text:
    YORE v. MESHEW.
    1. Evidence — Written Contracts — Parol—Brokers — Commissions.
    On the issue of the consideration received for certain real estate, as determining the commission of the broker making the sale, parol evidence of the value of a farm received in part payment is admissible, notwithstanding the recital of the consideration in the contract of sale and the deed subsequently executed, such evidence having no tendency to vary the terms of the writings.
    2. Same — Opinion Evidence — Value op Land.
    The opinion of experts as to the value of the farm, held, admissible, it being the theory of the owner that the agreed consideration was $30,000 and that of the broker that the consideration was in fact $35,000.
    3. Brokers — Commissions — Action — Trial — Instructions — Harmless Error.
    The jury having found that the contract between owner and broker, under which the broker was to have all over $31,680 received for certain land, was abandoned, an instruction that in such case the broker was entitled to recover at least the commission on the consideration the owner claimed under his theory to have received, and on as much more as the jury found the actual consideration to have been, was not prejudicial to the broker.
    Error to Berrien; Coolidge, J.
    Submitted June 13, 1906.
    (Docket No. 23.)
    Decided October 1, 1906.
    Assumpsit by Patrick Yore against Charles H. Meshew for money had and received. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Cady & Andrews and Coy W. Hendryx, for appellant.

      Gore & Harvey, for appellee.
   Ostrander, J.

Under date March 19, 1904, plaintiff and defendant made and executed a written instrument, by the terms of which defendant was authorized to advertise for sale and to sell the property of plaintiff for $35,000, “or at any less price * '* * I may hereafter approve,” the commission of defendant to be “any amount you may get over and above $31,680.” .Plaintiff agreed not to reduce the price below $35,000, except on defendant’s request. Defendant effected an exchange of the property for other property and $6,000 cash, and, the cash payment having come into his hands, he retained a commission upon the basis of a sale at $35,000 and the terms of said instrument. Plaintiff brought this suit to recover a portion of the money. The jury answered in the affirmative the following special question:

“Was the contract between the parties, made March 19, 1904, subsequently abandoned and a different agreement made relating to the commission of the defendant for selling the Yore building ?”

There was verdict and judgment for plaintiff, a new trial was denied, and defendant has brought the record of the proceedings into this court with 57 assignments of error.

In an executory contract, dictated by defendant and executed by plaintiff and the person with whom the exchange of property was made, it is recited that the consideration for the property of plaintiff is $35,000, to be paid by a farm at $17,000, by assuming a mortgage upon plaintiff’s property of $12,000, and by cash $6,000. This contract contained, also, a provision that each party should pay a commission to defendant for his services as broker. The deeds executed pursuant to this contract contained similar recitals of the amount of the consideration. Defendant insists that these recitals are conclusive upon the subject of the selling price and produced no other evidence of the consideration for which plaintiff disposed of his property. Plaintiff, over objection, introduced testimony tending to prove that the farm, containing 240 acres, was valued and taken by him at $50 per acre, and that this was understood and agreed toby defendant; that the sell-. ing price of his property, as understood by himself and by defendant, was 130,000, and a commission of 2£ per cent, upon this sum was agreed to be paid and received. The court was not in error in receiving this testimony because the recitals in the contract and deeds are not necessarily conclusive, as between plaintiff and defendant, of the selling price of plaintiff’s property, and it was competent for plaintiff to prove that defendant understood the real consideration to be a less sum. The objection that the terms of a written contract cannot be varied by parol is of no force because no such thing is attempted.

Plaintiff also called expert real estate men who gave testimony over objection and exception tending to prove that the farm was not fairly worth more than $12,000. The probable effect of this testimony, under the instructions given, upon the jury, and their special finding, is strongly urged, the contention being that it was inadmissible and prejudicial to defendant. Upon his own theory, defendant is obliged to show that the consideration obtained was more than $31,680. The recitals mentioned are, unexplained, some evidence of the actual consideration. We have two known quantities, viz.: the $6,000 cash item and the $12,000 mortgage item, the sum of which is $18,000. To make the -total consideration $35,000, the farm must be reckoned at $17,000 or upwards of $70 per acre; to agree with plaintiff, the farm must be reckoned at $50 per acre, or $12,000. The trial court said to the jury that if the agreement expressed in the written instrument had not been abandoned, defendant’s commission would be the difference between $31,680 and the actual consideration received by plaintiff. If it was understood between them that the consideration was $35,000, that must govern. If the written bargain for commission had been abandoned, they must give to defendant at least the sum of $750 and, if the consideration actually received by plaintiff was more than $30,000, they should allow a commission of 2£ per cent, upon the actual selling price of the property.

The objection to the charge which is most urged is based upon the assertion that the value of the property taken by plaintiff is not in issue — that defendant is entitled to a commission of $750 or one of $3,320, and that therefore all reference in the charge to a commission other than one under the written contract or one under the alleged substituted contract was misleading and erroneous. In asserting that he is entitled to $3,320, defendant assumes, as he must, the burden of proving that he got $35,000 for the plaintiff’s property. The amount of the consideration was in issue. Assuming that what is meant by counsel is that the value of the property may be and should be distinguished from the agreed or understood consideration, we are still confronted with the fact that defendant’s only proof of an agreed or understood consideration is the recitals in the conveyances, and is inconclusive. If an amount, within the meaning of the written contract, was agreed to, the issue is determined. If not agreed to, the issue must be determined upon evidence tending fairly to prove the real fact. The theory of the plaintiff is that it was agreed to be $30,000, of defendant that it was in fact $35,000. It is not disputed by defendant that there was bargaining, in the course of which plaintiff insisted upon an $8,000 cash payment, finally consenting to accept $6,000. It cannot be said that the testimony of the experts as to the real value of the farm had no probative value upon this point. The opinion evidence was properly admitted, and the jury having found that the written agreement for a commission was abandoned, the instructions criticised were not prejudicial but were, rather, favorable to defendant.

We have examined the other -errors assigned, including those based upon the refusal to grant a new trial. None of them are found to be well assigned, and none require discussion.

The judgment is affirmed.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    FALLER v. FALLER.
    1. Husband and Wife — Separate Maintenance — Evidence — Sufficiency to Authorize Relief.
    On a bill for separate maintenance on the ground of desertion, evidence examined, and held, that complainant’s conduct ' was such as to justify defendant in leaving home.

    3. Same — Failure to Support.
    Allegations of the bill charging failure to support complainant and children, held, not sustained.
    3. Same — Cruelty.
    Charges of cruelty, held, not proved.
    Appeal from Oakland; Smith, J.
    Submitted June 13, 1906.
    (Docket No. 36.)
    Decided October 1, 1906.
    Bill by Susan Faller against Morris Faller for separate maintenance. Defendant filed an answer in the nature of a cross-bill asking for a divorce. From a decree for complainant, and dismissing the cross-bill, defendant appeals.
    Affirmed as to the cross-bill, and complainant’s bill dismissed.

      James H. Lynch, for complainant.

      Rockwell & Zimmermann, for defendant.
   Ostrander, J.

The parties to this proceeding have been married some 20 years. They have two children, a daughter born April 16, 1886, and a son born January 25, 1888. Neither of the children are at home, and no question of their support is involved. Complainant is 10 years or more older than her husband. In her bill of complaint, in which she asks a decree for separate maintenance, the wife alleges (1) that defendant on October 15, 1903, deserted and abandoned her; (2) that defendant for 5 years last past neglected to provide suitable support for his wife and children; (3) that defendant has.been guilty of extreme cruelty, in that from the beginning of the married life he has drunk liquor to excess, has threatened and abused the complainant, called her vile names, .and used the greater portion of his earnings in procuring drink. While under the influence of liquor he ‘ ‘ has on several occasions struck your oratrix.” He has eárned for more than 10 years S1.87-J- per day, and his dinner when at work, “and paid none of said money to your oratrix, and very little for the support of his family, and, so far as your oratrix knows, all the sums he saved was a small house and lot which he sold for $365 of which the complainant received $10.” It is further averred that on several occasions, owing to violent conduct and threats of defendant, complainant was compelled to leave her home, and spend portions of the night or all of the night in outhouses on the premises, or at the neighbors. She avers that during all of her married life she has worked out “in order to support herself and her children, that she was compelled to use defendant’s castoff underclothes for her children and in some cases for herself, and has also received clothing from neighbors for her children.” No more specific allegations of misconduct of defendant than those here stated appear in the bill. Defendant answered, denying the misconduct charged, and setting up countercharges as ground for affirmative relief. He prays for a decree of divorce. The court below, refusing relief to defendant, entered, a decree for complainant which requires defendant to pay to her the sum of $6, monthly, beginning March 25, 1905, and $14 costs. From this decree he appealed.

It is not necessary to review the case upon the theory that defendant is, as he claims to be, entitled to a divorce, for the reason that, upon the whole case, no reason appears for disagreement, upon this subject, with the court below. The decree for complainant ought not to stand.

