author: Long, C. J.

text:
    WILTSIE v. HARVEY.

    1. Mechanics’ Liens — Contractor’s Statement — Right to Bring Suit.
    Under section 4 of the mechanic’s lien law (Act No. 179, Pub. Acts 1891), requiring that original contractors furnish to the owner sworn statements, giving the names of all laborers and material men under their contracts, with the amount due each, before they shall have any right of action or lien against the owner, service of such statement is prerequisite to the bringing of a suit to enforce a contractor’s lien. Martin v. Warren, 109 Mich. 584, followed.
    2. Same — Subcontractors and Material Men — Statement oe Claim — Substituted Service.
    Under section 6 of the lien law, as amended by Act No. 199, Pub. Acts 1893, requiring lien claimants, except those dealing directly with the owner, to serve upon the owner a copy of their claim, but authorizing substituted service, where the owner cannot be found, on the agent “having charge of such premises within the county wherein the property is situated,” mere proof of service upon an agent and bookkeeper in charge of the owner’s office is insufficient. ;
    3. Same — Adverse Lienors.
    An adverse lienor is entitled to assert the invalidity of a lien because of a failure to serve'upon the owner the statutory statements above referred to, although a bill to enforce such lien has been taken as confessed by the owner.
    Appeal from Wayne; Donovan, J.
    Submitted February 11, 1897.
    Decided September 14, 1897.
    Bill by James H. Wiltsie against Edward E. Harvey, the City Savings Bank of Detroit, and others, to enforce a mechanic’s lien. From a decree for complainant, the defendant bank appeals.
    Reversed.

      A. 6r. Pitts, for complainant.

      Boiven, Douglas & Whiting, for appellant.

       Rehearing denied January 25, 1898.

   Long, C. J.

This bill is filed to foreclose a lien for labor and material furnished for a building owned by one Edward E. Harvey. It appears that Harvey was the owner of the property described in the bill, for which the labor and material were furnished; that about July 25, 1895, one Thomas J. Fortune filed with the register of deeds'for Wayne county a claim of lien for labor and material furnished for that building; that about the same day the firm of Yeomans, Chesebrough & Co. filed a claim of lien for materials furnished for the building; and that on the 23 d of July the complainant filed a claim of lien on the same building. The bill sets forth that the claims of Mr. Fortune and of Yeomans, Chesebrough & Co. were assigned to the complainant. All the defendants, except Harvey, claim liens upon the property. Orders of pro confesso were entered against all the defendants, except the City Savings Bank of Detroit, Alice H. Ducharme, trustee, and Charles B. Warren. Each of such defendants answered. The case was heard upon • proofs taken in open court, and a decree was entered in favor of the complainant. The defendant City Savings Bank alone appeals.

The complainant testified to his claim that he had done the work described in accordance with the contract between himself and Mr. 'Harvey; that he began work May 10, 1895, and finished it May 27, 1895, and that it amounted to $83.42. Mr. Yeomans was called, and testified to the claim of his firm at $73.92; and Mr. Fortune, that his claim amounted to $68.76. On cross-examination the complainant testified that he had not furnished a statement to Mr. Harvey of the laborers and subcontractors under him; that he had men working for him, but furnished no sworn statement to Harvey concerning them, nor did he furnish him with any sworn statement of the material furnished and used by him on the work, though the material was purchased from various dealers. He made no sworn statement, and did not serve any on Harvey or any one else. Mr. Fortune also testified that he did not serve notice on Harvey, though his claim was for labor and material furnished. Mr. Yeomans testified that the material furnished by his company was delivered to Thomas J. Fortune.

It is contended by the appellant that the bill should have been dismissed because all the claims are invalid; that Wiltsie and Fortune were contractors, dealing directly with the owner; that under the provisions of section 4, Act No. 179, Pub. Acts 1891, it was the duty of Wiltsie and Fortune to make out and give to the owner or his agent a statement under oath of the number and names of evei’y subcontractor or laborer in their employ, and of every person furnishing materials, giving the amount, if anything, which was due or to become due to them or any of them for work done or materials furnished, and that a failure to do this defeats the lien. That section of the statute provides:

“Until the statement provided for in this section is made in manner and form as herein provided,- the contractor shall have no right of action or lien against the owner, part owner, or lessee on account of such contract ”

In Sterner v. Haas, 108 Mich. 488, this section of the statute was under consideration, and it was held that a service of the notice was imperative before suit could be brought, and that it would be enforced in that case unless the circumstances were such that they amounted to an estoppel; but the case was finally ruled upon another point. But in Martin v. Warren, 109 Mich. 584, it was held that this statement was a necessary prerequisite to the'bringing of a suit, and therefore the bill was dismissed, with costs of both courts.

In the claim of Yeomans, Chesebrough & Co., no service of claim of lien was made upon Mr. Harvey, and therefore there was no compliance with section 6 of Act No. 199, Pub. Acts 1893, which provides that, before subsequent proceedings to enforce a lien can be taken, ‘ ‘ every person filing a statement of lien, except those persons contracting or dealing directly with the owner, shall, within 10 days after the filing thereof, serve on the owner, part owner, or lessee of such premises, if he can be found within the county, or, in case of his absence from the county, on his agent having charge of such premises within the county wherein the property is situated, a copy of such statement or claim.” This service was. made upon one Eaton, agent and bookkeeper for Harvey, at Mr. Harvey’s office in the city of Detroit; but the complainant introduced Mr. Pitts, who testified concerning the matter as follows: “Mr. Harvey went away Tuesday, July 23; left the State; and I have good reason to believe and do believe tliat he was never back in the State of Michigan until February, 1896.” There is nothing to show that Mr. Eaton was the agent of Mr. Harvey having charge of-the premises within the county where the property was situate. This service was not such as the statute requires.

Counsel for complainant, however, contends that the City Savings Bank, the only appealing defendant, cannot take advantage of the fact that no statements were made and served by complainant or by Fortune upon Harvey, and that no statement of lien was served by Yeomans, Chesebrough & Co. upon Harvey, because the City Savings Bank is only a lienor,- and not an owner, part owner, or lessee of the property. In support of this contention counsel cites Clark v. Brown, 22 Mo. 140. In that case it appears, however, that Mr. Brown, the party making the objection (as expressly stated by the court), had no interest whatever in the matter, and it was held that he could not be heard to complain that no notice was given. Here the defendant bank is directly interested in pressing its own claim to the fullest extent. We think this objection to the proceeding could be made by the bank, under the circumstances.

The decree below must be reversed, and decree entered in this court dismissing complainant’s bill, with costs of both courts.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    HAYBALL v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    Master and Servant — Defective Machinery — Promise to Repair-Assumption of Risk — Evidence.
    An employé’s eye was destroyed by a chip of metal’s flying from a metal planer which he was operating. In an action to recover damages for the injury, based upon the employer’s alleged negligence in failing to keep the machine in suitable repair, so that chips should not be thrown from it, it appeared that the plaintiff was a skilled machinist, acquainted with such machines; that he had operated the particular machine for 13 months; and that he learned of the alleged defect when he commenced work. The plaintiff testified that he used the machine for 5 months without complaint; that he then explained the matter to the foreman, and asked leave to make some repairs, but was informed that time could not be spared to do so; that he told the general foreman, a few days before the accident, that the machine was not fit to do good work, and was told that it would be fixed as soon as it could be reached in the course of repairs. Held, that the testimony did not support the theory that the plaintiff remained at work, relying upon his employer’s promise that the defect should be remedied, and that, upon his own showing, verdict should have been directed for defendant.
    Error to Wayne; Smith (George W.), J., presiding.
    Submitted February 11, 1897.
    Decided September 14, 1897.
    Case by Albert Hayball against the Detroit, Grand Haven & Milwaukee Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      L. G. Stanley (E. W. Meddaugh and Geer & Williams, of counsel), for appellant.

      Alfred Lucking, for appellee.
   Moore, J.

The plaintiff recovered a judgment against the defendant for injuries from a machine he claims was out of repair, from which judgment the defendant appeals, claiming the court should have directed a verdict in its favor. If the case made by the testimony of the plaintiff himself is such as to authorize its submission to the jury, the verdict should stand; otherwise a verdict should have been directed for the defendant.

The plaintiff is a machinist. June 23, 1894, he was in the employ of the defendant, using a machine called a “shaper.” This machine was used for the purpose of planing steel, cast iron, brass, and other metals, and giving them such shape as was necessary. The shaping was done by means of a tool that traveled back and forth over the surface of the metal to be shaped. The tool planed the metal as it moved forward, but did not cut the metal as it came back. It is claimed the ways or guides in this machine were worn so that the machine was defective. Mr. Hayball testified of it:

“There was looseness in the ways, in the ram and saddle of the machine, and some play in the apron and screw of the machine. * * * To hold the ram in place, so that it would cut straight forward and back without budging, there were ways or guides fastened to the saddle of the machine. * * * The guides were so wide, com-' pared with what they ought to be, as to allow the ram to move sideways, where it ought to go perfectly true.”

It is claimed that, as the result of this condition, when the tool came to a hard spot in the metal which was being shaped, it would slip sidewise as far as the worn-out motion would allow, it to go, that the tool would spring and turn, and that, as the ram would force the tool forward, it would dive into the metal, which would chip off and fly, as it would not. do if the machine were in good order. It is claimed by the plaintiff that, as a result of this defect, a chip of metal was thrown from the machine into his eye, June 23, 1894, which resulted in his losing one eye.

