author: Hooker, J.

text:
    MONTROSS v. ALEXANDER.
    1. Intoxicating Liquors — Civil-Damage Law — Action by Wife —Evidence—Materiality—Plaintiff’s Children.
    In an action by a wife under the civil-damage law, for damages caused by the sale of liquors to her husband, the admission of evidence that plaintiff has children is reversible error.
    2. Same — Ownership of Property — Materiality.
    The fact that plaintiff once purchased a building lot, the purpose for which she bought it, and the intention of herself and husband in relation thereto, are of doubtful materiality.
    3. Same — Efforts to Settle Case — Threats—Admissibility.
    Testimony by plaintiff respecting an interview with defendant and her husband, in which her husband insisted she should settle the case and threatened her with death if she did not, supplemented by testimony from which an inference could be drawn that defendant caused the husband to use his influence with plaintiff to induce her not to-press the suit, is admissible.
    4. Same — Plaintiff’s Health — Materiality.
    The fact that plaintiff has had a stroke of paralysis, and the testimony of experts as to its connection with her troubles, may be shown.
    5. Same — Notice Not to Sell — Admissibility.
    Testimony regarding the contents of a written notice not to sell liquor to plaintiff’s husband is not admissible where the witness does not attempt to give his knowledge about the contents of the notice actually served, but states that, if he drew a notice, what the contents were, substantially.
    6. Same — Permission to Sell — Reason for Granting — Admissibility.
    Plaintiff may show the reason for stating to another saloon keeper that he might sell her husband liquor on Saturday nights.
    Error to Oakland; Smith, J.
    Submitted March 24, 1908.
    (Docket No. 54.)
    Decided May 1, 1908.

      Case by Mary A. Montross against Hugh Alexander, impleaded with Charles Crofoot and Fred Cox, under the civil-damage act. There was judgment for plaintiff, and defendants bring error.
    Reversed.

      Rowland M. Connor, for appellants.

      Rockwell & Zimmermann, for appellee.
   Hooker, J.

The plaintiff sued Alexander, a liquor dealer, and the other defendants, sureties upon his statutory bond, for damages alleged to have been caused to her by said Alexander through the sale of intoxicating liquors to her husband. She recovered a judgment for $1,610.75, damages and costs, and an appeal has been taken by said Alexander.

The questions raised upon this record relate to the subject of damages, and the claim is not made in defendant’s statement of facts that the defendant was not properly found liable for some amount. Objection was made to many questions asked by plaintiff’s counsel by which it is said that they obtained statements of immaterial matter which were likely to prejudice the jurors or excite an undue sympathy to defendant’s injury. We have endeavored to carefully examine each of these, and feel justified in saying that in many instances there was no error committed and that some testimony admitted was harmless though perhaps immaterial. As to such we cannot discuss each one, and where some questions of general interest are not apparent we omit further reference to them.

The plaintiff was an elderly woman of high standing in the community. Her children were said to be grown at the time of the trial, though three of them lived in the same house with the parents. There was testimony that she was injured in her means of support, in her feelings, in her health, and that she was humiliated by the treatment from her husband in the presence of others of the family. When called as a witness the second question her counsel asked her was, “How many children have you?” and she was allowed to answer, “Six.” That this was immaterial is evidenced by several of our own cases. Larzelere v. Kirchgessner, 73 Mich. 276, where a case of this kind was reversed on the ground that she was allowed to show that she had four minor children. Boydan v. Haberstumpf, 129 Mich. 137, reversed on ground that the plaintiff was permitted to state that she had a child three years old. Counsel for the plaintiff say that defendant cannot have been injured by this testimony, inasmuch as the children were all grown up at the time of the trial. In Johnson v. Schultz, 74 Mich. 75, the rule was applied where it did not appear that the children were grown, although the use sought to be made of the testimony was limited by counsel to exemplary damages. In the recent case of Manzer v. Phillips, 139 Mich. 61, the rule was applied to testimony that the plaintiff had two grown-up sons. The record in the case before us does not give the ages of these children, but three of them were living at home, including a daughter, in whose presence some of the husband’s ill treatment occurred.

The plaintiff was allowed to testify also:

“ I had an interest in a lot once; the lot was in the city of Pontiac and it was purchased June 20th, 1904, and I paid twenty-seven dollars on the lot, and I got the money of Mr. Montross; I sold the lot four weeks ago.

Q. For what purpose was it bought ?

“Mr. Bromley: Object to that as incompetent, immaterial and irrelevant.

The Court: Take it. (Exception.)

“A. It was bought for ahorne. Mr. Montross and I in our conversation with each other in reference to this lot intended to build a house upon it for a home.”

The purpose for which the plaintiff bought the lot, and the intention of the husband and herself, were of doubtful materiality.

Plaintiff was allowed to testify to an interview with Alexander and her husband shortly before the trial, when the latter-insisted that she should settle the cause for $25, and threatened her with death if she did not. This was supplemented by testimony from which an inference might be drawn that Alexander caused the husband to use his influence upon the wife to induce her not to press the cause. This testimony was admissible.

It was competent to show plaintiff’s stroke of paralysis and the testimony of experts as to its connection with her troubles. We do not consider the accuracy of the hypothetical question asked, as there may be no occasion to ask it upon another trial.

We think the court erred in allowing the testimony regarding the contents of a written notice not to sell liquor to plaintiff’s husband. The witness did not attempt to give his knowledge about the contents of a notice actually served, but stated that if he drew a notice, what the contents would be, substantially.

It was competent for plaintiff to show the reason for stating to another saloon keeper that he might sell her husband liquor on Saturday nights. We are constrained to reverse the judgment.

A new trial is ordered.

Grant, C. J., and Moore, Carpenter, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    BOARD OF PUBLIC WORKS OF THE CITY OF NILES v. PINCH.
    1. Saving Questions for Review — Exceptions—Necessity.
    Where, in a case tried to the court without a jury, no exceptions were taken to the admission or rejection of testimony, to the rulings of the court, or to the findings, no assignments of error calling such matters in question can be considered; the only assignment available to appellant in such a case being that the finding of facts does not support the judgment.
    2. Municipal Corporations — Board of Public Works — Authority to Sue.
    Under section 3275, 1 Comp. Laws, the board of public works of a city of the fourth class may maintain. an action of assumpsit upon a written guaranty of a debt for light and water furnished, and is not limited to an action upon the common counts, the words of the statute being permissive only, and not mandatory.
    Case made from Berrien; Coolidge, J'.
    Submitted April 8, 1908.
    (Docket No. 3.)
    Decided May 1, 1908.
    Assumpsit by the board of public works of the city of Niles against Benjamin W. Pinch on a contract of guaranty. There was judgment for plaintiff, and defendant appeals.
    Affirmed.

      J. M. & J. L. Powers, for appellant.

      J. J. Van Piper, for appellee.
   Blair, J.

The nature of this case and the issues involved sufficiently appear from the following statement and findings of facts of the circuit judge, viz.:

“This is an action in assumpsit in which plaintiff declares upon a written guaranty, of debt and upon the common counts in assumpsit.

“The defendant interposed a plea in abatement, setting forth that plaintiff was not a party competent to maintain the cause of action declared upon. Plaintiff filed a replication to said plea. The cause was commenced in justice’s court, and trial was first had upon the plea and replication.

‘ ‘ The justice before whom it was tried found against the defendant and allowed the defendant to plead over. Defendant then pleaded the general issue and gave notice •according to the return of the justice of special matter. What this special matter was does not appear from the return or the files of the case. On a trial of the case before a jury, verdict was rendered against the defendant and in favor of the plaintiff. Defendant made appeal both general and special, alleging specially the error of the justice in overruling the plea in abatement.

The case was tried in the circuit court before the court without a jury, upon the issues presented both by the plea in abatement and the plea of general issue, and proofs were presented by each party.

“Findings of Fact.

“1. The plaintiff in this case is the board of public works of the city of Niles, duly appointed under the general laws of this State, relating to cities of the fourth class.

“2. I find that Edward Williams on June 3d, 1904, had become indebted to the plaintiff acting as trustee for the city of Niles, for lights and water furnished by plaintiff to said Williams in the sum of $257.83.

“3. I find that on June 3d, 1904, the plaintiff threatened to shut off the lights and water from the building then occupied and controlled by said Williams, unless he paid the amount which he was then owing the plaintiff for light and water, or furnish security for the payment of the same.

“4. I find that on June 3d, 1904, the plaintiff, defendant and Williams entered into written agreements, copies of which are hereunto annexed. The agreement executed by defendant was a guaranty to pay the said indebtedness of Williams. In consideration thereof, the plaintiff agreed to extend the time of payment thereof and not to shut off the lights and water from Williams’ building. Williams was to pay the debt at the rate of $15 each month till the whole sum was paid. The plaintiff carried out this agreement.

“Williams at the same time entered into a written agreement to pay the said sum of $15 per month till his whole indebtedness was paid.

“ 5. I find that on the 1st of December, 1903, said Williams leased a certain building of defendant for hotel purposes for the term of two years and went into the occupancy thereof and continued in such occupation till on or after June 3d, 1904; that said Williams ordered the lights and water for use in said building of plaintiff and became responsible to plaintiff for payment thereof.

“6. I find that prior to the execution of the said guaranty made by defendant, the defendant being the owner of the building and interested in the keeping open of the hotel carried on by Williams, had an interview with J. J. Van Riper, city attorney, and Edwin C. Griffin, one of said board, and that they told him that the water and lights in said building would be shut off unless the indebtedness of said Williams was paid or unless he, the defendant, would agree to become responsible for the same, that defendant acceded to.this proposition, with a condition that certain extension of time should be given for the payment, as stated in the writing of guaranty. These conditions plaintiff agreed to perform.

