text:
    HIGHWAY COMMISSIONER OF ECORSE TOWNSHIP v. WABASH RAILROAD CO.
    Railroads — Crossing Highways — Yards—Use op Highway.
    Section 6234, 2 Comp. Laws, subd. 5, as amended by Act No. 266, Pub. Acts 1899, does not confer upon a railroad company the right to occupy with its yards, as distinguished from its main tract and necessary sidings, any portion of a public highway without consent of the highway commissioner.
    Appeal from Wayne; Rohnert, J.
    Submitted April 11, 1907.
    (Docket No. 61.)
    Decided May 18, 1907.
    Bill by Mathias Raupp, Jr., highway commissioner of Ecorse township, against the Wabash Railroad Company to enjoin the construction of certain tracks across a highway. From a decree for complainant, defendant appeals.
    Affirmed.

      Bowen, Douglas, Whiting & Murfin, for complainant.

      Rufus G. Lathrop (Alex. L. Smith, of counsel), for defendant.
   Blair, J.

The material facts in this case are not in dispute. At the time of the commencement of the suit the defendant was operating two of its main line tracks and a siding across a highway in Said township, known as the “ South Dearborn Road,” running in a southeasterly direction. The company had recently purchased a large tract of land in the township of Ecorse for the purpose of enlarging its Oakwood yard, which is its principal yard in the city of Detroit, and had theretofore termi-. nated just east of said highway. It was the intention of defendant to extend its yard across the highway, and for that purpose it had constructed 12 additional tracks on each side thereof, and was about to connect these tracks when the highway commissioner filed this bill of complaint to enjoin the construction of such additional tracks across the highway. The superintendent of defendant’s Detroit division testified:

This yard is about a mile long. The South Dearborn road intersects it in the middle, just about. After our improvement is made, there will be a total of 15 tracks across the South Dearborn road — the 3 present tracks and 12 additional ones which we purpose to complete. One end of the yard will be for west-bound cars and the other for the east-bound.”

The question presented by the pleadings and proofs is whether the right to construct these additional tracks, occupying about 200 feet of the highway, for yard purposes, is conferred by the fifth paragraph of section 6234, 2 Comp. Laws, as amended by-.Act No. 266, Pub. Acts 1899, without the consent of the highway commissioner. The circuit judge held that the statute did not confer such right, and entered a decree enjoining such construction, from which defendant appeals to this court.

We agree with the conclusion reached by the circuit judge. The authority conferred upon the corporation “to construct its road upon or across ” a highway relates to its main line tracks and the necessary side tracks for purposes of transporting passengers and freight. The word “road” is used in this paragraph in the limited sense in which it is used in paragraph 4, ás “ not exceeding one hundred feet in width,” and not in the general sense contended for by defendant, as including “the right to construct, not only the main line, but switches, sidings, turnouts, yards, depot buildings, roundhouses and other appendages, which are as necessary to the operation of a railroad as its main line.” It is not necessary to construe the word “road” so broadly as claimed, since other paragraphs expressly provide for obtaining the necessary lands, franchises, appurtenances, and facilities for the proper operation of the road. We think it clear, from a consideration of the provisions of the different paragraphs of the section in question, that it was not the intention of the legislature to confer upon railroad corporations the unrestrained power to make the public highways of the State a part of their extensive switching yards. The right of public travel over the street or highway is carefully preserved, and the railway corporation is required to restore it to its former state as near as may be, and is prohibited from obstructing it by cars or trains for more than five minutes at any one time, and the railroad commissioner is given authority to cause the removal of switches by the use of which “ the use of the public highway or street is materially obstructed, impeded, or delayed.” These provisions are inconsistent with the view that the word “ road ” was used in its most general signification, as argued by defendant’s counsel.

The provisions of chapter 102 of the Compiled Laws of 1891 with reference to the separation of grades also support the view here expressed as to the sense in which the legislature used the word “road” in paragraph 5 of the section in question. See, also, section 31, Act No. 266, Pub. Acts 1899. The statute contemplates that ordinary street and highway crossings may be made by railway corporations without regard to the wishes of 4he public or its representatives, but that any other use of the highway for its tracks “shall be on such terms and conditions as shall be agreed upon between the railroad company and the common council of any city or the village board of any village or the commissioners of highway of any township in which the same may be.” Whether the effect of this statute is to make the consent of the officials mentioned a condition precedent to the right to construct tracks in the streets and highways other than for crossing purposes (see Fort St. Union Depot Co. v. State Railroad-Crossing Board, 81 Mich. 248; City of Monroe v. Railway 143 Mich. 315), or whether the refusal of such authorities to consent may be reviewed by the courts, or the corporation may institute condemnation proceedings, are questions which are not presented by this record, and we therefore decline to consider them.