1. The charge of desertion is not proved. Defendant left home in November, 1902. Upon the complaint of the wife, he was arrested, • charged with nonsupport. The justice of the peace who issued the warrant, and who dismissed the suit, had the parties before him for a consultation, hoping that their difficulties might be accommodated. He describes what took place at the interview.. The husband offered to return and live at home, and give his wife $25 a month if she would pay the bills. She said she did not want him at home; that he had taken his things and himself away, and could stay away. She did want him to pay her $8 or $10 a week and she did not want him at the house. She called her husband “a liar, a whoremaster, and a Dutch bastard.” He did, however, return to live with her until October, 1903, the date of the desertion charged in the bill. When he left home on that occasion, he packed his own personal belongings in his trunk, and put it on the porch. Complainant kicked the trunk off of the porch. It is true she claims that a remark he made to her caused her to do this; but from her own testimony it is evident that she maintained to her husband the same attitude that she did in the previous November. Defendant’s testimony appears to be entitled to as much credence as does the testimony of complainant. His story is that on the night of October 14th, he found the bedding removed from his bed, and the bedstead turned bottomside up on the floor.

2. The charge that defendant failed in his duty to support his family is not proved. For 20 years he has had a position at the Pontiac asylum and, except on account of sickness, has practically lost no time during that period. He has aided in paying for the home, worth some $1,500, which complainant owns, improved the premises, has kept his life insured in favor of his wife, bought his daughter a piano which cost him, principal and interest, about $400, bought his wife a sewing machine, paid taxes upon the home. He paid for groceries, shoes, coal, gas, clothing, meat, to some extent, at least. Her testimony upon the subject of the contributions made by the husband towards the purchase of the home and the support of the family is unsatisfactory, and much of it is clearly shown to be untrue. He has no property.

3. The charges of cruelty are not proved. Without setting out the testimony, it is enough to say that the parties had frequent, and sometimes violent, quarrels, both drank liquor to some extent, and both were at fault. The testimony does not fairly support the proposition that the husband is, more than the wife, responsible for existing conditions.

A decree will be entered affirming the dismissal of the cross-bill and dismissing the complainant’s bill. No costs will be allowed either party.

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


author: Moore, J.

text:
    SCHNEIDER v. WOLVERINE PORTLAND CEMENT CO.
    Master and Servant — Dangerous Appliances — Assumption op Risk.
    A capable dredge engineer, employed to erect and repair machinery, assumes the risk of injury from the slipping of a heavy casting while being lowered into the hold of a dredge.
    Error to Lenawee; Chester, J.
    Submitted June 13, 1906.
    (Docket No. 66.)
    Decided October 1, 1906.
    Case by Minnie B. Schneider, administratrix of the estate of John M. Schneider, deceased, against the Wolverine Portland Cement Company, for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      H. H. & B. E. Barlow (Bollin H. Person, of counsel), for appellant.

      Smith, Baldwin & Alexander, for appellee.
   Moore, J.

In February, 1904, John M. Schneider, an employe of defendant, while at work with others in placing a heavy casting in one of defendant’s boats, was so seriously injured that he died in a few days- thereafter. This action is brought to recover the damages therefor. From a judgment in favor of the plaintiff, the case is brought here by writ of error.

The negligence charged in the' declaration is that the defendant ordered plaintiff to assist in work more dangerous than that for which he was employed, and in which he had no experience, without warning him of the dangers attending the same; that the foreman was incompetent; and that the company failed to supply proper appliances for moving the casting. It is the claim of defendant that the work was in the line of plaintiff’s employment; that due care was observed in the employment of the foreman; that as a matter of fact he was competent; that plaintiff assumed the risk. The important question in the case is whether a verdict should have been directed in favor of defendant. The casting was to be lowered through an .opening in the deck of a flat-bottomed boat, said to be 18 or 20 feet wide and 60 feet long. The opening is variously described by the witnesses as from 6 to 10 feet wide and 8 to 12 feet long. The casting is called a barrel, and is said to be shaped like a plug hat, the rim being 54 inches across and the barrel 46 inches high. The casting weighed 3,300 pounds and was to be lowered 8 to 10 inches below the surface of the deck, where it would rest on timbers. The boat itself was frozen in the ice. The foreman and four men were employed in the work of taking the casting from the cars, placing it upon a logging wagon, which was brought to within a few feet of the boat. Skids 4 or 5. inches thick and 6 or 8 inches wide, and" 10 or 12 feet long were laid from the wagon to the deck of the boat at a slight incline; the ends resting on the deck a little higher than those on the wagon. Pieces of gas pipe about 3 inches in diameter were placed on top of the skids, the casting on top of the gas pipes, the rim down, and the casting was successfully pinched along with crowbars, up the incline and across a portion of the deck until it was near the opening, still resting upon the pieces of gas pipe, which rested on the skids, which in turn rested on the deck which was nearly if not quite level. It was then proposed to lift'up the casting withdraw the skids from under it, place the west end of the skids on a timber in the hold of the boat about 8 or 10 inches below the deck, with the east ends resting on the edge of the deck. The foreman directed that the south end of the casting be raised and the skid be withdrawn by pulling it to the west. The deceased jumped into the opening in the deck, took hold of the skid and pulled it towards him. Up to this point all of the witnesses are practically agreed. From this point, as to what happened they disagree. It is the claim of some of the witnesses for the plaintiff that it was necessary for the deceased to get into the opening in the deck, that he had withdrawn the skid from under the casting and placed the west end on the timber below the deck, the east end resting on the deck, that by direction of the foreman the south end of the casting was lowered, when it canted, the gas pipe on the north skid rolled off, and the cashing lurched into the hold, crushing the deceased.

Witnesses for the defendant claim that it was not necessary for the deceased to go into the opening. All the witnesses agree he went there without being directed to do so. It is also claimed that deceased was told not to drop the west end of the skid too soon, but failed to heed the injunction; that the skid operated as a lever, the long end being in the hands of the deceased, the edge of the deck a fulcrum, the short end under the casting and when the west end was lowered, the east end hitched the casting forward and precipitated it upon the deceased.

In addition to the claims of the plaintiff already stated, it is urged that ropes ought to have been placed about the casting to hold it from being tilted forward. '

Many interesting questions are raised and discussed by counsel. In our view of the case a disposition of one of them will end the case. The record discloses that deceased was a bright, capable man, 84 years old. He had been in defendant’s employ nearly if not quite five years. He commenced as a common laborer, and at the time of his death was a dredge engineer. He had helped to build the plant and the boats and to put the machinery in them. It was part of his duty to assist in making repairs and the year before he had assisted in lowering a similar casting into a similar opening. The process of moving this casting and lowering it was not a complicated one. It was as open to the deceased as to any one else. It is absurd to say he was not acquainted with the law of gravity, that he did not know he was assisting in moving a heavy body, and that if it got started down an incline it could not be controlled. The testimony of all the witnesses is that when the deceased went into the hold no one supposed the situation was unsafe. Had the skids and rollers been successfully removed while the casting was still on deck it is not likely the accident would have happened. The incline of 8 or 10 inches in a length of 8 or 10 feet was not great. Whatever the situation was, it was open to deceased. It goes without saying that a man engaged in employments like deceased’s for four or five years must have had more or less experience in moving and seeing moved heavy bodies. The testimony does not leave that question in doubt. This, then, being the situation, we think it must be said he assumed the risk. See Fisher v. Railway Co., 77 Mich. 546, and the many cases cited therein. Dysinger v. Railway Co., 93 Mich. 646; La Pierre v. Railway Co., 99 Mich. 212; Welch v. Brainard, 108 Mich. 38; Pilucki v. Spring Works, 117 Mich. 111; Nephew v. Whitehead, 123 Mich. 255; Foley v. Gaslight Co., 127 Mich. 671, and the cases cited therein; Page v. Food Co., 142 Mich. 17.

Judgment is reversed, and new trial ordered.

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


author: Montgomery, J.

text:
    SWIFT v. KLECKNER.
    Homestead— Abandonment — Evidence—Sufficiency.
    On a bill to set aside a sale of farm land on execution, on the ground that the property levied upon was complainant’s homestead, he having previously purchased a home in town and lived there with his family for upwards of five years, evidence examined, and held, to show that the farm homestead had been abandoned prior to the levy, and that complainant’s homestead was not re-established there, notwithstanding separation from his wife and division of their property.
    Appeal from Gratiot; Stone, J.
    Submitted June 18, 1906.
    (Docket No. 104.)
    Decided October 1, 1906.
    Bill by Edward Swift against E. A. Kleckner and another to set aside an execution levy and sale. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Frank E. Monfort, for complainant.

      John T. Mathews, for defendant.
   Montgomery, J.

Complainant filed a bill to set aside a sale of land on execution on the ground that at the time of the levy of the attachment which preceded the execution the property levied upon was a homestead. The land in question, together with 28 acres adjoining, was occupied by complainant and his family up to 1899 as a homestead. At that date complainant leased the farm, made a sale of hisfarm implements, and removed with his family to the city of Ithaca. He bought a house and lot with the proceeds of this sale, taking the title in the name of his wife. He removed all his household goods to Ithaca that the family wanted to use and had room for, but left a few articles of little consequence. The parties continued to live at Ithaoa, occupying the house purchased with complainant’s money, until June, 1904, when a separation agreement was made between the complainant and his wife, by the terms of which complainant’s wife released all her dower interest in the land in question and other property of complainant, and complainant made a conveyance to her of another parcel pf land and released his claim tc the Ithaca homestead which is still occupied by the wife. In September, 1904, the attachment in this case was levied. In November complainant moved back on the farm, having made an arrangement to do so with the tenant whose term did not expire until the following spring. The bill was dismissed on the hearing, and complainant appeals.