At the time of the accident plaintiff was 23 years old, and had been a machinist 5 years. He had been in the employ of the defendant 13 months. During all of this time he had worked on the same machine, and had worked on such a machine elsewhere, and was familiar with machines of that character. When he began to work, he says he discovered that the machine was defective, and used it 5 or 6 months, when he asked Mr. Rose, the foreman of the shop, to make some improvements upon it, and explained to Mr. Rose the condition of the machine upon two or three occasions, and that the machine was not fit to do a good job.

“I asked Mr. Rose, foreman of the shop under Mr. Bleasdale, who was the general foreman or superintendent in entire charge of the shop, if I could put in four setscrews, instead of this shim, or put in cast iron, to take up that lost motion; and he said, ‘No;.he hadn’t time to do that;’ said they were in a hurry for the work, and could not spare the time to do it; that is what he told me. He said to fix it up with these pieces of sheet iron, put shims in these places, as I had done before; and I did do that, did the best I could with the machine. I was unable to work so rapidly with the machine as was required. I had different talks with Mr. Rose — three or four — about this machine. The one when he told me to fix it as I had done before was about the time the machine was moved, —some time in February or May of the year I was hurt, —I would not be positive. ”

Plaintiff further testified that, a few days before he was hurt, he had a conversation with the superintendent, which he describes as follows:

“Mr. Bleasdale came along, and I says to him, ‘Mr. Bleasdale, this machine isn’t fit to do a good job.’ ‘ Well,’ he says, ‘my boy, I know it, I know it;’ he says, ‘I am doing one thing after another as fast as I can.’ That is what Mr. Bleasdale said, — he would very shortly come to it, would come to it very shortly. I spoke of the shaper, the machine I was working on, and he knew it. The conversation took place right at the end of the shaper. Bleasdale was coming through between the large lathe and the shaper; that is when I stopped him. • There were other machines that he was working on, fixing. I knew about how many machines there were in the shop. I relied on his statement that he would get to it and fix it.”

After the plaintiff had testified in chief, he testified on cross-examination that the speed of ■ the machine would make some difference about the chips flying, and that the man who runs the machine controls its speed, and the thickness of the chip that will be taken; that he had used the machine in practically the same condition for a year, without having any injury, except that he had hurt his thumb by using it to brush off the dust ,and chips, instead of using a brush. At the time of doing the work, he said he had his eyes pretty nearly on a level with the piece of work he was planing. “My eye was right in front of the piece I was planing, facing the machine, as the machine came towards me.” He said his eye was 8, 10, or 12 inches back, and 4 or 5 inches above the piece he was planing. After the cross-examination was ended, this colloquy occurred:

“Q. (by juror): Did you consider that machine dangerous to work with the way it was ?
“A. It was dangerous.
“Q. (by juror): Did you know it was dangerous at the time?
“A. I knew it was a dangerous machine, and I told them that.
“Q. (by plaintiff’s counsel): Did you know that it threatened any sort of injury to you at all, or that it might ?
“A. It might.
“Q. If not carefully handled ?
. “A. If not carefully handled.
“Q. When you had your talk with Mr. Bleasdale a few days before you were hurt, was anything said about the particular defects ?
“A. I told him, and pointed out this same thing to Mr. Bleasdale, yes; I did.
“Q. Tell it to us.
“A. I pointed out these things to Mr. Bleasdale, the looseness here and everything, and I told him that the machine was defective, it wasn’t fit to run; that is what I told him.
“ Q. Just what did he say, as near as you can remember, about when it would be fixed ?
“ A. Mr. Bleasdale said that he was doing one thing after another as fast as he could, and he would get to it after awhile. That is what Mr. Bleasdale said; he was doing one machine as quick as he could, and he was fixing one machine after the other, as fast as he could get to it.
“Q. Was he actually fixing the others, — you say that he was ?
“A. Yes.
“Q. State whether you relied upon his statement?
“A. I did, certainly.
“Q. What would you have done if he had not promised to fix the machine ?
“A. I was going to leave. I had never been hurt before by this machine in this way of flying pieces.”

He then testified on the cross-examination that he had worked the machine a year, knowing it was loose and unsafe, and that, when he returned to work after he had hurt his thumb, he knew the machine was then in just as bad condition as it had been before, and that on the morning of the 23d of June, when he commenced to work, he knew the machine was in just as bad condition as it had previously been in. Both Mr. Bose and.Mr. Bleasdale denied the conversations Mr. Hayball claimed to have had with them, and a great deál of testimony was introduced upon the part of the defendant showing that as late as the morning of the trial, two years after the accident, the machine was in substantially the same condition as at the time of the accident; was no worse about throwing chips than other shapers; and that all shapers used for planing metal would throw chips more or less, depending upon the kind and hardness of the metal, and the speed with which the machine was run, and the manner in which the tool and metal were adjusted. Testimony was also given to the effect that the workman, in examining his work, should not have his eyes in line with and in front of the moving tool, but should be at the side, and examine it as the tool came back.

The rule in relation to the character of the machinery provided and used is stated as follows in Beach, Contrib. Neg. § 351:

“We have seen that the law requires the master to furnish safe and reasonably good machinery to his servant, and t’o keep that machinery in reasonably good order; or, in other words, that the law imposes upon an employer the duty of ordinary care, both as to furnishing the instrumentalities of labor and also as to keeping them in repair. And here it is necessary to be careful not to go further. The law imposes no further or higher obligation upon an employer than this. As a general rule, he is not under obligation to make use of the safest appliances and instruments, nor to change his machinery with every new invention, nor to introduce every supposed improvement in appliances.”

This doctrine has had the approval of this court for many years. Davis v. Railroad Co., 20 Mich. 105, 126. Another rule of law is stated as follows:

“The servant is held by his contract of hiring to assume the risk of injury from the ordinary dangers of the employment; that is to say, from such dangers as are known to him or discoverable by the exercise of ordinary care on his part.” Beach, Contrib. Neg. § 370; Kean v. Rolling Mills, 66 Mich. 277 (11 Am. St. Rep. 492).

. Continued service after knowledge is a waiver of the defect or danger.

“It is the rule that if the servant, when the defect or danger is brought to his knowledge, when he discovers that the machinery, buildings, premises, tools, or other instrumentalities of his labor are unsafe or unfit, * * * continues in the employment without protest or complaint, he is deemed to assume the risks of such danger, and to waive any claim upon his master for damages in case of injury.”. Beach, Contrib. Neg. § 371.

It is claimed on the part of the plaintiff that he did make complaint, and that under the following authorities he is entitled to recover: Hough v. Railway Co., 100 U. S. 213; Lyttle v. Railway Co., 84 Mich. 289; Roux v. Lumber Co., 85 Mich. 519 (24 Am. St. Rep. 102); Schlacker v. Mining Co., 89 Mich. 253.

Beach on Contributory Negligence (section 372) states the rule as follows:

“If, when the master is notified of the defect in the machinery or of the incompetence of the servant, he promises to remedy it within a reasonable time, the servant will not, as a matter of law, be presumed to have consented to it, or ■ to have waived his • rights by remaining for such reasonable time in the service; but mere complaint to the master, unless a promise to repair is made, will not justify the servant in continuing to expose himself to the danger.”

An examination of the cases above cited will show that none of them go far enough to make the defendant liable in this case. An examination of the cases cited, so far as they have any bearing upon the questions involved here, shows that the defect was one that made the continuous use of the machinery dangerous; that it was a temporary defect, and not one of long standing; and that there had been an unequivocal promise to remedy the defect. In the case of Hough v. Railway Co., supra, the danger grew out of a defective cowcatcher, of which complaint had been made, and a promise given to repair. In Lyttle v. Railway Co., supra, the danger grew out of the incompetency of a fireman. A switchman complained of the incompetency of the fireman, and because of his incompetency quit work. He was promised if he would return to work the fireman should no longer run the engine. He did return, relying upon the promise, and, without any knowledge that the fireman of whom he had complained was in charge of the engine, resumed his work. He was injured while the incompetent fireman was in charge of the engine. In the case of Roux v. Lumber Co., supra, the danger grew out of a combination of bevel gear-wheels, which were usually covered in, but from which the covering had been broken by accident, exposing the machinery and making it dangerous. Complaint was at once made to the mill superintendent, who promised to fix it that night. It was not fixed, and the' superintendent’s attention was called to that fact in the morning. He then promised to fix it at noon. The accident occurred at 10 o’clock in the forenoon. In disposing of the case the court made use of this language:

, “It is urged that plaintiff’s knowledge of the exposed ánd dangerous condition of this gearing was equal to that of his employer, and by continuing his work he assumed the risk. This rule of law is not applicable to the circumstances of the present case. The risk to which plaintiff was exposed on the day of the injury was not one ordinarily incident to his employment. It was a temporary peril. It did not arise until the day before the injury. In view of the danger this very machinery had been covered up. Plaintiff, acting as a prudent man should, had on the evening before, and again on the very morning of the accident, notified the defendant of the fact that the gearing was exposed, and defendant had, in recognition of the danger, and of plaintiff’s exposure thereto, promised to replace the covering, and instructed the plaintiff to continue his work until noon, when it should be done. There was no voluntary assumption of the risk on the part of the plaintiff. He proceeded under protest.”

In the,case of Schlacker v. Mining Co., supra, the danger arose suddenly. The men were directed to go back to work, and were assured there, was no danger. Two hours later the, injury was done.

