author: Bird, C. J.

text:
    BAILEY v. SIBLEY QUARRY CO.
    1. Contracts — Implied Agreements — Assumpsit.
    In the absence of an agreement by defendant’s employé, who kept its store and acted as postmaster, at a stated salary, defendant would not be entitled to plaintiff’s additional salary as a government official, because it obtained for him his commission as postmaster, and furnished light, heat and a place to keep the office.
    3. Same — Master and Servant.
    The fact that the employer took the entire proceeds of the post office, remitting the proper amounts to the government, and retaining for nearly five years the commissions to which plaintiff would have been lawfully entitled as postmaster, did not vest the right to the commissions in defendant; because the law will not imply a contract to transfer the emoluments of a public office.
    3. Same — Public Policy.
    Such an agreement is against public policy.
    Error to Wayne; Rohnert, J.
    Submitted October 14, 1910.
    (Docket No. 69.)
    Decided December 22, 1910.
    Rehearing denied September 29, 1911.
    Assumpsit by James Bailey against the Sibley Quarry Company, a corporation, for money had and received. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      James H. Pound, for appellant.

      Chas. K. Latham, for appellee.
   Bird, C. J.

This is an action of assumpsit in which plaintiff seeks to recover certain moneys which he had earned as postmaster at Sibley, Mich. At the conclusion of plaintiff’s proofs, the trial court was of the opinion that plaintiff had not made out a case, and therefore directed a verdict for defendant. Plaintiff brings the case to this court by writ of error.

The defendant operates a stone quarry at Sibley. The population of the village is made up almost wholly of the employés of defendant and their families. The defendant opened a store at Sibley on January 1, 1903, for the sale of general merchandise, and employed plaintiff to manage it at a salary of $1,000 a year. Plaintiff continued in its employ until April 30, 1909. Soon after plaintiff commenced work, one of the officers of the defendant company secured his appointment as postmaster. He qualified, filed his bond, took charge of the office, and continued to hold it until July 31, 1909. He kept the post office in the store. The office did not require a regular attendant. It was looked after by him and his clerks, and in busy times by his wife and son. Plaintiff’s salary was made up of commissions on the amount of business done. Each day the proceeds of the day’s business of the store and post office were turned over to the cashier of the defendant, and deposited in its vault, in its office across the highway from the store. At stated intervals the commissions were deducted from the proceeds of the office, and the balance, with the quarterly or monthly report, was forwarded to the government. The commissions remained with the defendant. Plaintiff paid his own salary as general manager, and also the salaries of his employés. He had the authority to retain his commissions, but did not do so until after he ceased to be general manager of the store. Matters went on in this way until April 30, 1909, when, at the suggestion of defendant, plaintiff retired from the management of the store. Plaintiff then brought this suit to recover his commissions, amounting to $1,683.50.

Defendant offered no testimony, but claims that plaintiff was employed by the defendant for $1,000 a year; that the company was entitled to his whole time; that the company secured his appointment, and furnished him a place in which to keep the post office; and that plaintiff made no claim to the commissions while in its employ, and that whatever income was received from the post office belonged to the defendant.

The defendant’s inquiry upon what theory plaintiff can claim the commissions leads us to the inquiry upon what theory defendant can Claim them. The plaintiff, and hot the defendant, was postmaster. The commissions belonged, to the postmaster. How, and when, and by what right, did defendant become entitled to them ? Defendant claims to have been influential ih securing the plaintiff’s appointment; that it furnished a place in which to keep the office, and provided light, heat, and occasional help; but, conceding it did all these, it would not thereby be entitled to the official salary of one of its employés because he was in its employ, if there were no agreement to that effect. The plaintiff may or may not be indebted to defendant for rent, heat, and light, but, if he were, that would not entitle it to retain plaintiff’s salary as postmaster.

Plaintiff’s right to the commissions is questioned because he did not claim them as they accrued. He did claim them when he began this suit, and the record does not show that defendant ever claimed them before that time. The record also shows that, soon after the plaintiff was appointed, the defendant, through its secretary, Mr. Austin. Church, disclaimed any right to the commissions, and informed plaintiff they belonged to him. The fact that the plaintiff neglected to claim or withdraw these commissions for four or five years, which were in the vaults of the defendant, would not thereby vest the title to them in the defendant, because the law will not imply a contract with reference to the emoluments of a public office. Such an agreement, if proven, would be against public policy and void. Mechem on Public Offices and Public Officers, § 370, and cases cited. The plaintiff by his case established his right to recover the commissions; and we think as the record stood at the close of the testimony the plaintiff was entitled to a directed verdict.

We have examined the other assignments of error, and find that they are not well taken.

The case is reversed, with costs, and a new trial ordered.

Ostrander, Brooke, Blair, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    COLUMBIA PHONOGRAPH CO. v. SHERMAN.
    1. Sales — Contracts—Breach—Return of Goods Purchased.
    The purchaser of goods bought under an agreement permitting him to exchange goods on hand for new goods on specified terms, when the purchaser should order more, is entitled to a credit for the value of all goods returned at the time the seller refused to fill any further orders, thus preventing performance of the exchange agreement.
    2. Evidence — Books of Account.
    The evidence was sufficient to justify a verdict for defendants’ alleged recoupment, where one of the defendants testified that the firm books were kept under his supervision, that some of the entries were made by him, and others at his dictation, that there was a balance due defendants of an amount stated by him.

    Error to Mason; Withey, J.
    Submitted February 15, 1911.
    ( Docket No. 184.)
    Decided March 13, 1911.
    Rehearing denied September 29, 19Í1.
    Assumpsit in justice’s court by the Columbia Phonograph Company against John A. Sherman and Frank P. Sherman for goods sold. Plaintiff appealed to the circuit court from a judgment in defendants’ favor. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      E. N. Fitch, for appellant.

      A. A. Keiser, for appellees.

       Party’s books of account as evidence in his own favor, see note in 52 L. R. A. 848.

   Moore, J.

The plaintiff is a New York corporation, dealing in talking machines, attachments, and musical records, with a branch office in the city of Chicago, managed by Charles F. Baer. The defendants are doing business at Ludington, Mich., and dealt in the goods of the plaintiff. The suit was brought in justice’s court, where judgment was rendered in favor of defendants. Plaintiff appealed the case to the circuit court, and, from a verdict and judgment in favor of defendants, has brought the case here by writ of error.

The plaintiff claimed there was due it $48.90. Defendants claimed there was due them the sum of $79.02 and the interest thereon. The controversy arises over what allowance, if any, should be made to defendants for certain goods returned. It is the claim of plaintiff that the allowance should be made according to the terms of a circular headed “Wholesale Record Exchangewhile the claim of defendants is that they never saw or had their attention called to this circular, but that it was part of the agreement made when the relations of the parties began that the articles might be returned as defendants did return them. The assignments of error which call for discussion are: First, Did the court err in striking from the evidence the circular letter? And, second, Is counsel right in saying “there was not a scintilla of evidence in the case that would authorize a judgment in favor of defendants in any amount whatever on any theory of the case ?”

First. We will be aided in disposing of this question by considering some of the testimony offered by plaintiff. The deposition of Mr. Baer, the manager of the Chicago branch, was read in evidence. He testified that he had charge of the business, and that there was due the plaintiff $48.90, and that he had mailed defendants a copy of the circular headed “Wholesale Record Exchange.”

The following was read into the record:

“December 23, 1908.
“ Sherman Brothers,
“ Ludington, Mich.
Gentlemen:
“ We acknowledge receipt on the 18th of this month via Pere Marquette Railroad, the following goods: 209-10 Columbia Records; 224 XP records; 67 Columbia Records, and we understand that these records are returned to apply on our regular exchange proposition for which credit will be passed on the 25th of each month, in accordance with the amount of records you have on the particular month. We also attach our special bill to the amount of $1.08 covering the freight which was paid by us on this shipment. Thanking you for many past favors, we beg to remain.
“ Yours very truly,
“R. P. Bell.
“Return Goods Department.”

The portions of the “Wholesale Record Exchange” circular material to this inquiry read as follows:

“ (a) The amount to be credited will be arrived at by using the same rates (list prices and discounts ) at which the new records of corresponding kinds are furnished by ■QQ í» ^
“(6) A new purchase of Columbia records must be made of at least five times the amount of the credit on a money basis. Such new purchases may consist of any kind of Columbia records; it is not required that they be the same kind as the records credited. For example, a dealer can turn in disc records or part cylinder and part disc.
“ (c) The credit to be entered only after five times its amount has actually been furnished and charged for on the new order. In other words, the credit will not be entered in anticipation that the records will be shipped and charged for on the new order.”

The following letter is in evidence:

“April 31, 1909.
“Sherman Brothers,
“Ludington, Michigan.
Gentlemen:
“We have today returned to you by freight, the shipment of old records made to us in December of last year consisting of 209 10-inch records, 224 XP, 67 Columbia records. It is necessary for us to return these records to you in order that we may close up this item in view of our not being in a position to supply any records purchased and credited on your account since you returned these goods.
“ Yours truly,
“Columbia Phonograph Co.”