“7. I find that plaintiff did not thereafter shut off the lights and water from said building but continued to furnish it, and give credit for the payment of said Williams’ indebtedness, and forebore to sue in accordance with the terms of said guaranty.

“8. I find that there is now due and unpaid for lights and water furnished by plaintiff to said Williams, prior to June 3d, 1904, and on account of the indebtedness de scribed in said writing of guaranty, the sum of $181.10, for the payment of which defendant became and is liable.

“9. I find that the defendant is indebted to plaintiff in the sum of $181.10 and that the plaintiff is entitled to judgment for that amount with costs of suit. * * *

“ In answer to a request of defendant for further findings of fact, I find as follows:

“1st. I find that the contract sued upon in this case was made between the plaintiff and defendant, and that under the laws of the State no proof was necessary to show that said board had been legally elected or organized. - This is presumed.

“2d. No evidence was produced to show that the said board had adopted any by-law, rule or regulation relating to the .conduct of its business.”

The conclusions of law from the facts found resulted in a judgment for plaintiff, which defendant has removed to this court by writ of error. No exceptions were taken to the admission or rejection of testimony, to the rulings of the court nor to any of the original or further findings, and we cannot consider any of the specific assignments of error calling them in question. Upon this record the only assignment of error upon which defendant can rely is that, “the finding of facts made by said court does not support said judgment.” Simmons Hardware Co. v. Rose, 140 Mich. 123.

The facts found clearly support the judgment, unless the defendant’s point is well taken—

“That the plaintiff is not a party competent to maintain the action, the city of Niles being the only party entitled to recover upon the grounds stated in the declaration.”

Upon this point, we concur in the opinion of the circuit judgé, as follows:

“The statute in my opinion clearly gives the board of public works in a city of the fourth class power to bring suit against those delinquent in the payment of light and water. The board may make contracts in their own name relating to those matters. Section 3275, 1 Comp. Laws.

“It is true that they act as agents or trustees of the city, but the statute, among the powers conferred upon the trustee, expressly designates that of maintaining suit upon contracts made within their jurisdiction.

“It is contended that the statute does not refer to contracts of guaranty but only to actions of assumpsit for materials furnished. I regard this objection as highly technical and over-refined. The evident object of the law is to enable the board to collect and enforce the payment of contracts for the use of water and light.

“ In this case the main object of the board is to collect a water and light account of one Williams. The defendant has made himself a party to the contract and responsible for the payment. The fact that Williams once was the only debtor became immaterial, when the agreement of June 3d, 1904, was made. The defendant became obligated to pay the debt and the plaintiff was not obliged to look to Williams at all. The defendant assumed the obligations of the principal debtor. My construction of the statute is that, under these circumstances, the action may be maintained in any form of assumpsit which may be appropriate, and that the words, ‘on the common counts,’ are not intended as exclusive of any other count in assumpsit. The words are permissive only and not mandatory.”

The judgment is affirmed.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred. -


author: Ostrander, J.

text:
    STORCH v. ROSE.
    1. Saving Questions for Review — Motion for New Trial — Necessity.
    Where appellant moved for a new trial, but did not assign as a reason therefor that the verdict was against the weight of the evidence, that question cannot be reviewed on writ of error.
    2. New Trial — Newly-Discovered Evidence — Diligence.
    A new trial on the ground of newly-discovered evidence was properly denied where plaintiff had notice that the witness might be material, and the excuse made for neglecting to call him is that, upon being interviewed before the trial, he did not inform plaintiff’s attorney of the facts set forth in the affidavit because he did not want to get mixed up in the matter.
    3. Contracts — Building Contracts — Construction—Question for Jury.
    In an action to recover for building a house and barn and for • certain extras, under a contract partly oral and partly in writing, evidence examined, and held, that it was a question for the jury what the contract between the parties actually was, and that it would have been error for the court to instruct that a certain memorandum and drawings and specifications constituted the contract.
    Error to Saginaw; Gage (William G.), J.
    Submitted April 8, 1908.
    (Docket No. 7.)
    Decided May 1, 1908.
    Assumpsit by Gottlob Storch against John T. Rose on a building contract. There was judgment for defendant* and plaintiff brings error.
    Affirmed.

      George C. Ryan, for appellant.

      W. J. Lamson (Ernest A. Snow, of counsel), for appellee.
   Ostrander, J.

We consider the exceptions in the order in which they are presented in the brief for appellant, making such reference to the record as is necessary. It is contended, first, that the verdict is against the weight of the evidence. Appellant moved for a new trial, but did not assign this as a reason therefor. Under the circumstances, we cannot consider the question.

The second contention is that it was error to refuse to grant plaintiff’s motion for a new trial. The ground of the motion was newly-discovered evidence. The only affidavit filed in support of a motion for a new trial and appearing in the record, and which is not met by the counter-affidavit of defendant, is one made by Emil Jochen. Plaintiff was apprised of the fact that Mr. Jochen might be a material witness. The only excuse which is made in the record for neglect to call him is contained in his affidavit, in which he states that plaintiff’s attorney interviewed him before the trial to secure his testimony and that he did not inform him of the facts stated in his affidavit because he did not want to get mixed up in the matter. Even if it can be said that Mr. Jochen’s testimony would have been other than merely cumulative, no sufficient reason appears for not calling him as a witness upon the trial. See Roberts v. First Nat. Bank of Yale, 149 Mich. 507; Canfield v. City of Jackson, 112 Mich. 120.

The third and the fourth assignments of error relate to the charge as given and to refusals of the court to charge, and present the principal contention of the appellant. The plaintiff built a house and a barn for the defendant. In his bill of particulars is the item, “ Contract for building house, $2,650. * * * Barn and materials, $593.” The balance of a total, claim of $3,689.75 is made up of items claimed to be for extra work and materials. Payment of $3,182 is admitted, leaving a balance of $507.75. It is the contention of defendant that plaintiff was to furnish labor and materials and build his house for $2,650; that he was to furnish the labor and materials and build a barn for $400, using the lumber and timber on the premises belonging to defendant; that defendant had paid to plaintiff personally $3,035, and had paid for certain material which plaintiff ought to have paid for, $371, or a total of $3,406. He asked for a verdict and judgment in his favor, and the jury returned a verdict in his favor of $78.80. The parties had no signed contract. The testimony introduced tends to prove that there was a dwelling-house in Saginaw which suited the defendant and his wife; that plaintiff and defendant and defendant’s wife visited the house, looked it over- and secured from the owner the plans according to which it was constructed; that plaintiff was to build defendant as good a house as the one so inspected, but not one like it, it being understood that the house cost more money than the defendant cared to pay for his own house. The plaintiff, using two sheets of brown paper, made an outline plan of a house without the elevation, showing the rooms on the first and second floors and the measurements, and upon the margins of the sheet upon which the plans were drawn made certain memorandums, as for example:

“The plumbing is to consist of one bath-tub, one washbowl, and one closet, in bath-room; and one sink in kitchen; also the necessary piping to conform with the city ordinance. * * * The varnishing and paint are to be as good or better as said house referred to. There are also to be shelves and drawers in pantry to suit owner of building.”

The memorandum prepared by plaintiff recited that plaintiff was to furnish all the material and all the labor necessary to construct a building for defendant.

“ The building to be in size and divided in such rooms as shown on the plan drawn by me. The material to be used in said building, and the finish thereon, is to be as good as that on a certain building at the corner of Hoyt and Howard streets, that is to say, so • much of the material as is to be used in this building to be erected; and the workmanship is to be equally as good and better than that of building referred to. * * * The outsides of said building are to appear as nearly as possible like those of said building referred to. * * * The price is to be $2,650 and to be paid as fast as necessary to complete said building in $200 payments.”

Place was left for plaintiff to sign and under that was the following:

“And I, the undersigned, accept the foregoing, and agree to pay the twenty-six hundred and fifty dollars in payments as aforementioned.”

The defendant was of opinion that there should be a contract entered into which would cover the entire subject-matter and at one interview between plaintiff and defendant he had requested that his attorney appear and he did appear for consultation. It is undisputed that, upon seeing the memorandum which had been prepared, and the plan which had been drawn, he said to them that the papers were so incomplete he would not .advise defendant to sign the contract; that.inasmuch as their contract was not all in writing they had better not sign anything. One has but to refer to the specifications concerning the plumbing to discoverhow uncertain the written contract would have been if it had been executed. The plans and specifications were given to defendant, were retained by him, and were not thereafter referred to or consulted by either party. Plaintiff completed a house and defendant accepted it and no fault appears to he found with the workmanship and materials. As to the effect to be given to the plans and specifications, the court charged the jury as follows:

“Now the defendant claims that the contract was performed and that the price was $2,650, just as the plaintiff claims; but no claims that these plans and specifications were presented, as the plaintiff claims, but that these papers never were signed; that those never constituted a complete contract between them; that on the contrary, on the night that they finally agreed upon the plaintiff going on to do the work on this dwelling-house that it was distinctly agreed — and you have heard the testimony of the witnesses on that subject, the plaintiff and the defendant and his wife, — that it was distinctly agreed that this house was to be built similar to that or practically the same as that, upon the corner of Howard and Hoyt streets, in the city of Saginaw, belonging to the Stroebel sisters; as good or better; and that there were to be no extras; that it was distinctly understood and stated that there were to be no extras; and that the defendant should pay for no extras; and the plaintiff should charge for no extras. That, gentlemen of the jury, is one of the principal questions in this case for you to determine, as to what the contract of the parties was with reference to the erection of this dwelling-house and whether any extras were to be paid for or not. The defendant admits that the change in the back stoop, which you have heard about, was an extra; that that was different from what was talked originally and that he was to pay for that. * * * With regard to that original contract, gentlemen of the jury, I wish to say to you that these papers introduced in evidence, the plans and specifications, here, and this memorandum of agreement, may be taken into consideration by you in determining the probability or improbability of this contract, and in determining what the contract between the parties was. It is not signed by the parties. Neither of these papers are signed by the parties. You must examine that. You will have an opportunity to examine them, and determine from them and from all the evidence and all the facts and surrounding circumstances in this case, what the probabilities are with regard to that contract, and what the contract was between the parties; but if you believe these papers constituted the only contract between the parties, then you have a right to treat them as the contract. But if you are not satisfied by a preponderance of the evidence — let me repeat that — if you are not satisfied by a preponderance of the evidence in this case, that this constituted the entire contract, then you must determine what the contract was between the parties, from all the facts and all the surrounding circumstances.”