The case at issue here is unlike any of these cases. The plaintiff, when he commenced work, was a skilled machinist. He at once learned the machine was defective. Without complaint, he continued to work with it for five months, when he says he made complaint to Mr. Rose. Instead of receiving a request to go back to work, and a promise to remedy the defect, he was told there was no time to repair the machine. Instead of quitting, he continued his work for months afterwards, sometimes complaining to Mr. Rose, but receiving from him the same reply. This continued until about a week before the accident, when he says he complained to Mr. Bleasdale. Giving his version of this interview the most favorable construction possible, the plaintiff was told the machine would be repaired when they could get to it.

“Mr. Bleasdale said that he was doing one thing after another as fast as he could, and he would get to it after awhile. That is what Mr. Bleasdale said; he was doing one machine as quick as he could, and he was fixing one machine after the other, as fast as he could get to it.”

Instead of protesting further, he again went to work with the dangerous machine, and, with his eye 4 or 5 inches above and 8 to 12 inches away from the source of danger, and directly in the line of the danger, proceeded with his work and received the injury. To hold that under such circumstances the employer is liable would be carrying the doctrine of liability further than it has ever been carried before. It would have the effect of making the employer an insurer of the safety of the employe from accident because of defective machinery. For cases bearing upon different features of the-questions involved, see Swoboda v. Ward, 40 Mich. 420; Kean v. Rolling Mills, 66 Mich. 277 (11 Am. St. Rep. 492); Wheeler v. Berry, 95 Mich. 250; Redmond v. Lumber Co., 96 Mich. 545; Breig v. Railway Co., 98 Mich. 222; Shackelton v. Railroad Co., 107 Mich. 16. It is impossible to reconcile plaintiff’s acts with the theory that he remained at work, after he learned the machine was dangerously defective, relying upon a promise from the defendant that it would remedy the defect. We think a verdict should have been rendered in favor of the defendant.

Judgment is reversed; no new trial ordered.

The other Justices concurred.


author: Long, J. Long, C. J.

text:
    CHAPMAN v. CHAPMAN
    Parol Trusts — Conveyance to Wife — Agreement as to Husband’s Interest.
    No enforceable interest vests in a husband who furnishes the consideration for a conveyance made to his wife under a parol understanding that the property conveyed shall be occupied as a homestead by the family, and that the husband shall have a home there as long as he lives, since 2 How. Stat. § 6179 (chapter 233, § 6), provides that no estate or trust in land shall be created unless by operation of law or by conveyance in writing.
    ON REHEARING.
    Same — Speoipio Performance — Resulting Trust.
    Section 6183, 2 How. Stat. (chapter 233, § 10 )■, providing that nothing in that chapter shall be construed to abridge the powers of the court of chancery to compel the specific performance of agreements in cases of part performance, will not aid the husband in an attempt to enforce such parol trust against the devisees of the wife, although he lives in the home so purchased for many years, and expends large sums of money in beautifying and improving it; particularly, in view of section 5569, providing that no use or trust shall result in favor of the person furnishing the consideration for a conveyance to another person.
    Appeal from Wayne; Hosmer, J.
    Submitted November 8, 1895; original opinion, December 10, 1895. Rehearing granted March 3, 1896;
    final opinion, in affirmance of the earlier one, September 14, 1897.
    Bill by Albert J. Chapman against Grace A. Chapman and Amanda L. Chapman to establish in complainant a life estate in certain lands. From a decree dismissing the bill on demurrer, complainant appeals.
    Affirmed.

      John Galloway and James II. Pound (Albert J. Chapman, in pro. per., on rehearing), for complainant.

      Ed. E. Kane, for defendant Grace A. Chapman.
   Long, J.

The bill in this case was filed to have a life estate declared in complainant to lot G, block 14, Crane & Wesson’s section of Forsyth’s farm, in the city of Detroit. The bill, in substance, sets out that, in August, 1879, complainant borrowed from one Samuel F. Hopkins the sum of $1,000 for the purpose of purchasing a home for himself and family; that the same was borrowed upon the understanding with Hopkins that it was to be used for such purpose; that complainant’s wife, at that time, was informed of the purpose for which it was borrowed; and that the home so purchased was to he used and occupied by complainant and wife, as such, so long as each should live. The title was taken in complainant’s wife. They had two children at the time of the purchase. A mortgage was executed to Hopkins to secure the payment of the moneys. The parties entered into possession, and .continued to reside there together until the spring of 1891, when complainant’s wife and daughters left the home, and went to reside elsewhere, the complainant continuing to occupy the premises and making improvements thereon. In November following, complainant’s wife died, leaving a last will and testament devising the property to her two daughters. The bill was demurred to in the court below, and the demurrer sustained. The claim here is that the property was held in trust by complainant’s wife for him and his family.

It does not appear, by the bill, that any writing ever existed between the complainant and Hopkins in reference to these lands, or between complainant and his wife. The moneys were borrowed from Hopkins to make the purchase, and the title taken directly to the wife, and all the claim which the bill sets up to establish the life estate in complainant is shown to rest in the declarations of complainant to Hopkins, and the claimed understanding between complainant and his wife, that the premises should be kept as a home for complainant and his wife during each of their lives.

Section 6179, 2 How. Stat., provides:

“No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by some person thereunto by him lawfully authorized by writing.”

We think there is nothing set up in the bill which would bring the case out of this statute. A resulting trust cannot be created, except by act or operation of law, or by one of the other methods pointed out by this section of the statute. All that can be said is that, under the allegations in the bill, the complainant’s wife knew how the land was purchased, and agreed with her husband that it should be a home for the family and for themselves so long as they lived. The title vested absolutely in the wife, and under the statute she could devise or convey it at will, without interference of her husband.

In Shafter v. Huntington, 53 Mich. 315, Mr. Justice Champlin, speaking of this statute, said:

“Since the passage of the foregoing enactments (section 6179, 2 How. Stat.) in.1846, no express trust has ever been allowed to be ingrafted by parol on a conveyance, but has uniformly been held to be void.”

One of the daughters consented to release to her father, but the other refused to do so. The circumstances stated in the bill show that the situation of the complainant is peculiarly unfortunate. He has spent many years in this homestead, expending large sums of money in beautifying and improving it, and his two daughters, defendants in this case, now claim to hold the legal title and right to immediate possession; but, whatever the hardship may be, it is not for the courts to set aside the statute, or be guided by any other rule than that which the statute so plainly lays down.

The decree of the court below, sustaining the demurrer, must be affirmed.

The other Justices concurred.

ON REHEARING.

Long, C. J.

This cause was in this court at the October term, 1895, and an opinion was filed December 10th following. It is reported at page 144, ante. It was there held that complainant could not enforce the interest he claimed, as it was not in writing, and was therefore prohibited by section 6179, 2 How. Stat. A motion for rehearing was thereafter granted, and counsel for complainant now contend that this court overlooked section 6183, 2 How. Stat., which provides that—

“Nothing in this chapter contained shall be construed, to abridge the powers of the court of chancery to compel the specific performance of agreements in cases of part performance of such agreements.”

That section was not overlooked. Hnder that section, this court has many times held that a part performance of a parol agreement for the conveyance of land, such as giving and taking possession of it, valuable improvements made thereon, etc., pursuant to such parol agreement, will take the case out of the statute. But in the present case the contract set up was, as stated in complainant’s bill, that Mr. Chapman should purchase the land, pay or secure the purchase money, and that the conveyance should be made directly to his wife, with a parol agreement by the wife with Mr. Chapman that the property should be occupied as a homestead for himself and family, and that he should have a home there as long as he lived. It is this parol agreement with his wife which complainant is now seeking to enforce by his present bill. The title was never- in Mrs. Chapman until so conveyed to her by the deed from Mary Ann Hawksley, to pay the purchase price for which the money was oorrowed by complainant from Mr. Hopkins.' The agreement and understanding at that time was that, though complainant was to pay the purchase money, the title was to be placéd in Mrs. Chapman. Complainant now seeks by the bill to ingraft upon it a trust resulting to himself. It is true that he sets up in the bill that he has been in possession of the premises since that time, and has made valuable improvements thereon, but the real claim made by the bill is that he is entitled to hold the premises for his lifetime, because it was so agreed by his wife at the time of the conveyance by Mrs. Hawksley to her; in other words, he now seeks by this parol agreement to establish a trust in himself. This is prohibited by section 55C9, 2 How. Stat., which is as follows:

“When a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made, but the title shall vest in the person named as the alienee in such conveyance,” etc.

The purpose of this statute is to preclude parties from asserting equitable interests in land where they must rest on parol evidence, in opposition to the written instruments of title, which have been made with their consent and approval. Fisher v. Fobes, 22 Mich. 454. Hence, under its provisions, no use or trust results or can be raised by parol in favor of one who, in the absence of mistake, fraud, or deceit, furnishes the consideration for a conveyance made with his knowledge or consent to another. Groesbeck v. Seeley, 13 Mich. 329; Newton v. Sly, 15 Mich. 396; Harwood v. Underwood, 28 Mich. 427; Weare v. Linnell, 29 Mich. 224; Taylor v. Boardman, 24 Mich. 287; Tyler v. Peatt, 30 Mich. 64; Hooker v. Axford, 33 Mich. 453; Brown v. Bronson, 35 Mich. 415; Way v. Stebbins, 47 Mich. 296; Winans v. Winans’ Estate, 99 Mich. 78. See, also, note to section 5569, 2 How. Stat. In the present case the claim made by the bill comes within the prohibition of this statute as to resulting trusts.

