author: Brooke, <J0

text:
    SCHURTZ v. CITY OF GRAND RAPIDS.
    1. Municipal Corporations — Salary — Public Officers — Ordinances — Contracts.
    The fixing of salaries of employees by the governing body of the municipal corporation is a legislative act, and an ordinance enacted for that purpose is not in the nature of a contract between the municipal corporation and the employees.
    2. Constitutional Law — Public Officers — Salary—Ordinances —Grand Rapids Charter — Municipal Corporations.
    Where an ordinance of the city of Grand Rapids, under the provisions of its charter, fixed the salaries of assessors at $1,800 a year, and they were appointed .for a term of three years, an attempt to increase the; salary to $2,400 per year at the end of the first year of their term was in violation of section 3, art. 16, of the Constitution, and subdivision D, § 5, Act No. 6, Pub. Acts 1917.

    3. Same — Evidence—Oral Testimony.
    Oral testimony of an agreement between the members of the city commission and the members of the board of assessors as to an increase of salary to be granted during the term for which they were appointed was properly excluded.
    4. Same — Appeal and Error — City Commission — Powers.
    The question as to whether the city commission had the power to fix the salary for the first year and an increasing ■ one for the rest of the term is immaterial where they did not attempt to do so.
    Appeal from superior court of Grand Rapids; Dun-ham, J.
    Submitted January 23, 1919.
    (Docket No. 101.)
    Decided April 3, 1919.
    Bill by Perry Schurtz against the city of Grand Rapids to enjoin the payment of certain increased salaries. • From a decree for plaintiff, defendant appeals.
    Affirmed.

      Shelby B. Schurtz, for plaintiff.

      Charles A. Watt, for defendant.
    The bill in this case is filed to restrain the defendant city of Grand Rapids from paying to the city assessors salary at the rate of $2,400 per annum or any amount in excess of $1,800 per annum and alleging the unlawful increase of such salary by the city commission in the year 1918 from $1,800 to $2,400 per annum.
    The defendant city by its charter adopted the commission form of government, May 1, 1917. The new charter as well as the old provided for a board of three assessors. Under the old charter the salary of each member of said board was fixed at $1,800 per annum. Under the provisions of the new charter it became the duty of the new commission to fix the salaries of all officers and employees of the city except their own and it was provided that salaries should remain the same as under the old charter until changed in the manner provided by the new charter. Acting under the authority created by the charter the new commission on May 7, 1917, elected Messrs. Crewe, Steinmann and Forsyth, city assessors for the term of three years beginning on the first Monday of May, 1917. On the same day these gentlemen filed their acceptance of the office and on the following day took the constitutional oath and the same was later duly filed and accepted by the city commission. 'On the 17th day of May, 1917, the' city commission adopted unanimously an ordinance fixing salaries and rate of compensation of officers and employees of the city of Grand Rapids. This ordinance contained the following:
    “The board of three assessors at $1,800......$5,400.”
    From May 1,1917, to May 1,1918, each of the three assessors drew a salary at the rate of $150 per month, or a total for the year up to May 1, 1918, of $1,800. On May 20, 1918, the new commission passed to its third reading an ordinance to fix the salaries and rate of the city officers and employees of the city of Grand Rapids in which there appears the following:
    “City Assessors.
    “Three assessors at $2,400.................$7,200.”
    This ordinance as affecting the board of assessors was finally adopted on May 31, 1918. It is the contention of plaintiff that this later ordinance which increases the salary of each assessor from $1,800 to $2,-400 is invalid for the reason that it violates section 3, article 16, of the State Constitution which follows:
    “Neither the legislature nor any municipal authority shall grant or authorize extra compensation to any public officer, agent, employee, or contractor after the service has been rendered or the contract entered into. Salaries, of public officers, except circuit judges, shall not be increased, nor shall the salary of any public officer be decreased, after election or appointment.”
    Subdivision d of section 5, Act No. 6, Pub. Acts 1917, provides:
    “No city shall have the power to change the salary or emoluments of any public official after his election or appointment, or during his term óf office, nor shall the term of any public official be shortened or extended beyond the period for which he was elected or appointed, unless he resign or be removed for cause, where such office is held for a fixed term.”
    It is not contended that any one of the three assessors resigned or was removed for cause during the term fixed by his appointment.
    After a hearing in the court below a decree was entered permanently restraining the defendant city, its attorneys, etc., from paying to said city assessors any sum in excess of $1,800 per annum each, until the term for which they were appointed shall have expired on the first Monday in May, 1920. From this decree the defendant city has appealed.

      See note in 37 L. R. A. (N. S.) 388.

   Brooke, <J0

(after stating the facts). Counsel for appellant in his brief says:

“The facts which we attempted to bring before the court below, but were stopped by objection and peremptory ruling are in- substance as follows: Before the election of 1917 and the taking effect of the new charter the salaries of the members of the then board of assessors was considered inadequate by the common council. The board of estimates took this into consideration and in their budget for 1917 fixed the salary at first at $3,000 per annum but later reduced it to $2,400 per annum. At that price one of the most able members refused to act and trouble was had in getting competent men. The commission were loath to increase the salary from the former amount for the first year of their incumbency, and an agreement was entered into whereby the present city assessors were to accept the offices at the former salary of $1,800 for the first year with the understanding that the salary would be $2,400 for the succeeding two years of their term. Under this arrangement the ordinance of 1917 was passed, upon the report of the committee that it was to cover the then current year. In the spring of 1918, the remainder of the contract was carried out by the salary ordinance of 1918, which fixed the salary of the city assessors at $2,400, thereby ratifying and confirming the inchoate contract before that made.”

Counsel raised the question whether the salary for 1918 was fixed by the ordinance of 1917 or was carried over by the law as it existed prior thereto. This question seems to us immaterial as the salary under the old charter was the same as that fixed by the ordinance of 1917, but in the light of the provisions of the new charter which in terms empowers the new commission to fix by ordinance the salary or rate of compensation of all officers, and in further consideration of the fact that acting under said power, so conferred, the commission by the ordinance of May 17, 1917, did undertake to fix the salaries of the board of assessors for the whole period of their appointment, we have no hesitation in reaching the conclusion that the board of assessors from May 1, 1917, to May 1, 1918, were receiving a stipulated salary by virtue of the ordinance of May 17, 1917. The fixing of the salaries by the-governing body of the municipal corporation is a legislative act and an ordinance enacted for that purpose is not in the nature of a contract between the municipal corporation and the employees. 2 McQuillin on Municipal Corporations (note 90 a, p. 1122).

We think the court below was correct in excluding evidence of any oral arrangement between the members of the commission and the members of the board of assessors as to an increase of salary to be granted during the term for which they were appointed. It is asserted by counsel for appellant that:

“It would have been .proper for the city commission at the time they enacted the ordinance of 1917 to have fixed the salary on an increasing scale if they saw fit, namely at $1,800 for the first year and $2,400 for the remaining two years of their term.”

It is unnecessary to determine whether the city commission could legally have enacted an ordinance of this character. It is sufficient to say that it did not attempt to do anything of the kind, but immediately after appointment for a term of three years, fixed the salary at $1,800.

The matter here involved has been so recently and so fully considered by this court that an extended review of the authorities' is now unnecessary. See Barrus v. Engel, 186 Mich. 540; Kearney v. Board of State Auditors, 189 Mich. 671; and Dunham v. Tilma, 191 Mich. 688.

The judgment must be affirmed, with costs to appellee.

Bird, C. J., and Ostrander, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    CADILLAC MACHINE CO. v. MITCHELL-DIGGINS IRON CO.
    1. Sales — Contracts—Passing of Title — Intent.
    The question of when title to property passes' from the seller to the buyer is one of intention to be ascertained from the terms of the contract and from the circumstances of the case.