The position of counsel for plaintiff was sufficiently indicated by his second request to charge:

“It is the claim of plaintiff that he set out to do his work in accordance with a written agreement which was not signed by himself or Mr. Rose. I charge you as a matter of law, that contracts are executed by the parties to be charged by the signing and delivery of the papers, when the contract is in writing. I also charge you as a matter of law, that if parties make an agreement and reduce it to writing, but do not sign it, but perform its terms, that the writing itself is evidence of the agreement, and by their performance they ratify the terms of the writing and are bound by it. I also charge you as a' matter of law, that if this plaintiff and this defendant reduced their agreement to writing, but never signed it, but performed its terms, or if Mr. Storch alone performed its terms, both of these parties would be bound by it, and the writing would be entitled to as much consideration as if they had signed and executed it, and their signatures and execution would be unnecessary.”

Without going into details of the testimony, which would be unprofitable, we are satisfied that the instructions given upon this subject were as favorable to the plaintiff as the testimony warranted. That plaintiff built a good house is not disputed. That he built one satisfactory to the defendant is not disputed. He did not build a house like the one to which reference was made in the specifications. Whether he built the house attempted to be described in the plans and specifications he prepared could, in no event, be determined by reference to those plans. Defendant says that, with exceptions which are immaterial in this discussion, the plaintiff built the house lie agreed to build, and no other. Plaintiff contends that because he did not build the house indicated by the plans and specifications and the memorandum of agreement, but did build a different house, he should be allowed as for extras. We think the question of what the contract between the parties actually was was a question for the jury, and that it would have been error for the court to have instructed them that the memorandum and the drawings and specifications constituted the contract between the parties.

Other of the errors which are assigned, and there are several, which rest upon the assumption that the plans, specifications, and memorandums referred to constituted the contract of the parties, require, in the view we have taken of the matter, no notice. The 15th assignment is not supported by the record. Those relating to the admission and exclusion of testimony have been examined without finding reversible error. Without approving the charge of the court with respect to the subject of interest, we cannot see how, as the facts were determined by the jury, it affected the plaintiff. The trial seems to have been fairly conducted, the real issues of fact properly submitted to the jury.

The judgment is affirmed.

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


text:
    HOAG v. ALLEN.
    Cancellation of Instruments — Deeds—Fraud—Undue Influence — Mental Incompetenoy of Grantor — Evidence—Sufficiency.
    On. a bill to set aside a deed made by the grantor to his sister in consideration of care and support, on the ground that it was without consideration and obtained through misrepresentation, fraud, and undue influence, at a time when the grantor was mentally incompetent, to execute it, evidence examined, and held, that a decree dismissing the bill was proper.
    Appeal from Ingham; Wiest, J.
    Submitted April 9, 1908.
    (Docket No. 13.)
    Decided May 1, 1908.
    Bill by Sunderland P. Hoag and William W. Hoag against Hannah M. Allen to set aside a deed. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Joseph B. Hendee (Lawton T. Hermans, of counsel), for complainants.

      Jason E. Nichols, for defendant.
   Blair, J.

The complainants instituted this suit to set aside a certain deed of conveyance made and executed by James Hoag to Hannah M. Allen on the 27th day of March, 1901. The premises conveyed consisted of a farm of 101 acres of land in the township of Onondaga, Ingham county, conceded to be of the value of $4,500, and upon which there was a mortgage of $1,000. ■ Aside from a small amount of personal property, the farm in question represented all the property that James Hoag possessed.

James Hoag was a brother of the complainants and defendant, Hannah M. Allen, and died on the 15th day of October, 1903, at the age of 64 years. He resided upon the farm at the time of his death and had resided thereon since the date of the purchase, about 1884.

James never married and, for several years after purchasing the farm, his brother Daniel, also single, lived with him upon the farm and looked after and managed the business. A house was built upon these lands by Daniel, who had some interest in the farm and who was a carpenter by trade. After Daniel went away, James had several families living with him at different times, and for some considerable portion of the time lived alone. The defendant, Hannah M. Allen, had a home at Eaton Rapids, where she resided most of the time.

About the year 1898 or prior thereto, James Hoag was taken sick. Dr. Stimson, of Eaton Rapids, was consulted and diagnosed his case as the beginning of paresis, due to syphilis, finally developing locomotor ataxia. Dr. Stimson continued to treat Mr. Hoag professionally until about 1900.

Early in January, 1901, Sunderland P. Hoag, one of the complainants, and his nephew, Will S. Hoag, went to the home of James Hoag, in response to a letter from Bert A. Allen, a son of the defendant, stating that his mother, who was then at the home of James Hoag, would be obliged to come to New York State to care for her daughter, and that it would be necessary for some one to look after his uncle James, as he did not consider him a competent person to look after himself.

Sunderland Hoag testified:

“ I had a talk with Mrs. Allen about my brother upon that occasion, and before we. came away she said she would not go down there but would remain here. * * * She said she would have to live with her children if she did not stay there and she would stay there; she didn’t expect to charge when he was up and around anything for she got her board and could hire out her own house here. My nephew was with me on that occasion.

“Q. What, if anything, was said about what would be expected of her in the way of looking after Mr. Hoag, your brother ?

“A. I talked with her, that she would look after him the same as I was looking after him all the time, both of us was to look after him to see that he did not fool away what he had. She said he was not capable of doing business on that and other occasions.

“Q. Did you have some suspicion that he might get rid of his property foolishly ?

“A. Why, she said so-. We always looked after him, myself and father when he was alive, and my brother Daniel, anything he had to do he would come to us. We would look after him on account of his incompetency; were afraid he would make some disposition of his property.

liQ. Was that matter talked over with Mrs. Allen on that occasion ?

“A. Yes; she said she would look after him to see that he did not dispose of his property foolishly, and the matter was left in that shape when we went away.”

It appears that various persons had been to see Mr. Hoag about taking a deed of his farm and taking care of him, just prior to the time the deed in question was executed, and that the defendant, Mrs. Allen, had knowledge of these facts.

Complainant Sunderland P. Hoag and his nephew first learned of the deed after the death of James, and they testified that Mrs. Allen told them that the deed was taken by her to prevent James deeding the property away out of the family, and they would fix matters up among themselves and the neighbors would know nothing about it; that this talk was had on Friday night, the funeral was on Sunday, and the following Tuesday or Wednesday Hoag and his nephew went over to the place; that Mrs. Allen then told them she had seen her lawyer, Mr. Slay-ton, in the meantime, and that he had told her she could hold the property and she refused to surrender the deed as she had previously suggested doing and as she stated it was her purpose and intention to do.

It was following this that the bill of complaint was filed in this case and the court asked to set aside the deed in question, on the ground that the same was obtained without consideration and through misrepresentation, undue influence, and fraud, at a time when, by reason of prolonged nervous and physical suffering, the mind of the said James Hoag had become weakened and impaired and he was thereby in such a condition of mind and body as to render him easily susceptible to improper and undue influence, and when with weakened power of resistance the said James Hoag was mentally incompetent to make and execute deeds of conveyance or paper writings of any kind.

A further reason assigned by the complainants for setting aside this instrument was, that the defendant, Hannah M. Allen, occupying as she did, a confidential and fiduciary relation to her brother, at the time she took the conveyance in question, and knowing his condition, both mental and physical, as she did, should not in justice and equity be permitted to retain any advantages or benefits gained by her through and by reason of such a conveyance.

The case was heard upon pleadings and proofs taken in open court, with the exception of the testimony of complainant, Sunderland P. Hoag, and defendant, Hannah M. Allen, whose depositions were read; and from a decree dismissing the bill, the complainants appeal.

In the course of his opinion, the trial judge made the following statement:

“I cannot make a finding in this case, from the testimony, that at the time James Hoag made the deed he was mentally incompetent to do so. The testimony fails to show that the making of the deed was not his intelligent purpose and desire. On the other hand, it does show that the thing done was just what he had intelligently talked over with others, and had expressed as his intent and purpose to do. He first canvassed with others the advisability of turning his property over to others than defendant,, under proper safeguard for his care and support, and fully appreciated his need of care, the extent of his property and his approaching helpless physical condition. His talk with the conveyancer when the deed was made and with Dr. Long and others shows that he, in this case, knew what he wanted and that the deed in question met his expressed intention.”