Mr. Meyers, the man who sold the goods, was a witness for plaintiff. On his cross-examination he testified in part as follows:

“I am still the agent of the Columbia Phonograph Company and have charge of their business in this territory. We have another selling agency in this town at this time. J. E. McCourt & Co. became our agent on February 11, 1909. We have a contract with Mr. McCourt, and under it he has the exclusive sale of our product in this territory. Shortly before that time or at that time I received an order from Sherman Bros, for goods, or had one offered me, but it was not accepted. I did not accept it. They tendered it to me, but it was impossible for me to accept it. When I called on Mr. Sherman, the Edison people having made it necessary for dealers to choose between the Edison and Columbia, and they having made up their minds to handle the Edison, and if they did they would not be allowed to handle the Columbia, and so having made up their minds without any chance to change it at all, they of course could not handle the Columbia cylinder, so I had to pick up another dealer, and, if I sold Mr. McCourt the line, I couldn’t sell Sherman Bros. too. We sell to but one man in a territory. They have been handling both kinds up to that time.”

It is the uncontradicted testimony of Mr. Sherman that he shipped the records in controversy back December 1, 1908. He also testified that he gave Mr. Meyers an order for goods February 15, 1909, which was not filled; that there was never any talk between Mr. Meyers, or any other representative of the plaintiff, relative to giving up their business; and that he first learned defendants were not to handle plaintiff’s goods further 10 or 15 days after he gave the order to Mr. Meyers in February, when the witness saw the goods in Mr. McCourt’s window, and upon the receipt of plaintiff’s letter of April 31, 1909. Omitting for the moment any consideration of the testimony offered on the part of defendants, we have the following situation disclosed by the testimony offered by plaintiff: It sold defendants goods which might be exchanged subject to the terms of the “Wholesale Record Exchange” circular. It acknowledged the receipt of these goods in its letter of December 23, 1908, “and we understand these records are returned to apply on our regular exchange proposition.” This is followed by the defendants’ giving Mr. Meyers, the agent for plaintiff, an order for goods in February, which it declined to fill, presumably because it had made arrangements with Mr. McCourt to handle its goods, and because, as testified by Mr. Meyers, we sell to but one man in a territory.” This action was followed April 31, 1909, by returning the records receipted for by the plaintiff December 23, 1908, and writing the letter of April 31, 1909, informing the defendants of the return of the records, and stating:

“ It is necessary for us to return these records to you in order that we may close up this item in view of our not being in a position to supply any records purchased and credit on your account since you returned these goods.”

Taking plaintiff’s own version of the transaction, it is perfectly clear that plaintiff by its own conduct made it impossible for defendants to get credit for goods returned according to the provisions of the so-called “Wholesale Record Exchange ” circular, and the judge was justified in charging the jury:

“ Now, the position the plaintiff is in, is this: According to the testimony in this case, they have severed this relation and placed their goods elsewhere, and refused to ship goods to the defendants. They say because Edison would not permit the same merchants to handle both classes of goods, but the testimony of Mr. Sherman is that they had been handling both Edison goods and these goods for some time, and the Edison Company never refused to allow them to handle both classes of goods. The plaintiff is in this position, that, having terminated that relation, it refused to take back the goods which Sherman Bros, might have on hand. I say to you in this case, gentlemen of the jury, that the position is untenable, and that Sherman Bros, had a right, when the plaintiff canceled their relations and put their goods elsewhere and refused to ship any more goods to Sherman Bros., the latter had the right to return all the salable goods belonging to the plaintiff then on hand. That eliminates in this case the most perplexing feature of it, and it only remains for you to say how much of a verdict the defendants shall have in this case. I hold that the plaintiff is not entitled to your verdict. That very position is legally untenable.”

Second. Was there evidence upon which to base a judgment in favor of defendants ? Mr. Prank Sherman testified that the books were kept under his supervision, that some of the entries he made himself, including those of the returned goods, that the other entries were made at his dictation, and that there was a balance due defendants of $79 02 If interest is added to this amount, it makes the amount of the verdict.

Judgment is affirmed.

Hooker, McAlvay, Brooke, and Blair, JJ., concurred.


author: Hooker, J.

text:
    BRUCKER v. MANISTEE & GRAND RAPIDS RAILROAD CO.
    1. Contracts — Breach—Fraud—Construction op Railroads.
    In an action upon a contract for the grading of a railroad, for damages claimed by plaintiffs because of the fraudulent prevention by defendant of performance in pursuance of the contract provisions, and for the wrongful breach thereof by defendant, and for other damages, evidence tending to show that defendant unduly delayed the furnishing of estimates required by the agreement, that improper measurements were given, insufficient allowances made for extra work, unreasonable demands made on plaintiffs, and that defendant failed to get necessary rights of way, had a tendency to show fraudulent conduct and breach of contract.
    2. Same — Evidence.
    Whether or not testimony tending to show that the contractors were delayed, was of a substantial nature, was a question for the jury.
    3. Same — Compromise and Settlement — Supplementary Contract.
    Where a construction contract was supplemented by an additional agreement providing for an advancement of funds and for completing the work by a specified date, the two contracts were properly construed together.
    4. Same — Excuse por Breach — Discharge.
    It was for the jury to determine whether defendant wrongfully took over and completed the work.
    6. Same — Damages—Loss op Propits.
    Although it cost defendant more than the contract price to complete the grading, plaintiffs were entitled to show that it cost defendant more than was necessary.
    6. Same — Changes—Option to Change Route,
    Since defendant, by the terms of the construction contract, reserved the right to change the route, the damages should have been determined by the route as constructed, instead of the one originally surveyed.
    7. Same — Personal Property Converted.
    Under a supplemental contract fixing the date when the work was to be completed, and authorizing defendant to complete the work if the contractors should fail to do so, it was a breach of the contract for defendant to take possession of the grading tools and machinery before the date fixed, and although such right may have existed under the original contract, it was terminated or limited by the supplemental agreement.
    8. Same.
    And although replevin, trover, or a special action on the case might lie for unlawfully taking possession of tools, plaintiffs might also treat the action as a breach of the contract and recover damages therefor in assumpsit.
    9. Pleading — Case—Assumpsit.
    A count was not changed from contract to tort for charging, in addition to the alleged breach of contract in taking possession of plaintiff’s tools, that defendant thereupon became indebted to plaintiffs for the value thereof.
    10. Same — 'Variance—Surplusage.
    The averment of the declaration to the effect that plaintiff sold the tools, not being supported by proof, was surplusage.
    11. Contracts — Railroad Construction — Interpretation.
    Where a grading contract provided that earth taken for embankments at points specified by the chief engineer should be paid for at embankment rates, it did not preclude a recovery for material which sank below the surface, and which was provided for by another clause that, whenever it should be necessary to provide for future settling of the embankment, the height and width of the roadbed should be increased as directed.
    Error to Osceola; Rose, J.
    Submitted October 18, 1910.
    (Docket No. 80.)
    Decided March 31, 1911.
    Rehearing denied September 29, 1911.
    Assumpsit by B. Ferdinand Brucker and Charles M. Roberts against the Manistee & Grand Rapids Railroad Company for work and material and for breach of contract. Judgment for plaintiffs. Defendant brings error.
    Reversed.

      Hal L. Gutter (Charles E. Pain and Charles A Withey, of counsel), for appellant.

      Durand & Holland (B. N. Savidge, of counsel), for appellees.
   Hooker, J.

The plaintiffs contracted with defendant to grade a railroad; their compensation to be by the yard for fills and cuts, and by the acre for clearing land. They performed a portion of the contract, and defendant finished the work. The declaration is in assumpsit for damages for the breach of the contract, and on the common counts for work and labor done and materials furnished; A trial was had and a verdict and judgment for the plaintiffs followed. Defendant appealed.

Defendant asserts:

First. That the trial judge allowed the jury to find that the defendant and its engineers were guilty of fraud or gross or serious error, which deprived plaintiffs of a share of their legitimate earnings, previous to the time that defendant took over the work.
Second. That the defendant by its engineers fraudulently and negligently failed to lay out the work, and fraudulently compelled the plaintiffs to work disadvantageously to their damage.
Third. That the defendant wrongfully took over the work, whereby the plaintiffs were deprived of profits. Error is assigned upon the ground that there was no testimony tending to prove these things, and they should not have been allowed to go to the jury.
Fourth. Defendant claims that the plaintiffs should not have been allowed to recover, under the declaration and in this form of action, the value of personal property taken from plaintiffs when it took over the work.
Fifth. Error is assigned on the refusal of the court to compel plaintiffs to elect whether they would seek to recover under the contract or upon the quantum meruit.
Sixth. Error is predicated on the refusal to grant a new trial.
Seventh. A fatal variance between the declaration and proofs on the subject of the right to recover for personal property of the plaintiffs taken by defendant.
Eighth. Error is assigned upon several points that will be alluded to later if it is found necessary.

