Complainant and defendant are sister and brother. In 1889, while the complainant was in Europe, her husband, Charles W. Casgrain, who was her attorney in fact, bought, and, out of certain moneys which she had left in his control, paid $2,300 for 1,000 shares of the capital stock of the Iron Silver Mining Company. Because he had bought the stock to be sold again, the shares were issued in his name. The Hammond heirs, of whom complainant and defendant are two, had a common office, and each had access to the safe in the office, where papers were kept. Mr. Casgrain also had access to the safe. Complainant, upon her return in March, 1890, was informed by her husband of the purchase of the stock. It had declined in market value and for a number of years was of only nominal value. No dividends were paid on the stock after its purchase, until 1901. This Mr. Casgrain collected and kept, as well as dividends for 1902 and 1903. In September, 1895, the complainant again went to Europe for an extended visit, making her brother, the defendant, her attorney in fact and agent to attend to her affairs in her absence, it being understood that complainant’s husband would shortly follow her to Europe, which he did in October of the same year. Mr. Casgrain was indebted to the defendant. At least, defendant held certain evidences of indebtedness. It is admitted that before his departure he took the certificates of stock which have been referred to, indorsed them in blank, and gave them to the defendant. It is the contention of the defendant that Mr. Casgrain delivered the certificates to him as security for the payment of his personal debt. It is the contention of complainant and her husband that, in closing up matters before his departure, he happened upon these certificate ^ of stock among other papers, handed them to the defendant, indorsed in blank, telling him that the stock belonged to complainant, and should be transferred in her name. Defendant’s version of what took place is that Mr. Casgrain said he could not pay his debt; that he would leave this stock with him, and if anything happened to him defendant would be protected; that if there was any equity in the stock he wanted complainant to get it; that the whole proceeding was voluntary on the part of Mr. Casgrain; no request having been made for any security.

Complainant learned that the defendant claimed a lien upon the stock in 1905, demanded the stock, and, in January, 1906, filed her bill of complaint in this cause, praying, among other things, that she be decreed to be the owner of the stock and entitled to its possession, and that the defendant be required to surrender it to her. Defendant answered and filed a cross-bill, bringing in the Iron Silver Mining Company and Charles W. Casgrain as defendants. The cause came on for hearing in October, 1906, when proofs were taken in open court.and the matter submitted to the court for determination. The court rendered an opinion April 6, 1910, which was followed by a decree, dated May 9, 1910, which found complainant to be the owner of the stock, subject to a pledge to the defendant made by Charles W. Casgrain for his indebtedness to defendant, and ordering an accounting as to the amount of the said indebtedness.

The theory according to which the court made the decree appears from the opinion which was filed, and is, in substance, that complainant had given her husband authority to deal with her property in such a way, and had for so long a time permitted his dealings to go unquestioned, and without inquiry, that she was estopped from questioning the right of the defendant to claim his lien upon the stock. The essential fact in this theory — a fact which the court finds to be true — is that Mr. Casgrain did pledge this stock to the defendant as collateral to his note. A subsidiary, but material, fact he found to be that, although he received the stock as collateral to an existing indebtedness, defendant afterwards acted in such a way, in reliance upon the pledge, that injury would result to him if he should be denied the right to enforce it.

We are not satisfied that the stock was pledged to the defendant by Mr. Casgrain, and, this being so, we need not consider certain legal propositions advanced by the court and argued by counsel in support of the decree which was entered. The preponderance of testimony requires us to find that the defendant never received this stock as a pledge for Mr. Casgrain’s debt. If he did not, there is, of course, no theory according to which he may retain possession of the certificates as against the complainant. Some of the considerations which lead us to this conclusion may be stated.

The stock was undoubtedly — admittedly—the property of the complainant, purchased with her money for her by her attorney in fact. There was no reason why Mr. Casgrain should use this property belonging to his wife as security for his personal debt. No security was demanded of him. On the other hand, it was a reasonable and prudent thing for Mr. Casgrain, before his departure for an extended visit in Europe, where his wife then was, to deliver these certificates standing in his name to the attorney in fact for his wife, with the statement that they belonged to his wife and ought to be transferred in her name. While Mr. and Mrs. Casgrain were in Europe, the defendant wrote to Mr. Casgrain in reference to this stock. Defendant says that in his letter he stated that financial conditions were troublesome, that he was in need of money and would probably have to hypothecate the stock to obtain money, and he wished Casgrain to know about this before he did hypothecate the stock. He says he never had a reply to this letter. He never did, in fact, hypothecate the stock. Mr. Casgrain says of this letter that in it defendant asked him (Casgrain) to talk it over with Mrs. Casgrain, and that he (Casgrain) answered the letter, stating that defendant would be permitted to use the stock for his own purposes.

In February, 1904, according to the testimony of Mr. Casgrain, defendant came to his office, called his attention to a note evidencing an indebtedness of Casgrain to defendant, asked him if he was going to pay it, and, after some talk, said that he held 1,000 shares of Iron Silver stock as collateral.

“ I said, ‘ That is the first I ever heard you make any such claim as that; you do not hold it as collateral for any indebtedness of that kind; you know I put that in your hands in 1895 to have you transfer it to Mrs. Casgrain’s name, in Annie’s name.’ I said, ‘ I should like to know whether you can have that as collateral.’ I said, I want to tell you you cannot have it as collateral.’ * * * That is the only conversation I had with him with reference to the stock; that is, February 24, 1904.”

Of this conversation, the defendant says that in the course of argument he might have said to Mr. Casgrain that he held the stock as collateral for his debt, and that Casgrain denied it, and that he can recollect of no conversation between himself and Mr. Casgrain about this stock from September, 1895, until the conversation in February, 1904, and no other communication upon the subject, except the letter written to Casgrain while he was in Europe.

The value of this stock, when it is said to have been pledged to the defendant as security, was about $1 a share. The principal sum of the debt which defendant claims that Mr. Casgrain then owed him was $3,000. It appears that, before the departure of his wife and himself for Europe in 1895, Mr. Casgrain sold to his wife for $2,500 the only piece of property he owned, or in which he had an interest, and that the transaction, took place in the office of the defendant. Mr. Casgrain was an attorney at law and was occupying an office in the Hammond building, in which complainant and defendant (both of them) had an interest. His office rent was more than $1,000 a year, and for 10 years he paid no rent. During this period, or part of it, Mr. Casgrain performed services both for the defendant and for the Hammond heirs. It does not appear that any of these matters were adjusted, or that, so long as the heirs were friendly with each other and with Mi. Casgrain, any one cared to adjust them.

The indifference of complainant upon the subject of this stock, her failure to seek it and to inquire about it, may be accounted for, partly by the. fact of its greatly diminished value, partly by the fact that her husband, at least up to 1895, had access to her papers, to which the defendant also, for a period at least, had access, and by the fact that she had no reason to suppose that any one but herself claimed to have any interest in the stock. She acted promptly, when advised of the claim of defendant. It is no more singular that the complainant should not have concerned herself about the certificates than it is that the defendant, during the same period, should have held them, fluctuating as they were in value, with knowledge that dividends were being paid upon them for a portion of the time, with knowledge that Mr. Casgrain was, or was supposed to be, financially irresponsible, without making some effort to realize upon his security.