The decree of the court below dismissing complainant’s bill must be affirmed, with costs.

Grant, Montgomery, and Hooker, JJ., concurred. Moore, J., did not sit.


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    O. & W. THUM CO. v. TLOCZYNSKI.
    1. Trade Secrets — Disclosure by Employé — Injunction.
    One who is given employment by a manufacturer whose processes of manufacture, methods, and machinery are kept secret from the public, upon the agreement, express or implied, that he will not use the information imparted to him in the course of his employment for his own benefit or communicate it to strangers, will be enjoined from breaking his agreement.
    2. Same — Conditions of Employment — Contracts in Restraint of Trade.
    An agreement by an employé, as a condition of the employment contract, that he will disclose none of the secrets of the business and machinery about which he is to be employed, is not an agreement in restraint of trade.
    Appeal from Kent; Adsit, J.
    Submitted April 14 1897.
    Decided September 14, 1897.
    Bill by the O. & W. Thum Company against Appollonious A. Tloczynski to enjoin the communication of trade secrets. From a decree for complainant, defendant appeals.
    Affirmed.

      Earle & Hycle (Butterfield & Keeney, of counsel), for complainant.

      C. L. Fitch (Frederick W. Stevens, of counsel), for defendant.
   Moore, J.

The complainant is the successor of the firm of O. & W. Thum, who were manufacturers of sticky fly paper. It filed a bill of complaint to restrain defendant from communicating to others the secret processes and methods, and the knowledge of secret machinery, which were learned by him while in the employ of O. & W.' Thum. The court below granted an injunction, as prayed in the bill of complaint. Defendant appeals.

The testimony is voluminous, and very conflicting. We are satisfied, however, that it establishes, by a very clear preponderance, the following facts: The defendant entered the employ of O. & W. Thum in 1887. They at that time were manufacturing sticky fly paper by machinery and from formulae known only to themselves. They at that time had but one man and one boy in their employ. The business was carried on in the attic of the house, and in a small building in the back yard. The processes and machinery that were regarded as secret, and of great value to the firm, were used only by the members of the firm. As the business grew, it became necessary to employ more persons, and among others employed was the defendant. Because of the increase in the business and the employment of more persons, other precautions were taken, as the necessity grew for taking them. The public were excluded from the premises. The employés at one machine were not allowed to inspect other machines used .in the manufacture, and were not allowed to visit all portions of the- premises. Very rigid and careful requirements were made and enforced to guard the formulse, the processes of manufacture, and knowledge of the machinery used, so that no one could learn them, or either of them, to the detriment of the firm. The business of the firm steadily grew in magnitude, so that when' defendant left its employ, in 1892, about $100,000 was invested in the business, and a large number of persons were given employment. Shortly before this bill was filed, complainant received the following letter:

“Grand Rapids, Mich., Jan. 7, 1893.
“The O. & W. Thum Co., City.
“Mr. Wm. Thum,
“Dear Sir: It is about 15 months since I left your shops, and during that time have been more or less troubled by outside people in regards to fly paper and its manipulations at your works; not so much so until lately, when there were representatives from two large firms, one from Ohio, which was represented by the president and their attorney, which I looked up in R. G. Dun’s, who quote them at $500,000, who were'here for one week, and were directed by some people here in the city to me. They told me that they had sufficient artillery to put the paper on the market, but were a little short on cavalry in its workings; also told me that they were ready at any time to make arrangements, — that is, as soon as I say yes. I can show letters from the above firm and others. I have not said a single word of its manufacture since I left you, but do not think it’s my place to keep mum unless you desire it. Awaiting your early reply, I remain,
“Yours truly,
“A. A. Tloczynski.”

It very soon became evident that defendant was negotiating with others to engage in the manufacture of the same product the complainant was making, and this bill was filed.

The terms of employment were not reduced to writing, and there is a sharp conflict of testimony between the defendant and O. and W. Thum as to the terms of his employment, so that it becomes necessary to consider carefully all the testimony in the case to arrive at the truth. One cannot read all the testimony, in the light of the facts and circumstances surrounding the condition of the business at the commencement of the defendant’s employment, and its subsequent development and growth, without coming to the conclusion that the defendant and his employers regarded his relation to them as a confidential one, and contemplated that he should not disclose or make improper use of the secrets of the business. The conclusion is irresistible that defendant would not have been employed, and that information which was imparted to him would not have been conveyed, if it had been under■stood that he might sever his relations with his employers at any time, and sell the valuable information which had been imparted to him whenever he could find a market. The inception, growth, and development of the business; the manner in which it was conducted; the care taken to exclude the public from means of obtaining knowledge of the processes; the fact that, when new machinery was to be constructed, part of it was got at one place, and part at another, so that no person, outside of the members of the firm and their immediate employés, should see a completed machine in operation; the fact that employés in one department of the manufactory were not allowed in other .departments; and the care which was taken to prevent employés from obtaining knowledge of any branch of the business except that in which the employé was immediately engaged, of all of which" the defendant had knowledge, — all indicate conclusively that the business and processes were secret, and that no one knew that fact better than the defendant. , We think it clearly estal> lished by the testimony that the employment was upon the agreement that defendant would not use' the information imparted to him to the harm of his employers.

In our view, the only important question involved in the case is whether an employé, when his employment terminates, may make use of secrets confided to him by his employer, necessary to be confided to him in the conduct of the business, when it is understood and agreed that he shall not make use of the secret knowledge so imparted to the detriment of the employer, and, if he attempts so to do, may he be restrained by writ of injunction ?

It is said by counsel that the remedy by injunction will not be granted in such a case as this, where, from the nature of the subject, there could be no decree for a speciñe performance; citing Newbery v. James, 2 Mer. 446; Williams v. Williams, 3 Mer. 157; Kimberley v. Jennings, 6 Sim. 340. It is also said that a decree for a specific performance will not be granted where the court has not the means of seeing that its decree shall be carried out; citing Voorhies v. Frisbie, 25 Mich. 482 (12 Am. Rep. 291); Blanchard v. Railroad Co., 31 Mich. 43 (18 Am. Rep. 142); Bumpus v. Bumpus, 53 Mich. 346. An examination of the Michigan cases cited shows that in those cases the court was asked to decree the performance of an affirmative act, where the agreement was of an indefinite and uncertain character, instead of being asked to enforce a definite agreement not to do an act. As to the other cases, if they tend to sustain the contention of the defendant, they are contrary to the great weight of authority. Is it not true that, if one discovers a process of manufacture or an invention which is of use to individuals and the community, he has a property right in it, and that an agreement which must be respected may be made in relation to keeping the process of manufacture or the invention a secret between the discoverer or owner and an employe, which agreement is made one of the conditions of the employment ? It has been said by a very able justice:

“If one invents or discovers and keeps secret a process of manufacture, whether a proper subject for a patent or not, he has not, indeed, an exclusive right to it as against the public, or against those who, in good faith, acquire knowledge of it; but he has a property in it which a court of chancery will protect against one who, in violation of. contract and breach of confidence, undertakes to apply it to his own use, or to disclose it to third persons.” Peabody v. Norfolk, 98 Mass. 452 (96 Am. Dec. 664).

And, again, Mr. Justice Gray, who delivers the opinion, says:

“In this court it is settled that a secret art is a legal subject of property, and that a bond for a conveyance of the exclusive right to it is not open to the objection of being in restraint of trade, but may be enforced by action at law, and requires the obligor not to divulge the secret to any other person. Vickery v. Welch, 19 Pick. 523; Taylor v. Blanchard, 13 Allen, 373, 374 (90 Am. Dec. 203). In Jarvis v. Peck, 10 Paige, 118, such a bond was held valid in equity.”

In Salomon v. Hertz, 40 N. J. Eq. 400, the court adopts the language of Justice Gray, and holds that there is a property in a secret process of manufacture. See, also, Simmons Hardware Co. v. Waibel, 1 S. Dak. 488 (36 Am. St. Rep. 755).