After a careful consideration of the record, we have arrived at the same conclusion as that reached by the learned trial judge. There is a sharp conflict in the testimony; the proofs on behalf of complainants tending to show that, from his boyhood, James Hoag had not possessed the average strength of mind and that this weak mental condition had been aggravated by disease, resulting, in the opinion of Dr. Stimson, in paresis dementia, rendering him wholly incompetent to transact ordinary business; on the other hand, the proofs in behalf of the defendant tended to show that while the decedent, James Hoag, was an eccentric and odd person, he possessed, up to the time he was smitten by locomotor ataxia in 1898, ordinary mental ability and was competent to transact such business affairs as required his attention and that this mental condition was not afterwards so impaired as to render him incompetent to execute the deed in question. It is apparent that the circuit judge laid stress upon the testimony of the conveyancer and of Dr. Long, and evidently accepted their testimony as credible. As these witnesses appeared before the trial judge and gave their testimony in his presence and there is nothing in the record to impugn or impeach the good faith of their testimony, we ought to and do give it credence.

The physician, Dr. David Long, testified that he began treating James Hoag sometime in 1900, which was after Dr. Stimson had ceased to attend him; that he went out to see him in the spring or early part of the year 1901, which was about the time of the making of the deed, and—

“I remember the circumstance of being there, would say it was in the spring, but didn’t keep the dates. At that time he talked about his condition, that he had no one to care for him and felt as though he must have some one to look after him and asked me what I thought about his deeding his property to some one and finally mentioned Mrs. Allen, that he would rather have it in the family than anywhere else; told him I didn’t see why it wouldn’t be the proper thing to do because he certainly was in a condition he could not get along without some assistance. Think Mrs. Allen was there bu,t not in the room; that was about all there was of it, that he felt as though he must have someone to look after him and wanted to know what I thought about it. He said nothing about the conditions of deeding or anything of the kind to me or anything about a contract; was there I presume half or three-quarters of an hour; never had any other impression but what his mind was all right, never saw anything but what it was; saw nothing during any of the time I treated him that led me to believe he was not of sound mind and capable of disposing of his property.”

Mr. Fred J. Slayton, an attorney at law at Eaton Rapids, who drew the deed in question, testified:

‘ ‘ Mr. Hoag told me he wanted a life lease drawn; first he wanted to deed his property to his sister, Mrs. Allen, for his care, support and maintenance during the balance of his life; she was living there at the time; don’t know how long she had been there; when I got there they had Exhibit B. It was signed by the Davenports when I'received it or when the notary received it, I had nothing to do with this. This is the contract. Mr. Hoag handed it to me when I arrived there. The matter was talked over there by Mr. Hoag at the time I drew the deed, all gone over. He wanted me to draw up a deed subject to a mortgage held by. the Michigan State Bank of $1,000 and subject to a contract, and said he had had some counsel in relation to a life lease. When I started I drew the deed first, then Mr. Hoag says, Will it be necessary for me to have a life lease? I says, that is the usual way of fixing matters of that kind. He says, I have been informed that if the deed states it is subject to a life lease it is not necessary to go any further if it is carried out. I' says, I will draw it as you want it, but tell you the usual way. He says, it will save recording and drawing one paper, so I drew the deed and he wanted it subject to a life lease to Hannah Allen; informed him that was all right and it could be done that way. He talked of the agreement at that time, that Hannah Allen was to become a party to a contract and I supposed her name was inserted in the contract as one of the parties. She signed it, but the contract was drawn in the State of New York and her name doesn’t appear in the caption of the contract; she signed the contract in my presence, then it was marked out because the notary had her sign it and it was discovered afterward that Hannah Allen was not a party to that contract.

“Q. Now, was that matter of this contract and of the deed fully talked over and understood or fully talked over there by Mr. Hoag or by you or by Mrs. Allen in his presence ?

A. Yes, I think he fully understood the full arrangement.

The Court: The Exhibits A and B may be considered as read and used.

“ A. I think I was there possibly an hour. Mr. Hoag' was there in my presence all of the time talking about this matter; didn’t notice that he became particularly tired or not; I think he fully understood the matter; think he understood the extent of his property, amount of it and those that would naturally be entitled to his bounty; didn’t observe anything that indicated he didn’t comprehend and understand the deal fully, and nothing that suggested to my mind he had been unduly influenced by Mrs. Allen in regard to the matter. * * *

Q. Do you recall this clause in the deed:

'“This deed is given subject to a certain agreement dated March 22,1901, made and executed by Elias E. Davenport and Mary E. Davenport, husband and wife, and Hannah M. Allen to said James Hoag, which, among other things, is given for care, support and maintenance of said James Hoag, also subject to a mortgage of $1,000, held by the Michigan State Bank and subject to a life lease from Hannah M. Allen to James Hoag ? ’

A. Yes, sir.

Q. You knew all of those facts when you put them in the deed ?

“ A. I knew those facts from James Hoag.

Q. You are sure you got them all from him ?

A. He told me what he wanted done and I drew the deed.

Q. But have you a distinct recollection of all that happened out there and all that was said ?

“A. I don’t think of all that was said, no.

Q. Could you now state positively whether Mrs. Allen did'the talking ?

“A. I think they both talked about it.

c 4 Q. Have you any distinct recollection about who said anything there ?

“A. Mr. Hoag told me about the way he wanted it drawn and I drew it.”

Mr. John T. Hall, a witness for the complainants, upon whose testimony complainants’ counsel lay considerable stress, testified that he had been alderman, mayor of the city of Eaton Rapids, and sheriff of Eaton county from 1897 to 1899, and had known James Hoag about 15 or 18 years; that he went to see Mr. Hoag in the early part of 1901:

“ Mr. Hoag said he would like to get somebody to take care of him.

“Q. Did you notice any failing condition in his mind, whether it was strong as it had formerly been ?

“A. Why, in regard to that, I did not see much difference in him as I know of as I had before.

“Q. Did he say anything to you there about deeding the farm to you ?

“A. Yes, sir, he wanted me to take his farm and take him and take care of him; wanted me to take him to Eaton Rapids.

“Q. That he was not having proper care there ?

“A. That was what he thought, yes, sir. That was the first time I was down there. I was there again in February, 1901, I think.

“Q. How did you happen to go dow.n at that time, Mr. Hall?

, “A- Why, I had been talking about Mr. Hoag and I thought I would take a man out with me and look him over and see what he thought about it, and so I took out Mr. Webster.

“Q. What, if any, talk was had at that occasion about the farm ?

“A. We talked it all over and he seemed very anxious to come, and I told him I would not consent to it a minute without having some doctor examine him and see that his people were satisfied. There was a suggestion made about his going to Eaton Rapids to be examined by a physician. * * *

Q. From the condition that he was in, Mr. Hall, would you have been willing to have taken a deed of conveyance from him and paid him a consideration for his farm, or entered into any arrangement for taking care of him without some independent advice to him, or without knowing that the arrangement would have been agreeable and satisfactory to his people and his relatives ?

"A. I would not. * * *

“He seemed to talk rationally; I didn’t notice any difference than what he had ever been much. He talked rationally on any talk with regard to the purchase of property. * * *

“I went out the second time for the purpose of seeing him about taking him, had talked with my wife about it and we had made up our minds that if Mr. Hoag was competent, to take him and take care of him for that farm, and had talked over about what Mr. Hoag’s farm was worth and the arrangements had been talked over and in lieu of the fact that he would deed the farm to us to take him and take care of him the rest of hisdife, clothe him, pay his doctor bills and everything of that kind and bury him, it was agreed that a contract should be drawn up to that effect and he was to make a deed of the property to me and give him a life lease of the property. I was to have the avails of the farm and give him a life lease. I thought that Mr. Hoag appeared to be a man at that time who understood and comprehended what I was saying to him; I thought he understood the nature of a contract of that character and kind and appreciated it fully. I was talking about both Mr. Hoag and Mrs. Allen. ”

We find no evidence in the case to indicate that there was any agreement between Mrs. Allen and her brothers that she should represent them in caring for their brother or that she should obtain a deed as trustee for them, or that any fiduciary relation existed between them and her. So far as any relations of trust and confidence existed between her and her brother James, there is nothing to indicate that she in any way abused her position. It is clear, upon the record, that James required constant- attention and that his care was fraught with very disagreeable consequences. The contract entered into fully protected James and was an eminently proper contract for him to make. Apparently he had sufficient mind to understand this himself and had endeavored to make a similar one with strangers. He had talked this matter over with disinterested persons prior to making the contract and they had advised him to make such a contract and one of them, at least, had advised him to make it with his sister.

The contract was evidently considered a proper contract by Mr. Hall and it seems clear that the reason why Mr. Hall was inclined to insist upon the examination by a physician or independent advice and the consent of the family was that he might have no friction or litigation in future, rather than any doubt, on his part of the mental competency of James to make the contract.

We are of the opinion that complainants failed to establish their case by a preponderance of the evidence. It was conceded, and we think very properly, upon the oral argument, that the record contained no evidence of undue influence, and upon the whole record we are satisfied that the trial judge arrived at a correct conclusion upon the facts, and the decree is affirmed, with costs of both courts to defendant.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


author: Moore, J.

text:
    McGOVERN v. BENNETT.
    Brokers — Commissions—Action—Evidence—Admissibility.
    Where, in an action by a real estate broker to recover commissions on the sale of timbered lands, a letter in evidence withdraws from plaintiff the right to sell a part of the tract but continues the right to sell the balance at the price stated in the letter, defendant cannot complain of the admission of a prior letter and postscript by which defendant was notified that plaintiff was endeavoring to sell the lands to one of the parties to whom defendant afterwards sold part of them.
    Error to St. Clair; Law, J.
    Submitted April 9, 1908.
    (Docket No. 12.)
    Decided May 1, 1908.
    Assumpsit by Thomas H. McGovern against Albert D. Bennett for commissions on the sale of land. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Phillips & Jenks, for appellant.