The decree below is reversed, and a decree will be entered in this court in accordance with the prayer of the bill. Complainant will recover costs of both courts.

Bird, Hooker, Moore, and McAlvay, JJ., concurred.


text:
    CARNEY v. IONIA TRANSPORTATION CO.
    Trial— Charoe — Issues.
    It is prejudicial error for tlie trial court to fail to advise the jury as to the issues for their determination and to omit to state the rules of law which should govern them in determining their verdict.
    Error to "Wayne; Donovan, J.
    Submitted April 7, 1911.
    (Docket No. 49.)
    Decided May 8, 1911.
    Assumpsit by Thomas J. Carney against the Ionia Transportation Company for breach of a contract of employment. Judgment for plaintiff. Defendant brings error.
    Reversed.

      E. T. Berger, for appellant.

      Thomas L. Dalton (Thomas J. Mahon and James S. Doyle, of counsel), for appellee.
   Ostrander, C. J.

Upon a former trial of this cause, a verdict was directed for the defendant. The judgment entered on the verdict was reversed and a new trial granted. 157 Mich. 54 (121 N. W. 806). Defendant amended the notice of special matter of defense. A second trial was had, resulting in a verdict and judgment for the plaintiff. It is not contended that the testimony given upon the last trial is essentially different from that appearing in the former record. We therefore refer to our opinion for a sufficient statement of the issues and the nature and tendency of the testimony which was produced. We said of plaintiff’s testimony:

“While the testimony of plaintiff is not entirely definite, and is subject to different inferences, we do not think it can be said, as a matter of law, that the plaintiff did not bind himself to perform, the conditional agreement. He states that it was distinctly understood that, if defendant did not sell the boat, plaintiff would take the boat, and it is fairly inferable from his testimony that he agreed to accept $1,400, the same as the terms for the season of 1905, and to be at the service of defendant any time it should call upon him. The contract is to be construed with reference to the custom prevailing, according to the testimony of plaintiff, of employing the master at the close of the preceding season, and, where the testimony is susceptible of different inferences, those inferences are for the jury, and not for the court.”

It was also said:

“The condition disclosed by the testimony of plaintiff, that his contract of employment was to be annulled if the boat was sold, if so found by the jury, was a condition subsequent, which the plaintiff was not obligated to set up in his declaration, but was a matter of defense which should have been pleaded by the defendant, if it desired to rely upon such defense.”

At the last trial the case was given to the jury; but it is said by the appellant, and we think justly said, that the jurors were not advised concerning the issues to be determined by them, nor were any proper governing rules of law stated. In the charge many references were made to the former trial of the cause and to the rulings of this court, none of which could have aided the jurors, and most of which were calculated to confuse them. The tendency of many of them was to benefit the plaintiff and to prejudice the defendant. The argument made by the appellee, to the effect that the court should have directed a verdict for the plaintiff, is answered by the language from the former opinion which has been quoted. No verdict which the jury could have rendered, in favor of either party, could be permitted to stand, if properly objected to.

The judgment is reversed, and a new trial granted.

Bird, Hooker, Moore, and McAlvay, JJ., concurred.


text:
    ROEWER v. ROEWER.
    Fraud — Cancellation or Instruments — Deeds.
    Evidence considered and held to be sufficient to sustain a decree canceling certain deeds of conveyance on the ground of false representations.
    Appeal from Wexford; Lamb, J.
    Submitted April 7, 1911.
    (Docket No. 42.)
    Decided May 8, 1911.

      Bill by Wilhelm A. Roewer and Lena Roewer against Waldeman M. Roewer and Franklin B. Gottschalk for the cancellation of certain conveyances. From a decree for complainants, defendant Waldeman M. Roewer appeals.
    Affirmed.

      E. F. Sawyer, for complainants.

      Gaffney & Miltner, for defendant Roewer.
   Ostrander, C. J.

Mathias Roewer was the owner of two parcels of land in the city of Cadillac, Mich., one of which was his homestead. He died August 2,1893, leaving surviving him Albertine, his wife, and three children, two boys and one girl. His estate was not administered. Albertine died in 1906, survived by the three children and possessing, besides household furniture, $400 in. money, for which she held a certificate of deposit issued by the Cadillac State Bank. The daughter, Lena, was an infant when her mother died. Her two brothers had attained their majority and were living in Chicago, 111. One of them, Wilhelm, and the wife of Waldeman, the other brother, attended the funeral of the mother, and while at Cadillac joined in executing a deed conveying the homestead and the money in the bank to Lena, and the deed was, without being delivered, taken to Chicago for the purpose of having it executed there by Waldeman. Waldeman never executed the deed. Later, for a consideration of $200, Wilhelm conveyed his interest in the homestead, in the other real estate, in the money, and in the family burial lot to Waldeman, who mortgaged the same to one Franklin B. Gottschalk, of Chicago, and said deeds were placed of record. The conveyances from Wilhelm to Waldeman were dated September 14, 1907.

September 25, 1907, Wilhelm and Lena filed their joint bill of complaint in the circuit court for the county of Wexford, in chancery, setting up the facts just stated, the further fact that the mother at the time of her death expressed a wish that the daughter, Lena, might have the homestead and her money, the promise of Waldeman to join with his brother in executing a deed of his interest in the said property to his sister, that Waldeman went from Chicago to Cadillac, and clandestinely entered the dwelling, and in a clandestine manner abstracted therefrom the certificate of deposit and such deeds of conveyance relating to the common property as were in the house, and that by fraud and false pretenses, the particulars of which are set out, he secured the conveyance from his brother Wilhelm to himself, for a grossly inadequate consideration, and that Franklin B. Gottschalk, who, with Waldeman, is made a party defendant, was a party to the fraud perpetrated. It is prayed that said deeds of conveyance from Wilhelm to Waldeman be set aside and declared void, that the trust deed or mortgage given by Waldeman to Gottschalk be also set aside and declared void, that all of said deeds be delivered up to be canceled, that the pretended assignment of the money in the Cadillac State Bank from Wilhelm to Waldeman be set aside, and for general relief. Waldeman answered the bill. As to Gottschalk, it was taken as confessed. The cause was heard in open court, where, with others, Lena and Wilhelm gave testimony. The testimony of the defendant Waldeman and others was taken by deposition and read. A decree was entered in accordance with the prayer of the bill, from which decree the defendant Waldeman has appealed.

No question of law is presented by the briefs. What is involved is a pure question of fact. It will benefit no one to set out the testimony. It appears to be one of the cases where a court is especially aided in arriving at a determination by seeing and hearing the witnesses. We are of opinion that the decree ought to be affirmed, and it is so ordered, with costs of this appeal to the appellees.

Bird, Hooker, Moore, and McAlvay, JJ., concurred.


author: Moore, J.

text:
    ABBOTT VOTING MACHINE CO. v. CITY OF EATON RAPIDS.
    Contracts — Municipal Corporations — Meeting or Minds.
    Where a city, in passing a resolution to buy voting machines of plaintiff, inserted a proviso that the contract should be'void if any taxpayer objected in writing before a specified date, but the seller, not knowing of the proviso, sent a written acceptance which it subsequently retracted on learning of the condition, the minds of the parties never met and plaintiff could not recover the price of the machines.
    Error to Eaton; Smith, J.
    Submitted April 7, 1911.
    (Docket No. 46.)
    Decided May 8, 1911.
    Assumpsit by the Abbott Voting Machine Company against the city of Eaton Rapids for the price of certain voting machines. A judgment for defendant on a verdict directed by the court, is reviewed by plaintiff on writ of error.
    Affirmed.