The decree is affirmed, with costs to complainant, but without prejudice to such other proceedings for acquiring the right to extend its yard as defendant may lawfully take.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    STOWELL v. AMES.
    1. Money Received — Payments—Recovery — Evidence — Admissibility.
    Plaintiff sold at auction a one-half interest in certain standing wheat which defendant hid in at a certain price per acre and paid for. Subsequently plaintiff, believing defendant ■ had mistakenly paid him for the entire of the wheat, repaid him half the amount paid, and later brought suit for the amount so repaid on the ground that there was no mistake, and that defendant originally paid only for the half interest he bought. Held, that defendant was entitled to show that he supposed when he made his bid he was buying the entire, and not the half, interest in the wheat.
    2. Compromise and Settlement — Evidence-^Sueeioiency.
    In an action to recover money paid to defendant in the mistaken belief that defendant had overpaid plaintiff for a half interest in certain wheat bought at auction, evidence examined, and held, that it could not be said, as a matter of law, that there was no evidence from which an intelligent accommodation of differences at the time of the repayment could be found.
    3., Auctions — Contract—Validity—Meeting of Minds.
    In an action to recover money paid to defendant in the mistaken belief that defendant had overpaid plaintiff for a half interest in certain wheat bought at auction, evidence examined, and held, that it could not be said, as a matter of law, that defendant did not suppose he was buying the entire interest in the wheat, and that an instruction was therefore not erroneous that permitted the jury to find that there was no sale because of the failure of minds to meet.
    4. Appeal and Error — Reversal—Weight of Evidence.
    Where, in an action to recover money paid to defendant in the mistaken belief that defendant had overpaid plaintiff for a half interest in certain wheat bought at auction, the evidence is convincing that defendant knew what interest he was buying, that plaintiff in returning the money was not mistaken about either the price bid per acre or the interest sold, but about the proper mathematical calculation of what should be paid for it, and the evidence of anything in the nature of a compromise of any differences at the time of the repayment is meager, and that of a miscarriage of justice is strong, the decision of the trial court denying a new trial will be overruled, the judgment reversed, and a new trial ordered.
    Error to Ingham; Wiest, J.
    Submitted April 12, 1907.
    (Docket No. 70.)
    Decided May 18, 1907.
    Assumpsit by William G. Stowell against Frank Ames for money had and received. There was judgment for defendant, and plaintiff brings error.
    Reversed.
    Plaintiff advertised to sell, and did sell, certain property at auction, the printed notices describing, among other things to be sold, “ one-half interest in 20 acres of wheat on adjoining farms.” Plaintiff .had put in 10 acres of wheat on the farm of Mr. A. and 10 acres on the farm of Mr. F. The sale took place March 17, 1904, and was conducted by an auctioneer, who stated that th¿ purchaser was to have one-half the wheat and one-half the straw and do all the work. When the wheat on the farm of A. was offered, and after some bids had been made, defendant bid for it $4 an acre and it was struck off to him. Immediately thereafter the other piece of wheat was put up, and was struck off to defendant for $4.10 an acre. He also bought a binder and a drag, and later he paid to a properly designated person $100, stating that $81 of it was to pay for the wheat. This money was handed over to plaintiff, who later repaid a part of it to defendant, and now sues to recover the sum so repaid. It is the claim of plaintiff that after he received the money he thought the defendant had overpaid him; that he stepped to the telephone and informed defendant’s wife that defendant had* made a mistake, and; the next day, meeting defendant, told him that he had overpaid him, and thereupon repaid him $40.50; that as matter of fact he, plaintiff, was not mistaken, but was confused; that he should not have repaid the money; that such payment was a mistake. On the part of defendant it is claimed that he did not read the auction bills, was not within hearing when the wheat was first put up; that he supposed the whole of the wheat was being sold, and upon that theory made his bids; and that when he paid for it he supposed he had bought 20 acres of wheat instead of a half interest in 20 acres. A week or so after the plaintiff had repaid the money to the defendant he went to defendant and demanded his money, which defendant refused to pay.
    The jury were instructed that if defendant bid $81 for a one-half interest in 20 acres of growing wheat the verdict should be for plaintiff. They were told that, if defendant, in making his bids, ünderstood that he was bidding for the entire interest in 20 acres of growing wheat, then the minds of the parties never met and there was no sale. They were not advised concerning the verdict they should, in such a case, return, if they found there was no adjustment of the matter. They were also further told:
    “If you find, from the evidence in the case, that the defendant bid on the wheat as a whole, on the 20 acres of wheat as a whole, believing that that was what was put up by the auctioneer for sale, and that that was what he was bidding on, and that the plaintiff came to him later on, after he had paid the $81 to the party in Lansing, and explained to him that only one-half of the wheat had been sold to him, and that thereupon defendant made a request for a return of one-half of the money he had paid, and that plaintiff acceded to the request because he conceded it to be right that one-half should be returned, then that was a demand made by the defendant upon the plaintiff, and if the plaintiff conceded the demand was right and under the circumstances he had paid twice as much as he should pay, and both parties understood the situation fully, then that was a settlement of the matter between them, and ends the case; because parties may get together, if there is a misunderstanding or dispute or a disagreement about the matter between them, they may get together and adjust their matters, and if they do so with full knowledge of the affairs they are adjusting, and of their rights, such settlement is final. If the parties, on the day that the $40.50 was returned to the defendant, agreed that there had been a mistake at the sale, agreed that defendant had only purchased one-half of the wheat, and that the defendant understood he had purchased the whole of it, and therefore that defendant should have returned to him one-half of what he had paid for the wheat, and upon that kind of an agreement between them the plaintiff returned $40.50 that ends the case. * * *
    “ Did the mind of this defendant at that sale comprehend what was being sold ? Did he know what he was bidding on ? If he bid on that wheat on a half interest in 20 acres of growing wheat, then he must pay for it. Now, if he did not understand it, or, in other words, if he understood that he was bidding on the whole 20 acres of wheat, and later on, when the parties met in this city, and the plaintiff said to him, ‘ You only bought a half interest in the wheat, and as I figure the matter you have paid twice too much,’ and they talked their matters over, and both fully understood all there was to it, understood their rights, understood what he had bid upon, and, understanding all those things, agreed between themselves that the plaintiff should pay back the $40.50, and paid defendant $40.50, that ends the case, and the plaintiff has had all he is entitled to. * * *
    “ It is claimed on this trial by defendant that at the time the money was paid back to him there was a compromise of the matter between the parties. I charge you that, in order to find for the defendant on the theory of a compromise, you must first find from the evidence that the plaintiff [defendant] made a.claim in good faith; that he had bought all of the wheat instead of a half interest, and that he was not obliged, under that bid, as he understood it, and understood his rights, to pay to the plaintiff anything further than $40.50; and that plaintiff at that time, because of such claim made by the defendant, acceded thereto, and conceded defendant was right, and voluntarily paid the money back to the defendant as a final adjustment of the questions between them.”
    There was a verdict for defendant. A new trial was moved for and refused. The substance of all the evidence given or offered is returned.
    It is contended for appellant (1) that there was no evidence warranting the court in submitting the question of compromise to the jury; (2) there was no competent evidence that defendant misunderstood what he bought at the sale; (3) the court should have granted a new trial because the verdict was against the weight of evidence; and (4) that the court erred in refusing to give to the jury plaintiff’s second request to charge, which was:
    “The defendant, bidding at a public auction sale, where the announcement was publicly made of what was to be sold, is presumed to have had knowledge of the interest he was buying for the amount that he bid.”