      Cady & Crandall (M. F. McDonald, of counsel), for appellee.
   Moore, J.

This case has been here before. It is reported in 146 Mich. 558. In his opinion Justice CARPENr ter made a somewhat detailed statement of the case made on the part of the plaintiff and a reference to his opinion will make a long statement unnecessary here. The case was again tried in the circuit court. The jury returned a verdict in favor of plaintiff for $2,000 and interest. A motion was made for a new trial, which motion was overruled, the trial judge stating at length in writing his reasons. The case is brought here by writ of error.

To properly appreciate some of the assignments of error, it will be necessary to quote the letter referred to by Justice Carpenter in full. It is as follows:

“Port Huron, Mich., December 19,1894.

“Mr. Thomas McGovern,

“Sault Ste. Marie, Mich.

' ‘ Dear Sir: Regarding our timber lands near Rexford, known as the ten million tract, will say that our loss on the same is going to amount to so much that we cannot afford to pay any commission on the sale of the same, and the chances are now, we will be compelled to lumber it. The balance of the tract, eighteen million, you may offer for $75,000, and we will allow you $2,000 commission if you sell at this price. We are very sorry you have not been more fortunate in making a sale of this, and hope you may be more successful in the near future.

“Henry Howard Estate,

“A. D. Bennett, Trustee.”

Several assignments of error are made, some of them stated in the requests to charge, which revolve about the proposition that plaintiff had not shown such a state of facts as entitled him to the commission mentioned in the letter. The case made by the plaintiff upon this trial was substantially the same as that stated by Justice Carpenter. It was contested by defendant. This made the case a proper one for the jury under the opinion when the case was here before.

A group of assignments relate to the admission of correspondence of earlier date than December 19, 1894. It is apparent from the letter of December 19, 1894, that prior to that date plaintiff had these lands for sale and also had the ten million tract. The letter withdraws from him the right to sell the ten million tract but continues the right to sell the balance of the tract at the price stated in the letter.

The latter part of the letter recognizes that plaintiff was then endeavoring to sell the land and expresses regret that he has not been more fortunate in making a sale. We do not need to express an opinion as to whether all of the previous correspondence was admissible as the court excluded all of it except one letter and one postscript. Both of these communications notified defendant that plaintiff was trying to sell the lands to one of the parties to whom the defendant afterwards sold part of them. If there is any one who has a right to complain of the ruling of the court in relation to the correspondence it was not the defendant. The law of the case was declared when the case was here before. The trial court kept well within the opinion therein.

Judgment is affirmed.

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


text:
    WILSON v. ESCANABA WOODENWARE CO.
    1. Master and Servant — Personal Injuries — Risk Assumed-Obvious Dangers — Hazards of Employment.
    A servant assumes the risk of injury due to obvious dangers and such of the hazards of the employment, as the business is conducted by the master, as are known to him.
    2. Same — Defeotive Elevator Cable — Use.
    Where plaintiff knew that one of the two cables supporting defendant’s elevator had broken and been removed, but did not know that the remaining cable was insufficient to support it, nor that the remaining cable was fractured, and was weak owing to a tendency of rust to attack the inner and concealed wires, the defects were not so obvious as to make plaintiff a user of the elevator at his peril, in face of the duty of defendant to provide reasonably safe machinery and use reasonable diligence in maintaining it, especially in view of assurances of safety by defendant’s factory superintendent.
    3. Same — Defective Elevator — Duty to Inspect — Negligence.
    A freight elevator supported by wire cables is an instrumentality inherently dangerous and the maintenance of such an appliance imposes upon a master the duty of exercising ordinary and reasonable care and diligence to discover and correct any deficiency which shall result from use or the lapse of time, the degree of care required being thát which a person of ordinary prudence would exercise under similar circumstances with due regard to the character of the appliance and the gravity of the consequences of accident.
    4. Same — Sufficiency of Inspection — Question fob Jury.
    Whether the inspection of a freight elevator in defendant’s factory was sufficient to relieve defendant from liability for injuries to a servant resulting from a fall in consequence of a broken cable, held, as is usual in such cases, a question for the jury.
    5. Same — Proximate Cause — Concurrent Causes.
    In an action for injuries resulting from the fall of an elevator, defendant was charged with negligence (1) in not providing suitable cables for the elevator, (2) in not providing and maintaining a proper safety device, and (3) in failing to properly inspect the apparatus. Held, that since an absence of negligence in any one of the three particulars would have prevented the accident, they were concurrent causes, negligence in any one or two or all of which would support a verdict.
    Error to Delta; Stone, J.
    Submitted April 9, 1908.
    (Docket No. 8.)
    Decided May 1, 1908.
    Case by Edward M. Wilson against the Escanaba Wooden ware Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Yelland & Norblad, for appellant.

      F. D. Mead (Oummiskey & Spencer and E. C. Eastman, of counsel), for appellee.
   Hooker, J.

The plaintiff has appealed from a verdict rendered in favor of the defendant in obedience to the direction of the trial judge. The action was brought to recover damages suffered by plaintiff through the fall of an elevator for carrying freight in defendant’s factory, at a time when the plaintiff, its employé, was riding upon it in the line of his duty.

There is evidence tending to show that the elevator was provided with twin cables for raising it, and something in the nature of a safety device, which, at the time of the accident, was out of use, apparently through design. The cables had been in use some time, and witnesses differ in relation to their condition. Plaintiff was engaged in transporting to the lower floor the product of a tenoning machine in use upon the second floor. During plaintiff’s temporary absence, and while another employe was using the elevator, one of the cables broke, and, on plaintiff’s return, he was so informed, and he saw that it had been removed. Mr. Judson,. the manager of the mill, came up and asked plaintiff why he was “holding these men, stopped them from using the elevator,” and plaintiff told him that one of the cables was broken, and he did not know as it was safe to run it in that condition. Judson said he “didn’t know either as it would be real safe,” and directed plaintiff to hunt up Mr. Reiel, the superintendent of the mill, and, “whatever he should tell him to do, to go ahead and do that.” Plaintiff found Reiel with Mr. Post, the assistant superintendent, and there is testimony that they had been examining the elevator. Plaintiff informed Reiel of what Judson had said, and Reiel told him that “it was all right, to use it,” and that they often had been obliged to run the elevator on one cable. Plaintiff did as instructed by Reiel, and a few hours later the remaining cable broke and he was painfully. injured. He was taken to a hospital and suffered two amputations on one leg and some kind of an operation upon the other. Some two weeks later, a transaction occurred between plaintiff and representatives of the defendant, which, the latter says, was a settlement of plaintiff’s claim, but which he denies to have been such. He received a sum approximately $400 at the time or soon after, and the defendant produced at the trial a written release of plaintiff’s claim, which he unquestionably signed at the time of the alleged settlement. Its production at the trial was accompanied by testimony from several witnesses contradicting plaintiff’s statement to the effect that “he did not read or hear the release read,” and that “he was sick and feverish and did not know that he was releasing his claim or making a settlement. ” Subsequently his counsel tendered $500 to the defendant, and began this action.

Plaintiff’s brief states that five questions were raised below, viz.:

“(1) That the plaintiff was guilty of laches in not making the tender in time.

“(3) That there was a settlement of all damages sus“tained by the plaintiff.

“(3) That the plaintiff assumed the risk in the operation of the elevator.

“(4) -The question of proximate cause.

“(5) That the tender was not a legal one because it exceeded the amount actually expended by the defendant company on the part of the plaintiff.”

Assumption of risk. The learned circuit judge based his instruction upon the conclusion that from the undisputed testimony the plaintiff must be held to have assumed the risk of using the elevator. He was of the opinion that there was nothing intricate in the elevator that plaintiff could not as well understand and appreciate as his employer, and that in such a case, by using it, he took the risk of injury, there being no promise to repair. It is the rule that a servant, knowing the hazards of the employment, as the business is conducted by the master, assumes the risk of injury due to such hazard, and the same is true where such dangers are obvious. Authorities supporting this rule are cited in Swick v. Cement Co., 147 Mich. 463 et seq., where the question is discussed. In that case the absence of covers required by statute was the danger to which the plaintiff was subjected, and it was held that the penal statute requiring the covering of belts alone precluded the application of the doctrine of assumption of risks. The absence of the cover was obvious, and that there was danger from an uncovered belt was plain to any man of ordinary sense. The same may be said of the cases relied upon by the circuit judge. Fischer v. Goldie, 132 Mich. 574, and Goga v. Foundry Co., 142 Mich. 340. In the former the dangers arose from a lever which was in the habit of getting out of repair. It was said:

“ There was nothing concealed or hidden in the danger. The whole machinery was open to his observation, and we think the circuit judge committed no error in holding that the plaintiff assumed the risk.”

In the latter case the defect was a worn set screw. In both of these cases it appeared that the defendant knew the danger, and in the latter'that he knew it none the less although the master expressed the opinion that the machine was safe.