      Fellows & Chandler, for appellant.

      G. Elmer McArthur (Elmer N. Peters, of counsel), for appellee.
   Moore, J.

The plaintiff wrote defendant as follows:

“To the Honorable Mayor and Common Council of the City of Eaton Rapids:
“Wehereby submit to you the following proposition for the purchase of voting machines for use in your city. We agree to furnish and sell your city three improved Abbott Voting Machines exactly like the one you have examined, in time for use at your election in April, 1906, for the sum of $850 each.
“We also furnish with each voting machine one instruction machine. We also at the first election provide, without expense to your city, a sufficient number of competent men to assist in instructing the inspectors of election and the voters in the use of the machine. Payment to be made for said machines either in cash or certificates to suit your convenience. If paid by certificates of indebtedness, á per cent, per annum shall be paid on all sums remaining unpaid; interest to commence May 1, 1906. Certificates to be paid any time within 10 years, and any sum may be paid in each or any year that you desire. Payment for said machines to be made upon the following conditions and not otherwise: That the Abbott Voting Machine Company guarantee each machine to be of perfect material and workmanship; that each machine will at elections keep an absolutely correct record of the vote of each voter voting at the elections, and that the number of votes as to each office being voted for shall exactly equal the number of voters as shown by the total register on the machine to have voted. That said company will keep said machines in repair and repair or replace any part or parts that may require repairing or replacing, and to place on said machines any improvements that may be made by the Abbott Voting Machine Company on its machines for a period of three years from date when said machines are first used, without charge to your city. If the machines comply with the above-mentioned conditions * * * then that you will provide for the payment of said machines as above mentioned at the first meeting of the council after such election. If the machines fail to comply with these conditions, we agree to ship them back to the factory and release your said city from any claim by their use or for damages.
“ Dated March 20, 1906.
“Abbott Voting Machine Company,
“By B. D. Chandler,
“Secretary.”

The city declined to accept the proposition in the form submitted by the company, and, on March 20, 1906, passed the following resolution :

“ Resolved, that the city purchase three voting machines of the Abbott Voting Machine Company at $350 each. Said machines to be paid for by the city March 10, 1908, without interest. This contract to be null and void, providing any taxpayer submits objections in writing to the common council before March 10, 1908. The terms of this resolution to be subject to the approval of the company. Yea and nay vote resulted: Yeas, Aldermen Mix, Webster, Hurd, Annis, Sheets. Nays, Alderman Blake. Resolution adopted.”

Mr. Blake undertook to advise the plaintiff of what was done, and the plaintiff wrote defendant as follows:

“Hudson, Mich., March 21, 1906.
“ City Glebe,
“ Eaton Rapids, Mich.
Dear Sir:
“Our representative, Mr. George W. Blake, advises us of the resolution passed by your city council last evening (March 20th).
“We hereby advise your council that we will accept the conditions in this resolution and will ship three machines to your city next week. Am unable to advise you just what date they will arrive but probably not later than Tuesday.
“Do not make any arrangements about printing ballots until our representative gets there who will give you the necessary instructions.
“Respectfully yours,
“Abbott Voting Machine Company,
“By B. D. Chandler,
“ Secretary.”

Before the spring election of 1906, the plaintiff shipped to defendant three machines and an instruction machine for each ward, and the week before election sent to Eaton Rapids three men to hold schools of instructions and to assist on election day. The machines were used at this election and after the election was over the machines were packed up for the city by the instructors, and plaintiff paid their bills

Later the following letter was sent:

“Hudson, Mich., April 9th, 1906.
“H. S. Bentley,
“Eaton Rapids, Mich.
Dear Sir:
“ I was very much surprised this morning to receive copy of resolution sent me by you April 6th.
“We cannot accept these words in the contract ‘the purchase to be null and void providing any taxpayer submits objections in writing to the common council before March 10th, 1908.’
“I can very readily see how some one who favored a different kind of voting machine and who objected to a little additional tax might file written objections, at this time, or any time within two years, and thus, according to the resolution, defeat the sale. My understanding of the resolution was that you purchased the machines, but were to have until March 10th, 1908, to pay for them without interest; that was entirely satisfactory to us and we of course expect and want to enter into an agreement and guarantee that we will keep the machine in repair and put any improvements on for a period of three years without expense to your city.
“ From what I have heard and from one or two letters I have received, I believe that your officials and citizens are very much pleased with the machines. Now, I am inclosing you herewith the guarantee which we are willing to make in consideration of your issuing to us certificates of indebtedness in payment for the machines according to the terms of our proposition and your resolution.
“We are required to have money or collateral in order to build machines and with the kind of a contract that you seem to want us to enter into we would have neither. I trust that you and your council will see the fairness and justness of this proposition and be willing to comply with our terms.
“I am inclosing you blank certificates of indebtedness which I hope that the council will authorize issued in payment for the machines. I am also inclosing our agreement and guarantee regarding repairs, etc.
“Kindly advise me as to whether the council are inclined to accept this.
“ Very truly yours,
“Abbott Voting Machine Company,
“By B. D. Chandler,
“Secretary.”

No reply was sent to this letter. A further attempt in June to get the city to settle with the company resulted in no quorum being present. In September a resolution was passed as follows:

“ The question being on the purchase of the Abbott Voting Machines, Alderman Webster moved: That the city attorney draw up a certificate of indebtedness in conformity with the resolution passed by the common council, March 21, 1906, and the contract with the Abbott Voting .Machine Company now on file in the clerk’s office, and the clerk and mayor be and are hereby authorized to sign same and present to the company for their acceptance. Carried.”

Before the spring election of 1907, the city, through its mayor, requested that certain small changes be made in their machines, but the election was so near at hand that the secretary of the company suggested that the machines be sent over after election to have the change made. The city used the machines at this election. After the election, the machines were returned to plaintiff.

In September the following letter was sent:

“Hudson, Mich., Sept. 19, 1906.
“Common Council,
“Eaton Rapids, Mich.
Gentlemen:
“We make you the following proposition for the sale of the three voting machines and instruction machines now in your city:
“We will sell the same and accept in payment therefor your certificate of indebtedness for the sum of $1,050 due April 1st, 1908, without interest.
“ If this is satisfactory to you kindly authorize the issue of certificate at once as we are being compelled to use large sums of money now and are in need of the collateral.
“ Very truly yours,
“The Abbott Voting Machine Co.,
“By B. D. Chandler,
“ Secretary.”