Two contentions are made, first, that complainant never abandoned the homestead, and second, that if he did a homestead right was created after the separation agreement. It is claimed that complainant left the fajm, and removed to Ithaca with the purpose of educating his children, and then returning to the farm. All the circumstances of the case negative this claim. It is true, complainant shows certain declarations of his own substantiating the claim, but the fact is that he remained in Ithaca two years after the children left school, and continued to lease the farm. He engaged in various kinds of business there and elsewhere, and declared to at least one person that if he continued to do well he should not return to the farm. In answer to the direct question, “ Did you intend to come here and take up a permanent residence here and never go back to the farm ?” he replied: “No, sir; I don’t think I ever — no, sir.” We think his conduct shows at least as much uncertainty of purpose as this answer does of recollection. When it is considered that an equally permanent investment was made in the Ithaca home, and that it was occupied as the family homestead for more than five years, it is very clear that complainant should not now be permitted to claim that his homestead was in fact on the farm. Hoffman v. Buschman, 95 Mich. 538; Smith v. Kidd, 123 Mich. 193; McMonegal v. Wilson, 103 Mich. 264.

Nor do we think any homestead was established after the separation and before the levy. It is true complainant had some talk of buying out the tenant, but this fell through, and he went to Durand in the employ of the Grand Trunk Railway. While at Durand he tried to negotiate a sale of the farm, and did not in fact move onto the farm until after the attachment was levied. We are satisfied that there was no fixed purpose of making this farm a homestead until complainant found occupancy necessary to save it from his creditors.

The decree is affirmed.

Grant, Blair, Ostrander, and Moore, JJ., concurred:


text:
    SCOVEL v. CITY OF DETROIT.
    1. Highways and Streets — Control — Authority of Legislature.
    In the absence of special constitutional restraint, and subject to the property rights and easements of abutting owners, the legislature has full paramount authority over all public ways and public places.
    2. 'Same — Detroit Park Commissioner — Delegation of Power —Speedway.
    The act of the legislature in authorizing the commissioner of parks and boulevards of the city of Detroit to set apart and improve a portion of the boulevard in that city for a speedway (section 33, Act No. 417, Local Acts 1901), is not invalid as an improper delegation of legislative power, nor as in contravention of the uses of a public boulevard.
    Appeal from Wayne; Donovan, J.
    Submitted June 13, 1906.
    (Docket No. 109.)
    Decided October 1, 1906.

      Bill by Massie W. Scovel and others against the city of Detroit and others to restrain the construction of a speedway in a public street. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      James H. McDonald and Lloyd L. Axford, for complainant.
    P. J. M. Hally (T. E. Tarsney, of counsel), for defendants.
   Moore, J.

The complainants are taxpayers in Detroit who own land abutting on the Western Boulevard between Holden avenue and McGraw avenue. The purpose of the bill is to enjoin the building of a speedway 30 feet wide and about five-eighths of a mile long through the central part of the boulevard which is now given over to grass, trees, shrubs, and flowers, and which is from % to 8 feet above the roadway on each side thereof. The common council recommended to the board of estimates the appropriating of |6,000 for this purpose, which appropriation was passed by the board of estimates. The prayer of the bill is that the court will declare:

“1. That this appropriation for said speedway is an appropriation of public money for private purposes and therefore void.

“ 2. That the location of said speedway upon the public boulevard of the city of Detroit be declared not to be for boulevard purposes within the meaning of the’ act establishing said boulevard or of the conveyance by which the title to the lands used for said boulevard was conveyed to the city of Detroit.

“3. That the appropriation and the designation of said way as a speedway is so indefinite and uncertain, and leaves so much to the determination of the park commissioner, that it is void as granting the said park commissioner legislative power.

“4. That the gathering together upon the public boulevard of a crowd of people to do and observe this speeding will be a public nuisance.

“ 5. That the establishment of such race track or speedway will be against the provisions of the park and boulevard act.

“6. That a writ of injunction may be passed restraining the building of the speedway. ”

The court below dismissed the bill of complaint. The «ase is brought here by appeal.

The important question in the case is whether the building of the .proposed speedway is in contravention of the uses of a public boulevard. The origin of the boulevard in question dates back to the passage of an act entitled “An act to provide for the establishment and maintenance of a broad street or boulevard about the limits of the city of Detroit,” etc. Act No. 374, Local Acts 1879. This act created a board of boulevard commissioners. Section 10 of the act gives the control of the boulevard to -the commissioners, with “power to make all reasonable rules and regulations concerning the use of said boulevard,” etc. The board of boulevard commissioners was later succeeded by the commissioners of parks and boulevards, whose power in relation to the control of the boulevard is substantially the same as that possessed by the board of boulevard commissioners. The original act was amended so that section 33 (Local Acts 1901, Act No. 417) reads:

“No persons shall ride or drive in said park or along ■said boulevard at a rate of speed exceeding eight miles per hour, excepting that horses may be speeded on such parts of said boulevard or Belle Isle park as may be set apart by said commissioner for that purpose, and then only under such regulations as the commissioner may prescribe.”

It is very clear the legislature intended by this language to give specific authority to the commissioner to set apart a portion of the boulevard for the speedway. In 2 Dillon ■on Municipal Corporations (4th Ed.), § 656, it is said:

“Public streets, squares, and commons, unless there be ■some special restriction, when the same are dedicated or acquired, are for the public use, and the use is none the less for the public at large, as distinguished from the municipality, because they are situate within the limits of the latter, and because the legislature may have given the supervision, control, and regulation of them to the local authorities. The legislature of the State represents the public at large, and has, in the absence of special constitutional restraint, and subject (according to the weight of more recent judicial opinion) to the property rights and easements of the abutting owner, full and paramount authority over all public ways and public places.”

We think it was competent for the legislature to confer this authority upon the commissioner, if he did not already possess it by the terms of the original act. See 9 Am. & Eng. Enc. Law (2d Ed.), p. 80; Leger v. Rice, 8 Phila. (Pa.) 167; Gleason v. City of Cleveland, 49 Ohio St. 431; Warren v. City of Grand Haven, 30 Mich. 24; Grand Rapids, etc., R. Co. v. Heisel, 38 Mich. 62, and cases there cited; Commissioner of Highways v. Cobb, 104 Mich. 395.

The other points raised by counsel have been considered, but we do not deem it necessary to discuss them.

The decree of the court below is affirmed.

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


text:
    KERR v. TIERNEY.
    Costs — Allowance—Prevailing Party.
    Where defendant,, by exacting usury and a larger sum than was his due before he would reconvey property conveyed to him as security, compelled complainant to appeal to the court for relief, where she succeeded in recovering all paid in excess of legal interest, she was the prevailing party and as such entitled to costs, though other relief prayed for in the bill was not granted.
    Appeal from Bay; Shepard, J.
    Submitted June 15, 1906.
    (Docket No. 90.)
    Decided October 1, 1906.
    Bill by Sarah A. Kerr against Peter Tierney and May H. Tierney for an accounting, and to redeem from certain mortgages. From a decree for complainant, defendants appeal.
    Affirmed.

      Frank 8. Pratt, for complainant.

      T. A. E. & J. G. Weadock, for defendants.
   Moore, J.

The complainant from time to time borrowed from defendant Peter Tierney various sums of money upon which she was charged usurious rates of interest. She gave to him notes, chattel mortgages, and one ■ real estate mortgage. Later a deed was given and a contract taken back. Some quitclaim deeds also appear in the transaction which complainant claims she did not give. Tierney made a contract to sell. Maher the land complainant deeded to Tierney and received payments thereon. Complainant attempted to secure a settlement with defendant and a reconveyance of the land, but failing in her attempts she employed counsel for that purpose. In response to a letter from counsel defendant offered December 16, 1903, to reconvey the land subject to a mortgage thereon for $500. Further correspondence was had and in June, 1904, counsel for complainant was advised by letter written by counsel for defendant, “Mr. Tierney will accept $325 if paid in 10 days and reconvey the lots, although he does not admit she has any claim to them.” No settlement was reached. Complainant made a tender of $82 and demanded a reconveyance. The demand was refused, and this proceeding was begun. It is filed for three purposes: First, as a bill to recover the statutory penalties; second, as a bill for the cancellation of the several mortgages and securities; third,, as a bill to redeem. The court held the penalties could not be recovered. It was also held that when the tender of $82 was made, there was due defendant $147.80; that complainant had ratified the sale to Maher, and after charging defendant with payments received by him found there was due complainant $6.60 and made a decree in her favor, allowing her costs. The complainant did not appeal, and therefore is bound by the decree. The defendant did appeal.

In their brief counsel say:

“ The sole question which this court is called upon to determine is raised upon the decree and is one of costs.”