      2. Same — Default of Buyer — Rescission—Waiver.
    Where the seller of pig iron, to be shipped in equal monthly installments, on May 1st sent a statement of account in which it charged plaintiff, the buyer, with interest on overdue payments for invoices, such action was inconsistent with an assertion of its right to cancel under the contract for such default, and was in effect'an affirmance of the sale and a notice to plaintiff of its abandonment of its right to cancel for such default as had occurred up to that time.
    3. Same — Default—Intent.
    Defendant’s action in failing to invoice the installments of iron to plaintiff, who was in default for prior installments, for April, May, and June, held, to amount to an intention on the part of defendant to “postpone shipment of future installments until prior shipments are paid for,” rather than to cancel the contract, as it had a right to do.
    4. Same — Default—Waiver,—Rescission.
    Although defendant, by sending its statement of account to plaintiff on May 1st waived its right to cancel for the default in the February payment, it did not affect the' March payment, which was not then in default.
    5. Same — Default—Rescission.
    Plaintiff, in an action for the value of undelivered shipments, having tendered the amount due for the February installment before the contract was canceled, was entitled to said shipment, but being in default for subsequent installments at the time of the cancellation, it could, not recover for the same.
    Error to Wexford; Lamb, J.
    Submitted January 29, 1919.
    (Docket No. 17.)
    Decided April 3, 1919.
    Assumpsit by the Cadillac Machine Company against the Mitchell-Diggins Iron Company for breach of a contract for the sale of certain pig iron. From the judgment entered, both parties bring error.
    Affirmed.

      Fred C. Wetmore, for plaintiff.

      Gaffney, Mittner & Millington, for defendant.
    This case was heard by the court without a jury. After such hearing the following findings of fact were made by the learned circuit judge:
    “On the 25th day of October, 1916, the parties hereto entered into a certain written contract for the purchase and sale of pig iron, which said contract reads as follows, viz.:
    “ ‘Pig Iron Contract.
    “ ‘Issued from the Office of
    “ ‘Mitchell-Diggins Iron Company, Cadillac, Michigan.
    “ ‘Buyer: Cadillac Machine Company, Cadillac, Michigan.
    “ ‘ Seller: Mitchell-Diggins Iron Co., Cadillac, Mich.
    “‘Quantity: Eight hundred (800) gross tons.
    “ ‘Grade: No. 2 “Cadillac” L. S. Charcoal Pig Iron.
    “‘Price: $20.00 per ton 2,240 lbs. F. O. B. cars furnace.
    “ ‘Payment: Freight cash by buyer, balance cash 80 days. The price is based on present tariff freight rate of per gross ton. In case tariff freight rate declines, the buyer is to have the benefit of such decline. In case the tariff freight rate advances, the buyer is to pay the advance.
    “ ‘If the buyer fails to make payment when due, the seller shall have the right to cancel the contract or to postpone shipments of future installments until prior shipments are paid for. Past due accounts shall bear interest at the rate of 6 per cent, per annum from date of maturity.
    “‘Shipment: Equal monthly quantities during the first half of 1917.
    “‘Route: Rate of freight XXXXX per gross ton from furnace to -.
    “ ‘Seller assumes no liability on freight rate.
    ‘“If shipment is made in installments, this contract for all purposes shall be treated as separate for each installment.