Nothing was done under this proposition. Later the following letter was sent:

“Eaton Rapids, Mich., May 20, 1907.
“The Abbott Voting Machine Co.,
“ Hudson, Mich.
Gentlemen:
“ I write you in regard to the three Abbott Voting Machines that were shipped to Eaton Rapids, some time early in the spring of 1906, and which were recently returned to your factory. I was not mayor of the city at the time these machines were sent here, but am advised that a question was at that time raised about the right of the common council of this city to purchase these ma-. chines. You will understand that Eaton Rapids is incorporated as a city of the fourth class under the provisions of Act No. 215 of the Public Acts of Michigan for the year 1895, as amended. At the time these machines were sent in here, the city was without funds with which to make the purchase and no provision has since been made by the council to pay for them. I question the right of the council to attempt a purchase of these machines under the circumstances existing at the time, for the reasons before assigned and cannot now see my way clear, as chief executive of the city, of signing any certificates of indebtedness for these machines whereby the city will be called upon in the future to pay for them. I understand the machines are at the Lake Shore freight house; we do not intend to take them away from there, and you are at liberty to do with them as you see fit.
“ Yery truly yours,
[Signed] “C. S. Horner, Mayor.”

Nothing further was done about the contract, and this suit was brought after March 10,1908. It is conceded on the record no protest was filed by any taxpayer prior to the 10th day of March, 1908. It was conceded that if plaintiff was to recover at all it was entitled to recover the sum of $1,133.45.

The secretary of the plaintiff company was sworn as a. witness. He testified on the cross-examination in part as follows:

“I carried on the correspondence for the company during the year 1906 and down to the present time; I knew of a proposition being submitted by our representative, Mr. Blake, to the city of Eaton Rapids; it was prepared by me. We sent Blake there to represent us in an effort to sell the city of Eaton Rapids three voting machines. He telephoned me what the council done that night — March 20th. I certainly am inclined to think I received a wrong impression from his telephone message as to what they actually had done. When I wrote this letter of March 21st, I did not know there was a provision that the resolution of the council should be void in case any taxpayer filed objections in two years. When I learned there was such a provision, I wrote them Exhibit 1.”

Exhibit 1 was the letter of April 9th.

A motion was made that the judge direct a verdict in favor of defendant (1) because no contract was made, as the minds of the parties never met; (2) because the council was not authorized to make the alleged contract. The judge declined to pass upon the second point, but held the first proposition was well taken and directed a verdict for defendant. The case is brought here by writ of error.

In Tiffany on Sales, page 28, it is said:

“From the principle that contracts can be effected only by mutual assent, it follows that where, through some mistake of fact, each was assenting to a-different contract, there is no valid agreement, notwithstanding the apparent mutual assent.”

In Mechem on Sales, § 265, it is said:

“Mistakes of parties in making the contract. — In order that there may be a contract between the parties, it is evident that the parties must agree — they must, as it is so often said, assent to the same thing in the same sense. In a particular case, however, it may be found that, owing to the mistake, misapprehension or ignorance of one or both of the parties, they have not agreed, although, perhaps, they thought they had.”

At section 218, same author, it is said:

“ Mistake as to terms of contract — Price.—There may also be mistake as to the terms of the contract. The mistake most commonly made, perhaps, is in reference to the price. If the parties are mutually mistaken, as where an offer of a certain price for shingles was understood by the seller to be so much per bunch and by the buyer to be so much per thousand — a material difference — it was held that there was no contract.”

In Fire Insurance Association v. Wickham, 141 U. S. 564 (12 Sup. Ct. 84), in disposing of the case, the following language was used:

“Thus in Philpot v. Gruninger, 14 Wall. (U. S.) 570, 577, it is stated that ‘ nothing is consideration that is not regarded as such by both parties.’ To constitute a valid agreement, there must be a meeting of minds upon every feature and element of such agreement, of which the consideration is one. The mere presence of some incident to a contract, which might under certain circumstances be upheld as a consideration for a promise, does not necessarily make it the consideration for the promise in that contract. To give it that effect, it must have been offered by one party, and accepted by the other as one element of the contract. In Kirkpatrick v. Muirhead, 16 Pa. 117, 126, it was said that ‘ consideration, like every other part of a contract, must be the result of agreement. The parties must understand and be influenced to the particular action by. something of value, or convenience and inconvenience, recognized by all of them as the moving cause. That which is a mere fortuitous result flowing accidentally from an arrangement, but in no degree prompting the actors to it, is not to be esteemed a legal consideration.’
“See, also, 1 Addison on Contracts, p. 15; Ellis v. Clark, 110 Mass. 389 (14 Am. Rep. 609).”

See, also, National Bank v. Hall, 101 U. S. 43; Gates v. Nelles, 62 Mich. 444 (29 N. W. 73); Sherwood v. Walker, 66 Mich. 568 (33 N. W. 919, 11 Am. St. Rep. 531); Wilkin Manfg. Co. v. Lumber Co., 94 Mich. 158 (53 N. W. 1045).

Let us apply these principles of law to the case in hand. The resolution of March 20, 1906, authorizing the purchase of these machines, had these words:

“This contract to be null and void providing any taxpayer submits objections in writing to this common council before March 10, 1908. The terms of this resolution to be subject to the approval of the company.”

As has already appeared, Mr. Blake undertook to notify the company by telephone of the contents of this resolution. It has also appeared that when Mr. Chandler, the secretary, wrote the letter of March 21, 1906, he did not know of the above important provision. Unless this letter is to be regarded as the approval of defendant company, it never did approve of the terms of the resolution. It is difficult to see how either the secretary or the company could approve of the resolution, when he and it had no knowledge of its terms. When knowledge of the terms of the resolution came to Mr. Chandler, he wrote the letter of April 9, 1906, in which he says:

“We cannot accept these words in the contract, ‘the purchase to be null and void providing any taxpayer submits objections in writing,’ etc.”

We think the judge was right in holding the minds of the parties never met. This makes it unnecessary to discuss the other questions.

Judgment is affirmed.

Ostrander, C. J., and Bird, Hooker, and Mc-Alvay, JJ., concurred.


text:
    GILMORE v. BOLIO.
    Brokers — Commissions—Sale of Real Property.
    No commission is recoverable by a broker who listed property under an arrangement to have as his commission all he could obtain for it above $1,400, and who introduced to the owner a prospective buyer who refused to take the house at the price named by the broker, but afterwards bought the property for $1,300 directly from the owner.
    Error to Wayne; Murphy, J.
    Submitted April 12, 1911.
    (Docket No. 86.)
    Decided May 8, 1911.
    Assumpsit in justice’s court by William G. Gilmore against John Bolio for broker’s commissions on a sale of real property. From a judgment for plaintiff, defendant removed the cause to the circuit court by certiorari, where judgment was entered for defendant. Plaintiff brings error.
    Affirmed.

      James H. Bayne, for appellant.

      A. B. Hall, for appellee.
   Hooker, J.

The plaintiff recovered a judgment in the court of justice of the peace, which was reversed on certiorari by the circuit court. The cause is before us on writ of error taken out by plaintiff.

The substance of the error assigned, in the affidavit, is that the testimony did not warrant the judgment, and that is the only question before us. The return of the justice states that the affidavit for certiorari correctly states all of the testimony taken upon the trial. The testimony shows without dispute that defendant owned certain premises, which he desired to sell; that he stated to the plaintiff that he would allow him to sell it, if he could get $1,400 net for plaintiff. Through his agent, Stroh, plaintiff subsequently introduced Wiegel to defendant as a prospective purchaser. Wiegel refused to buy the house on the terms stipulated by defendant. Nothing more was done about the matter by any of the parties for six weeks. Subsequently Wiegel purchased the property for $1,300. The plaintiff claims that he is entitled to a commission for finding and introducing the person to whom defendant finally sold the place, while defendant insists that what plaintiff did was under a special contract, and that it is conclusively shown that he is not entitled to a commission.