They argue that, as the court found against many of the allegations of complainant’s bill of complaint, costs ought not to follow. We quote from the brief:

“Under the decree the complainant was defeated in every claim that she made except the claim for usury, and as to that the court allowed the defendant to charge no-interest although the complainant testified as follows: ‘ I want to pay them with interest, a legal interest, and I want them to return to me all that has been collected, that is legally due me, and that is all I ask.’ Complainant’s counsel in making the tender did not compute interest, the tender was not kept good, it was not sufficient, and notwithstanding all of this the circuit judge, in disregard of the rule, allowed the defeated, and not the prevailing, party costs to be taxed.”

We cannot agree with counsel that complainant was the defeated party. The record clearly shows that defendant exacted usurious rates of interest; that to secure loans by Mm, he took a deed; that when complainant sought a settlement he denied she had any interest in the land con-' veyed by the deed, and before he would reconvey he exacted a larger sum of money , than was due. It is difficult to see, because of defendant’s attitude, how complainant could get any relief, without appealing to the court. This she did and successfully. We think costs should follow such a situation. See Ferguson v. Popp, 42 Mich. 115; Meigs v. McFarlan, 72 Mich. 194.

The decree is affirmed, with costs.

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


author:
Grant, J.
      Ostrander, J.

text:
    SHEON v. KERR-MURRAY MANUFACTURING CO.
    1. Master and Servant — Injury to Servant — Unsafe Place to Work — Assumption of Risk.
    A servant assumes the risk of falling from a place to work in which care is required to prevent falling.
    3. Same — Negligence—Evidence.
    Where a servant employed to erect a railing around a high platform by joining the ends of gas pipes together with screw ■ couplings, selected couplings from the master’s toolhouse, and in the attempt to attach one to the railing fell to the ground, and there is no evidence that the coupling was defective except the mere fact of accident, no negligence on the part of the master appears. Per Grant, Blair, and Montgomery, JJ. If the coupling was defective, no one was so well situated as was the servant to discover that fact, and ordinary care on his part required him to discover the situation and protect himself from danger. Per Ostrander and Moore, JJ.

      Error to Muskegon; Chittenden, J., presiding.
    Submitted June 15, 1906.
    (Docket No. 69.)
    Decided October 1, 1906.
    Case by William J. Sheon, by next friend, against the Kerr-Murray Manufacturing Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.
    The defendant was engaged under a contract in erecting for the Muskegon Traction & Lighting Company a large gas tank, consisting of three cylinders. The lower cylinder was stationary, set in a concrete foundation, was about 33 feet high and 60 feet in diameter. The other two cylinders moved inside the lower one. Nine iron columns stood at equal distances around the tank to support the inner cylinders when elevated. At the top of the lower cylinder was a boiler plate flat iron ring or circular walk, 18 inches wide, bolted to the cylinder. This was intended for a walk for persons to examine the tank. To support the outer .part of this walk iron stanchions were bolted to the tank and columns, some 3 or 4 feet below the walk. Through the tops of these stanchions were holes to pass pieces of pipe which, when connected, would make a railing or guard for the walk. This railing was made of gas pipe. Screw threads were cut on the ends of the pipe. Couplings about an inch and a half long were used to connect and secure the pipe in position. The coupling was screwed over the end of the one pipe when put in position, the end of the next pipe was then placed in connection with it, and the coupling screwed back so as to secure the two. Plaintiff had been at work for some months for the defendant, and was directed to construct this railing. Gas pipes were furnished bent to conform to the curve of the tank. Another employe was assisting the plaintiff. The railing was nearly completed, when they ran out of couplings. Plaintiff informed de- . fendant’s servant, Mr. Lynch, in charge of the work, of that fact, and received instruction to go to the defendant’s toolhouse and get some couplings. There were couplings of various sizes. Plaintiff selected four of the proper size, and testified that he showed them to Mr. Lynch, and asked him if they would do. Mr. Lynch took up one, looked at it and replied: “Yes, they are all right. Put them on.” Plaintiff then proceeded with the work, had placed the end of the next pipe to the end of the one already in place, and, with his wrench, was screwing back the coupling over the two; had the coupling nearly in place, lacking two or three threads, when he fell to the ground, and was injured. He testified that he had to pull the end of the pipe into place, and that the tendency was to pull him off the walk on which he stood. The negligence charged is the furnishing of defective, couplings. When the plaintiff had rested his case the court directed a verdict for the defendant on the ground that no negligence had been shown.

      James E. Sullivan (W. J. Turner, of counsel), for appellant.

      Nims, Hoyt, Erwin, • Sessions & Vanderwerp, for appellee.
   Grant, J.

(after stating the facts). Plaintiff was 19 years and 7 months old, and had had several years of experience in iron working, including the turning and making of threads. The place where he was at work required care to prevent falling. That risk he assumed. The work itself was not difficult, and required no great skill. Aside from the mere fact of the accident, there is no testimony tending to show a defective coupling, except that of plaintiff that the couplings looked old. Plaintiff and his witnesses all testified that age does not spoil couplings. It was plaintiff’s duty to examine these couplings. He was required to oil the threads, and did so. He was competent to select the proper couplings. There was no necessity for his asking Mr. Lynch if they were all right. Whether he used the one Mr. Lynch picked out of his hand and looked at, the record does not show. One of plaintiff’s witnesses, a steam and pipe fitter, testified that “old couplings are often as good as when they were first used. They are used over and over again, dozens of times. ” One witness testified that these, couplings ‘ ‘ sometimes become to be not all right,” and gave several reasons why, viz.: Oross-threading, stretching and expanding, kinking, and becoming stripped. There is no evidence that the coupling in question was defective in either of these particulars. If it had been, certainly the plaintiff should have detected it, and refused to use it. That this coupling fitted seems established beyond question. Plaintiff had screwed the coupling on to the railing pipe or guard full length, had placed the end of the other pipe in proper position, and had screwed the coupling to within two or three threads of its final position. While he was doing this, nothing developed to indicate any defect in the coupling. We might speculate as to how this accident happened, but that is not the province of either the court or the jury. Speculation and guesses cannot form the basis for verdicts. Fuller v. Railroad Co., 141 Mich. 66. The court said, in directing the verdict:

There is no testimony that this individual coupling was defective. It would be, I think, a violent presumption to presume that it was, because the boy testifies on the witness stand that he used his wrench in screwing the coupling on to the piece of pipe that was already in place. This would indicate that the thread was in working order and that he had to use not only his hands, but a wrench in order to screw the coupling on to the pipe that was already in place. It would be far more reasonable to suppose that the thread of the piece of pipe which was finally adjusted to this coupling, was made of a similar die, and therefore did not fit into the coupling, than that the coupling was defective.”

The court correctly directed a verdict for the defendant.

Judgment affirmed.

Blair and Montgomery, JJ., concurred with Grant, J.

Ostrander, J.

(concurring). I think there was evidence from which the jury might properly have determined that the coupling was defective — that it had expanded or that the threads in the coupling or on the pipe were worn, and that when turned to position the threads did not hold when subjected to the strain. This fact, if it was a fact, could have been learned, perhaps, only from a trial with the pipes in position or from the ease with which the first connection was made. I think it is clear, however, that there was no one so well situated as was plaintiff to discover the fact if it existed and that ordinary care on his part would necessarily have discovered the situation, and afforded him protection from danger.

Moore, J., concurred with Ostrander, J.


author: Blair, J.

text:
    PEOPLE v. MAXFIELD.
    Criminal Law — Evidence—Confessions—Instructions.
    Where respondent denies making certain confessions relied upon for conviction, and states that such admissions as were made were made under the influence of threats and promises, it is error for the court to charge that conviction may be based upon the confessions without instruction that the voluntary character of the confessions must first be determined.
    Exceptions before judgment from Genesee; Wisner, J.
    Submitted June 14, 1906.
    (Docket No. 98.)
    Decided October 1, 1906.
    Linus D. Maxfield and Lorinda Maxfield were convicted of keeping a house of ill fame.
    Reversed.

      Johnson & Landon (Lee & Parker, of counsel), for appellants.

      John E. Bird, Attorney General, and Horace P. Martin, Prosecuting Attorney, for the people.
   Blair, J.

Respondents, who are husband and wife, were convicted of keeping a house of ill fame, resorted to for purposes of prostitution and lewdness. The principal evidence in the record justifying a conviction consisted of testimony of statements by respondents admitting the offense. Counsel for respondents objected to the reception of the statements in evidence, on the ground that they were made under duress. The prosecution put in evidence tending to show the voluntary character of the statements and they were received. Respondents denied making the admissions at all, and respondent Lorinda Maxfield testified that she was nervous and scared and that the chief of police threatened “if I didn’t tell such and such things they would take me to the house of correction or to the workhouse.” As to the statements, she testified: “If I made any, it was through fear. V didn’t know what I said.” Respondent Linus Maxfield testified, upon this subject, as follows:

“ Q. Were they cross-examining your daughter at the same time in another part of the building ?

“A. I think they were from what they told me after-wards.

“Q. Did they come and bring you one kind of a story and tell you it wasn’t any use to lie about it — things of that kind ?