      Black, Beasoner & Hayden (P. H. Dolan, of counsel), for appellant.

      L. B. Gardner, for appellee.
   Ostrander, J.

(after stating the facts). If defendant was claiming, in a direct proceeding to enforce his bid, or in one brought by him to recover back money he had paid, that the bid was made under a misunderstanding for which neither the owner nor the auctioneer were responsible, we should be obliged to consider whether the matter was open to him. Vanleer v. Fain, 6 Humph. (Tenn.) 104. But this is not such a case. Plaintiff voluntarily repaid to defendant money, with the idea, mistaken or otherwise, that defendant had by mistake paid him, plaintiff, too much. He now seeks to recover back the money upon the theory that he was mistaken in supposing that defendant had overpaid him. If, in fact, defendant had misapprehended what he was buying, it was very proper for plaintiff to offer to rescind the sale, or, if he did not care to do that, to repay him his money; the inference being that defendant had paid too much. If, in fact, there was no misunderstanding on the part of defendant, he should have refused the money. He obtained it fraudulently, and should now refund it. We are therefore of opinion that the testimony of defendant that he supposed he was buying the entire, and not a half, interest in the wheat, was properly admitted. For the same reasons the refusal to charge the jury as requested by defendant was not error.

A brief reference to some of the testimony will aid us here. It is not disputed that plaintiff owned only a half interest in the wheat, and that the handbills and the auctioneer so announced. No deception was practiced. Defendant knew the wheat was grown on land not belonging to plaintiff. The bids for the first piece proceeded with raises of five cents an acre, and, defendant says, had reached “ pretty near up to $4 when I went out there. * * * I think I made about three bids, but it was not more than three.” No one else misunderstood what interest was being sold. The first piece having been struck off to defendant, the second piece was immediately offered, and that he bid in at $4.10 an acre. ' A deposit was made as required by the terms of sale. Later he went with Mr. Fry, who owned the land upon which was the wheat last sold, and with his aid measured the wheat on both parcels; Mr. Atwood, who owned the other piece of land, being with them some .of the time. Defendant testified: “ When we went back, we were figuring up on a shingle, as we walked back down the road.” As a result defendant paid $81 for this wheat. He says he supposed he was buying the entire interest in the wheat, that he was not otherwise informed, and that he made no inquiry of plaintiff, the auctioneer, or the land owners, concerning the interest he was buying. That defendant did not, by a bid of five cents an acre above those who were bidding for a half interest in the wheat, acquire the entire interest fairly may not be disputed. That plaintiff in returning the money to defendant was confused about the mathematics of the transaction seems clear. He testified that defendant never claimed he supposed he had bought all of the wheat until he gave his testimony in justice’s court. And defendant’s testimony is, in part, that upon plaintiff telling him that a mistake had been made he replied, and made no other claim in relation to it, “Well, if it is as you say, I am entitled to half the money back. ” We cannot say, however, as matter of law, that defendant did not suppose he was buying the entire interest. And after a careful reading of the record we are unable to say there was no testimony tending to prove an intelligent accommodation upon the basis of defendant’s claim. That defendant offered, after the money was repaid to him, to annul the sale, and that he offered to pay back one-half of the $41, and that these offers were refused by plaintiff, is undisputed. No criticism is made of the paragraph of the charge last above quoted. The charge permits the jury to find an accommodation, if they also find a good-faith claim of defendant assented to by defendant.

The fifth assignment of error relates to a portion of the charge referred to in the foregoing statement of facts in which the court advised the jury that if defendant understood he was purchasing the entire of the wheat, there was no valid sale. It is said in the main brief for appellant that this could only have confused the jury, and in the reply brief that it permitted the jury 'to find there was no sale because of the failure of minds to meet. As we understand the objection, it is disposed of by what has been said.

We have thus answered, against the precise claims presented, all of the contentions of appellant save one. Should the verdict have been set aside and a new trial granted ? The amount involved is very small, and this fact might to some extent affect judicial discretion. But the evidence is so convincing that defendant knew what interest he was buying in the wheat, and it is so clear that plaintiff in returning the money to defendant was not mistaken about either the price bid per acre or the interest sold, but about the proper mathematical calculation of what should be paid for it, the evidence of anything in the nature of a compromise of any differences is so meager, and that of a miscarriage of justice so strong, we are constrained to overrule the decision of the trial court, reverse the judgment, and order a new trial.