We think defendant is correct. Plaintiff’s right to compensation depended upon his ability to obtain a greater sum than $1,400 for the place, in which he failed. The fact that defendant sold it for $100 less than that sum to a person who had refused plaintiff’s offer of the place at $1,450 does not entitle plaintiff to compensation. McDonald v. Boeing, 43 Mich. 394 (5 N. W. 439, 38 Am. Rep. 199); Williams v. McGraw, 52 Mich. 480 (18 N. W. 227); Antisdel v. Canfield, 119 Mich. 229 (77 N. W. 944). See, also, Wood v. Smith, 162 Mich. 334 (127 N. W. 277), where Mr. Justice Stone has discussed this question at length.

The judgment is affirmed.

Ostrander, C. J., and Bird, Blair, and Stone, JJ., concurred.


text:
    WILLIAMS v. SAGER.
    1. Highways and Streets — Negligence —Pleading—Declaration.
    Plaintiff’s declaration, in an action against a contractor engaged in paving a street, for failing to light or protect an excavation at a street crossing, sufficiently averred that the in- - jury occurred on a public street, by stating that the street - was, on the day of the injury, and for a long time previous thereto had been, used as a public highway, and that the intersecting street where plaintiff" was injured, was so used and occupied.
    2. Same.
    And whether defendant rightfully under his contract with the " municipality, or wrongfully, excavated the street, he was liable for an omission to properly guard the public against injury.
    3. Same.
    There being evidence that he failed to display a danger signal, the question was for the jury.
    4. Same — Contractors — Municipal Corporations — Public Works and Improvements.
    No notice to the contractor of the time, place, and extent of plaintiff’s injury was required although the municipal charter provided for notice to the city.

      5. Same — Contributory Negligence.
    And the question of plaintiff’s contributory negligence was properly submitted to the jury.
    Error to Saginaw; Gage, J.
    Submitted April 12, 1911.
    (Docket No. 101.)
    Decided May 8, 1911.
    Case by Bertha Williams against William N. Sager for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      W. J. Lamson (R. L. Crane, of counsel), for appellant.

      Thos. G. Baillie, for appellee.
   Hooker, J.

The plaintiff recovered a verdict for $450 for injuries sustained through the alleged actionable negligence of the defendant, a paving contractor, and he has appealed.

The declaration alleges:

“For that, whereas, heretofore, on, to wit, the 1st day of July, A. D. 1909, and for a long space of time previous thereto, Warren avenue within the city of Saginaw has been used and occupied as a public highway for the passage of vehicles and pedestrians, the said Warren avenue running north and south within the said city of Saginaw, county of Saginaw, and State of Michigan, and the said Warren avenue is intersected by Remington street, the same being a public highway for the use of vehicles and pedestrians, and runs east and west within the city of Saginaw.
“That, heretofore, on, to wit, December 1, A. D. 1909, the board of public works of the city of Saginaw, on behalf of the said city of Saginaw, contracted with one William N. Sager, defendant in the above-entitled cause, for the laying of a pavement on said Warren avenue and intersections between Holland avenue and the Michigan Central Railroad crossing on said Warren avenue according to specifications prepared by the said board of public works; that, on or about, to wit, June 1, 1909, the said William N. Sager, defendant in the above-entitled cause, acting under the contract so made with the city of Saginaw through its board of public works, commenced laying of the pavement on said Warren avenue and intersections, and tore up, excavated, and rendered impassable said Warren avenue and intersections, for the purpose of laying the said pavement as aforesaid, which pavement was to extend from, to wit, Holland avenue to the Michigan Central Railroad crossing on said Warren avenue; the said Remington street intersecting said Warren avenue between said Holland avenue and the said Michigan Central Railroad crossing.
“Plaintiff further avers that the part of Warren avenue which is intersected by Remington street and which extends west about, to wit, 15 feet from the west curb of Warren avenue proper, to meet Remington street, is known as the westerly intersection of Warren avenue with Remington street, and she further avers that the sidewalk on the westerly side of Warren avenue crosses said westerly intersection of Warren avenue with Remington street.
“Plaintiff further avers that it was the duty of the said William N. Sager, defendant in the above-entitled cause, to properly guard, light, and protect the said Warren avenue, and to guard the said westerly intersection of Warren avenue with Remington street, the same being torn up, excavated, and prepared for pavement, and it was the duty of said defendant to protect said street during the time that it was torn up, excavated, and in a dangerous condition, made so for the purpose of laying the said pavement as aforesaid, and that it was his duty to properly guard said street; and further it was his duty in the nighttime to properly watch, light, and protect the crossings, intersections, and parts of said streets, made impassable by the reason of the laying of the said pavements as aforesaid, and to take all possible precautions to warn pedestrians and persons traveling thereon of the dangerous condition thereof; but the plaintiff alleges that the defendant wholly failed and neglected to perform his duty in this respect, but that, on the contrary, the said intersection of Warren avenue with Remington street, at the point torn up, excavated and prepared for pavement as stated aforesaid, was in an uprotected and unlighted condition, and that there was no warning given to pedestrians and persons traveling the said highway of the dangerous condition of said highway at the intersection of Warren avenue with Remington street.
“ Plaintiff further alleges that on, to wit, the 1st day of July, A. D. 1909, that she was walking on the west side of Warren avenue on the sidewalk used for pedestrians, the same being on the public highway and a part of Warren avenue, and lawfully traveling thereon, and that she was walking north on the said westerly sidewalk on said Warren avenue, the time being, to wit, about 9:00 o’clock p. m. on said day, and that at the point where said westerly sidewalk crossed the westerly intersection of Warren avenue with Remington street the said westerly intersection of Warren avenue with Remington street was torn up, excavated, and various holes made in said street, and that without any negligence or want of care on the part of said plaintiff, but because of the unguarded, unlighted, and unprotected condition of said westerly intersection of said Warren avenue with Remington street, and because of lack of warning which it was the duty of said defendant to give said plaintiff, and because the said westerly intersection of Warren avenue with Remington street at the point above mentioned was not properly guarded, lighted and protected, which it was the duty of the said defendant to so properly guard, light and protect, and which duty he wholly failed to perform, and being unable to see the condition of the said westerly intersection, and without negligence or want of care on her part, that she was then and there precipitated and hurled down into said excavation, so made in said westerly intersection aforesaid, by means whereof said plaintiff then and there became and was greatly hurt, bruised, cut, and wounded, and thereby then and there sprained her right ankle and tore the muscles of her right ankle, and became and was sick, sore and lame, and disordered, and so remained and continued for a great space of time, to wit, etc.”

The plaintiff testified that she rode on a Warren avenue car on Holland avenue to the' corner of Warren avenue. The conductor informed her that Warren avenue was torn up, and that she would have to walk two blocks and take another car, and gave her a transfer for the purpose. She walked up the board sidewalk on the west side of Warren avenue and stepped down at the intersection of Remington street, not knowing that the street had been excavated at the intersection, and was injured.