A recent and instructive case is that of Eastman Kodak Co., v. Reichenbach, 79 Hun, 183, from which we quote:

“To briefly summarize, then, the established facts of this case, it appears that the plaintiff is the owner of valuable trade sécrets, which were either discovered by one or more of the defendants, or necessarily disclosed to them, while occupying a confidential relation towards the plaintiff; that, as to such trade secrets as were discovered by either Reichenbach or Passavant, they have undertaken and agreed to give plaintiff the exclusive property in and control over the same; and that, in violation of this agreement, they are now proposing to make use of them, or some of them, in such a manner as to materially injure the plaintiff’s business. With these' facts established, the application of the legal principles which must govern the disposition of the case does not appear to be a very formidable undertaking. It may be safely assumed at the outset, I think, that whatever remedy plaintiff may have does not reside in a court of law. The very nature of the case, the peculiar character of the injury liable to be inflicted, and the incalculable damages which may possibly result, all show most conclusively that legal relief is totally inadequate for plaintiff’s protection, and that its only resort must be to a court of equity. The learned counsel for defendants has contended, with all the adroitness and skill at his command, which is but another way of saying that such contention has been put forth with all possible adroitness and skill, that this case is not one of which a court of equity can take jurisdiction; and several authorities of both English and American courts are cited in support of this claim. I am constrained, however, to hold that the weight of authority is opposed to his view of the law. The question presented is an interesting one, and would justify a somewhat analytical review of the cases which bear upon either aspect of it did time permit; but, for the purposes of this adjudication, it will be necessary to advert to such only as are deemed conclusive upon this court.
“In Morison v. Moat, 9 Hare, 241, which is an English case, it was held that an injunction would issue to restrain the use of a secret in the compounding of a medicine not being the subject of a patent, and to restrain the sale of such medicine by a party who acquired knowledge of the secret in violation of the contract of the party by whom it was communicated, and in breach of trust and confidence. An appeal was taken from the decision of the vice chancellor, and in 1852 the case was affirmed by the court of chancery, and it was there held that ‘there is no doubt whatever that where a party who has a secret in a trade employs persons under contract, express or implied, or under duty, express or implied, those persons cannot gain the knowledge of that secret, and then set it up against their employer.’ Morison v. Moat, 21 Law J. Ch. (N. S.) 248.
“In 1868 the supreme court of Massachusetts recognized and followed the authority of Morison v. Moat, and in the opinion of Gray, J., the law is thus stated: If a party ‘ invents or discovers and keeps secret a process of manufacture, whether a proper subject for a patent or not, he has not, indeed, an exclusive right to it as against the public, or against those who, in good faith, acquire a knowledge of it; but he has a property in it which a court of chancery will protect against one who, in violation of contract and breach of confidence, undertakes to apply it to his own use, or to disclose it to third persons. The jurisdiction in equity to interfere by injunction to prevent such a breach of trust when the injury would be irreparable, and the remedy at law inadequate, is well established by authority.’ Peabody v. Norfolk, 98 Mass. 452 (96 Am. Dec. 664). The language above quoted was cited with approval in Salomon v. Hertz, 40 N. J. Eq. 400, and it is almost identical with that employed by elementary writers of recognized standing in discussing the same question. Judge Story says: ‘Courts of equity will restrain a party from making a disclosure of secrets communicated to him in the course of a confidential employment, and it matters not in such cases whether the secrets be secrets of trade, or secrets of title, or any other seórets of the party important to his interests.’ 2 Story, Eq. Jur. § 952. See, also, 1 High, Inj. (2d Ed.) 15.
‘ ‘ The same doctrine has obtained in this State for at least half a century, and it has been enunciated by a line of decisions which, with a single exception is unbroken. Jarvis v. Peck, 10 Paige, 118; Hammer v. Barnes, 26 How. Prac. 174; Champlin v. Stoddart, 30 Hun, 300; Tabor v. Hoffman, 118 N. Y. 30 (16 Am. St. Rep. 740). The Champlin Case was decided by the general term of this department, Smith, P. J., writing the opinion, in the course of which he takes occasion to say that ‘ a secret of trade is fiilly recognized in equity as property, the disclosure of which will be restrained by injunction.’ By a careful reading of the various decisions upon this subject, it will be seen that some are made to depend upon a breach of an express contract between the parties, while others proceed upon the theory that, where a confidential relation' exists between two of more parties engaged in a business venture, the law raises an implied contract between them that the employe will not divulge any trade secrets imparted to him or discovered by him in the course of his employment, and that a disclosure of such secrets, thus acquired, is a breach of trust and a violation of good morals, to prevent which a court of equity should intervene. It may also be observed in this connection that the word ‘property,’ as applied to trade secrets and inventions, has its limitation; for it is undoubtedly true that when an article manufactured by some secret process, which is not the subject of a patent, is thrown upon the market, the whole world is at liberty to discover, if it can, by any fair means, what that process is, and, when discovery is thus made, to employ it in the manufacture of similar articles. In such case the manufacturer’s or inventor’s property in his process is gone. But the authorities all hold that, while knowledge obtained in this manner is perfectly legitimate, that which is obtained by any breach of confidence cannot be sanctioned; and this distinction is quite forcibly presented in a recent decision of the court of appeals, to which the attention of this court has been directed by the supplemental brief of defendants. Judge Landon, in his opinion, speaking of the plaintiff’s claim, says: ‘His case is unlike those in which the injunctive process of the court is sought to restrain the disclosure of a secret or the publication of a letter which may prove injurious to business or character.’ Bristol v. Equitable Life Assurance Society, 132 N. Y. 264, 267 (28 Am. St. Rep. 568).
‘ ‘ But, without multiplying citations or prolonging consideration of the legal aspect of this case, it may be said, by way of conclusion, that the principle contended for by the plaintiff is not only abundantly supported by authority, but is likewise founded on good common sense, and is peculiarly applicable to the case in hand. Here is a party which, by the expenditure of vast sums of money and the exercise of much skill and ingenuity, has built up a large and prosperous business, the capital of which consists largely in certain inventions and discoveries made by its officers, servants, and agents. The world at large knows nothing of these inventions and discoveries, because they are locked within the brain of those who conceived them. The defendants, who have been largely instrumental in perfecting them, while under both an express and implied contract to give the plaintiff the benefit of their inventive genius, propose now to disregard their legal and moral obligations by creating a new establishment, where these inventions and discoveries may be employed to plaintiff’s serious injury. This is not legitimate competition, which it is always the policy of the law to foster and encourage, but it is contra bonos mores, and constitutes a breach of trust, which a court of law, and much less a court of equity, should not tolerate.”

See, also, Fralich v. Despar, 165 Pa. St. 24.

It is argued in this case that there is no express contract shown, and that an implied contract is not such a one as will be enforced. We think the testimony discloses very clearly an express agreement between the employer and the employed; but, if it may be stated that the only agreement is an implied one, growing out of oral statements taken in connection with the facts and circumstances surrounding the business, the parties, and their acts, still, if it is clearly established by all that was said and done that the secrets confided to the defendant were not to be disclosed by him to others, and were not to be used by him except when he was in the employment of those who imparted to him the secret, or their legal representatives, and that was one of the conditions of his employment, we do not think it would make any difference in the .principle involved. The knowledge came to him in the course of a confidential employment, relying upon his using the knowledge only for the benefit of the employer. It is said by an eminent writer:

“On the whole, the doctrine may be generally stated that wherever confidence is reposed, and one party has it in his power, in a secret manner, for his own advantage, to sacrifice those interests which he is bound to protect, he will not be permitted to hold any such advantage.” 1 Story, Eq. Jur. § 323.

The same authority, when discussing the subject of what cases injunction will be issued in, says:

“Upon similar grounds of irreparable mischief, courts of equity will restrain a party from making a disclosure of secrets communicated to him in the course of a confidential employment; and it matters not, in such cases, whether the secrets be secrets of trade, or secrets of title, or any other secrets of the party important to his interests. Thus a party has been restrained from using the secret of compounding a medicine not protected by patent, when it appeared that the secret was imparted to him, to his own knowledge, in breach of faith or contract on the part of the person so communicating it.” 2 Story, Eq. Jur. § 952, and many cases there cited. 10 Am. & Eng. Enc. Law, 949; High, Inj. § 19; Davies v. Clough, 8 Sim. 262; Williams v. Assurance Co., 23 Beav. 338; Morison v. Moat, 9 Hare, 241; Yovatt v. Winyard, 1 Jac. & W. 394; Tipping v. Clarke, 2 Hare, 393; Peabody v. Norfolk, 98 Mass. 452 (96 Am. Dec. 664); Champlin v. Stoddart, 30 Hun, 300; Salomon v. Hertz, 40 N. J. Eq. 400.

The case of Little v. Gallus, (Sup.) 38 N. Y. Supp. 487, is against the contention of the defendant. In that case the plaintiff was a maker of typewriter ribbons by secret processes and formulae. The defendants entered his employ when they were minors. The court says:

“It seems, therefore, too plain for controversy that the plaintiff was the owner of a process or invention which possessed great value, and which he had secured at the cost of much time, trouble, and expense; that the defendants, G-allus and Bostwick, occupying a confidential relation towards the plaintiff, gained a knowledge of the processes and formulae employed by him in conducting his business; that they well understood the nature of the business, their relations to it, and the care which was used to keep the same secret; and that, notwithstanding the knowledge thus obtained, and in violation of the faith and confidence reposed in them, they surreptitiously made memoranda of these formulae, and are now using the same, as well as all the other knowledge obtained while in the plaintiff’s service, to start and operate a rival establishment. The only question, therefore, to be determined upon this state of facts, is whether or not they shall be permitted to carry out their intentions. It is contended by the plaintiff that his case is brought directly within the rule laid down in that of Eastman Kodak Co. v. Reichenbach, 79 Hun, 183, recently decided by the general term in the Fifth department; and the defendants, while conceding that the law of the case is there correctly stated, insist that the facts do not warrant its application here. We find ourselves unable to concur in the view thus taken, and which was carefully elaborated upon the argument by the learned counsel for the defendants. The facts of this case differ somewhat from those of the Reichenbach Case, in that there was no written agreement entered into between these parties by which the employés undertook to give to their employers exclusive right in or control over any inventions discovered by or disclosed to the former; but we are unable to see how this strengthens the defendants’ contention. In the case cited there happens to be an express contract, but, nevertheless, it is asserted in the opinion of the court, and such is unquestionably the correct rule, that the law raises an implied contract that an employe who occupies a confidential relation towards his employer will not divulge any trade secrets imparted to him or discovered by him in the course of his employment; and we do not see why the defendants, Gallus and Bostwick, are not under just as strong an obligation to observe and keep sacred the trust reposed in them as they would be had they reduced the contract which the law implies to writing. Nor does the fact that they entered the plaintiff’s service while minors, and at first performed duties comparatively unimportant in their character, relieve them from a faithful observance of their obligation. Gallus, at least, was ultimately advanced to a position of great responsibility, and both of them had attained their majority before attempting to take improper advantage of the knowledge imparted to them while in the plaintiff’s employ, and their present experiments are not in the direction of legitimate competition, but involve a breach of trust which we think the court should prevent.” Tabor v. Hoffman, 118 N. Y. 30 (16 Am. St. Rep. 740); Tuck v. Priester, 19 Q. B. Div. 629; Pollard v. Photographic Co., 40 Ch. Div. 345.