The case now under consideration may properly be distinguished in this particular. While it is not improbable that the jury would have found that the plaintiff knew this danger, they might have reached a different conclusion. No one can deny that he knew that one cable had been removed, leaving but one to support the elevator, but we cannot say that one cable was not ordinarily sufficient for the support of the elevator, or that under ordinary circumstances it would be negligent to run an - elevator without a safety device, or that a cable showing some wear was dangerous, nor can we say that he was obliged to determine the question of the safety of the apparatus, especially the cable, if expert knowledge not possessed by plaintiff was necessary. It appears that there were some broken wires causing a fraying of the cable, but how serious they were is a question, and there is testirhony indicating that there were other defects unknown to the plaintiff and not necessarily obvious, such as a fracture of the cable. and a weakness owing to a tendency of rust to attack the inner and concealed wires. We think that the alleged defects and dangers were not so obvious as to necessarily make the plaintiff a user of the elevator at his peril, in face of the duty of the defendant to provide reasonably safe machinery, and to use reasonable diligence in maintaining it, especially in view of the assurance of the safety of one cable given by a man to whom he had a right to look for more knowledge than he possessed. We are of the opinion that this was a proper question for the jury.

Inspection. The opinion was also expressed that the evidence showed a proper inspection, although this was not a reason given for the conclusion reached. Obviously if there was, it cannot be said that there was negligence for want of it.

It appeared that Reiel and Post looked at and made some inspection of the elevator, and it may be that a jury would have concluded that the inspection was all that the law required, but it was not so conclusively proven as to be a question for the court. If it is true that a wire cable is subject to a deterioration from atmospheric influences, which affect its hidden parts to an extent that makes it unsafe and dangerous, and that such condition is not obvious, but is discoverable only by a careful examination, such as the employé is not expected to make, and is possibly incompetent to make, it imposes the duty upon the master to provide against the certain danger of continued use. If the deterioration is certain the duty to guard against the natural and inevitable consequences of continued use is obvious, by inspection if inspection will apprise of the danger, by reasonable renewal if that cannot be expected.

This elevator, like all other similar ones, was an instrumentality inherently dangerous. Weak cables are certain to precede disaster, if not changed, and it is the master’s duty to exercise ordinary and reasonable care and diligence to discover and correct any deficiency which shall result from use or the lapse of time. The degree of care in examining for defects is said to be such as a person of ordinary prudence would use under similar circumstances, and it must have a relation to the character of the machine and the gravity of the consequences of accident. Hence, ordinarily, these questions are for a jury. 1 La» batt on Master and Servant, § 160 et seq.; 26 Cyc. pp. 1134, 1140 et seq.; McDonald v. Railroad Co., 108 Mich. 7.

Proximate cause. The defendant is charged with negligence in three particulars, viz., (1) in not providing suitable cables for the elevator; (2) in not providing and maintaining a proper safety device; (3) in failing to properly inspect the apparatus.

It is manifest that without the breaking of the cable there could have been no injury, and equally plain that an effective safety device would have prevented it, although the cable did break, and a proper inspection, if acted upon, should have prevented the use of the elevator in its crippled condition. Had there been an absence of negligence in any one of these particulars, no accident would have happened or the injury would have been averted. Hence they may be called concurrent causes, for each could be said to be an efficient cause, without which there would have been no injury. Being so charged, negligence in any one or two or all of these particulars, if found, would support a verdict.

Settlement. The testimony relating to the alleged settlement raised a question for the jury.

We are constrained to reverse the judgment and direct a new trial.

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


text:
    SCOTT v. KEETH.

    1. Sales — Warranty—Waiver—Acceptance.
    Where a contract for the installation of a steam-heating plant guaranteed that it should lie capable of warming the building to a certain degree and that the work and materials should be free from mechanical defects for a period of three years, and that an acceptance of the work should not be deemed a waiver of the guaranty, an acceptance of the plant after a test which led the purchaser to believe that it complied with the contract did not waive his right to an action , for a breach of the guaranty. '
    2. Homestead — Liability Enforceable — Mechanics’ Lien — Statutes — Construction.
    Under section 10711, 3 Comp. Laws, a mechanics’ lien is enforceable against the interest of the owner in property occupied as a homestead in excess of the homestead exemption of $1,500, though the wife of the owner did not join in the contract.
    3. Mechanics’ Liens — Enforcement — Homestead — Value — Proof — Sufficiency.
    Where, upon a bill to enforce a mechanics’ lien for installing a steam-heating plant of the value of upwards of $1,000, it appears that the building is a three-story one, with two stores below and 25 living rooms or suites above, it will be assumed that the building is of greater value than the homestead exemption of $1,500 and the amount due upon a mortgage, since, if it is not, the fact will appear when an effort is made to sell it upon the decree.
    4. Same — Decree—Enforcement—Execution.
    Complainant in a bill to enforce a mechanics’ lien may be awarded an execution to enforce the money decree, without awaiting a sale showing a deficiency.
    Appeal from Saginaw; Beach, J.
    Submitted April 10, 1908.
    (Docket No. 34.)
    Decided May 1, 1908.
    Bill by Edward E. Scott against William H. Keeth and wife and the Citizens’ Savings Bank of Holly to enforce a mechanics’lien. From a decree for complainant, defendant William H. Keeth appeals.
    Modified and affirmed.

      Davitt & Davitt, for complainant.

      F. F. Emerick, for appellant.

       Rehearing denied June 27, 1908.

   Hooker, J.

The complainant’s bill was filed to enforce a lien on a double three-story business building in the city of Saginaw for labor and material furnished under and in connection with a contract to install a steam-heating plant therein. The bill states that the contract provided for the erection of a steam-heating plant, etc., and that $425 was due upon it, while the item for extra work was not covered by the written contract, and amounts to $120.70. It alleged that the Citizens’ Savings Bank of Holly, Michigan, was the holder of two mortgages upon the premises at the time said contracts were made, and Keeth and the bank were made defendants. Mrs. Keeth was made a defendant after it appeared from Keeth’s answer that the building was claimed to be a homestead. All the defendants answered.

The cause was heard upon the merits and a decree was made favoring the complainant. It provided that the complainant should recover from Keeth the sum of $597.31, and that the same should be a lien upon the entire steam-heating apparatus, and upon all of the interests of defendant Keeth in the premises on August 13, 1903, describing said premises, but subject to Mrs. Keeth’s homestead rights, and subject to the rights of the bank under one of the mortgages, the other having been paid. It provided further, that if the defendants should disconnect the boiler described in the bill and should deliver the same unimpaired to the complainant at the premises, within 30 days of the date of the decree, the sum of $300 should be deducted from the amount of the decree. Costs were awarded to complainant and these were made a lien upon the premises, subject to the rights before mentioned, and execution was ordered to issue at complainant’s option. The decree appears to have been satisfactory to all parties except defendant William Keeth, who alone has appealed.

Merits. Defendant Keeth claims that the complainant’s claim for installing the heater never became due, for the reason that the plant does not and. never has complied with the provisions of the contract. The learned circuit judge has not in his decree, or in any opinion, stated that it did comply with the contract except as it may be inferred from the fact that he found the contract price due and a lien upon the premises, and perhaps .that is not inconsistent with the fact that the plant has never befen made to do the work guaranteed by the contract. The contract consists of a submission of written specifications of the apparatus and work with a guaranty and proposal signed by the complainant, accepted in writing over the signature of Mr. Keeth.

The following extract contains a copy of guaranty and method of payments :

“Upon completion of the work herein specified the apparatus shall be tested in the presence of the owner or his representative. The owner shall supply all necessary fuel for testing said apparatus. * * *

“Guarantee.

“When the apparatus.herein proposed to be furnished is completed in accordance with the conditions herein, I guarantee that it shall be capable of warming all rooms mentioned in the schedule except second floor hall, to the temperature mentioned herein, during the coldest winter weather, when the building is furnished and occupied. I also guarantee that all work and materials furnished by me shall be free from any mechanical defects for a period of three years from the time the work is completed; it being understood and agreed that such acceptance shall not be deemed a waiver by you, of the guarantee made by us and set forth in this proposal. If, after this apparatus shall have been accepted by you and part thereof constructed by me under this proposal shall fail to accomplish this guarantee herein contained, I agree to examine, test and remedy such defects at my own costs and expense, within a reasonable time after having received notice of such defect.

“Extras.

“ It is intended by these specifications to provide for the furnishing and setting up by us as otherwise stipulated, of everything essential to a complete and perfect working, low pressure steam apparatus, for the building named, and accordingly everything required for such an apparatus except as aforesaid, shall be furnished and set up by me, without extra charge to you. * * *

“ I will furnish all materials, tools and labor to complete heating and plumbing as per the above specifications, for the sum of Ten hundred and seventy-five dollars ($1,075).

“ Payments.

“ The first payment to be made when the material is delivered and to be the sum of Five hundred dollars ($500). Second, when completed, Three hundred and seventy-five dollars ($375). Third, January 1st, 1904, One hundred dollars ($100). Balance March 1st, 1904, $100.”

This work was completed in January, 1904, and the bill was filed in April of that year. The decree was made December 30, 1905.

Evidently defendant Keeth accepted this plant after a test which doubtless led him to believe it a compliance with the contract. He did not thereby waive his rights under the guaranty, and he has consistently and repeatedly asserted his dissatisfaction with the plant, and we may add that the proof is persuasive that the complainant has not complied with his guaranty. But we do not decide this for the reason that it is not controlling upon this record. It is not a case where defendant has asked affirmative relief, nor is there proof from which we can determine the amount, if anything, which should be awarded, if the question of recoupment could be considered. The circuit court could not avoid allowing complainant’s claim for the contract price, and had complainant appealed we might have found difficulty in affirming the option given defendants of removing and returning the boiler as provided in.the decree. But the option was disregarded and the time for its exercise has long since expired, and therefore it will not be discussed.