The paving contractor is the sole defendant, and the negligence alleged is his failure to protect and light the inter-

section, or in any way warn pedestrians of the dangerous condition of the intersection. See 5 Thompson on Negligence (2d Ed.), § 6041, and cases cited; Flater v. Fey, 70 Mich. 644 (38 N. W. 656); Ella v. Boyce, 112 Mich. 552 (70 N. W. 1106); Howey v. Fisher, 111 Mich. 422 (69 N. W. 741); Id., 122 Mich. 43 (80 N. W. 1004).

The annexed map will serve to explain the situation. She testified that it was very dark and that no lights were burning on the street, nor was there any danger signal. This was denied by a witness, who said he was a watchman ; that he put up a lamp that night and saw that it burned all night. A witness who found plaintiff and assisted her testified that she knew this watchman, and that he was not employed to watch at that time, but began such duties the next night.

Declaration. Counsel’s first point is that the declaration does not specifically allege that the place of the accident was at that time a public highway, and open to public travel. The first paragraph states that Warren avenue was, on the day of the accident and for a long time previous thereto had been, used • and occupied as a public highway, etc., * * * and that Remington avenue was also. This is a sufficient allegation.

Contract. Defendant’s counsel assert that the declaration and testimony show that the real foundation of plaintiff’s case is that defendant did not perform his duty according to the terms of his contract with the city, wherein he promised:

" Said first party (Mr. Sager) also agrees to maintain at all times a good and sufficient fence, railing, or barrier around all unsafe portions of said work in such a manner as to prevent accident, and. it shall also be the duty of said contractor to place upon said barrier or railing at evening twilight of each day suitable and sufficient colored lights, and keep them burning during the night.”

It is contended that the plaintiff was a stranger to this contract, and not in privity with defendant, and therefore a right of action did not arise upon it, and the court so charged the jury. Its admission in evidence is claimed to have been erroneous.

This declaration sets up the contract relations between the city and the defendant, but it does not allege that the duty of the defendant was created by or was dependent upon the contract. No demurrer was filed, and the parties went to trial upon pleadings. Whether defendant rightfully or wrongfully made the excavation in the public highway, he was liable for an omission to properly guard and protect the public against injury, and his duty to the plaintiff in that regard could neither be increased nor diminished by his promise to the city. Hence the contract was not admissible. No exception to its admission was taken, however, and we need not consider the question further.

We have examined the other questions. They need little comment. There was proof that the two streets were public highways and open to public travel, and it was so alleged. It was not the duty, of the court to instruct the jury that plaintiff had any knowledge that Kemington street was torn up where she fell.

The requests to charge were fairly covered by the charge. There was evidence that no danger signal was displayed. Hence the court did not err in leaving that question to the jury.

The requirements of the charter as to notice to the city have no application to the defendant.

The question of contributory negligence was for the jury, and it was not error to refuse to direct a verdict for defendant.

The judgment is affirmed.

Ostrander, C. J., and Bird, Blair, and Stone, JJ., concurred.


text:
    L. STARKS CO. v. GRAND RAPIDS & INDIANA RAILWAY CO.
    1. Evidence — Carriers—Books and Records.
    In reviewing a verdict and judgment in favor of a defendant carrier against which plaintiff brought action to recover demurrage charges made for a delay caused by freezing weather, testimony offered by plaintiff from its books that other car loads of produce had suffered damage by freezing during the same period, will not be considered competent, although ex. eluded on defendant’s objection which was based on other grounds, the sufficiency of which was questioned by appellant.

      .2. Carriers — Demurrage Charges — Reasonableness — Interstate Commerce.
    A shipper seeking to recover money paid to a carrier for demurrage charges, made in accordance with schedules filed with the interstate commerce commission, which charges plaintiff claims were unreasonably imposed, because certain cars of potatoes were detained en route to prevent damage by freezing, must invoke redress through the interstate commerce commission, since it alone is vested with power originally to entertain proceedings for the alteration of an established and published schedule. 34 U. S. Stat. 584, U. S. Comp. Stat. Supp. 1909, p. 1149; 32 U. S. Stat. 847, U. S. Comp. Stat. Supp. 1909, p. 1138.
    Error to Kent; McDonald, J.
    Submitted April 11, 1911.
    (Docket No. 75.)
    Decided May 8, 1911.
    Assumpsit by the L. Starks Company against the Grand Rapids & Indiana Railway Company to recover money paid defendant. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Smedley, Hall & Gillard, for appellant.

      James H. Campbell, for appellee.
   Ostrander, C. J.

The defendant demanded and the plaintiff paid $70 demurrage charges on certain car- loads of potatoes, and in a suit brought to recover a portion of the amount so paid a jury returned a verdict for the defendant. The defendant company will not allow refrigerator cars in transit to be heated with stoves placed in the cars, but will allow stoves to be set up in such cars standing upon its tracks. It permits fires to be maintained in box cars in cold weather for the purpose of keeping the contents of the cars from freezing while such cars are in transit. It had on file with the interstate commerce commission, and in force, a schedule of demurrage charges and rules according to which such charges are assessed and collected. The cars in question were refrigerator cars, six in number, which had been loaded with potatoes at points north of Grand Rapids and forwarded to Grand Rapids for reconsignment; they were there reconsigned, each of them, to points outside of the State in the months of January and February, 1908. Testimony for the plaintiff tended to prove that it is not safe to ship potatoes in car load lots when the temperature ranges below from 20 to 23 degrees above zero, and that in the period from January 15 to February 11, 1908, the mercury ranged from 2 degrees above zero to 36 above; there being 16 days in this period when it was less than 22 degrees above zero.

Briefly stated, the claim of the plaintiff is that each of these cars was held for some period of time at Grand Rapids on account, and solely on account, of the weather, and to preserve the potatoes; that for such periods as the cars were so held defendant should not have charged demurrage, because it is, as matter of law, unreasonable to exact from a shipper demurrage charges when safe shipment is interfered with by the elements.

It is the contention of the defendant (1) that the reasonableness of its demurrage charges upon cars employed in interstate shipment is not a question to be determined by the courts, and is to be determined by the interstate commerce commission. (2) That as its rules, on file with the interstate commerce commission, permit demurrage charges under the circumstances related — at least make no provision for an exception in the case of cars delayed as the cars in question were — it was the legal duty of the defendant to assess and collect the charges it made, and it was the plaintiff’s duty to pay them. It is a further contention of the defendant that, in any event, the case was submitted to the jury upon plaintiff’s theory, without prejudicial error to the plaintiff, and that the verdict and judgment is therefore conclusive of plaintiff’s right.

The court instructed the jury that if they found that the plaintiff did not ship out the potatoes, because it had no orders for them — had not sold them — the verdict should be for defendant; that if the cars were detained because of the weather they should determine whether the rule prohibiting the heating of refrigerator cars was a reasonable rule; if it was a reasonable rule, they should then determine whether the other rule requiring payment of demurrage under the circumstances was a reasonable rule. Later the court said—

“That the fact, if it is a fact, that the plaintiff held these cars in Grand Rapids, because fires would not be allowed in them while in transit, and because it was too cold to ship the potatoes without fires in the cars, does not exempt plaintiff from paying for the detention of the cars while they were held here, otherwise called demurrage, * * * and which the plaintiff did pay and seeks in this suit to recover back, unless the rule prohibiting fires was an unreasonable rule.”