It is the contention of the defendant that the contract sought to be enforced is void as against public policy, because it is in restraint of trade; citing Richardson v. Buhl, 77 Mich. 632; Western Wooden-Ware Ass’n v. Starkey, 84 Mich. 76 (22 Am. St. Rep. 686). These cases are not in point. They are cases where the purpose of the contract was to create a monopoly, by providing by contract that established industries should cease to do business, which, of course, is unlawful; but that is not the purpose of the contract under consideration. Here processes and machinery have been invented which the owners believe would be of great value to them if they could be used upon a large scale. To use them upon a large scale requires the employment of a number of persons, to some of whom some of the secrets of the business and the machinery must be disclosed. If these secrets were disclosed to others, who might use them to establish a business of like character, they would cease to be valuable to the owner. Is there anything unreasonable in enforcing an agreement that such secrets shall not be disclosed by the employé ? It has been repeatedly held that contracts, for the exclusive use of a secret art are not in restraint of trade, for the public has no right to the secret. See Taylor v. Blanchard, 13 Allen, 373 (90 Am. Dec. 203), and cases cited; Leather Cloth Co. v. Lorsont, L. R. 9 Eq. 345. We cannot see how it can be against public interest to allow an employer to make such conditions of employment with his employés as will give him the fullest protection to his property right in his process or invention, and at the same time enable him to employ a great many employés in its production. To enable one to do this would be a benefit to the public in many ways. It would secure employment to more persons than would otherwise be employed, and a larger output would be made of a useful article. The evidence discloses that it does not require a man of special skill to do the work done by defendant when in the employ of the predecessors in business of the complainant. To restrain him from making use of what he has not discovered is not an injustice to him, and does not abridge his right to work along those lines which would not be harmful to those to whom he has sustained a position of confidence. It is to the advantage of both parties that such a contract should be allowed. By means of it the defendant secured employment which he could not have secured without it, and at the same time his employers were secured against competition which might be ruinous. Beal v. Chase, 31 Mich. 490, 531.

The decree of the court below is affirmed, with costs.

The other Justices concurred.


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    ANDERSON v. GRANT.
    Contracts — Negligence op Subcontractor — Unsettled Claims.
    Defendant, who had a municipal paving contract, verbally sublet the excavating to plaintiff at the contract price. By the terms of defendant’s contract, he was required to maintain colored lights at night around all excavations, and it was further pxovided that he should save the municipality harmless from loss occasioned by his negligence. Relying upon.a general custom that the person doing the excavating should guard against accident, defendant failed to put up any lights, and, plaintiff providing none, a traveler was injured. Defendant thereupon refused to pay over to plaintiff the full contract price, and plaintiff, pursuant to a provision in the contract, filed with the board of public works a statement of the balanee due him, requesting that the amount be retained by the board from moneys going to defendant. The board, upon settling with defendant, took back his certified check, payable to its order, for the amount in controversy. Plaintiff brought suit against defendant while the claim for injuries was pending before the common council. Held, that he could not recover.
    Error to Wayne; Donovan, J.
    Submitted April 15, 1897.
    Decided September 14, 1897.

      Assumpsit by Andrew Anderson against Archibald Grant to recover a balance claimed to be due upon a contract for excavating. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Charles Flotvers, for appellant.

      Fred A. Baker, for appellee.'
   Long, C. J.

August 1, 1894, Archibald Grant, the appellee, entered into a contract with the city of Detroit to pave River street, from the east curb line of McKinstry avenue to the west curb line of Artillery avenue, with cedar blocks on plank and sand foundation. The pavement was to be “in conformity with the specifications and estimates hereto attached and made a part of this contract, and the grades and cross sections of said work now on file in the board of public works’ office, according to all the conditions herein named, and to the acceptance of the said party of the first part.” The specifications referred to contained the following provisions:

“Colored lights, and, if required, night watchmen, are to be maintained, at the expense of the contractor, when necessary to prevent accident.”
“The contractor, for himself or for any subcontractor under him, shall well and truly pay, as the same may become due and payable, all indebtedness which may become due to any person, firm,- or corporation on account of any labor or material furnished in connection with the contract of which these specifications form a part; and in case of his failure so to do, and on written notice of any unpaid claim for labor or material, as above, being filed with the board of public works, a sum of money sufficient to cover such claim or claims shall be retained from any moneys due said contractor or his subcontractor, and, if such claim or claims be fully substantiated to the satisfaction of the board of public works, said board shall pay such claim or claims from the moneys so retained, any residue to be paid to such contractor on the completion of the work.”

In the contract itself the contractor agreed, among other things, to do the following: <

“Third. To erect and maintain a good and sufficient fence, railing, or barrier around any and all excavations necessary for said work, in such a manner as to prevent accidents; to place upon said railing, fence, or barrier, at twilight of each day, suitable and sufficient colored lights, and to keep them burning during the night; and, -further, to pay to, indemnify, and save the city harmless against all loss and damage which may be occasioned or arise by reason of any negligence or carelessness on his part in doing such work.”
Thirteenth. That the contractor will pay, indemnify, and hold the city of Detroit harmless for and against all damages, costs, and expenses which the city may suffer, or may come to it or arise from any act done or suffered by the said contractor or any of his agents, subcontractors, or employes, or of any neglect, default, or omission by such contractor, his agents, subcontractors, or employés, to do or perform any act or duty imposed upon such contractor by the contract or by law.”

Defendant’s bid for doing the excavating necessary to lay the pavement was 15 cents per cubic yard. Instead of doing the work himself, he sublet it to Andrew Anderson, the plaintiff and appellant, at the same price, and Anderson did the work. This contract was not in writing. Plaintiff did not put up any colored lights to prevent persons from getting into the excavation pending the laying of the pavement. As a consequence, William Dooley, who was riding in a grocery wagon along River street, was dumped into the excavation and severely injured. At the time the present suit was tried, William Dooley had presented a claim to the common council against the city of Detroit, and it was pending before the common council for allowance. The excavation done by plaintiff, at 15 cents per cubic yard, amounted to $1,621.65, of which $1,200 was paid to him by defendant, leaving a balance of $421.65, claimed by him in this suit. It appears from the testimony of plaintiff himself that he filed a claim with the board of public works when defendant did not pay him, and that he insisted that the board should hold the money back from defendant until defendant paid him. The board of public works did hold the money back by requiring defendant, before receiving a warrant for the amount due him on the contract, to deposit with the board of public works a certified check for $421.65, payable to the order of the board. That check is still in the hands of the board of public works. Plaintiff testified that he considered it defendant’s duty to put up the lights, and that he had no agreement to save the defendant harmless from any damage. But defendant testified that it is the business of the man who is doing the excavating to put up the lights, and that such is the practice. John McVicar, a member of the board of public works, testified that the fact or practice in regard to it is that the man who does the work attends to it. The court below directed a verdict for the defendant, and the plaintiff brings the case to this court on bill of exceptions and writ of error.

It appears that the plaintiff took the contract from the defendant at the same price at which the defendant had taken it from the city. The contract contained provisions in reference to the keeping up of lights in the night-time, and also with reference to saving the city harmless from all damages by reason of any accident, etc.; and plaintiff was to do the work in accordance with that contract. But, whether the contract contained this provision or not, he was bound to guard the work he was in the performance of. He could not leave it in a dangerous condition to passers-by without becoming liable for the consequences. It is confessedly his fault that it was left in a dangerous condition. The defendant had nothing to do with it. Plaintiff could not bring his action on the contract until he had fully performed on his part. Under all the circumstances, we are satisfied that the court below was not in error in directing the verdict in favor of defendant.

The judgment is affirmed.

The other Justices concurred.


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    HALL v. ALFORD.
    1. Navigable Waters — What Constitute — Marsh Lands.
    Marsh lands adjacent to an island in a navigable stream, which are dry at certain seasons of the year and at other seasons are covered by water to a depth of 10 or 13 inches, do not lie in ‘ ‘ navigable waters. ”
    3. Same — Riparian Rights — Trespass by Sportsmen.
    One who anchors his boat in waters outside of the navigable portion of a stream, and throws out decoys and engages in duck hunting from such boat, is a trespasser with respect to the riparian owner.
    Error to Wayne; Hosmer, J.
    Submitted April 15, 1897.
    Decided September 14, 1897.
    Trespass quare clausum fregit by Edmund Hall against Charles Alford and another. From a judgment for defendants on verdict directed by the court, plaintiff, brings error.
    Reversed.

      Oscar M. Springer (H. H. Hatch, of counsel), for appellant.

      Ari E. Woodruff and George W. Ooomer (W. F. Atkinson, of counsel), for appellees.
   Long, C. J.