This work was begun under a written contract which contains somewhat exceptional provisions in relation to the rights of defendant, regarding the conduct of the work, the binding effect of directions and estimates of the defendant’s engineer, and his decisions on controversies growing out of the contract and the dealing of the parties. We do not set forth the contract, which is long, but will refer to its provisions as it shall become necessary in our discussion of the questions raised. It required, that the work be completed on or before May 30, 1905.

On August 2, 1905, the defendant being dissatisfied at the noncompletion of the work, and plaintiffs being out of funds, the parties executed an agreement, which we include in this opinion. It is as follows:

“Agreement made this 2d day of August, 1905, by and between Brucker & Roberts, parties of the first part, and Manistee & Grand Rapids Railroad Company, party of the second part, witnesseth that: Whereas, said parties of the first part have been doing work under a certain contract executed between them and second party and dated December 5, 1904, and they have received from time to time payments of money under estimates made by the chief engineer of second party, and there is still unfinished work to be performed under said agreement; and, whereas, the first parties, in order to fully complete the work under said contract and in accordance therewith, desire second party to advance to them the amount of three thousand dollars ($3,000.00) for which no estimate has yet been made by the said engineer of second party, and said party is willing to make said advance by way of loan to said first parties in order to insure the faithful completion of said work: Now, therefore said second party agrees to advance and loan said amount of three thousand dollars ($3,000.00) to said first parties for the purpose of assisting them in fully completing said work, the said sum to be repaid to second party out of the moneys yet to be realized by first parties under said contract. In consideration thereof, first parties agree that said entire plant belonging to said first parties and now being used upon said work, consisting of 10 western dump cars; ■£• mile 30 lb. railroad track; 17 No. 3 wheel scrapers; 18 drag scrapers; 1 buggy and harness; 1 blacksmith outfit; 1 camp outfit complete; 1 pile driver and tools connected therewith — shall be mortgaged and pledged to said second party to secure the payment of said three thousand dollars, and that said second party shall have possession of said plant until said work is fully completed. Said first parties further agree to promptly go forward with said work, and have the roadbed thereof fully completed by the 15th day of September, 1905, in strict accordance with the provisions of said contract, and in the event that said work is not fully completed in accordance with said contract by September 15, 1905, then, and in that case, said Brucker & Roberts agree that the railroad company may complete the said work itself or engage other contractors to complete said work, and that said railroad company or other contractors engaged by it to complete said work shall have the use until said work is completed of all of the said plant, tools, etc., herein described. It is further agreed that from time to time said engineer of said second party shall make estimates of the work as it progresses and that said first parties shall receive payments therefor under and in accordance with the terms of said contract.”

On August 23, 1905, defendant took possession of plaintiffs’ tools, etc., and proceeded with the work, completing it on December, 11, 1905. The action was brought in 1908. The plaintiffs claim that they were wrongfully prevented from fully performing the contract, and claim the right to recover the value of the work actually done by them and not paid for, at a price not exceeding the contract rates, upon the common counts. This, according to the plaintiffs’ brief, amounted to upwards of $6,000 and interest. There were other items based on the common counts for work done, such as extra work provided for in the contract, and extra work caused by changing the line of road. The special count was for damages arising from the conduct of the defendant, in hindering, delaying and preventing the completion of performance and may be divided into two clasees, one of matters growing out of the first contract only, and the other arising after the second agreement was made, and these are alleged to be based on fraudulent conduct, and collusion between defendant and its engineer, and gross and serious error on their part which deprived plaintiffs of their legitimate earnings. This latter included the taking of plaintiffs’ property, i. e., tools, etc.

We will discuss the case by topics in accordance with the propositions in defendant’s brief, but perhaps not in the same numerical order.

First Topic. “Is there any evidence in the case which properly takes it to the jury upon the proposition that defendant or its engineers were guilty of fraud or gross or serious error which deprived the plaintiffs of their legitimate earnings under the contract before the work was taken over by the defendant ? ”

(a) There was testimony from which fraud might be inferred. The plaintiffs offered testimony tending to prove fraud, such as delay in furnishing estimates as required by the contract, omission to furnish them to any one but the defendant, improper and inaccurate measuring with incorrect estimates, absences of engineers, omission of dates, failure to estimate and allow for borrow pits, or allow for clearing and grubbing same, failure to estimate and allow extra work, changes of or alleged correetion of measurements of first engineer by his successor on new measurements. Taken in connection with the testimony that delays were occasioned by a failure of defendant to obtain right of way, and to require plaintiffs to work at unseasonable times, in wet and clay, when they might have been permitted to work in sandy and dry ground, etc., proof of these claims tended to establish plaintiffs’ claim. We do not mean to say that this was strong or weak proof, but it was testimony from which an ulterior motive might properly be inferred. It is undoubtedly the rule that fraud should be clearly established, and in equity cases, where this court hears the cause de novo, it has an opportunity of passing on the merits of such a question. In actions of law, however, it cannot do this except where the question is raised on a motion for new trial, or where, from the whole evidence, it can say that there is no evidence tending to prove it or is as consistent with the absence as with the presence of a fraudulent motive. We have not such a case, and the question of fraud should have been left to the jury, as it was.

Second Topic. “ Is there any evidence in the case which tends in any legitimate manner to show that the defendant by its engineers fraudulently and negligently failed to lay out work, or that the plaintiffs were fraudulently compelled to work in clay ground when it was wet, to their disadvantage ? ”

In answer to plaintiffs’ claim, counse. say that they find “no substantial testimony in the record which indicates that the contractors were materially delayed.” There was some testimony, and it was for the jury to determine whether it was substantial or not.

Third Topic. * ‘A preliminary question to be disposed of is: Did the defendant take over the work unlawfully ? If this preliminary question is ruled against appellant, it brings us to the main proposition under this topical head, which is: Does the record present ’ any competent, material, relevant testimony of a legal character, sufficient to take the case to the jury upon the question of loss of profits to the plaintiffs, upon that portion of the work taken over and completed by defendant ? ”

(a) We are of the opinion that defendant’s counsel are right in their contention that:

“The main contract (R. pp. 565-596), and the supplemental contract (R. pp. 602-604), are susceptible of being and should be read as one contract.”

We find little, if any, discussion of this question in the brief of plaintiffs’ counsel, and we infer that defendant’s claim in that regard is not seriously questioned. However that may be, we think that the instruments are susceptible of no other construction.

We also agree with defendant in the following proposition:

“A stipulation that the railroad company may terminate the contract when in its opinion the work is not progressing favorably or the contractor is not duly complying with the provisions of the contract, is binding upon the contractor, unless the action of the arbiter is successfully assailed for fraud or gross error implying bad faith. The power to terminate a contract must be exercised in good faith, but the burden is upon the contractor to show a fraudulent exercise of the reserved power.”

While the construction of the contract was a question of law, the conduct of the defendant in taking over the work is open to the jury upon the question of fraud and bad faith, and we think there was evidence from which it may have been inferable. It should be understood, however, that we express no opinion upon the merits of this question. The question was a proper one for the jury, and it has been decided by the jury.

As to Plaintiffs’ Loss of Profits. Counsel for defendant contend that the record shows that the completion of the work by it cost more than the contract price, and that consequently the plaintiffs would not be entitled to recover damages for the deprivation of the opportunity to finish the work themselves. If the contract was terminated in bad faith, the plaintiffs might claim that the work done by defendant cost more than necessary, and testimony of that kind was introduced. The plaintiffs are not bound by the rule contended for.

We also sustain the contention of the defendant as to its right to change the route. The contract provided that:

“The location of any portion of the road, as also the slopes of excavations and embankments, the length of sections, the grades, or the width of the roadbed, may be altered whenever said chief engineer shall consider such alteration necessary or expedient, but such alteration shall not be allowed as a reason for any claim for extra compensation, and it is expressly agreed by the parties hereto that the price to be paid per yard shall - cover the risk of any such change that may operate to the disadvantage of the party of the second part, and the party of the second part shall have the benefit of any alteration that may operate in its favor.”

Before this action was brought, this route was changed, as .defendant had a right to do, under the contract. Hence the damages should have been measured by the route as built, rather than as originally staked out. The learned circuit judge was of the opinion that if the contract was unlawfully terminated the right to and measure of damages became fixed at once, and could not be affected by a subsequent change of route. We are of the opinion that this was incorrect. Had the plaintiffs completed the job, the measure of their pay would have been the work actually done upon the grade as changed. The same is true as to damages for the interruption of their performance of the contract. Counsel for the parties cite no authorities in point upon the question. We think it elementary, however.

Fourth Topic. “ This subdivision presents the question of whether the plaintiffs were entitled to recover in this form of action, and under their declaration, the value of the personal property taken from them by the defendant when it took over the work and used it in completing the job.”

The action is assumpsit. The original contract provides :

“That if said second party shall at any time neglect or refuse to progress with the work as fast as in the opinion of said chief engineer or party of the first part (communicated in writing to said second party) may be necessary for the completion by the time specified herein, then said first party may declare this contract abandoned.”