Further along in the charge the court said:

“ It appears by the evidence in this case that the defendant has a rule which absolutely prohibits the firing of refrigerator cars while in transit. It also appears that the defendant charges for cars which stand on its tracks more than 48 hours at the rate of $1 per day and for fractions thereof. These are rules made by the Grand Rapids & Indiana Railway Company itself; they are not laws, and can only bind the plaintiff in this case as far as the same are reasonable, and whether or not these rules are reasonable under the circumstances of the case is a question for you to determine from all of the evidence in the case.”

Again the jury was instructed as follows:

“I charge you that if you find that the reason that these cars were not shipped out by the plaintiff from January 15 to February 11, 1908, was because the weather was so cold that the plaintiff could not ship its cars of potatoes without great danger, of freezing, and that the railroad company would not allow the cars to go out with fires in them and protect them from freezing, and that all risk from freezing was upon the plaintiff, that it is for you to determine whether or not such a rule is reasonable, and if you find that it is not reasonable your verdict should be for the plaintiff in this case.”

We interpret the charge, as a whole, to mean that, if the cars were not held because of the weather, or if the rule prohibiting the use of stoves in refrigerator cars in transit was reasonable, the plaintiff could not recover. This was not the plaintiff’s theory which, as clearly indicated in a request to charge, was one requiring the court to determine, as matter of law, that demurrage charges, exacted during periods when it was too cold to ship potatoes in unheated cars, were unreasonable exactions. There was testimony tending to prove that the cars were delayed because there was no buyer, and not on account of the weather. There was testimony tending to prove that the rule of defendant, refusing the use of stoves in refrigerator cars in transit, was the rule also of all, or nearly all, of the other railroads in the State during the particular period. There was a general verdict for defendant, and it is impossible to ascertain whether the jury considered the question of the reasonableness of such a rule. Whether they did or not, it is clear that plaintiff is concluded by the verdict, unless it was error to refuse the instruction that plaintiff was not liable for delays occasioned by the weather, or unless some error was committed during the course of the trial affecting the issues submitted to the jury.

The single complaint which is made is based upon the ruling excluding testimony of losses by freezing of potatoes in other like cars shipped out during the period in question. It appears that plaintiff did reconsign and ship a large number of cars, which tended to prove that the delayed cars were not delayed on account of the weather. It is said that the excluded testimony would have established the fact that potatoes were frozen in cars which were shipped, which fact furnished a reason for delaying the cars in question. In discussing the question, we are not to be understood as holding that the reasonableness of a rule of common carriers affecting the movement of freight cars, containing stoves and fire, is a question for a jury.

The offer of testimony which was made was to show “ by the books ” that plaintiff had sustained a loss on certain cars of potatoes. The competency of the books for such a purpose was not the ground of the objection or of the ruling, but we cannot assume they were competent evidence of the fact.

Should the court have determined, as matter of law, that defendant’s demurrage charges were unreasonable ? The rate of demurrage which was charged is not questioned. It was a proper rate, if any charge was to be made. The act of Congress of June 29, 1906, chap. 3591, 34 U. S. Stat. 584 (U. S. Comp. Stat. Supp. 1909, p. 1149), to regulate commerce, known as the Hepburn act, requires every common carrier, subject to the provisions of the act, to file with the commission created by the act schedules showing all rates, fares, and charges for transportation. Carriers are not permitted to charge or demand greater, or less, or different, compensation than specified in the tariffs filed and in effect at the time. By section 1 of the act of Congress of February 19, 1903, chap. 708, 32 U. S. Stat. 847 (U. S. Comp. Stat. Supp. 1909, p. 1138), known as the Elkins act, the rate filed by a carrier with the commission is conclusively deemed to be the legal rate as against the carrier, and a departure from it is made an offense. A charge made by a shipper in the nature of demurrage must be considered, not alone with respect to the amount of money exacted, but" with respect, also, to the circumstances attending its imposition and supposed to warrant it. The reasonableness of the charge depends, in part at least, upon the reasonableness of the rule according to which it is made.

Assuming that at the common law the shipper has a right of action against the carrier to recover an unreasonable sum exacted as a condition for the carriage, or for the delivery, of goods, and assuming, further, that the courts of the State have jurisdiction to afford relief consistent with the published rates and charges filed by common carriers pursuant to the interstate commerce act, we are of opinion that the jurisdiction of courts to determine the reasonableness of the tariff published and filed with the interstate commerce commission is denied by the Supreme Court of the United States, in Texas, etc., R. Co. v. Oil Co., 204 U. S. 426 (27 Sup. Ct. 350), in which it is held—

“That a shipper seeking reparation predicated upon the unreasonableness of the established rate must, under the act to regulate commerce, primarily invoke redress through the interstate commerce commission, which body alone is vested with power originally to entertain proceedings for the alteration of an established schedule, because the rates' fixed therein are unreasonable.”

The judgment is affirmed.

Eire, Hooker, Blair, and Stone, JJ., concurred.


author: Bird, J.

text:
    INTERSTATE SHIRT & COLLAR CO. v. WINDHAM.
    1. Fraudulent Conveyances — Sales in Bulk Law — Affidavit —List of Creditors.
    It is not a sufficient compliance with the bulk-sales law (Act No. 228, Pub. Acts 1905) for the seller of a stock of merchandise to give the buyer an affidavit that the stock is free from debt, as the phrase might be construed to mean that there were no liens against the stock, or that the seller had no merchandise creditors.
    2. Same.
    Under the statute, a list of creditors or an affidavit that the seller has none, is required.
    Error to Wayne; Donovan, J.
    Submitted April 13, 1911.
    (Docket No. 110.)
    Decided May 8, 1911.
    Garnishment proceedings in justice’s court by the Interstate Shirt & Collar Company, a foreign corporation, against Pearl S. Windham. From a judgment for plaintiff, defendant appealed to the circuit court. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Affirmed.

      Samuel E. Jones ( Edward S. Crece, of counsel), for appellant.

      Clark, Lockwood & Bryant, for appellee.
   Bird, J.

The plaintiff recovered a judgment in justice’s court against John O. Foss, as principal defendant, and Pearl S. Windham, as garnishee defendant. Windam appealed the case to the Wayne circuit court, where a verdict was directed for the plaintiff in the sum of $82.90.

The defendant purchased from John O. Foss a stock of men’s furnishing goods. Before doing so, he made an inventory of the goods in compliance with the bulk-sales law (Act No. 223, Pub. Acts 1905) and demanded of Foss a list of his creditors. Foss advised him that he had no creditors, except his father, who had a lien on his stock to secure a loan of $4,000. On the day the purchase was made, Foss made and delivered to the defendant the following affidavit:

“State op Michigan,) ss.:
“County op Wayne. )
“John O. Foss, being duly sworn, deposes and says that he is the owner and possessor of a certain stock of gents’ furnishings and sundries, situated at 530 Gratiot avenue, Detroit, Michigan, that the said stock of gents’ furnishings and sundries is entirely free of debt, and that there is no incumbrance thereon except a certain chattel mortgage given to Jacob A. Foss; and further deponent saith not.
“John O. Foss.
“Subscribed and sworn to before me this 20th day of May, A. D. 1908.
“Samuel E. Jones,
“Notary Public, Wayne County, Mich.
“ My commission expires April 24, 1909.”