      ‘“The seller shall not he liable in damages for failure to deliver caused by strikes, accidents or other causes beyond its reasonable control.
    “ ‘The contract is completely set forth herein.
    “‘Accepted: Cadillac Machine Company.
    “‘W. A. K.
    “‘Accepted: Mitci-isll-Diggins Iron Company.
    “‘By D. C. Lamekeatjx.’
    “In the month of January, 1917, the aforesaid contract was modified by a verbal arrangement then made by and between the parties thereto to the end and effect that the defendant company was to invoice^ to the plaintiff company each and every month, during the first half of 1917, 133 tons of iron, but was to retain said iron so invoiced in its yard for a reasonable length of time subject to the disposal of the plaintiff.
    “On the 1st day of February, 1917, the defendant in accordance with the contract as so modified invoiced to the plaintiff 133 tons of iron at $20 per ton to cover the January installments and charged the 'amount, $2,660, to plaintiff’s account on its books. March 15, 1917, the February installment of 133 tons of iron of the value of $2,660 was likewise invoiced, to the plaintiff and charged to the plaintiff on the; books of the defendant. And, on the 21st day of April,, 1917, the March installment of iron of 133 tons of the value of $2,660 was likewise invoiced to the plaintiff and charged to the plaintiff on the books of the defendant.
    “May 1, 1917, the defendant sent the plaintiff a statement of its account with defendant, which statement included the amounts covered by the invoices for the installments of iron for the months of January, February and March, 1917. No attention was given to this statement of account, so far as the three invoices were concerned, until May 14, 1917, when the plaintiff sent defendant a check for $2,660 without interest to cover the January installment of iron as invoiced under date of February 1st. This payment was credited to the account of the plaintiff on the defendant’s books under date of May 19, 1917.
    “After April 21, 1917, no further invoices were issued by the defendant to the plaintiff.
    “During the month of April, 1917, and again along the latter part of May, 1917, Mr. Kysor, of the plaintiff company had some talk with Mr. Lamereaux of the defendant company in which the question of permitting the plaintiff to pay cash for the February and March installments, to give notes for the installments for the months of April, May and June, was discussed but no arrangement to that effect was. made.
    “During the time the aforesaid contract was running and for some time prior thereto, the parties hereto had other dealings between them, which, while independent of the,contract, were kept along with the items under the contract and under one head or one account.
    “On the 1st day of July, 1917, the defendant sent the plaintiff a credit memorandum for the sum of $5,~ 320, bearing date June 30, 1917, covering the two items called for on the books of the defendant as charged for the installments of iron, invoiced for February and March, 1917. This, credit memorandum was accompanied-by a statement of the plaintiff’s account, after the said credit had been given. The balance then due and unpaid was $2,104.38. This memorandum and account were sent under the express direction of the vice-president, Wm. L. Saunders, with the avowed purpose of closing the deal under the contract.
    .“The plaintiff, on the 7th of July, 1917, returned the said credit memorandum and with it a check for $2,660 and a letter, directing that the check be applied to the payment of the February installment of iron as invoiced under date of March 15th, and stating that the plaintiff did not desire the defendant to take back the iron, invoiced for February and March, and that the installment for March, invoiced under date of April 21, 1917, would be taken up at an early date. •
    “This check for $2,660, the amount due on the February installment without interest as provided by the contract, was received by the defendant and passed to the plaintiff’s general account, under date of July 10, 1917. Later under date of July 19, 1917, the defendant rendered a statement of its account with the plaintiff to the plaintiff, wherein and whereby $2,-104.38 of the $2,660, the amount of the check, had been applied by the defendant to items not subject to the terms of the contract. Along with said statement defendant enclosed its check for $555.62, dated July 10, 1917, as the balance due the plaintiff to settle its account in full as of that date. This check for $555.62 had been received by the plaintiff some time beforel this date of July 19th. It was left with defendant, at the time of the conference held shortly after July 10, 1917, at Cobbs & Mitchell’s office, at which Mr. Kysor for the plaintiff and Mr. Mitchell, Mr. Saunders, and Mr. Ford for defendant were present, and during which conference it was made known to Mr. Kysor that contract deal No. 687 had been closed and was of no more force or effect.
    “Later, and on the 20th day of July, 1917, the plaintiff informed the defendant by letter that it, the plaintiff, did not concede the right of the defendant to cancel the contract, and asked for the delivery of 899 tons of the iron at once and that the balance be held in defendant’s yard in accordance with the verbal understanding, made in January, 1917. Accompanying this communication was a cheek of the plaintiff for $2,660 in payment of the March installment of iron as invoiced under date of April 21st, without interest. Under date of July 27th, the defendant returned this check declining to deliver any more iron under the contract.
    “August 13, 1917, the plaintiff served notice in writing on the defendant advising it, the defendant, that the plaintiff insisted on having its check No. 16,-415 for $2,660, dated July 7, 1917, applied in payment of the invoice of iron, bearing date of March 15, 1917, covering the February installment, as originally directed. With the above notice, the plaintiff returned the check of defendant for $555.62, dated July 10, 1917, and tendered the defendant a certified check for $2,696.38 in payment of the invoice, dated April 21, 1917, for the March installment of iron with the interest at 6 per cent, from May 21, 1917, to date of tender. In this notice was also a demand upon the defendant for the possession of 266 tons of iron, covered by the invoices of March 15th and April 21, 1917, being the February and March installments of iron under the contract. On the same day, August 13, 1917, the plaintiff made a formal tender to the defendant of the sum of $8,000 in the form of a certified check, with notice that such sum was in payment for the 400 tons of iron due under the contract as the April, May, and June, 1917, installments, and also made demand for the delivery of the said 400 tons of iron to the plaintiff.
    “On August 20, 1917, the defendant returned to the plaintiff all three checks, namely the check for $2,-696.33, the check for $555.62 and the one for $8,000, with notice that it, the defendant, declined to deliver any of the iron for which demand, had been made.
    “Under date of October 11, 1917, the plaintiff returned to defendant the check for $555.62, dated July 10, 1917.
    “The iron called for by invoice dated February 1, 1917, being the January installment under the contract, was delivered, at the request of the plaintiff, during the months of September, October and November, 1917. This installment had been paid for and credit given May 14, 1917. No further or other deliveries of iron to apply on contract No. 687 have been made by defendant, and delivery of any iron under said contract, other than the January, 1917, installment, has been refused by the defendant.
    “At no time, during the life of contract No. 687 was there any specific quantity of No. 2 ‘Cadillac’ Lake Superior charcoal pig iron set apart in its yard by the defendant to cover this contract or any part thereof. It was the intention of the parties to the contract as modified that, when the defendant invoiced a monthly installment to the plaintiff, such invoice was notice to the plaintiff that the defendant held itself in readiness to deliver such installment on request.
    “The market value of such iron as was covered by this contract, during the month of July, 1917, was $55 per ton.”
    Based on such finding the court reached certain conclusions of law which follow:
    “1. The written contract before the court, as modified by the verbal arrangement, made in January, 1917, is in its terms a contract to sell 800 tons of No. 2 ‘Cadillac’ Lake Superior pig iron, and is, by express terms, severable.
    “2. It was the intention of the parties to this- contract gathered from the instrument, its modification and what was done under it as modified, that the sale of each installment should be complete, when the invoice was issued to the plaintiff by the defendant and the amount thereof charged to the plaintiff on the books. The invoicing was notice to the plaintiff that the defendant then held the quantity of iron, called for by the invoice, in readiness to load out at the request of the plaintiff, and was a plain manifestation of an intention to appropriate such quantity of iron to the plaintiff within the meaning of the uniform sales act. The title then passed to the plaintiff. Nor was payment a condition precedent thereto. By the terms of the contract the plaintiff had thirty days from the date of the invoice in which to pay for the installment, and yet delivery of the same iron was demandable at any time, even within the thirty days. There was no reservation of title till payment was made, either expressed in or implied from the instrument.
    “3. Under the contract the plaintiff was to pay cash after thirty days from the date of the invoice of each and every installment. His neglect and failure to make any payment on any of the invoices issued under dates, February 1st, March 15th, and April 21, 1917, until May 14, 1917, and then only the February 1st invoice, was material breach of the contract and justified the defendant in rescinding it in its entirety. The plaintiff is presided over by a keen business man thoroughly conversant with business ways and the usages of trade. He must be held to have realized the fact that a credit of thirty days on each and every installment invoiced could not be reasonably construed, under a recognized trade usage, to mean a credit of 102 days on the January installment, a credit of 107 days on the February installment, and a credit of 70 days on the March installment. He must also, from like business experience, be held to have realized that long continued outward sufferance towards a debtor does not, ipso facto, indicate long continued inward satisfaction on the part of the creditor. Nor does it avail him to claim that the defendant should have made the plaintiff pay. The legal duty rested upon the plaintiff to pay when its obligations fell due under the contract or to make satisfactory arrangement for their extension, and not upon the defendant to urge or force it to do so.
    “4. It is well settled by the authorities that an unpaid seller has the right to rescind a completed sale and retake the title to the property sold. The uniform sales act makes provision for the exercise of such right in subdivision 2 of section 61 [3 Comp. Laws 1915, § 11892], which reads as follows:
    “ ‘The transfer of title shall not be held to have been rescinded by an unpaid seller until he has manifested by notice to the buyer or by some other overt act an intention to rescind. It is not necessary that such overt act should be communicated to the buyer, but the giving or failure to give notice to the buyer of the intention to rescind shall be relevant in any issue involving the question whether the buyer had been in default an unreasonable time before the right of rescission was asserted.’
    “The act of the defendant in not issuing any further invoices of monthly installments of iron, after April 21, 1917, and the sending of the ‘credit memorandum/ dated June 30, 1917, to the plaintiff under date of July 1,1917, were overt acts within the meaning of said uniform sales act, and were sufficient to indicate to the plaintiff an intention on the part of the defendant to rescind the contract, both as to the installments where the sale must be held to have been complete as well as to those installments whereto title had not passed yet. This conclusion follows from the rule, that, where the seller is in possession of the property any dealings with it inconsistent with a recognition of the rights of the buyer in it will amount to an election. Under such condition notice to the buyer is not necessary, but in the instant case, the buyer must be held to have had notice of both overt acts, one by the presumption that it would obviously take notice of what, in the regular course of business under the contract in question, its books and records should show but failed to show, and the other by direct notice in the shape of the ‘credit memorandum/
    “5. The sale of the installments for February and March was rescinded and title thereto reasserted by the defendant,' but having in mind the fact that the contract by its terms is severable, that the defendant, after its rescission of the contract accepted and applied the check for $2,660, dated July 7, 1917, in the payment of other items of indebtedness on the general account of the plaintiff than the one specifically directed by the plaintiff, and also having in mind the rule of law which gives the right to the debtor to direct the application of tendered payment, there is no inconsistency, in my judgment, in holding that, in accepting and applying said check for any purpose, the defendant must be held to have waived its. right to insist on its rescission of the contract in so far as it applies to the February installment of iron, and that said February installment must be considered as paid for by said check and that the iron so covered was subject to the demand for delivery made by the plaintiff, on July 20, 1917.
    “6. Judgment should be entered for the plaintiff against the defendant, under the first count of the plaintiff’s declaration, in the sum of $7,315, together with interest thereon at the rate of 5 per cent, from July 10, 1917.

      “7. Judgment of no cause of action should be entered under the second count in the plaintiff’s declaration, and it is so ordered.”
    Neither party to the controversy was satisfied with the legal conclusions, the plaintiff filing exceptions to the third, fourth, that part of the fifth which reads:
    “The sale of the installments for February and March'was rescinded and title thereto reasserted by the defendant,”
    —to the sixth and to the seventh. Defendant filed exceptions to the legal conclusions as follows:
    “1. To those parts of the second conclusion of law, which read as follows:
    “ ‘The invoicing was notice to the plaintiff that the defendant then held the quantity of iron, called for by the invoice, in readiness to load out at the request of the plaintiff, and was a plain manifestation of an intention to appropriate such quantity of iron to the plaintiff within the meaning of the uniform sales act.’

      “2. To that part of the fifth conclusion of law, which reads as follows:
    “ ‘But Raving in mind the fact that the contract by its terms is severable, that the defendant, after its rescission of the contract, accepted and applied the check for $2,660, dated July 7, 1917, in the payment of other items of indebtedness on the general account of the plaintiff than the one specifically directed by the plaintiff, and also having in mind the rule of law which gives the right to the debtor to direct the application of tendered payment, there is no inconsistency, in my judgment, in holding that, in accepting and applying said check for any purpose, the defendant must be held to have waived its right to insist on its rescission of the contract insofar as it applies to the February installment of iron, and that said Ftebruary installment must be considered as paid for by said check and that the iron so covered subject to the demand for delivery made ■by the plaintiff on July 20, 1917/
    “3. To the sixth conclusion of law, which reads as follows:
    “ ‘Judgment should be entered for the plaintiff and against the defendant, under the first count of the plaintiff’s declaration, in the sum of $7,315, together with interest thereon at the rate of 5 per cent, from July 10, 1917/ ”
   Brooke, J.

(after stating the facts). Broadly speaking, the plaintiff makes the following contentions:

“(1) A completed sale was made of each of the January, February and March installments of iron and the title to such iron passed to the plaintiff.
“(2) The neglect and failure of the plaintiff to make prompt payment of the February, March and April invoices covering the quotas of iron for January, February, and March was not a material breach of the contract which justified the defendant in rescinding the entire contract.
“(3) The February installment was paid for by defendant’s acceptance of plaintiff’s check of July 7, 1917, for $2,660 which was directed by the plaintiff to be applied in payment of this item and therefore plaintiff was entitled to such iron upon demand.
“(4) There was no error in admitting in evidence checks and documents passing between the parties bearing date after June 30,1917, and in admitting testimony relative to transactions taking place after that, date.”