The supplemental contract contains the following:

“Said first parties further agree to promptly go forward with said work, and have the roadbed thereof fully completed by the 15th day of September, 1905, in strict accordance with the provisions of said contract, and in the event that said work is not fully completed in accordance with said contract by September 15, 1905, then, and in that case, said Brucker & Roberts agree that the railroad company may complete the said work itself or engage other contractors to complete said work, and that said railroad company or other contractors engaged by it to complete said work shall have the use until said work is completed of all of the said plant, tools, etc., hereinbefore described.”

These two provisions should be construed together. In our opinion, however, the latter superseded the former, and the learned circuit judge did not err in holding that the depriving of the plaintiffs of their tools, and opportunity to complete the work, before September 15th, was unlawful and a breach of the contract. This being so, it is unnecessary to discuss the remedy for the tools upon the theory that their taking was lawful.

Being unlawful, it is possible that they might have been replevied, or, after the demand was made, trover, or possibly a special action on the case, would have been proper, or the act might have been treated as a breach of contract, as it was.

The special count alleged the breach of the contract, and claimed damages therefor. Several breaches were charged, among them the seizure and conversion of the tools. The allegation that defendant became indebted for the value of the tools was perhaps unnecessary, but it had not the effect of changing the count from assumpsit to one in trover or trespass. A case closely in point is Hoey v. Harty, 48 Mich. 191 (12 N. W. 44); Thomas v. Schram, 52 Mich. 213 (17 N. W. 815); Tregent v. Maybee, 54 Mich. 226 (19 N. W. 962); Newman v. Olney, 118 Mich. 545 (77 N. W. 9); Brown v. Foster, 137 Mich. 35 (100 N. W. 167).

We are of the opinion that the special count was broad enough to cover the damages for the loss of tools, and that all damages to which plaintiffs were lawfully entitled were recoverable under it, and that an election of counts was unnecessary.

Sixth Topic. Motion for New Trial, As the cause must be reversed upon the point relating to the measure of damages, it is unnecessary to consider the motion for a new trial.

Seventh Topic. Variance. The allegation in the special count that the defendant disposed of the tools for a sum of money may be treated as surplusage under the proof on this record.

Eighth Topic. Miscellaneous Assignments. Several of these may not arise on another trial. Some of them involve legal questions, but counsel have refrained from much discussion of them and from citing authorities to support their contention. We therefore leave them undecided.

In view of a possible new trial, we should add that we are of the opinion that the plaintiffs were entitled to payment for all material used in the embankment except such as came from excavations and was measured as such. The provision that borrowed earth for embankments shall be paid for at embankment prices does not preclude the recovery for material which sunk below the surface. This is indicated by section 22 of the specifications, which provides that—

“Whenever it is necessary to provide for the future settlement of the embankments, the height and width of the roadbed shall be increased as directed.”

The judgment is reversed, and a new trial ordered.

Moore, McAlvay, Brooke, and Blair, JJ., concurred.


text:
    JEFFERSON v. CITY OF SAULT STE. MARIE.
    Municipal Corporations — Ice and Snow — Cleaning Sidewalks.
    A city is not liable for personal injuries caused to a person on the sidewalk by slipping on a ridge of ice or snow left in the center by a snowplow, whether the icy condition was caused by water dripping from the eaves of a building or by snow packed in the center of the walk by its ordinary use.

      Error to Chippewa; Steere, J.
    Submitted November 29, 1910.
    (Docket No. 79.)
    Decided March 31, 1911.
    Rehearing denied September 29, 1911.
    Case by Helen Jefferson against the city of Sault Ste. Marie for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed and no new trial ordered.

      Sherman T. Handy, for appellant.

      John W. Shine, for appellee.

       As to liability of city for injury resulting from snow or ice on streets or sidewalks, see note in SO L. R. A. ( N. S.) 656.

   Hooker, J.

The plaintiff slipped and fell on an icy sidewalk in the city of Sault Ste. Marie, thereby breaking a leg. She has recovered a judgment for $700 against the city, which has appealed.

The negligence charged is: First. That the city was negligent in allowing a ridge of snow to remain in the center of the walk as an alleged result of cleaning the walk with a snowplow. Second. In permitting ice to form upon said walk and ridge as a result of water dropping upon it from a 10-inch wooden projection on the face of an adjacent building from the melting of snow upon it. Sault Ste. Marie is shown to have 33 miles of sidewalks, and these are cleared with snowplows at city expense. There is much testimony to the effect that a snowplow does not and cannot clear the walk in the center as well as it does at the edges of the walk where people have not trodden. This is a fact of common knowledge and has been mentioned several times in decided cases. In McKellar v. City of Detroit, 57 Mich. 158 (23 N. W. 621, 58 Am. Rep. 357), it was said:

“ A few passers-by will trample the snow into ridges, and the work of removing them would be enormous.”

In the case now before us several witnesses testified that this walk was in much the same condition as to a ridge of snow or ice in the center as all of the walks in town, and we have discovered no substantial contradiction of this testimony. We cannot hold, and a jury should not be permitted to find, that a city is liable for not clearing walks. We have held many times that the statute imposes the duty upon cities to keep streets in reasonable repair and in a condition reasonably safe for public travel. Hence we find many cases holding cities negligent in placing or permitting sand piles, building materials, and other obstructions in the ways. On the other hand, we have often held that accumulations of snow and ice which come from natural causes are not covered by the statute, and that a city is not negligent if it omits to protect pedestrians from the dangers to life and health which attend the use of streets and walks covered with snow. Even the danger of falls in slippery places on ice upon the walks is one against which the pedestrian must protect himself ordinarily, for the city is under no obligation to remove either snow or ice.

There are, however, some cases where cities have been held liable for creating obstructions with snow or ice; cases, as plaintiff’s counsel say, ‘'where the city was an active agent in placing the obstructions,” e. g., in Bowen v. City of Detroit, 150 Mich. 546 (114 N. W. 344). When the employés of the city engaged in cutting ice out of a gutter were said to have thrown chunks of ice and snow upon a crosswalk upon which plaintiff fell, which was disputed, we said the court should have submitted the question to the jury, thereby implying, if not expressly deciding, that a city might incur a liability for cutting and piling ice upon its crosswalks. The case of Johnson v. City of Marquette, 154 Mich. 50 (117 N. W. 658), was a somewhat similar case, where a city was held negligent in permitting a steam railroad company to pile snow removed from its highway crossing upon each side of its track in the highway, whereby a team of horses was frightened and injured third persons. The case recognized the general rule and rests upon the artificial character of the obstruction, and is easily within the sand cases mentioned. It is upon these two cases that counsel predicates his contention in the present case, claiming that the Marquette Case and this are alike in principle, i. e., that the obstruction in the Marquette Case was an obstruction caused by throwing snow from one part of the street to another, thus forming a ridge, or obstruction, while, in this present case, the ridge or obstruction was caused by leaving a portion of the hard, icy snow in the center of the walk, and removing the untrodden snow from each side, thus making a ridge.

Every person knows the convenience of cleaning paths in winter. Every one does it to some extent and has to do it for the convenience of himself and family. We know how the good citizen cleans his sidewalk. In the center where men tread the snow,' accumulates because of the difficulty in getting it off, but he does not refrain from keeping the walk more nearly clean near the edges. But every one does not clean his walk, well or seasonably. It is at least questionable whether he ought to be or can be compelled to do so for public convenience, and, moreover, the cheaper, more expeditious method, and the only fairly economical and practical way, is to run an old-fashioned snowplow over the walk for the purpose of taking, not all ice and snow, but no ice and only so much snow as can readily be removed by scraping with so rude a contrivance as a snowplow. This method and this degree of efficiency are accepted and approved by the community, as appears from their general adoption, and it is reasonable to suppose that society has not understood that it is to be penalized for its effort toward the ameliorations of the annoyance and inconvenience of snow and that the effort to aid all carries with it the responsibility of removing ice as well as snow to which the plow is not adapted, and which was not within the design. Neither has it the obligation of seeing to it that the snow, where undisturbed, shall not be removed below the level of the packed portion where removal is not feasible or is too expensive. Nor need it remove all ice on one or both portions which may result from the falling or dripping of water from buildings upon the walk. It seems to us more reasonable to say that we may take judicial notice" of the everyday necessities and practices that the removal of snow as it falls is for the welfare of all, that such removal down to as near the walk at any or all points, as is reasonably feasible, is desirable and proper, that such inequalities as this, which are known to be inevitable, are the necessary accompaniment of this very necessary and commendable practice, and private misfortunes arising from the casualties of winter furnish little excuse for attempting to impose the burden resulting to individuals upon the community. They certainly do not, in our opinion, justify the extension of the rule followed in the cases mentioned.

It is not difficult to see that the principle relied on in those cases is not necessarily involved here, for the city has not placed snow and ice under the feet of its citizens, but has merely taken some away, thereby attempting and making an improved condition. By looking at the authorities a little further, we will find the limitations mentioned well and clearly pointed out.