The claim for extra work was proved. We feel justified in saying that the two items were a legal charge against defendant Keeth, subject to his right of action upon the guaranty.

Lien. Several questions relating to a right to a lien have been discussed. So far as the rights of the wife and the bank are concerned, they are made secure by the decree, complainant not having appealed. Mr. Keeth, however, claims that, inasmuch as a portion of the building was occupied as a residence by him, it was not subject to alien, inasmuch as his wife did not sign the contract; also that if he is not sustained upon that ground, the total absence of proof of value precludes a decree for complainant; also that execution cannot issue against him until a sale has shown a deficiency.

Homestead. Defendant’s counsel rely on 8 Comp. Laws, § 10711, to sustain his claim that a homestead is not subject to lien where the contract has not been signed by a wife.

As the law stood in 1885, Act No. 216, a lien was permitted to attach subject to the homestead exemption. See Lamont v. Le Fevre, 96 Mich. 175. See, also, Mills v. Hobbs, 76 Mich. 122.

• Act No. 179, Pub. Acts 1891, § 2, provided:

“If any such services are performed or materials are furnished upon lands belonging to any married woman, with her knowledge and consent, in pursuance of a contract with the husband of such married woman, the person furnishing such labor or materials shall have a lien upon such property the same as if such contract had been made with such married woman. And in case the title to such lands upon which improvements are made is held by husband and wife jointly the lien given by this act shall attach to such lands and improvements, if the improvements be made in pursuance of a contract with both of them, or in pursuance of a contract with one of them by and with the knowledge and consent of the other.”

This was amended by Act No. 14-3, Pub. Acts 1897, being 3 Comp. Laws, § 10711:

“In case the title to such lands upon which improvements are ma.de is held by husband and wife jointly, or in case the lands upon which such improvements are made are held and occupied as a homestead, the lien given by this act shall attach to such lands and improvements if the improvements be made in pursuance of a contract in writing signed by both the husband and wife.”

It is contended that this section precludes a lien attaching to any homestead, just as it does to any land held by entireties, where the same is not based on a written contract signed by both husband and wife, and counsel for defendant insists that we have so held in the case of McMillan v. Schneider, 147 Mich. 263, and Bauer v. Long, 147 Mich. 351. Neither of these cases turned on the question in this case, for both were cases of land held by entireties, and it is clear that the statute does not authorize a lien in such a case, regardless of the question of homestead, as we held in those cases. We refused to sustain defendant’s contention as to homestead in the case of McAllister v. Des Rochers, 132 Mich. 381, sustaining a lien under such circumstances. There is an obvious opportunity for a distinction in the furtherance of justice, by construing the term homestead as used in this statute to mean the mere homestead interest, as the court has done in earlier cases. The excess over |1,500 was subject to a lien for these claims. We do not consider the question whether the lien could attach to Keeth’s homestead interest as the point is not made and it is unimportant.

Value. It seems to be conceded that no witness testified to the value of the premises, but it is shown that it is a three-story building with two stores below and 25 living and sleeping rooms or suites above, having a heating apparatus costing over $1,000. We do not discover that this point was urged below or that there is any assertion that this property was not of greater value than the value of the homestead, and the amount due upon the mortgage. We will therefore assume that it is. If it is not, it will be made to appear when an effort is made to sell it, in case the amount of the decree shall not be sooner paid.

Execution. We see no objection to allowing complainant an execution to collect a money decree, although in a case to foreclose a lien.

The decree will be affirmed except as to that portion permitting a reduction by the removal and delivering of the boiler, and with the usual provisions regarding the usual proceedings for sale, etc. A new decree may be taken in this court in accordance with this opinion, and without prejudice to defendant’s rights, if he has any, upon the contract and guaranty. Complainant will have costs.

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


text:
    ROBERTSON v. KENNEDY.
    1. Trial — Instructions—Opinion as to Facts — Correction.
    Reversal will not be had because the trial court improperly influenced the jury against the defendant by expressing the opinion that a suggested defense had not been strongly urged, where counsel speedily informed the court that his impression was wrong, and the court repeatedly instructed the jury upon the subject and plainly made their conclusion thereon a turning point in the case.

      &. Trover — Chattel Mortgages — Conversion —Demand —Refusal — Evidence—Sufficiency.
    In an action of trover for the conversion of household goods upon which plaintiff held a chattel mortgage, evidence examined, and held, sufficient to go to the jury upon the theory that an unqualified demand was made, that it was based upon the chattel mortgage, and that defendant’s representatives refused to respect it.
    3. Same — Conversion by Agents — Authority oe Agents — Question eor Jury.
    Whether constables placed in charge of the goods by defendant, who had seized them on a chattel mortgage lease, exceeded their authority in refusing to deliver the goods on plaintiff’s demand, was a question for the jury.
    4. Same — Conversation—Evidence—Res Gestae.
    . A conversation between plaintiff’s agent and the constables acting for defendant at the time of making the demand was admissible as res gestas.
    Error to Wayne; Hosmer, J.
    Submitted April 10, 1908.
    (Docket No. 17.)
    Decided May 1, 1908.
    Trover by Frank A. Robertson, administrator of the estate of William Scott, deceased, against Pamelia Kennedy and James D. Kennedy. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      A. J. G-roesbeck, for appellants.

      James Q-. McHenry, for appellee.
   Hooker, J.

Scott, the plaintiff’s intestate, held a chattel mortgage given by a Mrs. Van Marter upon some household furniture owned by her. It was seasonably filed. Afterwards Mrs. Van Marter leased certain premises from a Mrs. Kennedy which lease contained the following provision :

“And the said party of the second part does hereby covenant and agree that all goods, wares and merchandise, household furniture, fixtures or other property which are or shall be placed in or on said premises by her shall be liable and this lease shall hereby constitute a lien or mortgage on said property, to secure the rent due or to grow due on this lease. And does hereby authorize and empower the said party of the first part to, and the said party of the first part may, in case any default is made in the payment of the rent above specified, or any of the covenants herein contained are broken, enter upon said premises, or take any of said mortgaged property wherever the same may be found, and sell and dispose of the same in the same manner as in the case of chattel mortgage on default thereof, giving six days’ notice of the time and place of such sale, said notice to be posted in two public places in the said city of Detroit for the best price he can obtain for the same, and retain sufficient money to pay any rent due hereon, or to grow due hereon, together with the costs of such sale; and the said party of the second part hereby waives all benefit of any exemption law of this State in reference to the sale of said personal property for rent. Any property or goods placed in said premises shall not be encumbered in any way if free and clear now, and any property already encumbered shall not be further encumbered without the written consent of the first party.”

Mrs. Van Marter allowed her rent to get in arrears, and proceedings were begun before a commissioner to recover the possession of the premises by Mrs. Kennedy, and they resulted in a judgment of ouster on February 3, 1905.

On February 8th, Mr. Kennedy, acting for his wife, the lessor, caused possession of the furniture to be taken under the lease by Mr. Guest, a constable acting under the instruction of counsel. Peters, his associate, remained upon the premises for two or more days in control of the furniture. A writ of restitution was issued February 9th.

The plaintiff claims that demand for the possession of the property was made upon defendant’s agents, who refused it, and this action of trover, begun before a justice, followed. The trial resulted in a judgment for defendant. A subsequent trial in the circuit court resulted in a verdict and judgment for the plaintiff, and the defendant has appealed.

The learned circuit judge stated in his charge to the jury that their verdict- should depend upon two propositions, First, Whether there was a valid existing chattel mortgage upon the property in question, which belonged to the plaintiff as administrator of William Scott. Second, Whether there was any conversion on the part of the defendants prior to the commencement of the suit before the justice. He added the following statement:

“I say, whether there is a valid chattel mortgage because I do not understand that that defense has been strongly urged by the defendants here, but still it exists in the case, because the plaintiff must prove to your satisfaction, first, that there was a valid existing mortgage upon the property, and, secondly, that there was a conversion of that property.

“ Now you have heard the testimony in the case — the testimony on behalf of Mrs. Van Marter, viz., that the mortgage in question in this case was executed by her on account of a consideration which she had received from Mr. Jenks, and that no portion of it has been paid. And you have heard the testimony, gentlemen of the jury, of the defense in this case, that at various times she stated that there was no lien upon the property, except upon the property as I understand it, which was in the house when she came there, and which she had purchased on her going into the house. Now, under this testimony, I think it is for you to say whether there was anything due upon the mortgage in question and if so, how much.”

Defendant’s counsel alleges error upon the statement quoted “because I do not understand that that defense has been strongly urged.” The judge further charged the jury substantially that Mrs. Van Marter had testified that plaintiff’s mortgage was a valid existing mortgage, but that thei’e was testimony that she had made statements to the contrary, and it was therefore a question for the jury to decide. If it was not such a mortgage, the plaintiff was not entitled to their verdict, but if they found it to be such, and that nothing had been paid upon it, plaintiff was entitled to the possession of the property by virtue of the mortgage, and if he made a demand for it, upon the defendants or their agents, and that was tantamount to a conversion, a verdict should be rendered in favor of the plaintiff. He had previously said that the lease gave Mrs. Kennedy and her agents a right, on nonpayment of rent, to take the possession of the property long enough to inventory it, to see what there was there, and, if necessary, to make a sale of the property, subject to existing liens, without being in any sense guilty of a conversion of the property. He said further •

“It is for you to say what demand, if any, was made then — because, gentlemen, with those rights which the defendant had, if the refusal of the constable or those in possession of the property, either at that time or after-wards, was not tantamount to a conversion of the property on the part of Dr. Kennedy, then I say to you, gentlemen, this action will not lie. If it was tantamount to a refusal to respect his rights as chattel mortgagee, then if there be an existing chattel mortgage, there can be no question but what the plaintiff would be entitled to recover such amount as would compensate him for the injury that he has suffered. It is for you to say. It is purely a question of fact for the jury. A constable might have refused an instant delivery of the goods without at the same time being guilty of a conversion of them. If Mr. Guest or Mr. Peters, who was there, explained the matter that they were keepers of the goods, and they were subject to the orders of Mr. Groesbeck, who was acting as attorney, and that they desired to consult him, then I say to you, gentlemen of the jury, if that was acceded to, as claimed by Mr. Sempliner, obviously, that would not be such a refusal as' would support this right of action — if there was an absolute refusal to respect his rights as mortgagee, then, as I said before, the action would lie.