On behalf of the defendant it is contended that:

(1) The plaintiff’s default in payment according to the terms of the contract clothed the defendant with the right to cancel the entire contract.

(2) That there was no completed sale of the February and March quotas.

(3) That the retention by defendant of plaintiff’s check of July 7th was not a waiver of cancellation or rescission. Q

(4) That the letters, checks and tenders of payment since made by the plaintiff after July 1, 1917, were not material to the rights of the parties hereto and that defendant’s objection to testimony relative thereto should have been sustained.

It is asserted by counsel for plaintiff that section 3 of the uniform sales act (3 Comp. Laws 1915, § 11834) provides that all sales and contracts to sell, whether verbal or written, are subject to the provisions of the act, and, based upon this assertion counsel for plaintiff seek to secure rights in the plaintiff and impose liabilities upon the defendant under the provisions of the act rather than under the terms of the contract. The contract itself, it seems to us, is very simple, and all of its terms are such as the parties had a legal right to make. The terms of the contract, therefore, must govern the rights of the parties thereunder. The statute may properly be considered in determining the bearing of the acts of the parties upon those terms. The case is somewhat peculiar in that, in essence, there is no dispute between the parties upon questions of fact. The only difference between counsel arises when legal conclusions are to be drawn from undisputed facts.

The first important question presented upon the record is in our opinion whether under the terms of the contract and the acts of the parties in relation thereto, there was a completed sale of the January, February and March allotments of iron, the title to which as a result of the contractual relations, and the acts of the parties passed from the defendant to the plaintiff. Bearing upon this question the books of the defendant show that it invoiced the January quota on February 1st; the February quota on March 15th and the March quota on April 21st and on the date of each invoice charged to the plaintiff in its regular account the contract value of each monthly quota. At the time the March quota was invoiced no payment had been made by plaintiff on the January and February quotas although both were then past due. Following the making of the invoice for the March quota on April 21st, defendant on May 1, 1917, rendered a general statement to plaintiff in the following terms:

“Statement.
“Cadillac, Mich., May 1, 1917.
“Cadillac Machine Co.
“In account with
“Mitchell-Diggins Iron Company,
“Manufacturers
“Lake Superior Charcoal Pig Iron.
Date. Car No. Invoice. Freight. Net.
Balance $5,320.00
Apr. 2 2925 .................. $1,120.00
Apr. 12 Analysis, etc.....$20.95
Apr. 21 .......................... 2,660.00
Apr. 24 .......................... 920.00
4,700.00
$10,020.00
20.95
$10,040.95
Cr. 20.95
$10,020.00
Interest.
Jan. quota $2,660.00 2% Mo. 6 per cent. $33.25
Feb. quota $2,660.00 1% Mo. 6 per cent. 19.95
Mar. quota $2,660.00 % Mo. 6 per cent. 6.65
$59.85
$10,079.85”

It will be noticed in this statement that .defendant charged the plaintiff two and one-half months’ interest on the January quota, and one and one-half months on the February quota and one-half month on the March quota. On May 19th after the receipt of this statement by the plaintiff, plaintiff sent to defendant and defendant credited the plaintiff with the sum of $2,660 which paid for the January quota, if interest is disregarded. For six weeks thereafter the matter stood unchanged by any act of either party except that on one or two occasions an officer of the plaintiff company suggested to an officer of the defendant company that the account should be liquidated by a payment in promissory notes in place of cash which suggestion was not complied with by defendant. On June 30, 1917, defendant issued to plaintiff a credit memorandum for $5,320, covering the February and March quotas which had theretofore been charged to plaintiff on the books of the defendant company. Immediately after the receipt of the said credit memorandum plaintiff attempted to protect its rights by the course detailed in the finding of facts. Under the terms of the contract default on the part of the plaintiff gave to the defendant the right to do one of two things: To cancel the contract, or to postpone shipments of future installments until prior shipments were paid for. So far as the record discloses the defendant availed itself of neither of the rights provided in the contract until June* 30, 1917, unless its failure to invoice the quotas of April, May and June, shall be eonstrued as an intention on its part to notice plaintiff’s failure to pay in accordance with, the contract terms. This act so far as it has any bearing upon the rights of the parties against each other, it seems to us, indicated on the part of the defendant the intention to—

“postpone shipments of future installments until prior shipments are paid for,”

—rather than to cancel the contract. We reach the conclusion, therefore, that up to the 30th of June there was on the part of the defendant no cancellation of the contract because of plaintiff’s default in payment. The authorities, as well as the provisions of the uniform sales act, are to the effect that the question of when title to property passes is one of intention to be ascertained from the terms of the contract and from the circumstances of the case. Illinois Glass Co. v. Horse-Radish Co., 166 Mich. 520, and Germain v. Loud, 189 Mich. 38. Looking at the matter in the light of the situation of the parties and their acts in relation thereto, we think that it was the intention of both parties to the contract that the property in each monthly quota should pass from the vendor to the vendee at the time it was invoiced. As bearing upon this question it should be remembered that the character of the product sold was such that segregation from the common stock was not necessary in order to effectuate the transfer of title. Defendant was producing about one hundred tons of iron daily, a large percentage of which was of the grade covered by this contract. While it did not actually set apart in its yard — appropriate—133 tons of iron each month to cover the invoices to plaintiff, it nevertheless had agreed so to do and it had rendered to plaintiff, on May 1st, a statement of account in which it had charged plaintiff with interest on the overdue payments for such invoices. This course followed by the defendant at a time when plaintiff was in default was wholly inconsistent with an assertion of its right to cancel under the contract for such default. It was, in effect, an affirmance of the sale and a notice to plaintiff of its abandonment of its right to cancel for such default as had occurred up to that time. Thereafter, and on the 19th day of May, it credited plaintiff with $2,660 upon the contract although the payment was long overdue. This act, too, is not without significance when the situation of the parties at that time is considered.

We are unable to find anything in the record touching the acts of the plaintiff with reference to the contract which tends to indicate on its part abandonment or the desire to be released from the legal obligations imposed thereby. Plaintiff had some difficulty in financing the payments as they matured of which defendant was advised. Such a situation, however, arises not infrequently in commercial affairs and of itself affords no ground for cancellation. Plaintiff’s ■failure to pay according to the contract terms was a ground for cancellation, as to the January and February quotas; this remedy, however, was not invoked by defendant.

We now come to a consideration of the effect of the credit memorandum issued by defendant to plaintiff on June 30th. In the light of the acts of the parties with reference to the account up to that time we are of the opinion that the issuing of this credit memorandum was ineffectual to change the rights of the plaintiff as they had theretofore been fixed with reference to the January and February quotas. While the act in itself was perhaps equivocal it seems to us that it can only be fairly construed as an attempt on the part of the defendant to notify the plaintiff that it considered itself relieved from any further obligation under the contract, and that it was cancelled. Whether this is true or not it is' undisputed that on July 10th the parties in interest had an interview at which it was made clear to plaintiff’s representative that defendant considered the contract cancelled. This notice, like the credit memorandum, could not affect the rights of the parties with reference to the first two quotas which had become fixed. What effect did it have upon plaintiff’s rights under the contract to the March, April, May and June quotas? The contract recites:

“If shipment is made in installments, this contract for all purposes shall be treated as separate for each installment.”

On behalf of the plaintiff .it is asserted that inasmuch as the contract, as modified, provides that invoices for each month’s quota should be issued and as defendant never invoiced the quotas for April, May and June, there was on the part of the plaintiff no default as to those quotas, and therefore no right on the part of the defendant to cancel, growing out of a failure to pay for those quotas. It is further urged that this being a sale of goods, by installment the seller cannot rescind or refuse performance unless the buyer’s default is made under such circumstances as justifies an inference that he repudiates the entire contract, citing West v. Bechtel, 125 Mich. 144 (51 L. R. A. 791), and Welsh v. Michigan Maple Co., 161 Mich. 16. The difficulty with this position is that the contract provides for more than a mere sale of goods by installment. It preserves definitely in the vendor the absolute right of cancellation:

“If the buyer fails to make payment when due.”