“A. Yes, sir.

“Q. What did they promise to do for you, if you owned up anything?

“A. Yes, sir.

“Mr. Martin: Are you testifying, Mr. Parker?

“Q. What?

“A. They said there wouldn’t be anything done about it if I would own it up.

“Q. What?

“A. They said that would be about all there would be to it or wouldn’t be anything serious.

“Q. Own up to what — something you hadn’t done ?

“A. Yes, sir.

“ Q. Was it on account of those promises you made the statement you did ?

“A. Yes, sir.”

No written requests to charge were submitted by either party, and the circuit judge charged the jury, upon the subject of the alleged admissions, as follows:

“ Now, one may be convicted of an offense under their acknowledgement of the commission of it, and if you should find that they have committed this offense even by their acknowledgment, if you believe the testimony of Mr. Rust and of those people who claim they made these acknowledgments to them (you will remember what the testimony was) and you should find that it is corroborated by other circumstances testified to here that you find to be the truth then you would be warranted in convicting; but if you have any reasonable doubt of the commission of the offense by these respondents, then you must give them the benefit of it and acquit them. That is all I desire to say to you gentlemen.”

The legal accuracy of this portion of the charge, which constitutes the whole charge upon the subject, is challenged by respondents’ twelfth assignment of error. We think the charge was erroneous. It rests the right to convict upon proof of the making of the acknowledgment, regardless of whether the acknowledgment was voluntary, or made under threats and promises of favor. The jury should have been instructed that it was their duty to first determine whether the statements were made voluntarily or under threats or promises. People v. Howes, 81 Mich. 396; Wilson v. United States, 162 U. S. 613.

We do not think the other assignments of error are well founded.

The conviction is set aside, and a new trial granted.

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


author: McAlvay, J.

text:
    AUDITOR GENERAL v. TUTTLE.
    1. Taxation — Rejected Taxes — Reassessment. •
    Where a drain tax was rejected by the auditor general on. account of indefinite déscription of the drain for which the tax was assessed, and returned to the county treasurer for reassessment, under section 3919,1 Gomp. Laws, and the only record of the board of supervisors claimed to refer to the tax is contained in the report of the committee on apportionment, which, under the heading of the township, in which the land is situated, has an item “Ret. drain____¡$>1,078.00,” which is the amount of the tax, no authority to the supervisor to reassess the tax against any particular description of land in the township appears.
    2. Same — Authority to Reassess.
    Under section 3919, 1 Comp. Laws, authority to reassess rejected taxes against the same lands must be given by the board of supervisors.
    Appeal from Eaton; Smith, J.
    Submitted June 19, 1906.
    (Docket No. 32.)
    Decided October 1, 1906.
    Petition by James B. Bradley, auditor general, for the sale of land delinquent for taxes: On objections filed by Willis H. Tuttle. From a decree for petitioner, contestant appeals.
    Reversed, and decree entered for contestant.

      Ulmer N. Peters, Prosecuting Attorney, for petitioner.

      Joseph B. Hendee (Charles D. Thompson, of counsel), for contestant.
   McAlvay, J.

Certain lands belonging to contestant were included in the proceedings of the auditor general for the sale of lands situated in Eaton county for delinquent taxes for the year 1902. He filed his petition setting forth his objections as provided by law, and the matter was heard upon proofs taken before the court. The objections were overruled by the court, and a decree granted in favor of the State against the lands in question for the amount set opposite the descriptions in the tax record. The tax in dispute had been assessed against these lands for the year 1900, as a special drain tax. It was returned to the county treasurer of Eaton county as not paid. The lands were returned to the auditor general as delinquent for taxes. They were afterwards rejected by the auditor general on account of indefinite description of the drain for which the tax was assessed, and returned to the county treasurer for reassessment. They were reassessed against these lands by the supervisor of the town ship upon the tax roll of 1902.

It is claimed by contestant that no reassessment as provided by law was made; that the supervisor of the township in which such lands are situated received no authority from the board of supervisors to reassess the tax in question against his lands. This is the only question in the case. The statute relative to the reassessment of rejected lands provides:

“ The auditor general shall prepare and forward to the county treasurer a statement of such rejected taxes, and a description of the lands upon which the same were assessed ; and such county treasurer shall lay the same before the board of supervisors at their next session thereafter, and if such taxes shall have been rejected or charged back by the auditor general, except for the reason that such land was not subject to taxation at the time of assessment for such taxes, or that the taxes thereon had been paid, or that there had been a double assessment thereof, the board of supervisors shall cause the same to be reassessed upon the same land, and collected with the taxes of the then current year, and in the same manner. If such taxes cannot be properly reassessed upon the same lands, the board of supervisors shall cause the same to be reassessed upon the taxable property of the proper township.” 1 Comp. Laws, § 3919.

This tax was rejected and charged back by the auditor general for a reason not within the exception of the section quoted, and the duty devolved upon the 'board of supervisors to cause the same to be reassessed upon the same land. There is no record of the report of the county treasurer to the board of supervisors containing a statement of rejected taxes in the proceedings of the board for the year 1902, and the county clerk had no such statement in his office. Such a statement was produced from the files of the county treasurer’s office, from which appeared the description of these lands, the amount of the W. P. & M. drain tax rejected and the Reasons for the rejecting, “name indefinite.” It was agreed (subject to the objection of petitioner that the record of the proceedings of the board was the evidence which should control the case) that the former treasurer, if produced, would testify that this statement was presented by him to the board of supervisors. The only record of the board of supervisors made at the October meeting, 1902, claimed as having any reference to the rejected taxes, is contained in the report of the committee on apportionment. That portion of this report affecting the township of Oneida, in which these lands are situated, together with the action of the board upon the entire report, is given:

“Town or City, Oneida.
State-------------- $1,723 17
County........... 1,697 50
Town or city ................... 400 00
Highway, per cent., I___________________________
School--------------------------- 6,215 50
County drain___________ 3,501 20
Road and bridge.................................' 900 00
Ret. drain............ 1,078 00
Road scraper________________ 48 06
Dog.................................... 112 00

“Supervisor Andrews, for the committee on tax apportionment for the year 1902, made the above report.

“To the Honorable Board of Supervisors of Eaton County, Michigan:

“Your committee on apportionment respectfully submits the above and foregoing report of the apportionment of taxes to be assessed upon the taxable property of the several townships and cities of the county of Eaton,' State of Michigan, for the year 1902, less such amounts as may be deducted by the proper officers in fractional school districts, and in taxes for road scrapers and recommended that the several amounts under the different items following the names of the several townships and cities, be assessed upon the taxable property of said townships and cities of said county of Eaton in accordance with law.

“Frank Andrews,

“M. E. Miller, “Committee.”

“ On motion of Supervisor Dwight Backus the report of the committee on apportionment was accepted and adopted and the recommendations concurred in.”

The item in this tabulated statement which is claimed to be the tax in question is, “ Ret. drain, $1078.00.” This statement contains all the State, county, township, and other taxes apportioned to Oneida township. The recommendation of the committee, adopted and concurred in by the board, was ‘ ‘ that the several amounts under the different items following the names of the several townships and cities be assessed upon the taxable property of said townships and cities of said county of Eaton in accordance with law.” We cannot say that “Ret. drain” means rejected drain tax to be reassessed, without reading into this record something it does not contain, and if we could, in the absence of any descriptions upon which the rejected tax was to be reassessed we cannot hold that authority is given to reassess the tax against the lands of petitioner. Such construction would warrant us in saying that the supervisor was authorized to assess this amount against any description of land in the township he might choose. No specific drain or drainage district was designated in-the report. The most that can be said as to this item from this record is that the supervisor was authorized to spread the amount upon his roll against all the taxable property in the township.

This case is distinguishable from the case of Auditor General v. Fleming, 142 Mich. 12. The report of the committee under consideration in that case, which was adopted by the board of supervisors, referred to the lands' to be reassessed by schedules for the several townships and municipalities, which by the direction of the board were prepared by the county treasurer when he made his report, and which contained the descriptions of all the lands to be reassessed.

The court said:

“ These schedules and the original list were referred by the board to its committee on apportionment and rejected taxes. That committee reported the facts, and recommended, the reassessment of this among other lands, referring to them by schedule. The report was adopted by the board. We think this constituted a valid reassessment.”

See, also, Gage v. City of Saginaw, 128 Mich. 682. The supervisor had no authority to make the reassessment . against the lands of contestant. By the statute the authority to reassess rejected lands must be given by the, board of supervisors. No such authority having been given, the reassessment of these taxes against the land of contestant was void.

The decree of the circuit court is reversed, and a decree will be entered in this court in accordance with this opinion in favor of contestant.