In McKellar v. City of Detroit, 57 Mich. 158 (23 N. W. 621, 58 Am. Rep. 357), this court said that:

“ The statute in giving a right of action for injuries from defective highways, etc., * * * applies only to injuries that are due to defects from being out of repair, and not to such as are caused by the mere accumulation of ice and snow.”

In treating of that accident, which, like the one in this case, was a fall upon ice, the court said:

“ There is probably not a single northern city or town where such accidents as that appearing on this record do not occur every year. The reports would present much more numerous precedents if it were the general supposition that such actions would lie.
“We have never had a Michigan statute which made express provision for removing snow and ice; and the laws regulating highway labor and the expenditure of highway moneys, are all framed on the theory that work will be done when the earth is uncovered. Our cities are empowered to clean their streets, and frequently to remove snow and filth; but this has seldom if ever been made obligatory, or treated as having anything to do with street repairs or defects. It is possible that highway money may have been expended in towns and villages to clear the tracks in winter; but, if so, the instances are exceptional, and not within the language of any statute. * * *
“ Our statutory system has been devised to meet the necessities of a rapidly developing country, thinly settled in many places, and with cities covering much larger spaces than would be required for a stationary population. It would be a great hardship and involve ruinous expense if all of the multitudinous ways that are subject to be affected by winter storms are to be constantly watched and diligently kept in thoroughly good condition. Most communities may be relied on to do what is necessary and feasible. But no amount of diligence can supply an adequate force and adequate means to detect the inevitable accumulations of snow trampled into hardness on every crosswalk or in every roadway. In the city of Detroit it is estimated that there are more than 10,000 crosswalks inside of the suburbs. Except during winter there is not much risk that dangerous defects will be numerous or unnoticed. A walk properly laid may be relied on, except as against very long wear or active mischief. But a few passers-by will trample the snow into ridges, and the work of removing them would be enormous. The charter makes no adequate provision for doing it, or for finding out its necessity.”

The next case involving a charge against a city in an ice or snow case was Kannenberg v. City of Alpena, 96 Mich. 53 (55 N. W. 614). In this case a freshet choked a catch-basin, and water overflowed the walk and froze. We held that this was not an artificial obstruction, but one due to natural causes, and denied relief. In this case counsel relied upon some cases where cities had neglected hydrants or waterspouts, whereby water overflowed and froze upon walks. We distinguished these from ice formed by natural causes, and later refused to follow the latter in Gavett v. City of Jackson, 109 Mich. 408 (67 N. W. 517, 32 L. R. A. 861).

Rolf v. City of Greenville, 102 Mich. 544 (61 N. W. 3), was a case which shows another phase of this question. We are unable to tell whether a snowplow was used or not. At all events, the walk was covered by snow which melted off more toward the edges and left ice where it had been trodden, and plaintiff slipped and fell. The situation was practically the same as in this case, viz., the removal of only a portion of the snow, and the sloping ridge, if the name “ ridge ” is, either in that or this case, an appropriate term to use. It was held to be ruled by the Kannenberg Case, i. e., the legislature had not imposed the duty to provide against the accidents resulting from conditions of snow and ice due to natural causes, as Mr. Justice Campbell had said in that case.

Hutchinson v. City of Ypsilanti, 103 Mich. 12 (61 N. W. 279), is also in point. Here it was held that the removal of snow from walks and street car tracks into the gutter, when they changed to ice upon which plaintiff’s cutter was overturned, was not negligence on the part of the city.

Gavett v. City of Jackson, supra, was a case where ice froze from water which came from a roof through a down spout and was delivered on the walk. In that case the contention was made that the city was negligent in not preventing this, and one opinion in the case sustained the plaintiff’s contention. The majority, however, followed the earlier cases, and held that this was ice formed from natural causes, and that the city was not liable for not providing some way for keeping it off from the walk, or preventing the formation, or taking steps to remove the ice: Mr. Justice Grant recognized the rule regarding artificial obstructions applied in the first mentioned cases, but said it had no place upon that record.

Again, the rule was applied in Wesley v. City of Detroit, 117 Mich. 658 (76 N. W. 104). See, also, Pringle v. City of Detroit, 152 Mich 445 (116 N. W. 362).

There is another class of snow cases, such as Canfield v. Railway Co., 78 Mich. 356 (44 N. W. 385), and Black v. City of Manistee, 107 Mich. 60 (64 N. W. 868), where liability is made to rest upon the effect of a defect in the construction of the road or way as a cause of the injury. Such a case is Navarre v. City of Benton Harbor, 126 Mich. 618 (86 N. W. 138). We are of the opinion that the present case is fully covered by the cases cited, and that whether the cause of the fall was ice made by reason of water for which the city was in no way responsible, or from snow which was trodden down and tramped in and frozen, or from the crowning snow left on the walk through the inability of the city to scrape the hard snow, no liability exists. We are of the opinion that the judgment should be reversed, and no new trial ordered.

Ostrander, O. J., and Móore, McAlvay, and Brooke, JJ., concurred.


author: McAlvay, J.

text:
    CARBY v. COMBS.
    1. Appeal and Error — Assignments oe Error — Briefs.
    Records on error should contain a detailed assignment of the errors on which the appellant relies; and the same should be properly indexed; and it is incorrect practice to assign error on objections by number in the record without indicating the nature of the objection made, or the page on which the exception may be found. Circuit Court Rule 47e, Supreme Court Rule 40.
    2. Same — Brieps—Statement oe Pacts — Supreme Court Practice.
    The requirement that appellant shall malre a statement of facts, is not met by a statement of disconnected excerpts from the testimony.

      3. Homestead — Parties—Ejectment.
    In an action of ejectment, to recover possession of premises which a husband and wife claim to occupy as a homestead, the husband is a necessary party, notwithstanding that the wife alone has title to the premises.
    Error to Van Burén; Des Voignes, J.
    Submitted January 11, 1911.
    (Docket No. 73.)
    Decided March 31, 1911.
    Rehearing denied September 29, 1911.
    Ejectment by Goldie Carby and Vera Carby against Sadie Combs. Judgment for plaintiffs. Defendant brings error.
    Reversed.

      Barnard & Lewis, for appellant.

      Thomas J. Cavanaugh, for appellees.
   McAlvay, J.

This is an action of ejectment brought by plaintiffs to recover possession of a certain strip of land 18 feet wide, described in the declaration as the north 18 feet of lot 5, block 3, Phelps’ addition to the village of Lawrence, in Van Burén county. This strip of land lies between the lots belonging to these parties, and is claimed by both of them. Defendant, Sadie Combs, is a married woman, who owns the premises next north of this disputed strip, and occupies the same, together with her husband, as a homestead. The jury found in favor of the plaintiffs, and judgment was duly entered upon the verdict. Defendant has brought the case to this court for review upon writ of error.

For the purpose of correcting a practice in making up the records and briefs in cases brought to this court for review, which is becoming entirely too frequent, attention is called to the fact that in many cases in preparing the assignments of error in the record and the statement of facts in the briefs the requirements of Circuit Court Rule 47 e and Supreme Court Rule 40 are practically disregarded. The former provides that “a detailed assignment of all the alleged errors upon which the appellant proposes to rely ” shall accompany a bill of exceptions, and the latter, that “ the brief of a party bringing a cause to this court shall contain a clear and concise statement of facts distinct from the argument,” etc. Thirty errors are assigned in this case, of which thé following is a sample of all except two:

(1) “The court erred in overruling the objection of defendant’s counsel and numbered (1) on the margin of the record.”

No inkling is given of the nature of the objection or the page upon which it is to be found. The 145 pages of the record must be examined to locate the margin upon which “ (1) ” appears. The appellant’s statement of facts covers six pages, of which all but one are devoted to disconnected excerpts from the testimony, and the brief of the appellees is subject to the same criticism, and does not comply with the rule, in pointing out wherein the first statement is insufficient or inaccurate. It is the intention of the court to find some means to induce those who are delinquent in this respect to bear in mind that the requirements of the rules must be respected.

The principal contention relied upon by defendant and claimed as error is the refusal of the court to direct a verdict for her, on the ground that the premises next north of the disputed strip, of which said strip was claimed to be a part, were occupied by defendant and her husband as a homestead, and the husband was not made a party defendant to proceedings.

The court must accept this as the bona fide contention of defendant, although the record seems to disclose that a claim was made inconsistent with it, i. e., that the husband alone was occupying this strip. Defendant must be bound by the theory upon which she defended, and that was that this strip was in fact a part of the lot which she owned, and upon which she resided with her husband as a homestead. We are of the opinion that the court was in error and should have granted the motion.

The case is controlled by the case of Haddy v. Tobias, 85 Mich. 326 (48 N. W. 499). This court in that case held:

“ The statute (citing it) requires the actual occupant to be made defendant, and, where husband and wife occupy premises as their home, the domicile is that of both. Neither can be said to be in the occupation to the exclusion of the other; each having the right to enter the family residence whichever owns it. The occupancy is therefore joint and not severable, and both parties should be made parties defendant under the statute.”