In neither of the cases cited did the contract contain any such provisions. Leaving out of the question plaintiff’s default as to the April, May and June quotas, it was nevertheless clearly in default on the March quota, when on July 10th the contract was definitely repudiated by the defendant. We are unable to see how the provision that:

“This contract for all purposes shall be treated as separate for each installment,”

—deprives the defendant of its right to cancel. This language must be read in conjunction with the earlier provision of the contract providing for cancellation of the contract or postponement of shipment of future installments. It is true that because of its own acts such cancellation cannot be made effective as to the February quota, but wé can see no reason why the plaintiff’s default as to the March quota cannot be made the basis, of a valid cancellation as to the balance of the contract. Defendant’s acts in billing for the three quotas, January, February and March on May 1st aiid adding interest thereto and subsequently crediting defendant with $2,660 on May 14th while conclusive as we have seen against defendant’s contention as to the February shipment cannot affect its rights as to the March shipment because at that time no default as to said March shipment had occurred. Under our view of the case plaintiff is entitled to recovey by reason of the failure of defendant to deliver the February quota, but cannot recover for failure to deliver the March, April, May and June quotas because the defendant cancelled the contract for a valid reason on or about July 10th. This conclusion renders it unnecessary to consider the question of the misapplication of payment by plaintiff to defendant of the $2,660 on July 7th because whether applied to the February quota or not plaintiff would be entitled to recover for that shipment.

The judgment is affirmed.

Bird, C. J., and Ostrander, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    THOMPSON v. THOMPSON.
    1. Divorce — Extreme Cruelty — Failure to Provide Ser arate Home.
    Where, in a suit by the wife for a divorce on the ground of extreme cruelty, the evidence shows that defendant took plaintiff to the home of his mother, who subjected her to attacks of the most bitter and abusive character, that he failed to provide a separate home for her, and for two months absented himself from her and their child, the-decree for divorce will not be disturbed.
    2. Same — Altmony—Excessive Amount.
    Where, in fixing the amount of alimony, the court in computing the value of defendant’s property at $2,700 used the highest figures given by any witness thereon,” and plaintiff had no share in its accumulation, she having lived with him less than two months, the decree for $900 will be reduced to $500.
    See notes in 13 L. R. A. (N. S.) 222; 18 L. R. A. (N. S.j 305: 34 L. R. A. (N. S.) 360, 759; L. R. A. 1915E, 161.
    Appeal from Hillsdale; Chester, J.
    Submitted January 16, 1919.
    (Docket No. 51.)
    Decided April 3, 1919.
    Bill by Iva Thompson against Clarence Thompson for a divorce. From a decree for plaintiff, defendant appeals.
    Modified, and affirmed.

      B. D. Chandler, for plaintiff.

      Paul W. Chase and Merton Fitzpatrick, for defendant.
    Plaintiff and defendant at the time of their marriage on December B, 1915, were each about 23 years of age. Plaintiff is the daughter of a farmer and defendant is a farmer, their respective places being about two miles distant from each other. Defendant’s father is dead and defendant together with one of his brothers purchased from the administrator of his father’s estate a 100-acre farm upon which his brother lived. Defendant at the time of the marriage lived with his mother in a house belonging to her near the farm he owned jointly with his brother. It is in evidence that the parties had known each other for some five years prior to the marriage and had been engaged to be married for upwards of one year. A child was born to the union on January 22, 1916. The record shows that the marriage had been set for a date nearly a year before it actually took place, but because of some differences which arose was not then consummated. Some time after the date first set for the marriage the parties became sexually intimate and as a result the plaintiff became enceinte. Plaintiff’s condition becoming apparent to her father he interviewed defendant and urged him to make such tardy reparation as was possible to his daughter through a belated marriage. After two or three interviews the father’s importunity bore fruit and the parties were married on the date above specified. They spent the night of their wedding day with plaintiff’s parents and on the next day defendant took plaintiff to the home of his mother.
    A perusal of this record convinces us that the treatment accorded the plaintiff by defendant’s mother was abusive and contumelious in the highest degree. In effect defendant’s mother charged plaintiff with being a prostitute, ordered her from her home and asserted that no Stiverson (that being plaintiff’s maiden name) should ever enter her house. After a three days’ sojourn plaintiff’s position in the household of her husband’s mother became so intolerable that she insisted upon returning to the home of her parents where she remained a few days. On two other occasions between the date of the marriage and the birth of her child plaintiff at the solicitation of her husband went to live in his mothers house, but was accorded no better treatment than upon the first attempt. She lived with her husband in his mother’s house for about a week prior to the birth of her baby during a time when the mother was absent, with fair tranquillity. Being advised of the imminent approach of maternity, the husband, at her request, took her to her mother’s home on the morning of January 22d, where the baby was born two or three hours later. Thereafter during her confinement in bed as the result of parturition defendant visited her nearly every evening. It is in evidence that the husband insisted that she should return with him to his mother’s home, but after the treatment she had received the wife steadily refused to accede to his demands and urged him to secure a home apart from that of his mother. Shortly after plaintiff was able to be about her mother told defendant that if he could not take proper care of her daughter she did not desire to have him come to see her.
    “I told him we had one young one by him and we didn’t want another one.”
    • Thereafter and for a period of approximately two months defendant absented himself entirely from his wife and child, made no effort to see them, to provide them with the necessaries of life or to arrange a home for them apart from that of his mother. Plaintiff’s bill was filed on March 24th. Immediately upon service of the process upon him defendant sought a conference with plaintiff and tried to induce her to return to him, stating that he had a paper from his mother to the effect that if she and his wife could not get along together she, the mother, would leave. Plaintiff refused to undertake a further experiment in the desired direction and the case proceeded to a hearing in open court after which a decree of divorce was granted plaintiff with permanent alimony in the sum of $900, the custody of the infant child and the sum of $2.50 per week for the support of the child. Defendant has appealed and in this court urges that the court below was in error,—

      First. In granting a decree upon the ground of extreme cruelty, and

      Second. In fixing the amount of permanent alimony at so high a figure.
   Brooke, J.

(after stating the facts). It is impossible to define with accuracy the exact meaning of the term “extreme cruelty” as used in the statute which provides for divorce upon that, among other grounds. We have, however, held that when a husband imputes a lack of chastity to his wife, she being a woman of character, education, and refinement, a case for divorce on the ground of extreme cruelty is made out. In the case at bar the evidence shows that the defendant husband aside from his insistence that his wife should live with him in the home of his mother and there be subjected to attacks of the most bitter and abusive character from his mother, treated his wife, the plaintiff, with uniform kindness. • Plaintiff’s position in the house of her husband’s mother was one of extreme delicacy. Her earlier indiscretion had rendered her peculiarly vulnerable to attack. • Ordinarily it is the duty of the wife to follow the husband to such a home as he may choose or may be able reasonably to provide, and his refusal or inability to provide a home commensurate with the ideas of comfort and luxury entertained by his wife is not “extreme cruelty” and constitutes no ground for divorce. It is in evidence that there was no vacant house available for defendant’s use within two miles of the farm where he worked and that it was impossible for him to carry on his work successfully from such a distance, and it is urged in his behalf that his failure to comply with plaintiff’s demands should not be taken as evidence of his lack of interest in her welfare and much less should it be construed as such an act of extreme cruelty as would warrant a decree of divorce. The case is one of peculiar hardship. Defendant’s mother though in the court room during the hearing did not take the stand to deny the accusations made against her by plaintiff. The learned circuit judge who saw and heard the witnesses readily granted the relief prayed. We have concluded, though with some hesitation, not to disturb the decree in this regard.

The court found defendant’s net worth to be approximately the sum of $2,700 and awarded the plaintiff $900 as permanent alimony. He likewise allowed the sum of $100 for attorney’s fees. Defendant’s assets consist of a one-half interest in the farm, quite heavily mortgaged, and a one-third interest in the personal property used upon the farm. In computing their value the court used the highest figures given by any witness thereon. We think the allowance too high. It should be remembered that plaintiff has had no share in the accumulation of defendant’s property and that she lived with him as a wife less than two months. True, she has" borne his child but the decree provides for a contribution from the defendant for its support which provision as circumstances. alter may, in the discretion of the court, be enlarged. All things considered, we believe that an allowance of $500 as permanent alimony is equitable. The allowance for attorney’s fees will stand as made, and neither party will recover costs in this court.