“I am asked to charge you in this case. There was a valid subsisting chattel mortgage upon the goods that that mortgage had been duly recorded in accordance with the statute in such case made and provided, and was prior in time to the other encumbrance upon the goods; that is, that this mortgage was a good first mortgage, and this being so, the mortgage was a lien upon the household goods, and was a sufficient property right in the goods to sustain this action of trover, provided the other elements necessary to sustain trover were present. Well, as I said before, gentlemen of the jury, you have heard the testimony of the witness respecting the giving of the chattel mortgage. If you believe her testimony that it was then a valid subsisting chattel mortgage, unquestionably that is true — if you believe her statement — if you believe that she made statements to the contrary to the agents of Mrs. Kennedy, then you may consider that as bearing upon the question whether it was or was not a valid subsisting chattel mortgage.”

Counsel urge that the judgment should be reversed for the reason that the court improperly influenced the jury against the defendant, by expressing the opinion that the invalidity of the chattel mortgage had not been strongly urged. The jury must have become convinced that it was strongly urged, for counsel speedily informed the court that his impression was wrong, and the court repeatedly instructed the jury upon the subject and plainly made their conclusion upon the subject a turning point in the case. The judgment should not be reversed on this ground.

Counsel asked the court to direct a verdict for the defendant. They argue:

(a) That a sufficient demand was not made.

(b) That the refusal if any was not such as to justify a claim of conversion.

(c) The refusal if any was not within the authority of the agent who made it.

The proof offered contained the following: Mr. Van Marter testified:

“Our household goods were held by the constable, whose name was Peters. Mr. Guest had been there several times. Sometimes he'was there 15 or 20 minutes, sometimes he was there for an hour. Mr. Guest was there probably in the neighborhood of three or four hours. Mr. Peters was there for two days and a half. He stayed all night and did not leave the premises after he came in once. He was there at least two nights. He was there more than that, because he was there until we left. He sat around guarding the house, I guess, so that it would not run away, as near as I could find out. He would not let any of the household goods go out without a writ of replevin, that is what he told me. When I was there someone came after the furniture. You came after'it and made a demand for the furniture. I don’t remember just what words Mr. Peters used in answering you, but he gave me to understand that we could not have any of the furniture that was in the house. You made a demand for the goods covered by the chattel mortgage. Either Mr. Guest or Mr. Peters exhibited a paper while they were there, and that paper was the authority to come in and have charge of all the furniture and household goods that was in the house. * * *

“When the demand was made for the goods under the first mortgage, he said — I don’t remember just what he ' said, but he gave us to understand that he would use some force if it was necessary. Mr. McHenry made a demand for the goods. He had a list of them and called them off. He made the demand of the constable, Mr. Peters. He said: ‘I make a demand for these household goods,’ and he read them off, and I don’t remember in whose name he demanded them but I remember of him demanding them and reading them off. * * *

I will not swear he made it in Mr. Robertson’s name, nor in Mr. Scott’s name. I will not swear that he did not make the demand in the name of my mother. I will not swear that he made the demand in the name of anybody.”

Mr. Sterling testified :

“ While I was there Mr. McHenry and another gentleman came up and made a demand. Mr. Peters refused to allow the furniture to be taken away. He claimed .the furniture under some kind of a lease or mortgage. I don’t remember. I believe Exhibit 4 was the paper. To the best of my recollection it was. Mr. Peters said that they would have to take it over his dead body if they took the furniture away from there; that he was there to protect the furniture and keep it there and that he was going to keep it there. I told him I was simply there to keep the peace and I did not have anything to do with the furniture. Mr. Peters claimed he was there in the interests of Mr. Kennedy and Mr. McHenry. I think it was in the name of Mr. Robertson. I think Mr. McHenry made a demand in the name of Mr. Robertson.”

Sterling was a police officer sent there by his superior to preserve the peace. On cross-examination he said:

“Mr. McHenry showed me.the paper when I was at the door that time. It was a paper that he had. I believe it is a mortgage. I did not pay much attention to it. I simply glanced it over. To the best of my recollection he showed me the mortgage that contained the name of Robertson. I would not be positive as to that. I would not swear to that only he claimed he had a mortgage. I wouldn’t swear that the paper contained the name of Robertson. I don’t remember what the name was. I glanced it over. I could not say whether the name in the paper was that of Mr. Scott. I heard the name of Robertson mentioned in the justice court, and I have heard it here because Mr. Robertson is the plaintiff here. I think that was the name used. I think Mr. McHenry mentioned his name that time. I don’t think he mentioned Mr. Scott’s name. I think it was Robertson. When the paper was shown to me, I looked through it and saw Mrs. Van Marter’s name on it, and that it was a mortgage, and that was all.”

Mr. Johnson said:

“ I went to 426 Cass avenue with Mr. McHenry. Mr. McHenry made a demand for the goods and Mr. Peters refused to deliver them.

iCQ. In whose behalf was that demand made by him?

“A. I don’t know who you were representing. Mr. McHenry did not state to me whom he was representing. I don’t recall what he said to the man upon whom he made the demand. He stated to the man upon whom he made the demand who he was representing.”

Mr. McHenry testified:

“ I made a demand on Mr. Guest for those goods and he said that he would not give them to me, that he was holding them under a lease. I asked Mr. Peters what he was doing there. I had quite a little trouble with both of them. Mr. Peters said that Mr. Guest took possession of these goods and he said that he would not give them to me; that when he was put there to do a joh he was going to hold them and nobody was going to take the stuff away. I went up again and he would not let me have possession of them. I went up there on the 9th and Mr. Peters was there alone. Mr. C. H. Johnson was there with me for a witness. We went to the police department and asked them to send a man there to keep the peace. I had been asked to go there and take the goods and I thought there would be trouble in the way of wanting to take the goods away, because I meant at that time to take the goods by force. Mr. Sterling advised me to keep the peace. He said he would arrest both Mr. Peters and myself if we had a fight there. I tried hard to get the goods and went to take hold of one of the pieces myself and put it outdoors, and Mr. Peters would not let me, and if I got it, he said I would have to take it over his dead body. I left him in possession of the goods and went away. I made a demand on the 8th of Mr. Guest, the first time that I went there. I made a demand in the name of Frank A. Robertson, administrator of the estate of William Scott, deceased, George J.. Jenks, and of other parties in interest. Those were the exact words I used, and I made this demand under the mortgage. I am sure I made the demand in the name of Mr. Robertson. I saw Mr. Lamb there. He is the agent of Dr. Kennedy. Dr. Kennedy told me that Mr. Lamb was his agent. Mr. Lamb said that if I took anything he would have the woman arrested. I took the lease and I went over and saw Justice Sellers, and I asked Justice Sellers whether on that showing he would issue a warrant for this woman. I did not want to get the woman arrested, and he said he would not. Dr. Kennedy and Mr. Lamb both told me that if that woman touched the goods they would have her arrested. I don’t remember having any talk with Dr. Kennedy and Mr. Lamb as to the constables’ taking possession of this furniture, but it was all understood between us that the constables were the agents of and were sent there by Mr. Groesbeck and Dr. Kennedy and had the stuff in charge. I tried two or three times to get a settlement with Mr. Groesbeck. I told him that if he would let us have the stuff I would not appeal. I saw the notice of sale. I don’t just remember distinctly when that was. We read the paper which was there. I did not know that it was subject to claims until after that. I supposed it was in opposition to our mortgage. I don’t remember whether they disputed our right as to our title under claim of mortgage other than to make a foreclosure themselves. The point we were after was the goods. Mr. Sempliner was there also. He, of course, I knew was associated with Mr. Groesbeck’s office and I talked with him in reference to the goods and I don’t remember distinctly what our conversation was, but the effect of it was that I could not have them. I would like to state also that when I made this demand on Mr. Peters I made him show the paper. Mr. Guest had turned over this lease to him the second day and had gone away and left him in charge with the papers. Mr. Peters showed me this lease as his authority.”

There is enough in the testimony quoted to warrant a conclusion that an unqualified demand was made, and that it was based upon a chattel mortgage, and that the defendants’ representatives refused to respect it, although this testimony was disputed.

The claim of immunity, upon the ground that defendants’ agents exceeded their authority, cannot be sustained. These questions were all submitted to the jury, which is all that defendants were entitled to.

Error is assigned upon the admission of the conversation between McHenry and Guest and Peters. Counsel has omitted to state where the testimony is to be found in the record, but we infer that it related to what occurred between them at the time McHenry made a demand. This was a part of the res gestee and clearly admissible.

We find nothing in the record that defendants have reason to complain of. The trial was fair and the charge clear and just, and we detect nothing indicating a miscarriage of justice, or occasion for a new trial.

The judgment is affirmed.

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