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


author: Blair, J.

text:
    SCRIBNER v. MALINOWSKI.
    1. Mortgages — Assignment to Mortgagor — Discharge oe Mortgage.
    A husband and wife executed a mortgage to secure the husband’s note. Subsequently the husband quitclaimed his interest in the mortgaged premises to his wife, and afterwards they both executed another mortgage to the same persons to secure another note of the husband. The two mortgages were assigned to the husband upon payment of the principal and interest due, with the understanding that the assignor would return the money to the husband on the mortgages if he so desired. Afterwards the husband reassigned the mortgages to his assignor, and had his money returned according to agreement. The husband did not intend to discharge the mortgages. Held, that the payment and taking of the assignment by the husband did not discharge the first mortgage, since as between hirh and his wife he was under no obligation to pay the debt, but had a right to purchase the mortgage and compel the land to discharge the mortgage indebtedness.
    2. Same.
    As the wife by virtue of the quitclaim deed was the owner of the property when the second mortgage was executed, she mortgaged her separate property to secure the payment of her husband’s debt, their position being that of principal and surety, with the primary obligation resting upon the husband to pay the mortgage, and his payment of the amount due on it discharged the mortgage.
    Appeal from Kent; Perkins, J.
    Submitted April 12, 1907.
    (Docket No. 68.)
    Decided May 18, 1907.
    Bill by Nested B. Scribner against Jan Malinowski and others to foreclose certain mortgages. From a decree for complainant, defendants appeal.
    Modified and affirmed.

      Q. A. Wolf, for complainant.

      Thompson & Temple, for defendants.
   Blair, J.

Complainant filed the bill of complaint in this case to foreclose two mortgages of which he was the owner by assignment. The first mortgage was executed July 3, 1888, by the defendant Jan Malinowski and Florentyna, his wife, to secure the payment of a note for $700, of even date, given by Malinowski to M. G. and R. P. Clapp, payable, with interest at 7 per cent., July 3, 1892. The second mortgage was executed September 13, 1888, by and to the same parties, to secure payment of a note by Malinowski for $100, payable, with interest at 7 per cent., July 3, 1892. Prior to the execution of the second note and mortgage, and on July 30, 1888, Malinowski executed a quitclaim deed of the mortgaged property to his wife, Florentyna, for an expressed consideration of $700. Florentyna died September 14, 1892, leaving five children, one of whom has since died. The four surviving children, three of whom were minors, were joined with Jan Malinowski as defendants.

The two mortgages were on August 20, 1900, assigned by the Clapps to Andreas Koch, with a covenant that there was then due thereon $450 and interest from July 3, 1900. On January 2, 1903, Malinowski paid to Koch the principal and interest due on the mortgages, with the understanding that Koch would return the money to him on the mortgages, if he so desired, and Koch assigned the mortgages to Malinowski, with a covenant that there was $450 due thereon. On September 26, 1903, Malinowski assigned the mortgages to Koch with the same covenant, and Koch paid him $450. On January 19, 1905, Koch assigned the mortgages to the complainant, with a covenant that there was due thereon “four hundred and fifty dollars and intérest from March 26, 1904.”

The only question in the case which requires consideration is whether the effect of the transaction between Malinowski and Koch was to discharge the mortgages as a matter of law. We are satisfied, from the evidence and from the form of the transaction, that Malinowski did not intend to discharge the mortgages, and that the payment by him and taking the.assignment did not discharge the first mortgage. The effect of the quitclaim deed was to convey the mortgaged premises to Florentyna, subject to the mortgage. As between him and his wife, Malinowski was under no obligation to pay the debt, and, in order to protect himself against being required to pay it, he had a right to purchase the mortgage and compel the land to discharge the mortgage indebtedness.

“ When the estate was sold subject to the mortgage, the mortgage was left as a primary charge upon the land, although the grantee did not make herself personally liable for it by assuming it. The grantor, who was the maker of the mortgage note, was entitled to have the mortgaged property applied in payment of it. To protect her own interests, she might take an assignment of the mortgage and the debt, and enforce the mortgage by a foreclosure as effectually as if she was not the maker of the note.” Pratt v. Buckley, 175 Mass. 115.

As to the $100 mortgage, the situation is radically different. Mrs. Malinowski did not take the premises subject to this mortgage. • At the time this mortgage was executed she was the owner of the property, and mortgaged her separate property to secure the payment of her husband’s debt. As between her and her husband, he occupied the position of principal and she that of a surety. The mortgage was not the primary fund as between them; but the primary obligation rested upon the husband. It was the legal duty, therefore, of the husband to pay this mortgage, and his payment of the amount due upon it must be held to have discharged the mortgage ás a matter of law. The interest paid by Malinowski prior to the sale to complainant cannot avail complainant, since he can only recover upon what he purchased and seeks to enforce in his bill of complaint.

The minority of part of the defendants has no relevancy to any of the questions presented by this record. Complainant is entitled to a decree of foreclosure of the mortgage of July 3, 1888, upon which there is due the sum of $350 for principal and interest at 7. per cent, from March 26, 1904.

The decree will be modified as above indicated, and, as so modified, is affirmed, with costs of this court to defendants,

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


author: Grant, J.

text:
    O’CONNOR v. GOTTSCHALK.
    Taxation — Tax Sales — Redemption—Mistake of Register in Chancery — Effect on Title.
    Where the owner of the original title to land, on receipt of the notice to redeem from a tax sale, in good faith deposits with the register in chancery the amount which the register informs him is necessary for that purpose, there is a sufficient compliance with the statute to entitle the owner to a reconveyance.
    Error to Macomb; Erskine, J.
    Submitted April 12, 1907.
    (Docket No. 67.)
    Decided May 18, 1907.
    Ejectment by Ada H. O’Connor, special administratrix of the estate of William O’Connor, deceased, against Otto Gottschalk and another. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Affirmed.
    This is an action of ejectment to recover possession of 40 acres of land located in Macomb county. Plaintiff’s title is based upon a tax deed issued by the auditor general to William O’Connor May 25, 1903, for taxes assessed for the year 1899. Mr. O’Connor brought the suit in his lifetime. Upon his death plaintiff was substituted as special administratrix. The record in the office of the register of deeds showed that one Edwin Jerome was the last grantee of the original title. Mr. O’Connor finally ascertained that he was dead, and that he left two sons, named Frank and Edwin, residing in Detroit. Proper notice was served on them under section 140 of the general tax laws (1 Comp. Laws, § 3959), by which they were entitled to a reconveyance of the land upon paying to Mr. O’Connor the amounts specified by the statute. They attempted to comply, and paid to the register in chancery of the county the full amount which the register informed them was due, to wit, $101.96, being twice the amount of the taxes due, $5 for the description and $2.20 for the sheriff’s fees in making service upon them.
    There was an outstanding mortgage upon the property in which James W. Daley was the mortgagee. He could not be found, and thereupon, after filing return of the sheriff that he was unable to find Mr. Daley or ascertain his whereabouts or post-office address, Mr. O’Connor caused the notice to be published in a newspaper in the county of Macomb; the first publication being November 13th, and the last January 1st following. The affidavit of this publication was made by the publisher and filed with the register in chancery. The affidavit stated that—