As so modified, the decree will stand affirmed.

Bird, C. J., and Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred. Ostrander, J., did not sit.


text:
      In re DAVIS’ ESTATE. HOLLWAY v. ATHERTON.
    1. Wills — “Heirs”—Estáte in Fee Simple.
    The use of the word “heirs” in the devise of land in a will is not necessary in order to create an estate in fee simple. 3 Comp. Laws 1915, § 11818.
    2. Same — Estate Granted — Limited bt Subsequent Language.
    Language standing alone sufficient to create an estate of inheritance may be so modified by subsequent language as to limit or qualify the estate originally apparently created.
    3. Same — Construction.
    The language “I direct that out of my estate, and after my death, such sums be expended from time to time for the support of my brother, as in their judgment may be necessary to keep him from want, and in the event of death to provide with a suitable burial,” held, mandatory, and a limitation upon the estate in fee conveyed in preceding paragraph.
    4. Same.
    Where paragraph 2 of. testator’s will conveyed to his wife an estate in fee, paragraph 4 contained a request that at her death an adopted daughter be given $1,000 a year during her lifetime, and paragraph 5 that any of his estate remaining go to a certain hospital,' held, that the language in paragraphs 4 and 5 is clearly precatory and imposed upon the wife no legal obligation to carry out his wishes.
    See note in 5 L. R. A. (N. S.) 323.
    Appeal from Kent; McDonald, J.
    Submitted January 31, 1919.
    (Docket No. 56.)
    Decided April 3, 1919.
    Bill by George Hollway, administrator de bonis non with, the will annexed of the estate of George N. Davis, deceased, against Carrie Maud Atherton and the Holland Home Benevolent Association for a construction of said will. From a decree for defendant Atherton, defendant association appeals.
    Affirmed.

      Hatch, McAllister & Raymond and Gelmer Kuiper, for appellant.

      Joseph Kirwin (Willard F. Keeney, of counsel), for appellee. •
    The bill of complaint was filed in this cause to secure construction of the following will:
    “I, Geo. N. Davis, of Grand Rapids, in the county of Kent, State of Michigan; being now of sound mind and memory, and mindful of the uncertainty of life, do make public and declare this my last will, and testament, hereby revoking and making void all former wills, if any, by me, at any time heretofore made, in manner following, that is to say:
    “Paragraph 1. I direct that all my just debts and my funeral expenses be paid.
    “Paragraph 2. I give, devise and bequeath to my wife, Laura M. Davis, all my property, both real and personal, and I hereby appoint my said, wife, Laura M. Davis, of the city of' Grand Rapids, and George W. Stone, of Lansing, Michigan, as executors of this, my last will and testament, and it is my wish, and I hereby direct that my said executors be authorized and empowered to sell and convey any and all real estate or personal, of which I may die seized without license or authority from the probate court, and that said executors be permitted to execute the trust hereby imposed without bonds.
    “Paragraph 3. I direct that out of my estate, and after my death, such sums be expended from time to time for the support of my brother, John D. Davis, as in their judgment may be necessary to keep him from want, and in the event of death to provide with a suitable burial.
    “Paragraph 4. And also request at the death of my wife, Laura M. Davis, that all the real and personal property remaining of my estate, shall be distributed as follows to my adopted daughter, Carrie Maud Atherton; that she be given one thousand dollars a year during her lifetime.
    “Paragraph 5. Any of my estate remaining shall go to the TI. B. A. Holland Home.
    “Paragraph 6. In witness whereof, I have hereunto set my hand and seal, this 21st day of January, A. D. 1915.
    “George N. Davis (L. S.)”
    The testator died on February 13, 1916. His brother, John D. Davis, mentioned in paragraph three of the will, died May 17, 1916, and his wife, Laura M. Davis, mentioned in paragraph two of the will, died on the 25th day of June, 1916. Prior to her death and on the 18th day of March, 1916, Laura M. Davis, claiming to be the owner in fee of the personal property and real estate described in said will, executed and delivered to the defendant Carrie Maud Atherton, a bill of sale of said personal property and a warranty deed of said real estate, said deed being recorded on March 24, 1916. ''
    The will was duly presented for probate and was admitted by an order dated March 17, 1916. After a full hearing in the court below a decree was entered in the following terms:
    “It is hereby ordered, adjudged and decreed, that upon the death of said George N. Davis, his wife, Laura M. Davis, under his last will and testament became entitled to and vested with the title in fee to his real estate, and the absolute title to his personal property, and the same is now vested in her assign and grantee, Carrie Maud Atherton, and the said defendant, Holland Home Benevolent Association, acquired, or took, no interest or title whatever, in, or to, said estate, or any part thereof, under said last will and testament, and that its claims thereto are hereby forever barred.”
    From this decree the defendant, Holland Home Benevolent Association, has appealed.
   Brooke, J.

(after stating the facts). The first contention of the appellant is that the second paragraph of the will does not in words create an estate of inheritance in Laura M. Davis. This contention we presume is based upon the fact that the testator failed to use the word “heirs” in connection with the devise. The use of the word is not necessary in order to create an estate in fee simple. Section 11818, 3 Comp. Laws 1915, provides:

“Every devise of land in any will hereafter made shall be construed to convey all the estate of the devisor therein which he could lawfully devise, unless it shall clearly appear by the will that the devisor intended to convey a less estate.”

See Killefer v. Bassett, 146 Mich. 1.

It is next asserted on behalf of the appellant that a fair construction of this will, read in its entirety and in the light of the situation of the testator and the objects of his bounty at the time it was made, is that it was the manifest intention of the testator to clothe his wife, Laura M. Davis, with an estate for life, only, with remainder over to the beneficiaries named in paragraphs four and five of the instrument. In support of this contention the following decisions are relied upon: Gadd v. Stoner, 113 Mich. 689; Robinson v. Finch, 116 Mich. 180; In re Mallary’s Estate, 127 Mich. 119; Thorn v. Scofield, 143 Mich. 478; Fecht v. Henze, 162 Mich. 52.

On the other hand it is the claim of the appellee that the case falls clearly within the principle of the following decisions: Dills v. LaTour, 136 Mich. 243; Moran v. Moran, 143 Mich. 322 (5 L. R. A. [N. S.] 323); Killefer v. Bassett, supra. We are of opinion that the contention of the appellant must fail. The language in paragraph two of the will is clear and unambiguous and without question imports the creation of an estate in fee in Laura M. Davis. We have held that language standing alone sufficient to create an estate of inheritance may be so modified by subsequent language as to limit or qualify the estate originally apparently created. Forbes v. Darling, 94 Mich. 621; In re Owen’s Estate, 138 Mich. 293. The language contained in paragraph three constitutes in our opinion such a modification or qualification. The mandate therein contained is just as positive and unequivocal as that contained in paragraph two. See Fecht v. Henze, supra. John D. Davis being now dead the provisions of paragraph three for his support become unimportant except that a consideration thereof may aid in determining the intention of the testator as to other provisions of the instrument.

Coming now to the provisions of paragraphs four and five. The peculiar language of these provisions bring this will clearly within the decisions above cited and relied upon by appellee. There is here no limitation upon the right of the first taker to dispose of the entire estate during her lifetime, but an attempt is made in both paragraphs four and five to dispose of an uncertain remainder. Further argument in support of the contention of appellee is that the language of paragraphs four and five read together imports on the part of the testator simply a request. The first part of paragraph four requests:

“that all the real or personal property remaining at my death shall be distributed as follows:”

Then follows the alleged bequest to Carrie Maud Atherton and (in paragraph five), the alleged bequest to the Holland Home Benevolent Association. The language used is clearly precatory. As to these matters the testator desired his widow, Laura M. Davis, to make certain use of such of his estate as should remain unconsumed at her death, but imposed upon her no legal obligation to carry out his wishes so expressed. The case upon this point is within the reasoning of the late case of Crisp v. Anderson, 204 Mich. 35.

The decree is affirmed.