The court cited and relied upon the following cases: Hodson v. Van Fossen, 26 Mich. 68; Henry v. Gregory, 29 Mich. 68, 69; Rowe v. Kellogg, 54 Mich. 206, 209 (19 N. W. 957); Cleaver v. Bigelow, 61 Mich. 47 (27 N. W. 851).

The court should have directed a verdict.

The judgment is reversed and set aside, and record remanded.

Moore, Brooke, Blair, and Stone, JJ., concurred.


text:
    DANULA v. QUINCY MINING CO.
    1. Master and Servant — Safe Place — Negligence—Timbering-.
    A mining company is liable for injuries to an employé engaged in. timbering a level of a mine, under an overhanging and unsupported rock wall, which fell upon him, which he was assured by his boss and supposed was safe, and which was situated in a stope leading from a portion of the mine that had been prepared as a level for operations, by widening, laying track and inspecting the work.

      3. Same — Assumption op Risk — Fellow-Servant—Minino Operations.
    The plaintiff did not assume the risk of the danger or of the negligence of his superior in failing to place proper supports to render the place safe.
    Error to Houghton; Streeter, J.
    Submitted January 13, 1911.
    (Docket No. 83.)
    Decided March 31, 1911.
    Rehearing denied September 39, 1911.
    Case by Henry Danula against the Quincy Mining Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Hanchette & Lawton, for appellant.

      O’Brien & Le Orendre, for appellee.
   Moore, J.

The plaintiff, a timberman, recovered a judgment for damages for injuries to his right arm caused by the falling of rock while cutting a hitch in which a timber called a “stull” was to be placed. The accident happened in a stope which led out of the thirty-ninth level at the foot of shaft No. 7 in the mine of defendant. The level had been opened some distance past the stope and had in it two rails upon which the cars ran which were used for carrying out the ore and waste. The plat will aid in understanding the situation. The dotted lines represent where the stull was to be placed. The plaintiff was cutting the hitch in the foot wall into which the lower end of the timber was to be placed. The case was tried before a jury. From a verdict in favor of the plaintiff, the defendant has brought the case here, claiming a verdict should have been directed in its favor.

The trial judge submitted the case only upon one theory, which is stated in his charge as follows:

“Now, as I have stated, the duty of the employer, or the master, as it is called in the books, the duty of the employer is to furnish a safe place for his employes to work. No employer is the insurer of absolute safety of the employes. The place is to be considered with reference to the nature of the employment. Mining is usually recognized as a dangerous business, and the thing to be considered is whether a reasonably safe place in the mine has been furnished, and not whether it would be a safe place in a building, because the nature of the employment determines the fact of whether a place is reasonably safe or otherwise. Men engage in all sorts of occupations. Some of them are very safe, so far as risk of injury or loss of life is concerned, and some are extremely dangerous. If a man works in a nitroglycerine plant, all that he can require is that the nitroglycerine plant be conducted in the usual, proper way in which such a plant is conducted. If he works in a powder mill, the same rule applies there, * * * with regard to the nature of the occupation and the dangers which are incident to that employment.
“Now, the defendant company in this case must act through its agents. The duty of providing a safe place is one that rests upon the company, but the place must be made safe by certain of its employés, and it makes no difference by what title you call the employés at all, if that particular duty rests upon them. The claim of the plaintiff in this case, and one which he must establish by a fair preponderance of the testimony, is that the duty of making this particular place, where the accident occurred, safe, rested upon the timber boss. Now, it appears here that the timber gang consisted of six men besides the one who is called the boss, seven in all. The nature of their employment is in itself to increase the safety of the mine. That is their business, and, when they get through, the place ought to be much safer than it was when they began their work, so far as the other men employed in the mine are concerned.
“The first question for you to determine in this case will be whether the duty of inspecting the wall, taking down the rock, rested upon the foreman of the gang alone, or whether it was a duty which belonged to the members of that timber gang. Now, if the plaintiff has established by a fair preponderance of the testimony that the duty imposed by the mine, by the company, was upon the timber boss alone, you will have certain questions to consider that you will not have to consider if the duty imposed by the mine was on the timber gang, and not upon the boss.. There can be no question that the duty rested somewhere, either upon the gang or upon the boss, at the time that, they began to work at that place. If the plaintiff has, failed to convince you by a fair preponderance of the testimony that the mining company had imposed this duty upon the timber boss alone, you will consider no other phase of the case, but bring in a verdict in favor of the defendant company. Now, what the men themselves did as members of the timber gang would not determine this question, because the men themselves might be perfectly satisfied to rest upon the judgment and added experience of the timber boss and so act. But the mining company itself had not imposed that duty upon the timber boss alone, but had left it generally to the timber gang; the custom of the gang itself would have no influence in the matter, because that is a matter that they might arrange among themselves, to suit themselves. If you shall have found, though, as I said, the duty rested upon the timber boss alone, then you will consider whether he performed that duty. The testimony in this case on that point is conflicting. If, when they went into that place where the accident occured, no examination was made by the boss, and nothing was done, you would be justified in finding that that was an act of negligence for which the defendant company is liable, providing, of course, as I said, that you have determined that it was the duty of the boss alone to make that examination. But if you determine from the evidence that there was an examination made, and that rock was pinched down, * * * the defendant company would not be liable, because if the one on whom this duty rested was a competent man, and in his judgment he had performed the duty, the company would not be liable for an error in his judgment which caused the injury.
“ This is another phase of the case which you ought to consider. The plaintiff in this case was a man who had had the experience which has been shown to you, in work underground in different capacities, in two mines. If you find from the testimony that he had heard somebody say that there is loose rock here, or this is dangerous ground, or something of that kind that called his attention to the matter, it will be for you to determine whether a reasonably prudent man, with experience which he has had under ground, would make an observation for himself before he went to work; and if you should be of opinion that a reasonably prudent man would look for himself to ascertain whether this warning was one called for or not, and you find from the testimony that he did not so look, he is not entitled to recover in this action.”

It is the claim of defendant that, under the facts disclosed by the record, the doctrine of safe place does not apply, that the timber boss was a fellow-servant, and the plaintiff assumed the risk. These propositions may be considered together.

Plaintiff’s version of the accident is as follows: After stating that he told the timber boss when he was hired that he had been a trammer, and not a timberman, he proceeded as follows:

“Paul Kemppainen worked with his gang in No. 7 shaft. The timber boss I spoke to in regard to not having done any timbering before was Paul Kemppainen. I worked under Paul Kemppainen right along, was working for him on the day of my injuries. I was holding a moil, worked generally there from August to April putting up timber. Paul said these timbers were to be put up for the purpose of preventing the rock and stone rolling down to the track. I was moiling the hitch in the rock and putting up the timber and sawing them. We ourselves used to take the timbers out from the shaft to wherever we wanted to put them. The boss used to order us what to do, I mean the one that was boss over us, Paul Kemppainen. In our gang were six men working, and the boss, seven. Paul used to examine the place where we worked to see whether it was safe. I never did it because the boss was an old man and we would depend upon him. It was after 8 o’clock, going on 9 o’clock in the morning, when this injury happened, when I injured my hand. Seven o’clock they began to lower the men down in the mine. After we were lowered down in the mine, we started to work there in the drift, 390 foot level, south side of the shaft. I don’t know positively how far from the shaft, but I think that it was somewhere around a thousand feet. It may be a little less or a little more. I can’t describe it for the reason that was the first time I went in there; but it was quite a large opening, and there was a car track there.
“Q. How was the drift as to being finished?
“Mr. Lawton: I object to the question. He doesn’t know whether it was finished or going, or how.
“A. That I don’t know, but there were some miners there. This was a drift. The boss took us over to work at that place. We were told to moil the hitch, cutting the hitch, for putting up the timber. A ‘ moil ’ is a piece of steel. One end is sharp, and which is held against the rock for the purpose to cut a hole in the rock to put the end of the stull timber for putting it up, and we call such a hole that we cut with a moil a ‘ hitch.’ Before I went to work there, before I went to work to hold the moil, I heard some talk between Mr. Kemppainen and some of the other men in the gang. One man told the boss: ‘ Let us sound this rock or pinch it down, or else let’s put up the timber so as to make a safe place to work.’ The boss says, ‘ No.’ He says: Start to work. The place is all right. There is no danger at all.’ After he said that, I start to moil the hitch. I relied upon the boss when I started to moil that hitch. I went to work cutting the hitch with the moil, and the rock fell down and I broke my arm, the right arm. * * *
“Q. Now, before that rock fell down, did you know that the hanging wall was in a dangerous condition ?
‘‘Mr. Lawton: I object to that question as calling for a conclusion.
“ The Court: Take an answer.
“Mr. Lawton: Exception.
“A. No.
“Q. Now, Henry, were you able at that time to judge whether the hanging wall was safe or not ?
Mr. Lawton: I object to that as calling for a conclusion of the witness. He has stated his experience and stated what he did.
“ The Court: Take an answer.
“Mr. Lawton: Exception.
“A. No, I didn’t examine the hanging wall at all. The boss says the place is safe, start to work, and I depend upon him.”