      “ The inclosed printed notice has been duly published in said paper at least once in each week for four successive weeks, and that the first publication thereof was on the 13th day of November, 1903, and the last publication was on the 1st day of January, 1904.”
    For some reason, about two weeks after the first publication, Mr. O’Connor caused a second return by the sheriff of his inability to ascertain the residence or post-office address of Mr. Daley. In fact, Mr. Daley was dead. Frank and Edwin had no notice or knowledge of this publication. Frank went to the office of the register in chancery, inquired of the register the amount due, and was informed by said register that the three items were all the charges against the land. The register duly notified Mr. O’Connor of the deposit of the money with him, but O’Connor declined to accept it. He waited until the expiration of the six months and then instituted this suit. The defendants are the lessees of the Jeromes. The court directed a verdict for the defendants.

      Albert McClatchey, for appellant.

      James D. Jerome (Ignatius J. Salliotte, of counsel), for appellees.
   Grant, J.

(after stating the facts). No attack is made upon the validity of the tax deed to O’Connor. The sole question is: Did Frank and Edwin Jerome comply with the statute so as to entitle them to a reconveyance from O’Connor ? The judgment of the court must be sustained.

The statute authorizes the register in chancery, to whom the returns of the sheriff must be made, and who is the custodian of the papers showing the amounts required to be paid, to receive the money from the original owner for the tax title owner. It also requires the register to at once notify the original owner of the deposit of the money with him. The owners of the original title in this case acted in good faith. They went to the proper officer in the proper office, asked for the amount due, relied upon the statement of the register, and paid it. Unless the owner in every case is required by the law to himself personally examine these documents, and ascertain the exact amount, the owners in this case complied with the law. Suppose the owner is blind, or his sight is so dim that he cannot see to read, or that he cannot read at all, is he obliged to employ some person to go with him to examine the papers ? We think not. When in good faith the owner has relied upon the statement of the register, who has the papers in his custody, he is justified in so doing. This case is ruled by Clippinger v. Auditor General, 135 Mich. 1. There the auditor general made the mistake. In this case the register in chancery made it. If the record showed the proper fees for the four publications, the owners should- be compelled to pay it. .

Judgment affirmed.

McAlvay; C. J., and Carpenter, Blair, and Ostrander, JJ., concurred.


author: Montgomery, J.

text:
    HALE v. MICHIGAN FARMERS’ MUTUAL FIRE-INSURANCE CO. OF ST. CLAIR AND SANILAC COUNTIES.
    Fire Insurance — Mutual Companies — Premium Note — Nonpayment — Eppect—Estoppel.
    Where, at the time of becoming a member of a mutual fire-insurance company and receiving a policy, plaintiff signed a note for the premium which provided that if it were not paid at a certain time the policy should become and remain void until the note should be paid, plaintiff is estopped to contend that the taking of the note was ultra vires, and that his failure to pay it did not avoid his policy.
    Error to Sanilac; Beach, J.
    Submitted April 15,1907.
    (Docket No. 98.)
    Decided May 18, 1907.
    Assumpsit by Dayton Hale against the Michigan Farmers’ Mutual Fire-Insurance Company of St. Clair and Sanilac counties on a policy of insurance. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.
    C. F. Gates, for appellant.

      Avery & Walsh (W. JS. Burgess, of counsel), for appellee.
   Montgomery, J.

This is an action on a policy of insurance. Judgment in favor of defendant was based upon a directed verdict. Plaintiff brings error.

The material facts are that plaintiff made a written application to become a member of defendant company, which application was accepted and a policy of insurance issued. A promissory note of the plaintiff, given on the 27th day of October, 1903, and due on the 1st day of December, 1903, for #11.80, the same being the estimated advance assessments for the period of the policy, namely,three years, was executed at the same time and as a part of ¿he application. The application for insurance and this blank note consisted of one sheet of paper; the note being separate from the application at the time it was received by. the company. At the time this application and note were received and accepted, the defendant company issued to plaintiff its policy of insurance. The application and note were made a part of the contract of insurance by the terms of the policy. This policy insured against loss by fire the dwelling house of plaintiff, household furniture, etc.; the house being insured for $600, and the furniture for $100. On the 2d day of February, 1905, this dwelling and contents were destroyed by fire; the loss on the house being $600, and on the furniture $48.58. Plaintiff by this action now seeks to recover $648.58. The assessment note, given 15 months before the'fire, was not paid at the time of the fire, and is still unpaid. The note had this provision:

“ It is a part of this contract that in case this note be not paid at or before maturity or 30 days after maturity that such policy shall cease and determine and be null and void and so remain until such note shall have been fully paid to said company as provided in said policy.”

Plaintiff at no time offered to pay the note.