Bird, C. J., and Ostrander, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.


author: Fellows, J.

text:
    GRINNELL BROTHERS v. BROWN.
    1. Easements — Equity—Confucting Rights — Injunction.
    Where, in a land contract, defendants granted to plaintiff “an easement on the westerly 100 feet to the nine-foot driveway” abutting property contracted to be conveyed to it by defendants, and also further agreed “to maintain the easterly 100 feet of said driveway for their own uses and purposes and not to erect any building or buildings thereon so as to shut out light and air from buildings that may be erected by said second party on the tract of land” contracted, and defendants subsequently attempted to erect a building on the westerly 100 feet, plaintiff, as vendee in the land contract, had such an interest in the premises as justified the filing of a bill to restrain its erection.
    2. Contracts — Construction.
    A contract, that is unambiguous in its terms, is not open to construction.
    3. Easements — Private Way — Use by Owner of the Fee.
    The owner of the fee subject to an easement for’ a private driveway has the right to use the premises for any purpose not inconsistent with the right of the owner of the easement.
    4. Same.
    V/here defendants modified their building plans so that none of the walls of the building would occupy the driveway on the westerly 100 feet, which would be free and open, plaintiffs were not entitled to an injunction restraining defendants from projecting the building over the driveway above the first story, in the absence of a showing that it would deprive plaintiff of sufficient light and air to enable it to use the driveway, or that there is insufficient distance between the surface of the way and the contemplated structure to accommodate any vehicles or loads plaintiff may desire to transport over the way; plaintiff’s rights in said portion of the driveway being only an easement, a right of passage, a right of ingress and egress. '

      See notes in 15 L. R. A. 487; 17 L. R. A. 270; 16 L. R. A. (N. S.) 193.

      Appeal from Wayne; Sullivan, J., presiding.
    Submitted January 24, 1919.
    (Docket No. 13.)
    Decided April 3, 1919.
    Bill by Grinnell Brothers against George D. Brown and others to restrain the obstruction of an easement. From a decree for plaintiff, defendants appeal.
    Reversed, and decree entered.

      William L. January, for plaintiff.

      Edwin S. Bartlett, for defendants.
   Fellows, J.

Defendants owned property in Highland Park having a frontage of 20.3 feet on Woodward avenue with a depth of 200 feet. Adjoining it on the north was a lot devoted to the business of the defendant Highland Park Creamery Company, a corporation which seems to be controlled and officered by the individual defendants. The south nine feet of the last mentioned premises were devoted for the entire depth to a driveway used in the business of the creamery company. On the 5th of November, 1915, the defendants contracted to sell to the plaintiff the 20.3 feet strip for the sum of $10,150 with a down payment of $3,500. The only provisions of the contract here involved are as follows:

“Parties of the first part further grant to party of the second part an easement on the westerly one hundred (100) feet to the nine (9) foot driveway abutting said property hereby contracted to be conveyed on the north, said second party to have the use of said driveway for ingress and egress and no vehicles to be loaded or unloaded thereon by said second party and no vehicles to be left standing thereon, and second party to be at one-tenth of the expense of keeping said portion of said driveway in repair.
“Parties of the first part further agree to maintain the easterly one hundred (100) feet of said driveway for their own uses and purposes and not to erect any building or buildings thereon so as to shut out light and air from buildings that may be erected by said second party on the tract of land for the purchase of which this contract is given.”

Subsequent to the making of this contract defendants commenced to erect a building on the rear (westerly 100 feet) of the creamery property. By their original plans it was contemplated to erect the south wall in the driveway up to the line between the two lots and to furnish ingress and egress through the building. Thereupon this bill was filed to restrain this invasion of plaintiffs rights. After consulting counsel, defendants changed their plans so that none of the walls of the building should occupy the driveway which should be free and open. Their later plans contemplate the projection of their building over the driveway above the first story. The temporary injunction as modified required them to confine their building to the land north of the driveway. From a final decree perpetually enjoining them from erecting any building over any portion of the driveway they appeal. This leaves for our consideration the sole question of the right of defendant to project its building over the driveway without placing any obstruction upon its surface. We do not understand it to be claimed by the plaintiff as matter of fact that such projection would in any way interfere with its ingress and egress to its premises; its claim as adopted by the trial judge being interference with its rights to light and air.

This plaintiff as vendee in this land contract had such an interest in the premises as justified the filing of this bill. Its rights under the contract would be invaded by the erection of the structure originally contemplated and planned for. To prevent this invasion of its rights it chose the proper forum. The meritorious question in the case is whether the decree appealed from went too far.. The contract is unambiguous in its terms, and is not open to construction. While courts may take into consideration the situation surrounding the premises and the parties, parol testimony of conversations preceding the making of the contract may not be received to change or vary the provisions of a written instrument unambiguous in its terms and not open to construction. This rule is elementary. By the terms of this contract the parties contracted for the use by the vendee of a driveway for ingress and egress over the west 100 feet; they also contracted for light and air over the east 100 feet. If this contract is open for construction as claimed by plaintiff the maxim expressio unius est exclusio alterius and the maxim expressum fácil cessare taciturn would prevent our following the construction contended for by its learned counsel and adopted by the trial judge. The expression of one thing is the exclusion of another, and a thing expressed puts an end to tacit implication.

It is not contended that the proposed new building in any way conflicts with the rights of the plaintiff in the east 100 feet. The sole question revolves around the rights of the parties in the west 100 feet. As to this portion of the driveway the plaintiff was granted an easement, a right of passage, a right of ingress and egress. Such rights as are expressly granted, or are necessarily incident thereto belong to it and cannot be abridged or taken away. But subject to such rights the owner of the fee is entitled to all beneficial uses. As was said by Justice Stone, speaking for the court in Murphy Chair Co. v. Radiator Co., 172 Mich. 14:

“It is elementary that an easement once granted is an estate which cannot be abridged or taken away, either by the grantor or his subsequent grantees. _ On the other hand, the grantor of the easement of a right of way may use the way in any manner he sees fit, provided he does not unreasonably interfere with the grantee’s reasonable use in passing to and fro.”

Mr. Jones in his work on Easements, § 391, lays down the rule in the following language:

“The grant of a right of way over land does not pass any other right or incident. The owner of the soil retains full dominion over his land subject merely to the right of way. He may make any use of his land which does not interfere with a reasonable use of the way. Subject to the easement granted, his control extends indefinitely upwards above the surface of the ground, and downwards beneath it ad inferos. He may build a bridge or other structure over the way, provided he builds so as not to materially impair the use of the easement.”

Continuing, he says (§ 395):

“The owner of land over which there is a passageway may lawfully cover such passage-way with a building, provided he leaves a space of sufficient width and height and with sufficient light to allow of its convenient use for the purpose for which it was created.”

The supreme court of Massachusetts in the case of Gerrish v. Shattuck, 132 Mass. 235, said:

“The plaintiff has obtained -no right to light and air above the way; she has only the right of passing and repassing, with such incidental rights as are necessary to its enjoyment. The defendant has all the rights and benefit of the ownership of the soil consistent with this easement.”

The rule is thus announced in 9 R. C. L. p. 799:

“It is a general rule that a grant of an easement of a right of way does not, by implication, include the right to have that way kept open to the sky for light and air, and that the grant is not interfered with by, building over the way, provided there is no interference with the reasonable use of the easement as a passageway. Subject to the easement, the landowner’s control extends indefinitely upward from the surface and downward.”

A case quite analogous to the instant one is that of Bitello v. Lipson, 80 Conn. 497 (69 Atl. 21, 16 L. R. A. [N. S.] 193). In this case the owner of the servient estate commenced the construction of a bay window over the passage-way, and eleven feet and six inches above the ground. The trial court there as here concluded that the owner of the dominant estate was entitled to the uninterrupted access of light and air over and across the way. We quote at some length from that case:

“The defendant’s claim was that there being no express grant of an easement of light and air over the strip in question, the owner of the fee might construct a bay window over it at such a height as not to interfere with the reasonable and ordinary use of the right of way. The court said in its conclusion that the plaintiff was entitled not only to unrestricted right of way over the strip, for the purpose of passage, but also ‘to the right of an uninterrupted access of light and air over and across the same.’ By this language, as well as from the judgment rendered upon the facts found, it seems clear that the court intended to hold that any material interference, by the defendant, with the ‘access of light and air over and across’ the strip of land was an obstruction of the plaintiff’s rights, even though it did not interfere with the reasonable and ordinary use of the right of way.
“This ruling was erroneous. By his deed from Brown the defendant acquired the fee to land over which he was building the bay window, encumbered by a right of way previously granted by Brown to the plaintiff, which was a right of passage over the ten-foot strip. Hart v. Chalker, 5 Conn. 311, 315. The deed from Brown to the plaintiff contained no express grant of an easement of light and air. Implied grants of such easements not reasonably necessary for the enjoyment of the rights expressly granted are not favored in this State. General Statutes, § 4046. There was no implied grant to the plaintiff of a right to have light and air pass over the driveway to any greater extent than was necessary for the reasonable enjoyment of the right of passage granted.” Citing authorities.