The balance of the testimony we quote may be stated to be the most favorable for the plaintiff of any given:

The stulls will be put up here, the boss said that. I don’t remember positively if the boss looked at the hanging wall, but he always examined. Some one said something about the hanging wall, what condition it was in, but I don’t remember who it was, about the loose rock, as there appeared to be some loose rock. Of course some of it was taken down. The man asked if this place was all right to work and he answered it was; the boss said so. As we were down there pinching down some rock, and it appeared to be all right then, and we worked a little while, and another crash we heard, and we all went away from there. Then, just as we run away from there, some small rock and the dust came down, and it appeared a loose rock then, and we were trying to pinch that down, but we couldn’t get it down, so some one says that we either have to pinch that down or put up a prop to keep it up. When that was said, the boss says that is all right, and we were compelled to go to work. He told us to go to work.
“Q. And, when you were working there, the boss would be the one who would judge of the safety of the hanging wall, would he ?
“A. Yes.
“Q. And, if he told you men it was safe and to go to work, you were supposed to go to work, were you ?
“Mr. Lawton: I object to that as calling for a conclusion of the witness as to what he had to do in that regard.
The Court: I think the question is immaterial. A man is supposed to work when the boss tells him. The witness can answer it.
“A. Yes, after the boss told us to go to work, I started moiling a hitch. * * *”

Redirect examination by Mr. O’Brien:

“That piece of rock that fell couldn’t have been taken down without the boss would order it done; the boss didn’t let us men pinch that piece of rock down; he told us it was safe. We men then went to work relying upon his superior knowledge and experience.
“Q. And that was the custom in that mine there, was it?
“Mr. Lawton: I object to what the custom was.
“Mr. O'Brien: I think that’s admissible to show the custom of the work.
The Court: Take the answer.
“A. Yes; that is, it was the custom for us to rely upon the boss’ directions in regard to unsafe hanging and in regard to pinching down the loose rock before we went to work.”

Recross-examination by Mr. Lawton:

“I don’t know if the boss sometimes makes mistakes. He uses his best judgment, and everybody that works in a mine uses his best judgment.”

On the cross-examination of one of the mining captains, he testified, in part:

“Paul Kemppainen was the timber boss in No. 7 shaft. In that gang there were six men and him. Those men were expected to obey him to a certain extent. They were put in his charge in doing the work, so that they were expected to obey him while on the job, to a certain extent, of course. The duty in the first place to look over the place to see whether there was any loose piece was in the party and to the men. It was his duty as boss to first look it over and then order the men to take it down if he was in there. They use their own judgment. If they didn’t think it was safe, they didn’t need to go. The timber boss generally goes because he can talk English. We don’t put a man as timber boss unless he has experience. He got to do decent work, and the timbering up of a shaft is work that can’t be done unless a man has experience. Mr. Kemppainen had considerable experience. He worked there two or three years. He had more experience than some men under him. I suppose he did have a good deal more experience than Mr. Danula, the plaintiff, as far as timbering goes.”

The shift boss was sworn as a witness for defendant, and testified in part as follows:

“ The duties of a timber boss is to take his gang and order them to do the work that’s laid out to them; see that they do the work and keep at it; measure timber and have it cut to the right length that he wants to put in. He is with the men all the time and takes a hand in when his help is needed.”

Cross-examination by Mr. O’Brien:

“The timber boss is supposed in the first place to look over the situation where he is going to put in timber. He is supposed to do that for the protection of his men, and the men have a right to do it also. The company merely lay out the work for the timber boss. He is the man who is supposed to do the work, and he is the man who has the responsibility, if he orders the men to go to work, providing it is safe, if they leave it to his judgment. Generally they are supposed to obey orders. Usually with a company, a large corporation, the duties of the corporation is that the men should obey orders; that’s true. The timber boss has charge over the timber operations in that shaft where he is working. He is not all the time a man who has greater experience in regard to judgment, judging loose ground, than men who work under him. Sometimes there are men with us who have just as good judgment as he has, as a rule; but sometimes they get timbermen that has more experience. Usually the timber boss has greater experience. I suppose men are promoted on account of merit to an extent. Usually their experience counts when it comes to promoting men to the head of the gang. The timber boss can’t discharge a man fqom his gang, not personally himself. He can report to the office and it is investigated. His report is upheld if it is all right, as a rule, unless the other man has got a very good cause. * * * We take this timber gang, and they have six men in the gang. They come into a place. The timber boss tells what to do. They are supposed to obey orders. If they have trammed down a certain amount of ground, and he says it is safe, go ahead and cut your hitch, they are supposed to cut hitches; that’s the custom.”

Redirect examination by Mr. Lawton:

“The timber boss has no authority at all to make any member of his gang work under a piece of loose ground. Every one of the gang has a right to take their bars and bar down a piece of loose ground that they see, or to throw a prop against it.”

Recross-examination by Mr. O’Brien:

“If they suggest that a piece of ground should be barred or a prop put up, they are supposed to put it in themselves if they want to. If they suggest it and he says go ahead and work, if they are foolish enough to take his orders, all right. If I thought it wasn’t safe over my head, I wouldn’t obey no man. As to his limited knowledge and can’t talk English, I can’t tell about that. If he works under the timber boss’ orders, all right; he is supposed to obey the orders of the timber boss. The very word ‘boss’ implies that he is to obey. They usually obey the man, if there is a question as to whether ground would stay up or not without a prop or whether it would stay up — whether it is unsafe, I don’t know whether he is supposed to decide any more than the others. He is supposed to decide for that gang, if they take that as final, they have a right to take their own judgment under their employment, if they got judgment to do it. The timber boss is the one that leads them.”

The chief mining captain testified, in part:

“ The duties of a timber boss are to go to secure places that is required to be secured, by taking down, if it is necessary, loose ground, or putting in timbers as required, to make the place secure and safe, whatever may be required, such as stulls or shaft timber or anything like that as regards timber. He has with him sometimes more men than others. Usually the timber boss has six men along with him. * * * There are no orders given in reference to working under loose ground. The general understanding throughout the mine is, the men working under ground, they are to look out for themselves, not to work under loose ground. If there is any loose ground, they are to take it down. It doesn’t make any difference whether it is the timber boss or men working with the timber boss; they are all supposed to take it down. I have never seen it the duty of the timber boss to work his men under loose ground. He has no authority to discharge his men. It is supposed him and the men with him are to be satisfied in regard to it that the thing’s all right. Generally it is the duty of each man in the gang. It is their duty, if they should see anything that was wrong, to report it, or otherwise go and secure it, or whatever there is to be done.”

Cross-examination by Mr. O’Brien:

“ The men would report it to the timber boss generally, and then the timber boss would give the orders what to do about it. If he, after looking it over, determined it was safe and told them to go to work, generally they would go to work; that is, usually they would have to defer to his judgment in that matter. That is not exactly expected of them by the company. He is liable to make a mistake in his judgment as well as the workmen in any fact. The workman is probably ordinarily supposed to defer to his superior. If he called the attention of the timber boss to a piece of rock that is loose, and the timber boss, after looking at it, says go ahead and cut your hitch, they are supposed to obey and take his judgment on it. That’s necessary in one sense; but then again the timber boss isn’t infallible. He don’t know everything. But he is put in the place of timber boss because he is a man of larger judgment and experience than the men under him. Men are promoted on account of their judgment and experience. We generally pick out good men for that class of work. And, when he is put in there, he has authority to tell the men what to do; but he might not order it right. He is supposed to do the ordering, and they are supposed to do the obeying. Of course, if he told one of them to jump in the shaft, I don’t know that they would have to obey it; but anything in the scope of that, as a piece of hanging wall that might or might not be loose, it would probably be his judgment that would be taken; but if I was a workman, and I supposed there was a piece of ground unsafe, and I reported to him, and he says he thought it was safe, why I should probably use his judgment ; but I would be satisfied for myself because he was liable to make mistakes the same as I; but, in any event, the workmen are supposed to obey the orders of the superiors, so that the ordinary work can be carried out with reasonable promptness. He may be wrong, but discipline requires that they shall obey him.”

It is the claim of defendant that the case is controlled by the cases of Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505), and Karppinen v. Mining Co., 154 Mich. 528 (118 N. W. 1118); Erickson v. Mining Co., 130 Mich. 476 (90 N. W. 291); Quincy Mining Co. v. Kitts, 42 Mich. 34 (3 N. W. 240).