If it be assumed that this contract is valid, or has for the purposes of this case binding force, it is clear that plaintiff’s right to recover is defeated by his default. McIntyre v. Insurance Co., 52 Mich. 188; Robinson v. Insurance Co., 76 Mich. 641 (6 L. R. A. 95). Plaintiff does not question the rule of the cases cited, but contends that under the statute ■ under which defendant was organized (2 Comp. Laws, § 7266 et seq.), and under its charter filed with the insurance commissioner, the defendant did not have the right to accept premium notes as advance payment for assessments or otherwise, and it is argued that, as the note was unauthorized, the plaintiff cannot be in default for not paying it. We find it unnecessary to determine whether the statute or the charter are one or either broad enough to authorize the form of contract which the parties attempted to make. It is enough to rule this case to determine, as we do, that the only contract which the plaintiff has is one based upon the consideration of this note. The parties neither of them understood or attempted to make any other. Either the defendant’s engagement had sufficient consideration in the note in the terms employed, or it had none. It is not open to plaintiff to assert that he has a contract in terms which no one contemplated by eliminating the consideration as consisting of an ultra vires engagement. The plaintiff is estopped from making this contention. See Dewey v. Railway Co., 91 Mich. 351, 361; Cahill v. Insurance Co., 2 Doug. (Mich.) 124; Providence Fire & Marine Ins. Co. v. Murphy, 8 R. I. 131; Jones v. Dana, 24 Barb. (N. Y.) 395; Fell v. McHenry, 42 Pa. 41.

The judgment is affirmed.

McAlvay, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.


text:
    CHURCHILL v. MACE.
    1. Savins Questions for Review —Admissibility of Evidence —Grounds of Objection.
    A ruling admitting evidence will not be reviewed, where no ground of objection was pointed out at the trial.
    2. Evidence — Conclusion of Witness — Harmless Error.
    Refusal to strike out an answer of a witness, which is technically objectionable as a conclusion, will not cause reversal when it appears that the subject was fully covered by the testimony of the same witness, showing in detail the circumstances which he thus summarized.
    3. Partnership — Contracts—Evidence—Similar Transactions.
    In an action against a partnership for the price of goods, for which one of the partners gave his own personal note, a writing admittedly relating to partnership business, signed in the same manner as the note, is admissible as.having a tendency to rebut the presumption that the contract in suit was an individual contract of the person signing the note.
    4. Same — Partnership or Individual Contract — Evidence — Sufficiency.
    In an action against a partnership for the price of a team, claimed by the partners to have .been purchased of plaintiff by one of them and by him sold to the partnership, evidence examined, and held, not so clearly in support of defendants’ theory as to require the setting aside of a verdict for plaintiff as against the decided weight of the evidence.
    Error to Oceana; Sessions, J.
    Submitted April 15, 1907.
    (Docket No. 108.)
    Decided May 18, 1907.
    Assumpsit by Charles L. Churchill, administrator of the estate of Alanson Beckwith, deceased, against L. Stowell Mace, Robert H. Lanyon, and John S. Huey, copartners as the Stony Lake Resort Company, for goods sold and delivered.’ There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Wallace Foote, for appellants.

      F. E. Wetmore, for appellee.
   Montgomery, J.

This action was brought in the lifetime of the intestate, Alanson Beckwith. On the first trial defendant had judgment on a verdict directed by the trial judge. On review by this court this judgment was reversed and a new trial directed. Beckwith v. Mace, 140 Mich. 157. The report of our decision on the former hearing sufficiently states the issue and the facts of the case. We there held that there was sufficient testimony to carry the case to the jury upon the question whether Mace, who contracted with the plaintiff (Beckwith), had authority to bind the three defendants as copartners, as well as upon the question whether the contract was, in fact, made on behalf of the firm.

The testimony on the second trial did not vary materially from that given on the first. On the second trial the plaintiff — who had on the death of the plaintiff Beckwith been substituted — recovered a verdict for the full value of the property sold. The defendants moved for a new trial on the ground that the verdict and judgment were against the weight of the evidence. This motion was overruled by the circuit judge, who gave as a reason that there was ample evidence upon which to base the verdict of the jury, and that the verdict was not against the weight of the evidence. Defendants duly excepted to this ruling, and have assigned error upon it. The defendants have also assigned error upon rulings admitting certain testimony over defendants’ objection, and in refusing to strike out the answer to a question propounded to decedent in his deposition taken shortly before his death and since the former trial. We will consider these questions in the order in which they are discussed in the brief of counsel.

The first assignment of error relates to a ruling admitting a portion of the transcript of the evidence taken on the former trial, which consisted of a statement or admission of counsel made on the trial. An objection was made, but no ground of objection whatever appears to have been stated. In this court it is contended that the evidence was incompetent and improper. We have frequently held that an objection made at the trial should point out to the trial judge the ground óf objection, and that, where this is not done, the ruling will not be reviewed. Jourdan v. Patterson, 102 Mich. 602; Mahiat v. Codde, 106 Mich. 387; Benedict v. Provision Co., 115 Mich. 527.

Objection was made to an answer of the witness appearing in his deposition in which he stated that he sold to the copartnership the property, describing it. The objection urged was that this answer was a conclusion of the witness, and not a statement of fact. If this testimony had stood by itself, there might have been force in the objection, but it is followed by the statement of the witness that he dealt with Mace and by a detailed statement of the terms of the negotiation. The jury must have considered this answer as preliminary to the detailed statement, and could not have been prejudiced by the answer. If it be assumed that the answer was technically objectionable, the court should not reverse the judgment when it appears that the subject was fully covered by the testimony of the same witness showing in detail the circumstances which he thus summarized. Grattan v. Village of Williamston, 116 Mich. 462; McKinnon v. Gates, 102 Mich. 618; Rossman v. Bock, 97 Mich. 430.

The defendants’ third assignment of error relates to a ruling clearly within the discretion of the trial judge.