Upon the proposition that the owner of the fee subject to an easement has the right to use the premises for any purpose not inconsistent with the right of the owner of the easement see Township of Oneida v. Allen, 137 Mich. 224; St Joseph Valley R. Co. v. Galligan, 120 Mich. 468; Beecher v. People, 38 Mich. 289; Hollins v. Demorest, 129 N. Y. 676 (29 N. E. 1093, 15 L. R. A. 487); Sutton v. Groll, 42 N. J. Eq. 213 (5 Atl. 901).

Plaintiff confounds the incidental right to sufficient light and air to reasonably use the way with the unrestricted and uninterrupted access to light and air over, and across the entire way. Plaintiff is of course entitled to sufficient light and air to permit the reasonable use of the way for ingress and egress. This record does not disclose that such right will be interfered with by the contemplated structure. A leading case, that of Atkins v. Bordman, 2 Metc. (Mass.) 457, deals with this subject. Chief Justice Shaw, speaking for the court, said:

“As to the darkening, we think the jury should have been instructed, that the defendants were not liable for damages, unless, from the length of the passageway, it was so darkened as to render it unfit for the purposes of a passage-way. We may conceive of a covered passage of eight or ten feet high, of a length so considerable, that unless openings were left, there would not be light enough admitted at the ends to enable persons to use it with comfort, for the purposes of a passage-way. But unless darkened to that extent, it is not a case for damage. It must render the premises to a sensible degree less valuable for the purposes of business.”

Y\Fe are impressed that the decree appealed from went too far, and did not take into account the rights of the owner of the servient estate, the right to the use of the property in a manner not inconsistent with the easement created. It does not appear, as we have already stated, that the contemplated structure would deprive plaintiff of sufficient light and air to enable it to use the way as a way; nor does it appear, nor is it claimed that there is not sufficient distance between the surface of the way and the contemplated structure to accommodate any vehicles or loads plaintiff may desire to transport over the way. In short, it does not in any way appear from this record that the erection of the proposed structure projecting from the second story would in any way infringe plaintiff’s rights granted by the terms of this contract.

When plaintiff’s bill was filed the defendants’ plan contemplated an interference with plaintiff’s rights. Upon the state of facts then existing it was entitled to an injunction restraining invasion of such rights. These plans have been modified so that the structure does not interfere with these rights. Plaintiff was and is entitled to an injunction prohibiting the invasion of its rights but it is not entitled to an injunction beyond this.

The decree appealed from must be reversed and one here entered in conformity with this opinion. Plaintiff will recover costs of the circuit, defendants costs of this court.

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


text:
    HUNT v. W. F. HURD CO.
    1. Sales — Contracts—Uniform Sales Act.
    The legislature, by the “Uniform Sales Act” (3 Comp. Laws 1915, § 11832 et seq.), has not attempted to take away the common law right of parties to contract; section 11875, subd. 4, expressly providing otherwise.
    2. ' Same — Directed Verdict.
    In an action for a balance due on the purchase price of a shipment of lumber which defendant withheld because it claimed a certain amount was below grade, a verdict for plaintiffs was properly directed where defendant had failed to comply with the terms of the contract of sale providing that the shipment should be held intact for inspection by plaintiffs in case of complaint, and said complaint should be made within five days.
    Error to Wayne; Chester, J., presiding.
    Submitted January 10, 1919.
    (Docket No. 15.)
    Decided April 3, 1919.
    Assumpsit in justice’s court by Charles Hunt and others, copartners as Hunt, Washington & Smith, against W. F. Hurd Company for goods sold and delivered. There was judgment for defendant, and plaintiffs appealed to the circuit court. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Sherman D. Callender, for appellant.
   Fellows, J.

On May 4, 1915, defendant wrote plaintiffs enclosing an order for five cars of “1st and 2nds kiln dried plain red oak * * * graded national rules” at $51 per thousand, f. o. b. Detroit, “terms 2% 10 days after arrival.” On May 10th the plaintiff accepted the order. In its letter of acceptance of the order the following appears:

“We enter your order, dated 5/4/15, No. 7584, and accept and agree to fill same upon the conditions as herein stated. * * *
“And it is here agreed that if any shipment on this order is found to be short in measurement, or different grade, or if there is any complaint, to be made about lengths, dryness, widths, or any other feature of said shipment, all of the shipment shall be held intact subject to our inspection or order, and said complaint made within five days after the car is unloaded, otherwise it is understood that no allowance will be made and our invoice shall be paid in full. * * *
“If your order is not correctly entered above and the conditions of this contract agreeable, we will expect immediate advice, otherwise we will expect you to be governed by same.”

Four carloads of- lumber were shipped on the contract, arriving at Detroit as appears by the freight bills June 15th, June 18th, June 25th and June 28th. These shipments according to the. contract price amounted to $2,012.81. The freight was $308.44. It appears from the record that upon the arrival of these cars the lumber was inspected by a competent inspector in the employ of defendant and approximately 6,200 feet found by him to be below grade. On July 29th defendant mailed to plaintiff a voucher check for $1,528.20 containing the following words: “The above amount in full settlement of the within account.” The amount of this check was arrived at by computing the amount of lumber which inspected to grade at $51 per thousand, the amount inspected below grade at $33 per thousand and deducting freight and 2% discount. Later and on September 8th defendant conceded it was not entitled to the discount and sent another voucher check to cover the amount.

The first voucher check was accompanied by a statement but not by a letter of explanation. This fact together with the language quoted from the check seems to have led to correspondence, some of which, but possibly not all, appears in the record. It does, however, appear from the exhibits and the statements of counsel made upon the trial that these checks were subsequently cashed without prejudice and credited to defendant’s account.

This suit originated in justice’s court. After an appeal to the circuit a notice was filed claiming an offset of $28.08 for freight paid by defendant, which had not been repaid by plaintiff, also a claim of $110 for storage of the lumber which was below grade. Plaintiff conceded the freight item but controverted the item of storage. To review a judgment for $118.89 rendered on a directed verdict we allowed this writ of error.

The defendant does not seek to recoup damages for a breach of the contract. It asks to be allowed the value of the storage of the lumber upon the theory of a rescission of the contract in part. We are not favored with a brief from plaintiff’s counsel, but defendant’s counsel has quite exhaustively treated the question of the right to rescind as to a portion of the contract at common law and under the uniform sales act (3 Comp. Laws 1915, § 11832 et seq. See § 11875, subd. 3). The difficulty we encounter in attempting to follow counsel’s line of reasoning lies in the fact that we here have a special agreement between the parties. It cannot be doubted that at common law the parties had the right to contract; nor can it be claimed that the legislature by the uniform sales act has attempted to take away such right. In subdivision 4 of the section of the act relied upon by defendant’s counsel it is expressely provided:

. “The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the parties.”

There is no claim of fraud in procuring the contract. While it is made by the correspondence of the parties it is free from ambiguity and by its express terms covered and provided for the exact situation which subsequently developed. It was expressely stipulated that “if any shipment” was of “different grade * * * all of the shipment shall be held intact subject to our inspection or order,” and required complaint to be made in five days. There is no claim that defendant complied with these provisions; indeed, it is admitted that it used the entire shipment except the small amount that did not come up to grade, did not make complaint within the five days, and when it made remittance included $38 per thousand as payment for the rejected 6,200 feet of lumber. The parties who made this contract are business men of experience. They dealt at arms length. They are bound by their engagements.

The judgment is affirmed.

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