This action was in trespass, commenced in justice’s court, where judgment was given for defendants. On the trial in the circuit the court directed the verdict in favor of the defendants.

The declaration was in writing, and substantially avers that—

“The defendants, on the 15th day of April, 1895, with force and arms, the close of said plaintiff, situate in the township of Brownstown, said county, and known and described as-being ‘Horse Island,’ being situate directly east of -sections 1 and 12 in township 5 south, of range 10 east, with the adjacent shore, broke and entered, and with their feet in walking, shooting at game on said plaintiff’s land, and, within a short distance of the same, a marsh flowed by water, yet adjacent to the main shore, of which his said lands above described are a part, and while in the act of so shooting game aforesaid, trod down with their feet in so walking and hunting game, and with their boats and decoys crowded onto the grounds, anchored, trod down, trampled upon, and destroyed the grass of said plaintiff there growing, and other injuries to him then and there did,” etc.

The plea was the general issue, with notice that no trespass was committed.

The plaintiff gave evidence tending to show that he was the owner in fee of the island. There was offered and received in evidence a patent from the United States to Benjamin Hall, Jr., the land being described therein as “Horse Island, being situate directly east of sections 1 and 12 in township 5 south, of range 10 east, as per official plat approved April 2, 1885.” Also a deed from Benjamin Hall, Jr., and wife to plaintiff, describing the same premises. Plaintiff further showed that he was in possession of the property at the-time of the trespass complained of, and that he and his grantor had been in possession for many years. This island is situate in the Detroit river, the center of the river being east of the island and the main shore west of it. On April 15, 1895, the defendants came in a boat to a place near the north end of the island and about 60 feet from it, and about 216 feet from the channel bank, threw out their decoys, and commenced shooting ducks. They were warned off by plaintiff’s" agent, but refused to go. At the place where the boat was anchored, the water was about 10 or 12 inches deep on that day. It was shown that at some times in the season this place was not covered with water at all, but that at the time in question the water from the upland of the island to that point was from 6 to 12 inches deep, growing gradually deeper as the channel bank was approached. This land between the island and the channel bank is a shallow flat, and during some seasons of the year is covered with weeds, rushes, and grass as high as a man’s head. This marsh extends all around the island, though there is a slight current passing through it. Plaintiff on the trial asked for nominal damages, which request was refused.

It is well settled in this State that the fee to the land under the waters of the rivers, as far as the middle thread, is in the riparian owners. In City of Grand Rapids v. Powers, 89 Mich. 94 (28 Am. St. Rep. 276), the cases upon the subject are collected and the question discussed at such length that it is needless to cite or discuss them here. Among other things, it was there said:

“Under the settled law of this State, the defendant is the owner, by virtue of his riparian rights, of the soil of the river bed to the middle of the stream.”

In that case Mr. Justice Morse quoted with approval from the case of City of Janesville v. Carpenter, 77 Wis. 288 (20 Am. St. Rep. 123), as follows:

“That the owner in fee of this ground has the right to use and enjoy it to the center of the river in any manner not injurious to others, and subject to the public right of navigation, has been too often decided by this court and other courts to be questioned. As a riparian owner of the land adjacent to the water, he owns the bed of the river usque adfilum aquae, subject to the public easement if it be navigable in fact, and with due regard to' the rights of other riparian proprietors. He may construct docks, landing places, piers, and wharves out to navigable waters if the river is navigable in fact, and, if it is not so navigable, he may construct anything he pleases to the thread of the stream, unless it injures some other riparian proprietor, or those having the superior right to use the waters for hydraulic purposes. * * * Subject to these restrictions, he has the right to use his land under water the same as above water. It is his private property, under the protection of the constitution, and it cannot be taken, or its value lessened or impaired, even for public use, ‘ without compensation,5 or ‘without due process of law;5 and it cannot be taken at all for any one’s private use.55

Judge Morse added:

‘ ‘ The law of this State is in complete accord and harmony with that of our sister State of Wisconsin in respect to riparian rights.55

In Webber v. Boom Co., 62 Mich. 636, it was said: “It is the settled rule in this State that the title of the riparian owner extends to the middle line of the lake or stream of the inland waters" (citing many cases). And again: ‘ ‘ This has become a rule of property in this State, and the Supreme Court [of the United States] recognizes the right of each State to determine the doctrine for itself. Barney v. City of Keokuk, 94 U. S. 324.

It is not claimed in the present case that the public can be hindered or in any manner interrupted in its use of the Detroit river for the purpose of navigation; but it is contended that the defendants were not using the river for any such purpose, and that the place where the boat was anchored was not susceptible of any such use or purpose. Under the rule laid down in City of Grand Rapids v. Powers, supra, the plaintiff here would have the undoubted right to construct wharves or piers out over this low land to deep water. It is contended, however, by counsel for defendants, that in its then condition the defendants had the right to pass over it in their boat, and for so doing they cannot be counted as trespassers; that, it being covered by the waters of the Detroit river, the public has the right of navigation, and any member of the public may go and come freely, either for business or pleasure, anywhere within the navigable waters; and that this place was within the navigable waters. On the other hand, it is contended by counsel for plaintiff that those waters, at the point where the boat of defendants was anchored, are not navigable, within the meaning of the term “navigable waters,” as the courts now construe that term; and that, even if they could be construed as such waters, the defendants were not using them for that purpose. It is not contended that the defendants injured the grass growing there, but that the trespass consisted in anchoring the boat, and shooting the ducks while so anchored.

Can these waters be considered as navigable ? In City of Grand Rapids v. Powers, supra, it was said:

“Whatever may be the power of the legislature in waters ‘strictly navigable’ to fix an arbitrary line beyond which riparian owners cannot go, or to delegate to a municipality that power, I am satisfied that no such right exists in the waters of Grand river at the rapids, or certainly in that part of the waters which are not now navigable for any purpose. The. rights of the riparian owner, under our laws, are subject only to the public use for the purposes of navigation; and there is a manifest difference between public streams that can be used successfully for the running of boats and vessels for the purpose of commerce, and those which are only capable of being used for the floatage of lumber and logs in rafts or single pieces. The riparian owners are entitled to the beneficial and sole use of the latter streams, except for floatage; and when such streams have become unfitted for valuable public rise, and have actually ceased to be used for public highways, there is no more reason for holding them to be public than in the case of a land highway which has been abandoned and is useless,”—citing Middleton v. Booming Co., 27 Mich. 533; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308.

See, also, Lorman v. Benson, 8 Mich. 18 (77 Am. Dec. 435); East Harbor Sportsman’s Club v. Kelting, 4 Detroit Leg. News, No. 18.

It must be conceded that this part of the Detroit river where the defendants were is not navigable. Whatever rights they may have had to anchor their boat in the deep water of the river, and there hunt wild fowl, we are of the opinion they had no right .to go upon the waters which were not navigable, and there anchor and hunt wild fowl. It was the property of the plaintiff, and he had the same right to control it as though it were upland. As was said in Sterling v. Jackson, 69 Mich. 497 (13 Am. St. Rep. 405):

“Since every person has the right of exclusive dominion as to the lawful use of the soil owned by him, no man can hunt or sport upon another’s land but by consent of the owner. It will be conceded that the owner of lands in this State has the exclusive right of hunting and sporting upon his own soil.”

And again it was there said:

“The defendant claims that he had the right to shoot the wild fowl from his boat because, as the waters were navigable where he was, he had the right to be there; that, there being no property in wild fowl until captured, if he committed no trespass in being where he was, no action will lie against him for being there and shooting the wild duck. There is a plausibility in the position which, considered in the abstract, is quite forcible, and, if applied to waters where there is no private ownership of the soil thereunder, would be unanswérable. But, so far as the plaintiff is concerned, defendant had no right to be where he was, except for the purpose of pursuing the implied license held out to the public of navigating the waters over his land. So long as that license continued, he could navigate the water with his vessel, and do all things incident to such navigation. He could seek the shelter of the bay in a storm, and cast his anchor therein; but he had no right to construct a ‘hide,’ nor to anchor his decoys for the purpose of attracting ducks within reach of his shotgun. Such acts are not incident to navigation, and in doing them defendant was not exercising the implied license to navigate the waters of the bay, but they were an abuse of such license.”

In that case, the waters were actually navigable, and yet it was held a trespass to erect a “hide” and shoot ducks, for the reason that the ownership of the soil was in the plaintiff, and the defendant by that act was not using the waters for the purpose of navigation. In the present case, the waters where the defendants were, were confessedly not navigable for any useful purpose. It is true they went there in a boat. They could have done this possibly by poling their boat up a narrow rivulet into the land to the center of the island, if such rivulet had existed, and with as much force contend that, being there in a boat, they could hunt wild fowl. Most certainly the learned circuit judge was in error, if we are to adhere to the doctrine enunciated in Sterling v. Jackson, supra. In that case the court compared the right of the public to navigate public waters to its right to pass over a highway on land. It was said:

“ It does not follow that, because a person is where he has a right to be, he cannot be held liable in trespass. A person has the right to drive his cattle along the public highway, but he has no right to depasture the grass with his cattle in the highway adjoining the land of another person. Also a person has the right to travel along a public highway, but this gives him no right to dig a pit, or remove the soil, or incumber it in front of lands belonging to others. The defendant had the right of using the waters of the bay for the purpose of a public highway in the navigation of his boat over it, but he had no right to interfere with the plaintiff’s use thereof for hunting, which belonged to him as the owner of the soil. The public had a right to use it as a public highway, but every other beneficial use and enjoyment belonged to the owner of the soil.”