The fourth assignment of error is to the admission of a contract admittedly relating to the copartnership business signed L. S. Mace, as was the note in question in this suit. It is contended that this contract was wholly irrelevant and immaterial. It is true the contract itself had no bearing except as it in connection with the testimony of the witness Barnes tended to show that Mace on occasion signed his own name to firm contracts. This had some tendency to rebut the presumption that the contract in question was an individual contract because it was signed in the same manner.

The only remaining question is: Was the verdict so clearly opposed to the decided weight of the evidence as to require us to overrule the circuit judge’s decision refusing a new trial ? It is strenuously insisted that a grave injustice has been done the defendants; that the evidence is so overwhelmingly in favor of defendants that the conclusion cannot be escaped that the jury were influenced by something other than the testimony. If satisfied that the record presents such a case, our duty to set aside the verdict is clear. Hintz v. Railroad Co., 132 Mich. 305, and cases cited.

We are not, however, convinced that the verdict is so clearly against the weight of evidence that the trial court was bound to set it aside.

The judgment is affirmed.

McAlvay, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.


text:
    KALAMAZOO GAZETTE CO. v. KALAMAZOO COUNTY CLERK.
    Records — Marriage Licenses — Inspection by Public.
    The marriage licenses and returns kept in the office of the county clerk pursuant to statute (sections 8604-8611, 3 Comp. Laws) are public records, and as such open to public inspection under Act No. 76, Pub. Acts 1903, and the county clerk has no discretion to withhold them from inspection when, in his opinion, the publication of their contents is undesirable.
    Certiorari to Kalamazoo; North, J., presiding.
    Submitted April 16, ,1907.
    (Calendar No. 22,183.)
    Decided May 18, 1907.
    Mandamus by the Kalamazoo Gazette Company to compel Edwin W. Vosburg, clerk of Kalamazoo county, to allow an examination of certain public records. There was an order granting the writ, and respondent brings certiorari.
    Affirmed.

      Alfred J. Mills, for relator.

      Dallas Boudeman, for respondent.
   Montgomery, J.

The relator applied to the circuit court for and was granted a mandamus requiring the respondent to permit relator’s reporters to examine the records of marriage licenses and returns showing marriages in the respondent’s office. The respondent has brought the case before us for review by certiorari.

The controlling question in the case is whether marriage licenses and returns, provided for by the statute (3 Comp. Laws, §§ 8604-8611) are public records open to inspection by those who have occasion to inspect them, or whether the clerk has a discretion to withhold such records from inspection when in his opinion the publication of the contents is undesirable. It must be held that these records are public records. The statute (3 Comp. Laws, § 8612 et seq.) makes provision for withholding from the public information in certain cases where the marriage has been solemnized by the probate judge. This statute, so far as it throws light upon the subject, indicates that the legislative branch of the government understood that the record provided for by the preceding sections was public. Public records (other than court records, as to which see Schmedding v. May, 85 Mich. 1) are, under Act No. 76, Pub. Acts 1903, open to inspection for any lawful purpose. See Burton v. Tuite, 78 Mich. 363 (7 L. R. A. 73), and Day v. Button, 96 Mich. 600.

The order is affirmed.

McAlvay, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.


text:
    DICKINSON v. PERE MARQUETTE RAILROAD CO.
    1. Evidence — Opinions—Admissibility—Harmless Error.
    Where the measure of damages had been stated in the presence of the jury to be the deterioration of the value of plaintiffs’ farm by reason of the negligent acts of defendant, and there is no doubt that the court, witnesses, and counsel all understood that this was precisely what the witnesses were attempting to state when they gave their opinions as to the amount of damages resulting from the washing and caving away of plaintiffs’ land, a motion to strike out the testimony, made after plaintiffs’ case was closed, and their witnesses departed, was properly overruled, though the' form of the questions propounded was objectionable, if timely objection had been made.