The sole question submitted for our consideration is whether this affidavit meets the' requirement of the statute. This statute requires a written list of the seller’s creditors, together with their addresses and the amount owing to each. This was not done. The defendant argues that the seller insisted that he had no creditors, and, if he had none, he could not give a list of what he did not have. The evident intent of the statute in requiring the affidavit was to disclose the state of the seller’s indebtedness and to whom owing. Since that is the object to be attained, it is not unreasonable to construe the statute as requiring a list of the seller’s creditors, if he has any, and, if not, to require that fact to be stated in the affidavit.

But counsel argues that this statement was made in that part of the affidavit wherein it stated that “ the stock wa3 entirely free from debt.” That statement might be construed as meaning that there were no liens against the stock, or it might be construed as meaning that the seller had no merchandise creditors. In either event, it is not a statement that he had no creditors. This court has recently held in People’s Sav. Bank v. Van Allsburg, ante, 524 (131 N. W. 101), that the giving of the notice is not restricted to any particular class of creditors.

We are of the opinion that the affidavit was not sufficient, and that the trial court was not in error in so holding.

The judgment of the trial court is affirmed.

Ostrander, C. J., and Hooker, Blair, and Stone, JJ., concurred.


text:
    EITZEN v. HILBERT.
    1. Evidence — Competency.
    A lease otherwise admissible in evidence should not be excluded because defendant claimed it was void, as a lease of his homestead without his wife’s signature, when it had not appeared in evidence that he had a wife or a homestead.
    2. Appeal and Error — New Trial — Saving Questions for Re view.
    The question of excessive damages is not reviewable on error, in the absence of a motion for a new trial.
    3. Damages — Replevin—Speculative Profits.
    Upon testimony tending to show that 61 chickens, replevined from defendant, would have produced to plaintiff twenty-five cents a day profit during the time of their detention by defendant, a verdict for damages on such basis was not objectionable as speculative.
    4. Same — Value of Goods Taken.
    Where the return of replevined property was not waived by plaintiff, and defendant gave a bond to retain the property, no reversible error was committed on the trial by requiring the jury to find the value of the property.

      Error to Leelanau; Mayne, J.
    Submitted April 12, 1911.
    (Docket No. 83.)
    Decided May 8, 1911.
    Replevin by Claus Eitzen against James Hilbert. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      John J. Tweddle, for appellant.

      Farm C. Gilbert, for appellee.
   Ostrander, C. J.

Plaintiff replevined certain personal property, claiming to be owner of it and presently entitled to possess it. Defendant gave a bond and retained possession of the property. A jury found plaintiff entitled to possession of the property, fixed its value, and further found that plaintiff had been damaged on account of defendant’s detention of the property in the sum of $100.

The brief for appellant contains a statement of facts, which, upon examination and after comparison with the record, appears to be a statement of what defendant claims the facts to be and what testimony for defendant tended, to some extent at least, to prove. One would not learn from it, what was true, that the testimony for plaintiff tended to prove a very different state of facts. It is needless to say that such a statement is not valuable to the court, and being disputed, as it was certain to be, by the statement in appellee’s brief, imposes upon the court much unnecessary labor. We gather from the record that upon nearly every material question there was some conflict of testimony, and th'at every material question was submitted to the jury.

Appellant contends that error was committed at the trial, has assigned errors, 45 in number, and has discussed those ruled upon under the following heads:

(1) Whether the court erred in admitting and rejecting the testimony in said cause under the objection of the defendant’s counsel.

(2) Whether the court erred in refusing to grant motions of defendant to strike out parts of the evidence introduced in said cause.

(3) Whether the court erred in instructing the jury in said cause.

(4) Whether the court erred in rendering judgment for plaintiff and against the defendant for $100 damages for the unlawful detention of 61 chickens

It appears that plaintiff leased a farm from the defendant, the written lease containing a list of personal property to be left by the lessor on the farm, and agreements concerning the marketing of crops and division of the proceeds of sales; that plaintiff took some personal property to the farm and acquired other property while there. It appears, inferentially at least, that plaintiff was wrongfully evicted by defendant, during the period of his tenancy; that defendant took possession of whatever plaintiff left or had on the farm; and that this suit is brought to recover the property of plaintiff which came in this way into the possession of the defendant. Plaintiff, a witness, had testified that he went into possession of the farm under a lease, and that during the time he was in possession he had personal property on the farm belonging to himself. It was objected by counsel for defendant that no further testimony be received until the lease was produced. Stating that plaintiff was not in this Buit claiming under the lease, his counsel nevertheless produced the lease, identified it, and offered it in evidence. It was objected that it was void because it was a lease of a homestead and was not signed by the wife of the lessor. The court said there was no proof of the fact upon which the objection was based — he might have added there was then no proof that the lessor had a wife — and further said, “We will pass upon that when the time comes.” There was no ruling, although an exception was taken. The lease appears in the record; but whether it was read to the jury does not appear. The witness then testified that he had certain property at the farm when defendant entered. A motion was made to strike out this testimony “because it arises out of this contract that is claimed was void.” The objection was overruled and an exception taken.

Upon these two exceptions the first two assignments of error are based, and it appears to be seriously contended that reversible error was committed. There are 18 other assignments of error based upon rulings admitting or excluding testimony. We have examined each of them. We find no reference in the brief to any exception in the record relied on in support of the fourteenth assignment of error. As to each of the others, we think them no better sustained than are the first two. None of them are well assigned.

There was no motion for a new trial, and no ground is presented for examining .the question of excessive damages. It appears, however, that such damages as were awarded were for the detention by the defendant, from the date of the demand to the date of the trial, of 61 chickens, and the testimony upon the subject is, in substance and effect, that, in eggs and chickens, plaintiff might have made 25 cents a day if the chickens had been in his possession. It is contended that this is mere speculation. We cannot assume there would be no profit from keeping' 61 hens. We think the testimony of the plaintiff concerning the amount thereof was admissible. We do not find that it was disputed, nor was he required, upon cross-examination, to specify the cost of feeding, the price of eggs, or the number of eggs which ought, within his experience as a farmer, to be gathered from so many hens. The court fairly submitted the matter to the jury.

The jury was required by the court to find and state the value of the property which they found to be the property of plaintiff. This the jury did. It is said that this was error because, return of the property not having been waived, it was immaterial what was the value of that restored to plaintiff. It is urged further that in such cases the statute .does not contemplate a finding of the value of the property. It does not appear that upon this subject any requests were presented by defendant. We assume that the purpose plaintiff had in asking for such a finding was to conclude defendant in case an action upon the bond became necessary. Whether in such an action, or in any other action, the finding of value would be conclusive upon defendant, is not a question now presented for determination. We do not see that defendant was prejudiced in this case by the action which was taken.

As no reversible error is made to appear, the judgment is affirmed.

Bird, Hooker, Blair, and Stone, JJ., concurred.