Carpenter, C. J., and Grant, Montgomery, and Ostrander, JJ., concurred.


text:
    SOMMERS v. STANDARD MINING CO.
    1. Master and Servant — Injuries to Servant — Assumption op Risk.
    Where 'a coal mine operator employed a driver to move cars of coal from the galleries of the mine to the shaftroom, and authorized no other person to perform that duty, a eager working in the shaftroom assumes the risk of injury resulting from the act of a miner or other intermeddler in starting a car down an incline leading into the shaftroom.
    3. Same — Warning to Servant — Unapprehended Danger
    The danger not being one which the master was bound to apprehend, his failure to warn the servant canno.t be said to have caused the injury.
    Error to Saginaw; Gage, J7
    Submitted June 19, 1906."
    (Docket No. 79.)
    Decided October 1, 1906.
    Case by Paul Sommers against the Standard Mining Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff "brings error.
    Affirmed.
    The testimony produced by plaintiff tended to prove •that he was employed by the defendant to work in its ■coal mine in the capacity of eager in January, 1901. He was not a miner, and never before worked in a mine. His duties were to place cars of coal upon the elevator which was operated in the shaft of the mine so that they might be hoisted to the surface. From the shaftroom galleries ran, in which were laid trams, and from which, except from the west entry or gallery, in the usual course of the business, a driver, using a mule, brought and left at the foot of the elevator loaded cars of coal, removing and distributing empty cars. The elevator or cage was operated from two sides, and there were two cágers employed. The west entry or gallery inclined for 25 or 30 feet to a crest some 2% feet higher than the bottom of the shaft, and beyond this crest was a depression, in which depression, if a single loaded car was left, it could not run down into the shaft. Usually, several cars together were brought in by the driver and left at the crest with a wheel of the first car spragged or fastened to prevent revolution. The driver would then drive the mule down into and across the shaft, thus notifying the eager there were cars for the elevator in the entry. The eager would go to the top of the incline, sprag the second car, move the .first car down to and upon the elevator, and so bring them all down and send them to the surface. The west gallery was undulating for some distance beyond this crest, and it was possible for a loaded car, let go farther back in the gallery, to run to and over the crest and down into the shaftroom by force of gravity alone. Plaintiff had never explored or been into the west entry beyond the crest and the depression beyond it, did not know that cars coming from beyond this point might run down into the shaft, did not know that any one but the driver ever handled or moved cars in the entry or that danger from such a source and of the nature described existed. About March 1st, a miner had, for a period of two days, placed loaded cars in the gallery. It does not appear that knowledge of the fact came to defendant. In taking cars from this entry, the eager put his back to the car, walking in front of it, and eased it down the incline to the foot of the elevator. Then, going behind the car, he pushed it upon the elevator; he never ran a car down without having it spragged. About 10 o’clock on the morning of March 31, 1904, plaintiff had brought down the last car left by the driver at the top of the incline, had removed the sprag, and was waiting for the descent of the elevator, when a loaded car ran down this incline. He was caught between it and the car he was moving, and severely injured. Where, that is from what room in which coal was being mined, this car came from, how it came to be upon the track, by whom it was set in motion, does not appear. It does not appear that a car had ever so run down before. It may be inferred that a miner, having filled the car, started it. There was no appliance provided which would, or was intended to, interrupt the progress of a car so running down the gallery. No one but the driver rightfully ihoved, or caused to be moved, any car in the gallery. It was his duty, and it was not the duty or proper employment of any other person. The plaintiff contends that the risk from this source and cause was not one which he assumed, and that the duty of the defendant to furnish him a reasonably safe place in which to work was violated. His theory is perhaps best shown by the amendment made at the trial to his declaration and here set out at length:
    “The west entry which leads to the south shaftroom and which has the incline aforesaid is undulating throughout its entire length and when cars loaded with coal are once set in motion from the rooms in this entry they will run down of their own accord over the incline and into the south shaftroom, which renders it especially dangerous to the eager employed in this room unless reasonable caution is taken by the defendant to guard against such dangers, and it became and was the duty of this defendant to use reasonable care in and about the management of said mining operation, and in and about the conducting of its loaded cars over the track of said west entry in order to furnish the eager at work in the south shaftroom a reasonably safe place in which to work. But notwithstanding said duty said defendant took no precaution to protect this plaintiff in his place at work in that this defendant did not provide a proper system for conducting the operations in said mine and not providing suitable rules and regulations governing its employés in and about the management and moving of its loaded cars on and over the track of the west entry leading to the south shaft-room and in that it did not suitably instruct its employes in and about the movement of cars loaded with coal over the track of said west entry, and for the further reason that it did not provide any appliances whereby the cars loaded with coal, and unattended passing over the track of said west entry could be stopped and prevented from passing over the incline of said west entry adjacent to the south shaftroom and injuring the eager there at work. On the contrary, it did permit the miners employed in the rooms along the west entry aforesaid to shove out loaded cars upon the track of said entry and there leave them unattended and unblocked, or' spragged. And this defendant provided ho rules or regulations, and gave no instructions which prevented the employés in and about this west entry from moving the loaded cars on and over the track of said entry in any manner which seemed to them to be suitable, and by reason of this careless and negligent conduct on thé part of said defendant a car was permitted to run over the track of the west entry, loaded with soft coal, and containing about 1,500 lbs. thereof, on the 31st day of March, 1904, which said car was unattended and was allowed to run of its own motion by some of the employés of said defendant over the track of said west entry, and enter the south shaftroom and ran on to the iron plate where this plaintiff was at work moving a car upon the cage, and pinned this defendant between the two cars in the manner heretofore set forth, and causing the injury and damage set forth in the first and second counts.”
    Defendant offered no testimony. The trial judge directed a verdict for defendant.

      W. F. Denfeld, for appellant.-

      Humphrey, Grant & Smith, for appellee.
   Ostrander, J.

(after stating the facts). There is no testimony tending to prove the fact alleged in the amendment to the declaration in manner following — “it did permit the miners employed in the rooms along the west entry aforesaid to shove out loaded cars upon the track of said entry and there leave them unattended and unblocked, or spragged.” There is no testimony tending to prove that defendant had knowledge that any one except the driver ever assumed to move a car to or upon the track in this gallery. It was a risk of the employment that an intermeddler, or a miner, would do what he had no right or authority to do. In a sense, the shaft, and employment therein, was made dangerous, unsafe, by this risk. It is admitted by counsel for appellant that his client assumed all the risk attendant upon the driver leaving cars unblocked at the top of the incline. Was it to be reasonably apprehended that cars other than those moved by the driver would come out of this gallery ? None had ever so come out. The regular course of defendant’s business involved no such thing. Rather it insured against it. It is not apparent how any set of rules upon the subject would operate more effectively than did the division of labor proven, the assignment of the duty of moving cars to the driver alone. Moran v. Railway, 99 Me. 127; Rutledge v. Railway Co., 123 Mo. 121. See, also, Deye v. Tool Co., 70 C. C. A. 64-66. Nor can it be said "that failure to inform plaintiff of a not to be apprehended danger was the cause of his injury. The verdict was properly directed.

The judgment is affirmed.

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


text:
    TAFT v. CHAPEL.
    Corporations — Dissolution — Proceedings — Notice — Sueitciency.
    Under section 10855, 3 Comp. Laws, an order to show cause why a corporation shall not be dissolved and a receiver appointed to wind up its business, must fix the rule day at a time not less than three months from the date of its entry, and where the rule day in such an order has been erroneously fixed at less than three months, an amendment of the order and entry nunc pro tunc as of the date of the original order, fixing a date less than three months from the date of the amendment of the order, is insufficient to confer jurisdiction.

      Error to Jackson; Parkinson, J.
    Submitted June 20, 1906.
    (Docket No. 88.)
    Decided October 1, 1906.
    Assumpsit by Harvey C. Taft, receiver of the Masonic Life Association, against George W. Chapel for an assessment. There was judgment for defendant on a verdict directed by the court, and plaintiff ■ brings error.
    Affirmed,
    Plaintiff, acting receiver of the Masonic Life Association, a Michigan corporation, in process of liquidation, sued defendant, a policy holder, to recover an assessment made by the circuit court, in chancery, for the county of Kent, upon members of the association. It appears that on September 1, 1896, the trustees of the association joined in a petition for a decree dissolving the corporation and for a receiver. An order was that day made that all' persons interested in the corporation show cause on November 6, 1896, why it should not be dissolved, and that notice of the order be published once in each week for three successive weeks in the Grand Rapids Daily Democrat. On September 22, 1896, a further petition was filed for an order amending the original order to show cause so that the rule day should be December 6th instead of November 6th, it being claimed that an error in calculation was made in preparing the first order. The amendment was made as requested, as of September 1, 1896, and the amended order was duly published, first on October 3, and last on October 2á, 1896. To the introduction of proof of these orders, it was objected for defendant that the first order to show cause was void because the rule day was made two months instead of three months from its date; that the second and amended order was void because it did not run three months from the date of actual entry of the order, and that the court making these orders acquired no jurisdiction to make the order of assessment sued upon. The objection was sustained, and a verdict for defendant, by direction of the court, and a judgment in conformity with the verdict were rendered. Error is assigned upon these rulings. It was also further objected by defendant that the proceedings should have been under the provisions of Act No. 187, Pub. Acts 1887.