The court, under the facts shown upon this record, should have directed the verdict in favor of the plaintiff for nominal damages.

Judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    AMERICAN HOIST & DERRICK CO. v. JOHNSON.
    Sale — Order from Catalogue — Substantial Compliance — Question for Jury.
    In an action for the purchase price of an engine shipped to defendant’s order, the jury may properly find the defendant justified in refusing to accept the engine tendered, where it appears that the truck upon which it was mounted differed from that illustrated in the catalogue from which the order was given in the size of the wheels and in the manner of the attachment of the engine, and that the variance rendered the engine less valuable to defendant than if it had conformed to the order.
    Error to Houghton; Hubbell, J.
    Submitted April 16, 1897.
    Decided September 14, 1897.

      Assumpsit by the American Hoist & Derrick Company against Andrew Johnson for goods bargained and sold. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Dunstan & Hanchette, for appellant.

      A. B. Gray, for appellee.
   Moore, J.

The plaintiff is a manufacturer of machinery. In the spring of 1895 it sent an illustrated catalogue to the defendant. April 11, 1895, the defendant, with cut No. 298 and cut No. 277 before him, sent an order to the plaintiff for one seven-horse-power engine, cut 298, and directed plaintiff to put wheels of cut 277 on this engine. Cut 298 shows the engine attached to a circular saw. April 13, 1895, plaintiff replied to this communication, saying, “We acknowledge your valued order for one of our No. 58 hoisting engines with countershaft attachments as per cut No. 298, the same to be mounted on wheels as per cut 277;” stating that the same would be shipped in a very few days, at a cost of $672. April 16, 1895, defendant acknowledged the receipt of the letter of April 13th, and said:

“Am surprised at the price you put on your engines, $672. I can get one made right here for one-half that amount, and according to your catalogue I do not make the engine cost any such amount. What I want is a six-horse-power engine, to be used for sawing wood, which would be worth somewhere about $150 to $200. Please cancel the order given, and, if you can furnish engine at price I mention, let me know, and give description.”

April 19th, plaintiff wrote defendant, acknowledging the receipt of the letter of April 16th, and replied that it was unable to countermand order, as the machinery was shipped the day before. The record discloses that the machinery was shipped the 18th of April, from St. Paul, Minn., to defendant at Hancock, Mich., and that prior to the shipment it was put together and photographed. Copies of this photograph and of cuts 298 and 277 are part of the record. The defendant saw the machinery the last of April at the railroad station. The record does not disclose when the defendant first examined it. It does disclose that on May 23d he wrote plaintiff:

“I am informed by the railroad company here that the engine which we corresponded about is here, and I have been down to see it, and find it of no use whatever to me, as what I want is an engine for sawing wood, while this one is a hoisting engine. Now, I looked at your catalogue,. and beneath cuts 277 and 298 — ■
7 or 10 H. P. engine__________ __8150
16 “ “ “ 170
20 “ “ “ 185
—and ordered an engine for sawing wood at these prices; but your letter in reply said it would cost $672 for such an engine, and I immediately wrote you not to ship, as I would not pay any such price, — could get one here for half that; but you have shipped regardless of my instructions. The engine is at the railroad warehouse, subject to your order.”

The plaintiff sued the defendant to recover for the value of the machinery. The case was tried before a jury, who rendered a verdict in favor of defendant. Plaintiff appeals.

It is the claim of the defendant that the machinery shipped was not the machinery ordered, and therefore that the plaintiff is not entitled to recover. It is the claim of the plaintiff that the machinery shipped is the same as that ordered, and it introduced testimony tending to show that the machinery shipped was substantially the same as the machinery ordered. Defendant gave testimony that the purpose for which he wanted the machinery was to use as a portable engine, which he could move about in the vicinity of Hancock, for the purpose of sawing wood; that the country about Hancock is hilly; and that the machinery shipped did not comply substantially with the machinery ordered. The testimony of the witnesses for the defendant, which is supplemented by the illustrations of the machinery, tends to show that the order was for an engine mounted on a truck with wheels each having 12 spokes, while those sent have but 8 spokes. Cut No. 277 shows the front wheels to be much smaller than the rear wheels. In the machinery sent, the wheels were all as large as the rear wheels in cut 277. The engine sent was mounted much higher than the one illustrated by cut 277, and the attachment of the boiler to the truck was decidedly different from that shown in the cut. The testimony on the part of the defendant tended to show that the high truck was much more liable to tip over, and not so easily handled as the low truck, and that the machinery could not be operated from the high truck as well as from the low truck. The tires of the wheels sent were but two inches wide, while according to the cut they should have been wider.

Some complaint is made by the plaintiff in relation to the admission of testimony,' but we do not think any error was committed in that respect.

The plaintiff requested the court to charge the jury as follows:

“First. If the defendant examined the property in question immediately on its arrival at Hancock, and made no complaint within a reasonable time to the plaintiff that it was not the same as ordered, such silence on his part is for your consideration as to whether or not he was satisfied that the wheels were substantially the same as ordered.
“Second. If the defendant had any objection to the wheels, it was his duty to so state in his first communication to the plaintiff, and within a reasonable time, and if he did not do so you are at liberty to infer that he considered the wheels substantially the same as those he ordered, and that he was satisfied with them.”

The court declined to give these requests, and charged the jury as follows:

“It is the law, and of course it commends itself to one’s common sense, that, where an intending buyer orders an article from one who keeps for sale or makes articles of the kind, he is entitled to get what he orders; and this is true to the extent that the article furnished must be, in every substantial and important sense, the same as the article ordered. If it is not so, the plaintiff has not done what the defendant asked him to do, and agreed to pay him for doing, and therefore the defendant cannot be called upon to pay for something that he did not want or request. Now, it is contended on the one side, and denied on the other, that portions of this machinery were substantially unlike, and different from, and perhaps inferior to, the articles which were ordered. * * * It is your exclusive function to determine the facts as to whether or not the goods delivered were substantially like those ordered. If you find from the weight of evidence that they were not substantially alike, preventing the defendant from getting what he had really ordered, your verdict will be for the defendant. If, on the contrary, you find that the goods furnished are substantially what were ordered, — that the differences, if there are differences, are trifling and unimportant, not going to the substance and usefulness of the thing, — in that case your verdict will be for the plaintiff for the full amount of the purchase price, which is not in dispute, and interest. * * * In sales of goods for future delivery, by name or description, substantially the exact article sold or ordered must be delivered, and the seller acquires no right against the buyer until he has made such delivery, and, where a substantially different thing from that which was ordered is attempted to be delivered, the buyer may refuse to accept it. If you find from the evidence in the case that the defendant ordered of the plaintiff the machinery to be used together, and that any portion of the machinery furnished and delivered by the plaintiff was not substantially such as ordered, was substantially different from what was ordered, and that the defendant has not accepted or received the machinery actually furnished by the plaintiff, then the plaintiff would not be entitled to recover, and in such case your verdict would be for the defendant.”

It is very likely that defendant, through a failure to read another page of the catalogue besides the ones upon which were the cuts, thought he was going to get an outfit much cheaper than the price which was actually asked for the machinery by the plaintiff, and for that reason sought to cancel his order. The plaintiff had gone so far that it was not willing to have the order canceled, and it had an undoubted right to hold the defendant to his order, if it performed on its part. The defendant, doubtless, did not want this machinery at the price, when he learned just what it cost, and he had the same right to avail himself of any failure on the part of the plaintiff to perform its contract that it had to hold him to the terms of the contract. It is the claim of the plaintiff that the proofs disclose that plaintiff had substantially complied with the contract, and that it was entitled to recover; citing Meincke v. Falk, 61 Wis. 623 (50 Am. Rep. 157), and other cases. The proof was contradictory as to whether the plaintiff had substantially complied with the contract. It was a proper question for the jury. In the case of Meincke v. Falk, supra, the court said, after discussing some features of that case:

“Or, to state the proposition in the usual form, the plaintiff could not recover unless he showed a full and substantial compliance with the contract on his part. It was essential that the carriage tendered should be as good in all respects as the model, and conform in size, style, and appearance to it. This, we think, was what the parties understood by the contract; nothing more.”

The other cases state substantially the same doctrine, and we think fully justify the language of the learned trial judge; and when a comparison is made between the photograph of the machine sent, made after it was' set up and before it was shipped, and cuts 277 and 2-98, the verdict of the jury is not surprising.

As to the refusal to give the requests of the plaintiff: The record does not disclose that defendant examined the property immediately on its arrival at Hancock. Even at the time of the trial he had not seen the machinery set up, nor had he seen a picture of how it appeared. The record does disclose that, when notified by the station agent that the property was at the station, he communicated to plaintiff that it was not adapted to his needs. He had never taken the property into his possession. His order was an entirety. He had no thought of taking one part of the machinery without all of the machinery he ordered. One part of it was as essential to him as the other. If he could not move the machinery about the country without danger of its tipping over, it was of no value to him for the purpose for which he ordered it. After the machinery had arrived, he declined to take it. Before he could be compelled to do so it must be shown that it was substantially the machinery ordered. If the sale is of a described article, the tender of an article answering the description is a condition precedent to the purchaser’s liability. 2 Benj. Sales, §§ 918, 966; 10 Am. & Eng. Enc. Law, 101.

We do not discover any error in the record.

The judgment is affirmed.

The other Justices concurred.