The plaintiff insists the case is easily distinguishable from those cases. The argument is (we quote from the brief):

“Counsel seems to have the idea that the cleaning off of this hanging wall was done for the purpose of preparing it for a set of timber. The record does not support this claim. The only purpose of removing this rock from the hanging was to make the place where the timber gang was working reasonably safe. If there was any question about that, it was a question for the jury. It is evident that the timber boss did not believe that, for the purpose of timbering, it was necessary to remove the piece of rock that fell down, because this rock was directly and vertically above the place where the plaintiff was cutting the hitch; whereas, the head of the piece of timber would rest against the hanging, at a point somewhere below this place. * * * The case of Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505), is therefore not in point. There the place where the men were working ‘ was an incident of mining. It was the result of the common work of the miner and the trammer, both, whose labor combined to make it.’ Here the place was already prepared by the miners. The level had been completed. It had been widened out, not merely up to the point where the timber-men were working, but way beyond. The track was laid, and the timbermen were sent there to put in some timber which would hold the rock, which the miners would blast, in working up from the level in stoping out the ground. So that the timbermen came to a place that was already prepared. As they would work under the hanging wall for some time, in cutting their hitches, and in putting in their timber, it was necessary, and was a reasonable precaution, to test and examine the wall, so that, while they were doing this very work of timbering, the place would be reasonably safe. Now, as the timber boss, according to plaintiff’s testimony, had the authority to determine what should be done with relation to making this place seasonably safe, he was for that very purpose a vice-principal. In taking down this loose rock he was simply making the place of his men secure. * * *
“We contend that the facts in the case at bar bring it squarely within the principle applied in Andrews v. Mining Co., 114 Mich. 375 (72 N. W. 242), where it is held that:
“ ‘ A mining corporation is liable for the death of a miner killed by falling rock in the course of his employment as a “hitch cutter,” where it put him at work in an excavation wherein the walls were unsupported by stull timbers, notwithstanding there was room for two or three sets of such supports as they are commonly placed, without informing him of the fact, which it well knew, but of which he was ignorant, that the walls of the excavation had been left unsupported since the preceding day, and that the character of the walls was such that those which appeared perfectly safe were liable, if left for that length of time without support, to break suddenly and fall.’
“ We contend that the facts in that case were not as strong for the plaintiff as they are in the case at bar. In the Andrews Case it was established by the evidence that:
“ ‘Under the method adopted by the defendant company, these hitch cutters were required in all cases to examine all places where they might go to work, and see and satisfy themselves that such places were safe, before beginning their work, and they were frequently cautioned and warned as to this duty, and that they must never, under any circumstances, work under overhanging ground without first examining it, and being satisfied that it was all right, and, if found dangerous, to make or have it made safe; and they were allowed to take all the time and have all the assistance necessary for that purpose, .and they understood and knew that no one would go ahead of them for that purpose, but that that was one of their particular duties.’
“In the case at bar, however, while it is true, as we have indicated; that no one would go ahead of the timber-men, yet it is also true that the timber boss was required by the custom of the mine to use all reasonable endeavors, such as inspection and examination of the place, and the barring down of the loose ground before permitting his men to go to work. In the Andrews Case it was shown that Andrews and his partner tried that particular piece of ground that fell upon him, but could make no impression on it. They had been trying to get it down. In the case-at bar, however, it is uncontradicted that the plaintiff did not examine his place of work, for the reason that he was not able to judge whether the hanging wall was safe or not. The boss said the place was safe, and ordered the plaintiff to start to work, and he depended upon the boss.
“‘Where a mining corporation contracting for the removal of ore reserves to itself such arrangements as are necessary for the protection of workmen, it is liable for' such injuries as happen to employes of the contractors without the fault of the employés. Lake Superior Iron Co. v. Erickson, 39 Mich. 492 (33 Am. Rep. 423).

“The court says:

“‘They testified, and the jury must have believed them, that the company reserved the power of determining when and where dangerous rock in the wall should be removed, if requiring removal by blasting, and of locating the supporting pillars or placing timbers to prop the wall. Such timbering would be expensive, and is not provided for by the contracts which are confined to rock and ore blasting and removal. Either the mine must be unguarded, or else, on this state of facts, the company must guard it.’ Lake Superior Iron Co. v. Erickson, supra.
“So, in the case at bar, the company, through its timber boss, determined to what extent loose rock would be removed from the hanging wall. The timber boss was placed in authority over the plaintiff. The plaintiff was required to defer to the judgment of the timber boss. It would be unfair now to say that the defendant is not liable for the failure on the part of the timber boss to discharge this particular duty of taking the necessary precautions to make the place safe.”

The evidence discloses that the stulls were put in, not for the purpose of sustaining the hanging wall, but for the purpose of putting back of the stulls lagging which should sustain the ore as it was broken down in the stope until the ore should be loaded in the cars which were run over the rails shown in the blueprint.

In the brief of counsel for defendant it is said:

“The place where the plaintiff was injured was one of the safest in defendant’s mine, being solid rock above from there to surface.”

The record discloses that both hanging wall and foot wall were of solid rock, and that the stoping was done to remove all of the vein between these walls.

We think the case distinguishable from the cases cited by defendant, and that it is within the cases cited by the plaintiff, a line of cases represented by Johnson v. Spear, 76 Mich. 139 (42 N. W. 1092, 15 Am. St. Rep. 298); Van Dusen v. Letellier, 78 Mich. 492 (44 N. W. 572); Brown v. Gilchrist, 80 Mich. 56 (45 N. W. 82, 20 Am. St. Rep. 496); McDonald v. Railroad Co., 132 Mich. 377 (93 N. W. 1041, 102 Am. St. Rep. 426); Charron v. Carbide Co., 151 Mich. 687 (115 N. W. 718); and Rowden v. Mining Co., 136 Mo. App. 376 (117 S. W. 695).

We also think the testimony which we have quoted justified the charge as given by the circuit judge.

Judgment is affirmed.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


author: Blair, J.

text:
    STEYSKAL v. RADFORD.
    Quieting Title — Injunction — Real Property — Mortgages — Foreclosure.
    On demurrer, a bill to quiet title sufficiently averred a cloud on complainant’s title, by charging that defendant holds a second mortgage on premises purchased by complainants from the first mortgagor after a valid foreclosure, whereby defendant’s incumbrance was cut off, and after the expiration of the time for redemption, that defendant has threatened to take proceedings to foreclose his second mortgage and that prospective purchasers have refused to purchase land on account of the cloud so created.
    Appeal from Wayne; Rohnert, J.
    Submitted February 6, 1911.
    (Docket No. 115.)
    Decided March 31, 1911.
    Rehearing denied September 29, 1911.
    Bill by Mathias Steyskal against George W. Radford, James Ronald, and Jennie H. Massey to remove a cloud from complainant’s title to certain real property. From an order overruling a demurrer, defendant Radford appeals.
    Affirmed.

      Wilkinson & Younglove, for complainant.

      Samuel P. Bradley, for defendant Radford.
   Blair, J.

This is an appeal from an order overruling the demurrer of defendant Radford.

The bill alleges that on February 1, 1893, John Huían, the owner in fee, deeded certain premises to Lawrence Schnell, taking back from said Schnell a purchase-money mortgage for 112,000; that on February 6, 1893, Schnell conveyed the premises to defendant Radford, subject to the said purchase-money mortgage, and on the same day Rad-ford conveyed the premises to defendants Ronald and Massey, subject to that mortgage, taking from them a second mortgage upon the premises; that Huían foreclosed his mortgage by advertisement and received a sheriff’s deed January 10,1895; that all of the proceedings for foreclosure were regular, the time for redemption expired, and Huían became the absolute owner of the premises; that Huían conveyed the premises to complainant Steyskal November 30, 1909.

The fifth and sixth paragraphs of the bill are as follows:

' ‘Fifth. And your orator further shows that said deeds and mortgages hereinbefore set forth, viz., from Lawrence Schnell to George W. Radford and from said Rad-ford to James Ronald and Jennie H. Massey, and the mortgage from James Ronald and Jennie H. Massey to the said George W. Radford, constitute a cloud upon the title of your orator, and that certain persons have refused to purchase said land on account of said clouds, and that your orator desires said clouds removed by an order of this court so that he may be in a position to sell said land without the title thereof being refused on account of said deeds and mortgages last above enumerated.
“Sixth. And your orator further shows that the said George W. Radford has threatened to take proceedings to foreclose his mortgage, which proceedings would necessitate the filing of lis pendens against the property of your orator and further complicating and clouding the title thereof, and that the chain of title to your orator’s property will thereby become greatly embarrassed.”

The prayer for relief contains the following:

“(2) That the said George W. Radford may be restrained by an order of this court from taking proceedings to foreclose his said mortgage or to further complicate the title of your orator’s property.”

Defendant Radford demurred for the following reasons:

“(1) Because no facts are stated in said bill entitling said complainant to any relief whatever against the defendants.
" (2) Because it is alleged in and by said bill of complaint that all of the conveyances, deeds, and mortgages complained of therein were inferior and junior incumbrances and expressly subject to the superior title of the complainant and in no wise affect said complainant’s title.
" (3 ) Because it is not shown in and by said bill that any of the said mortgages referred to therein have been discharged or the indebtedness thereby secured paid.
“ (4) Because it is shown in and by said bill of complaint that neither of said conveyances, deeds, or mortgages constitutes a cloud upon complainant’s title.”

The bill of complaint is carelessly drawn; but, in view of the averments of paragraph 6, we are inclined to hold, although with some misgivings, that it brings the case within the principle of Flint Land Co. v. Fochtman, 140 Mich. 341 (103 N. W. 813).

The order is affirmed, with leave to answer in accordance with the rules and practice of the court.

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