      A. C. Hindman {Robert Campbell, of counsel), for appellant.

      D. P. Sagendorph and B. S. Woodliff, for appellee.
   Ostrander, J.

{after stating the facts). In Re Angell, 131 Mich. 345, it was not conceded by counsel for the receiver that the proceeding was governed by chapter 300, 3 Comp. Laws, but was contended that it was governed by the provisions of the act under which the corporation was organized, viz., Act No. 187, Pub. Acts 1887 (2 Comp. Laws, §§ 7497-7529)', and the question whether the receiver’s salary should be fixed according to the organic act was not' determined. I understand it to be now conceded that the proceedings to wind up the affairs of the corporation were begun and continued to the point of appointing a receiver and making the assessment upon members under authority of the provisions of chapter 300. Eeference to that statute will*discover that the judicial proceedings for voluntary dissolution of a corporation begin with a petition, upon the filing of which an order is made requiring all persons interested in the corporation to show cause why the same should not be dissolved at some time and place to be specified “not less than three months from the date thereof.” See 3 Comp. Laws, § 10855. The only service of notice of this order which is provided for is by publication of its contents once in each week for three successive weeks in a designated newspaper. No other or further notice is required to be given to stockholders before the question of insolvency is determined, and in case insolvency is found, the appointment of a receiver is made. The statute order and the statute publication thereof are therefore necessary and jurisdictional steps so far as subsequent proceedings are concerned. The two months’ order made was clearly insufficient. It had no force or validity, and by it the proceeding was not advanced. The order made and entered on September 22, 1896, nunc pro tunc September 1, 1896, did not, from its entry, allow three months before rule day. It is argued that it was published for three successive weeks after September 22d and before the rule day and that, as the statute does not require publication to begin at any time and as publication is the essential thing, no one was injured. This argument would sustain jurisdiction in a case where the order was made just three weeks before rule day nunc pro tunc a date three months before rule day. The statutory formula for the order is that the rule day shall be not less than three months “from the date thereof.” The order and notice are in the nature of a substitution for process, a constructive notice of legal proceedings. Courts have uniformly ruled in cases of like character in favor of strict compliance with statute provisions.

No other question is presented by the appellant. The judgment is affirmed.

Carpenter, 0. J., and McAlvay, Hooker, and Moore, JJ., concurred.


text:
    WESTERN GAS CONSTRUCTION CO. v. DOWAGIAC GAS & FUEL CO.

    Damages — Liquidated Damages — Penalty.
    A contract for the construction of a gas plant at a cost of $11,-438, stipulating that for delay in completion beyond a certain date the contractor shall forfeit $25 per day, provides for liquidated damages and not for a. penalty, notwithstanding the use of the word “ forfeit.”
    Error to Cass; Carr, J.
    Submitted June 20, 1906.
    (Docket No. 75.)

    Decided October 1, 1906.
    Assumpsit by the Western Gas Construction Company against the Dowagiac Gas & Fuel Company on a building contract. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      John Wooster, for appellant.

      James H. Kinnane, for appellee.

       Rehearing denied December 21, 1906.

   Ostrander, J.

A contract to furnish and install certain apparatus for the manufacture of gas in a plant, the buildings for which and certain foundations for apparatus were to be constructed by the owner, contained the following;

“The aforesaid apparatus and holder to be ready for gas August 15, 1902. The contractor will forfeit $25.00 for every day that above is not ready for gas beginning September 1, 1902, labor troubles excepted.”

The contract called for the payment of $11,438, and the owners paid all of this but $1,450. In a suit by the contractor to recover the balance, defendant, under proper pleadings, introduced testimony tending to prove delay of plaintiff in completing the contract for a period of 58 days after September 1st, and that defendant was actually and materially damaged by the delay. The jury were instructed that the testimony was undisputed upon the subject of the period of and sole responsibility for the delay, and were directed to render a verdict of no cause of action. Following a judgment entered upon a verdict so rendered, plaintiff has brought the record of the proceedings into this court, in which he assigns six errors. Two of the alleged errors relate to the overruling of objections to the evidence of plaintiff, and four to the rulings of the court above referred to. At the hearing, it was insisted by counsel for appellant that there was testimony tending-to prove that the responsibility for the delay in completing the contract rested, in whole or in part, with defendant, and that a question of fact was presented which should have gone to the jury. We do not find such testimony nor any from which such an inference may be drawn, nor was any error committed in receiving testimony. We pass, therefore, to the objections which involve the validity and the construction of the contract.

While the language of the contract is “will forfeit’’instead of “will pay,” we are not for that reason driven to the position that an absolute infliction of a penalty, regardless of the nature or extent of the cause of the stipulated default or the extent of resulting injury, was intended instead of a provision for compensation for damages likely to result from such default. And when the testimony and all circumstances surrounding the making of the contract áre considered, they leave no doubt that the agents of both contracting parties understood that they were stipulating for damages likely to result from default of the contractor and not for a penalty or forfeiture as such. Under date August 8th, and again under date August 25th (the contract is dated March 6, 1902, and gas was first turned on October 31, 1902), defendant wrote to plaintiff a letter, in which the default and the result thereof are described and attention directed to the contract stipulation for damages, and in the first letter the purpose to enforce the stipulation is plainly expressed. The right to do this was not challenged. The damages were necessarily uncertain as to amount, and not easy of ascertainment. The sum agreed to be paid-is not, in the light of all the facts, out of proportion with the probable or presumable damage to occur. Whatever damage resulted was necessarily continuing. The trial court was not in error in his ruling as to the effect and force of this clause of the contract. This disposes of the contentions of appellant. .

The judgment is affirmed.

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


author: Per Curiam.

text:
    SINK v. OCEANA CIRCUIT JUDGE.
    Execution — Body Execution — Issuance—Propriety.
    Under sections 10301 and 10305, 3 Comp. Laws, an execution cannot issue against the body of a defendant while an execution against his property is unreturned, and vice versa, without ah order of the court; hence, an execution issued without an order directed against both the property and the body of the defendant is unauthorized and is properly quashed.
    Mandamus by Orange A. Sink to compel Clarence W. Sessions, circuit judge of Oceana county, to vacate an order quashing a body execution.
    Submitted July 24, 1906.
    (Calendar No. 21,803.)
    Writ denied October 1, 1906.

      F. E. Wetmore and Rufus F. Sheets, for relator.

      G. B. Stevens, for respondent.
   Per Curiam.

The relator obtained a judgment in the circuit court for $1,804.80, said judgment being based upon 3 Comp. Laws, § 11175. Upon this judgment relator claimed tó be entitled to a body execution. Relator caused an execution to be issued, directed both against the property and against the body of the defendant, the writ directing the sheriff to first make the amount of the judgment out of defendant’s property, and if property sufficient to satisfy the execution could not be found, then to take the body of the defendant. Not finding property, the officer arrested the defendant and made return to that effect. The defendant then moved to quash the execution and discharge the defendant, which motion was granted by the court. Relator now asks the writ of mandamus to compel the circuit judge to vacate such order.

The statute (3 Comp. Laws, § 10301) provides that an execution may issue against the property or against the body of a defendant, in cases where execution against the body is authorized by law. Section 10305 provides:

“No execution against the body of any party shall issue while there is an execution against his property not returned, nor shall an execution against the property of any party be issued, while there is an execution against his body unreturned, unless by order of the court.”

There was no order of the court. The execution was unauthorized by the statute, was void and incapable of amendment. The paper issued as a writ was in fact two executions. Neither could issue while the other was issued and unreturned.

The order of the court was correct, and the writ will be denied, with costs.


text:
    MILLER v. STEELE.
    1. Quieting Title — Tax Deed —Equity Jurisdiction — Relief Awarded — Relief to Defendant.
    On a bill to quiet title to land founded on a tax deed, equity has jurisdiction to make a decree permitting defendant to redeem and requiring complainant to quitclaim to him, though defendant files no oross-bill, nor otherwise asks affirmative relief.
    2. Taxation —Tax Titles — Redemption — Misapplication of Payment — Effect.
    Under section 141 of the tax law (Act No. 236, Pub. Acts 1903) payment by the landowner to the register in chancery of the county in which the land lies, after the statutory notice of tax-title purchase, of the amount of the taxes and penalty, renders the conveyance by the auditor general to the purchaser ineffective, and it is immaterial that through mistake the payment is applied by the register in purchasing the apparent title of one who in fact has no title.
    3. Same — Relief to Landowner — Forfeiture.
    The mistake having occurred by reason of the erroneous issuing by the auditor general of two deeds for the same tax, relief to the landowner by allowing him, after the expiration of the statutory period, to redeem from the valid sale after misapplication of his payment by the register by purchase of the invalid title, is not to be denied on the ground that equity cannot relieve from a statutory forfeiture, since there was in fact no forfeiture.
    4. Same — Bill to Quiet Title.
    On a bill to quiet title based on a tax deed, a decree for complainant involves a finding that defendant did not, in due season, pay complainant, or the proper officer for him, a sufficient sum of money; and in the instant case the money having been in fact paid to the officer, but applied, partly through the landowner’s mistake, to the payment of an illegal claim, complainant’s case rests upon the fact that the payment did not reach him, and there being but one tax and but one proper claimant to satisfy, the ruling must be that the land was redeemed.

      Appeal from Gladwin; Sharpe, J.
    Submitted June 12, 1906.
    (Docket No. 86.)
    Decided October 1, 1906.
    Bill by Wilbert L. Miller against Wilber W. Steele to quiet title to land. From a decree for defendant, complainant appeals.
    Affirmed.
    Bill to quiet title to land. The facts found by the court below are:
    “ That Wilbert L. Miller, the complainant, purchased from the State of Michigan the north half of southwest quarter of section 5, town 20 north, range 1 west, situated in the county of Gladwin and State of Michigan, under a decree and sale thereof for delinquent taxes of 1895; that the proceedings had to enforce the lien of the State upon said land for the taxes of said year under the provisions of the general tax law, were regular and in strict compliance with the provisions of said law; that after the purchase of said land as aforesaid by said complainant he caused to be served upon the defendant, Wilber W. Steele, he being the grantee named in the last-recorded conveyance in the regular chain of title to said land, the notice required by Act No. 229 of the Public Acts of 1897, as amended, and a duplicate of said notice with the return of service indorsed thereon, was duly filed in the office of the clerk of said county of Gladwin on the 12th day of February, 1904.
    “ The court further finds that said tax deed issued to said complainant was dated the 25th day of July, 1903, and recited that said complainant applied to purchase said land on the 30th day of April, A. D. 1903, the consideration in said deed being $21.90..
    “ The court further finds that subsequent to the application of said complainant to the auditor general for • the purchase of said land for said taxes, and subsequent to the date of said tax deed, the auditor general of the State of Michigan erroneously issued a second deed for the same land upon sale for the same year’s taxes, to the Flint Land Company, Limited, of Flint, Mich. That said Flint Land Company, Limited, also caused to be served upon said defendant under its said tax deed, a notice provided for by Act No. 229 of the Public Acts of 1897 as amended, and that said defendant, having in his possession the tax notices so served on behalf of said complainant and the said Flint Land Company, Limited, without inquiry or investigation, subsequently, about the month of April, 1904, mailed the tax notice served on him on behalf of the Flint Land Company, Limited, to the register in chancery of the county of Gladwin, stating that he desired to redeem the land mentioned in said notice and that, pursuant to such direction, the county clerk procured from the said Flint Land Company, Limited, a reconveyance of said land to said defendant and paid the money so deposited with him to the said Flint Land Company, Lim-"“ ited, sending the tax deed and reconveyance obtained from said Flint Land Company, Limited, to said defendant.
    “ And the court further finds that said complainant has acted in good faith and in strict compliance with the provisions of law, and was fully justified in filing his bill of complaint herein to quiet the title to said land and remove the cloud therefrom.
    “ The court further finds that said defendant was misled by the circumstances as above set forth and is now entitled to redeem from the said complainant’s purchase as herein stated.”
    Additional undisputed facts are, that the notice to defendant from the Flint Land Company, Limited, was served October 17, 1903, and proof of service filed October 22,1903; notice to defendant from complainant was served October 31, 1903. The notice from the Flint Land Company called for a small sum in excess of that stated in the notice from complainant. A decree was entered permitting defendant to redeem upon payment of the tax, the statutory penalty and costs, interest thereon and the costs of suit, and requiring complainant to quitclaim to defendant. Defendant has performed the decree. Complainant has appealed from the decree, and in this court' presents and argues as ground for reversal thereof the following propositions:
    “ First. ■ If the defendant relies on the equities of his case for anything beyond a defense, and seeks affirmative relief, he must file a cross-bill. An answer alone will not be sufficient.

      “ Second. The complainant claimed, and the circuit judge in his decree found, that the defendant had not done that which was necessary to prevent a forfeiture of his right to obtain a reconveyance of the land and a court of equity has no power to set aside a statutory forfeiture.
    ‘ ‘ Third. In a very recent decision of this court rendered April 3, 1906, Bateson v. City of Detroit, 143 Mich. 582, the court held that where a person had made a voluntary payment of taxes upon the wrong description he could not recover it back, laying down the rule as follows:
    “ ‘The rule that a tax.voluntarily paid cannot be recovered back, and that the taxpayer cannot aver a mistake of fact which results from his own neglect to consult the record, is too well settled to require extended citation of authorities.’
    ‘ ‘ Fourth. The defendant’s failure to effect a redemption of the land resulted from his own negligence and inattention and the rule is stated in 2 Cooley on Taxation (3d Ed.), pp. 1048, 1049, as follows:
    “ ‘An attempt to redeem which fails by reason of a mutual mistake on the part of the owner and officer, and where it is doubtful whether the officer was at all at fault, presents no other grounds of equity than would exist in any case where, through inadvertence or misapprehension, the party has failed to assert his rights in due season, and he will be left by the law where his own negligence or inattention has placed him. ’

      i( Fifth. The defendant has been guilty of gross laches in failing to redeem for a period of more than one year after he was informed by the auditor general of the error in issuing the tax deed to the Flint Land Company.”

      Brown & Farley, for complainant.

      Campbell & Foster, for defendant.
   Ostrander, J.

(after stating the facts). That the court had jurisdiction, upon the pleadings, to make the decree, cannot be doubted. It is true, defendant did not ask for affirmative relief. But the court was not required to grant the precise relief prayed for by complainant with the alternative of granting no relief. Complainant is not denied all relief. In any event, for reasons hereinafter given, we find that the land was relieved of the tax.

To the other contentions stated, a singie answer may be made, which is that the decree of the court below cannot be treated as relieving against a statutory forfeiture. Oomplainant’s rights are all based upon the provisions of a revenue statute, the general and principal purpose of which is to secure, by forced contributions, the funds required for government. It is a part of the law that if the contributions asked for are not paid, the property of the citizen may be sold for their collection. The conveyance of real estate so sold, made by the auditor general, may be made ineffective in the hands of the purchaser upon payment of the amount of the taxes and a penalty. Such payment, after statutory notice has been given, may be made to the register in chancery of the county in which the land lies. By such, payment “the tax title shall become void and of no effect against the land thus redeemed.” Section 141, Act No. 236, Pub. Acts 1903. It is the act of payment, in proper season, of a proper amount, to a designated officer, which operates to discharge the land.

A court of equity may always inquire whether or not a ■forfeiture has occurred and declare the fact. Thereafter, in the particular case, it proceeds according as the fact is found. In the case at bar, complainant asserts that he owns the land and seeks a judicial declaration to that effect, which involves the finding that the defendant did not, in due season, pay to the proper officer a sufficient sum of money. The fact is, complainant’s case is not rested upon nonpayment of a proper sum by defendant, but upon the fact that the payment did not reach him. For this result it may be admitted that defendant was in some measure responsible, not because he directed the money to be paid over to any. person, but because by forwarding the notices received from the Flint Land Company and not also the one received from complainant, he may have induced the officer to deal entirely with the Flint Land Company. There was, however, but one tax and but one proper claimant to satisfy. It was after the money had been paid by defendant, and more than six months after tbe complainant’s notice was served, that defendant learned, certainly, that a mistake bad been made by tbe auditor general and two deeds issued for tbe same tax. The ruling must be that tbe land was redeemed. As has been stated, defendant has performed tbe decree.

It is therefore affirmed, with costs of tbe appeal to defendant.

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


text:
    AITKEN v. CHIPPEWA CIRCUIT JUDGE.
    1. Equity — Chancery-Practice—Order Pro Coneesso — Setting Aside — Prerequisites.
    A motion to set aside a default and order of reference is not in order unless accompanied by a sworn answer (Chancery Rule. Id) notwithstanding defendant is physically unable'to answer ; proper practice in such case being to move for extension of time to answer under Chancery Rule 6.
    2. Mandamus — Propriety—Exhausting Remedies Below.
    Mandamus will not be granted by this court to compel the setting aside of a default and order of reference where the circuit court has not been moved for a vacation of the order complained of.
    Mandamus by David A. Aitken to compel Joseph H. Steere, circuit judge of Chippewa county, to vacate an order setting aside a default..
    Submitted October 2, 1906.
    (Calendar No. 31,834.)
    Writ denied October 19, 1906.
    Relator filed his bill in the Chippewa circuit court, in chancery, against Chase S. Osborn, demanding a sworn answer, to which, on the expiration of the period allowed as an extension of the time for answering, Osborn’s solicitors filed an unverified answer. Relator then filed an order pro confesso referring the cause to a circuit court commissioner. Subsequently, without answering further, Osborn moved to set aside the default and order of reference on the ground that, at the time of making the motion, and during the whole period in which he might have answered, he was unable from illness to be consulted with reference to the suit. The circuit judge granted the motion, and relator asks that a peremptory mandamus issue commanding the circuit judge to set aside the order setting aside the default and order of reference on the ground that defendant did not comply with Chancery Rule 7 by filing a proper answer before or at the time of filing his motion.

      M. M. Larmonth and M. F. McDonald, for relator.

      Warner, Sullivan & Wiley, for respondent.
   Per Curiam.

The practice pursued in the circuit did not conform to Chancery Rule 7. The relator is also in fault in failing to move for the vacation of the order setting aside default. The proper practice on defendant’s part would have been to move for extension of time, under Chancery Rule 6. As there is still time to proceed anew under Chancery Rule 7, the defendant can preserve his rights.

This application is denied.