      2. Actions — Joinder—Ground eor New Trial.
    The joinder of several demands for different torts, and attempted recovery on them in good faith in a single action, is not ground for a new trial, on the theory that the presentation of demands on which no recovery could be had resulted in prejudicing the jury and in an unjust verdict.
    3. Damages — Injuries to Land — Evidence — Sufficiency—Excessive Damages.
    Where, in an action for injuries to land caused by removal of lateral support by excavating for a railroad track, there is no tangible testimony of any damage other than the loss of the land which has slid down the bank and inconvenience in farming such land as remains between the slides, the whole not exceeding an acre, of the value of $150, a verdict for $450 is excessive and a remittitur of $200 will be required as a condition of affirmance.
    Error to Kent; Perkins, J.
    Submitted April-15, 1907.
    (Docket No. 83.)
    Decided May 18, 1907.
    Case by James A. Dickinson and Jane Dickinson against the Pere Marquette Railroad Company for damages to land. There was judgment for plaintiffs, and defendant brings error.
    Affirmed on condition.
    Plaintiffs own a farm in Alpine township, Kent county, a little north of Grand Rapids. This farm is 160 rods long north and south, and 80 rods wide east and west. The defendant’s right of way, 100 feet in width, and Mill creek, a small stream, extend across the land, entering at the north end and leaving at the south end. In the summer of 1905 high water in Mill creek washed away a large portion of defendant’s roadbed through plaintiffs’ farm. It was claimed by plaintiffs that the roadbed would not have been washed out if the course of Mill creek had not been diverted when the roadbed was originally constructed, and that the defendant was liable for all damages resulting from the diversion of the course of the creek.
    Under this claim plaintiffs introduced evidence to prove that, when the roadbed was washed out, their land was greatly damaged by the gravel which was washed upon it and by other effects of the washout. Upon cross-examination plaintiffs’ witnesses testified that the roadbed had been constructed more than 30 years before it was washed out and more than 20 years before they bought their farm, and that the high water by which the roadbed had been washed out was an unprecedented occurrence.
    The defendant immediately rebuilt its roadbed; but, for the purpose of preventing future washouts, it located its roadbed and track about 25 feet west of its former location, but within the right of way. In moving its tracks to the west the defendant made an excavation so near the line of its right of way that subsequent rains formed several gullies in the embankment which worked back into plaintiffs’ land. The longest gully had worked into plaintiffs’ land a distance of 15 feet at the time of the commencement of this suit. Less than one twenty-fourth of one acre of surface had been washed into the excavation on defendant’s right of way at the time of the commencement of the suit, and a strip of land one rod in width the whole length of plaintiffs’ farm, along the west side of defendant’s right of way, making a total of one acre, would include all of the gullies which had formed on the land on account of the excavation on defendant’s right of way, and would also include land not affected by gullies or otherwise. There were no buildings along the right of way, and the land that would be included in that one acre, assuming that the right of way fence had been moved back, was land which had been used for ordinary farming purposes, and was suitable for such purposes only. Plaintiffs’ testimony fixed the value of the farm at |100 to $125 an acre. Plaintiffs claimed damages for the injuries to their land by removing its lateral support, so that the gullies had worked into the land from defendant’s excavation. James A. Dickinson, one of the plaintiffs, testified that in his opinion the farm was damaged $800 by the gullies that had formed in it. Jane Dickinson, the other plaintiff, testified that in her opinion the damage to the farm from that cause was $500. Charles E. Belknap, a witness for the plaintiffs, testified that in his opinion the damage was $1,000. Ralph E. Fosgat, Mrs. Dickinson’s brother, testified that in his opinion the damage was $600 to $1,000. And Daniel O’Brien, another witness for the plaintiffs, testified that in his opinion the damage was $500 to $600. Defendant called a witness, who estimated the injury to the farm at about double the value of the land taken up by the gullies.
    Plaintiffs also claimed large damages by reason of the fact that the change in the location of defendant’s roadbed had destroyed farm crossings which they had previously enjoyed. They estimated their damages from this cause at not less than $500.
    The trial judge instructed the jury that plaintiffs could not recover damages for the diversion of the course of Mill creek and for the washing out of defendant’s roadbed, because it appeared that the course of the creek had been diverted more than 30 years before the suit was brought, and the proximate cause of the washout was unprecedented high water, for which the defendant was not legally responsible. He also instructed the jury that there could be no recovery for interference with plaintiffs’ farm crossings because the defendant had a right to change the location of the crossings if such a change became necessary in the proper operation of the road. The only .issue submitted to the jury was the claim for damages to plaintiffs’ farm resulting from the excavation of the defendant above stated. A verdict was rendered by the jury in favor of the plaintiffs for $450. Defendant made a motion for a new trial on the grounds that the verdict was excessive ; that the introduction of testimony under the various counts of the declaration was prejudicial; that the introduction in evidence of opinions of witnesses as to the amount of plaintiffs’ damage was prejudicial; that the court erred in refusing to strike out such testimony and in instructing the jury that it might be considered. This motion was overruled for reasons set out in writing by the circuit judge. The defendant brings error.

      Stevens, McPherson & Bills, for appellant.

      Carroll & Nichols, for appellees.
   Montgomery, J.

(after stating the facts). In this court it is contended that the circuit judge erred in refusing to strike out the testimony of witnesses stating their opinions as to the amount of damages resulting from the washing and caving away of the land. This' motion was made at the close of all the testimony and after the testimony questioned had been received without objection, and the witnesses had departed. The measure of damages had been stated in the presence of the jury to be the deterioration of the value of the farm by reason of the negligent acts of defendant. We cannot doubt that the court, the witnesses, and counsel all understood that this was precisely what the witness was attempting to state; and, while it may be conceded that the form of question propounded was objectionable if timely objection had been made, we do not think this slip for which defendant’s counsel was equally responsible with plaintiffs worked any injury to defendant. See Zabel v. Telephone Co., 127 Mich. 402.

It is next urged that a new trial should have been granted because the joining of demands for which plaintiffs were not entitled to recover with that upon which they did recover resulted in prejudicing the jury unduly and in a verdict which was unjust. We do not think this a legal ground for a new trial. The plaintiffs had a right to join several demands for different torts, and to attempt a recovery on each in good faith.

It is also insisted that the circuit judge should have granted a new trial on the ground that the damages allowed were excessive. We feel constrained to hold that this contention should prevail. It is true there is a basis in the testimony of the plaintiffs’ witnesses for a larger verdict than that given, but it is not understandable how such figures could be made. The circuit judge distinctly limited the plaintiffs to damages already accrued. There was no tangible testimony of any damage other than the loss of the land and inconvenience in farming such as lay within the 15-foot strip across the plaintiffs’ farm. If it be assumed that it was made necessary to remove the fence, the expense of doing so might be added. We think the statement of defendant’s witness that double the value of the land taken would be sufficient compensation was sufficiently liberal, and on this basis a verdict of $250 would have covered the extreme value.

The judgment will be reversed and a new trial ordered, unless the plaintiffs shall remit the sum of $200 within 30 days. On filing such remittitur, the judgment will stand affirmed, except that defendant will recover costs in this court as upon a reversal.

McAlvay, O. J., and Ostrander, Hooker, and Moore, JJ., concurred


text:
    HENRY v. SALOMON.
    Bailment — Loss or Goods — Action by Bailor — Consideration —Evidence—Sufficiency.
    In an action against a bailee for tbe loss of goods, involving an issue whether he was bailee for hire, evidence examined, and held, to show that he agreed to store the goods as part of an agreement for the rent of certain premises, and was therefore liable for their loss.
    Error to Hillsdale; Chester, J.
    Submitted April 16, 1907.
    (Docket No. 117.)
    Decided May 18, 1907.
    Assumpsit by William Y. Henry against Moses Salomon on a contract of bailment. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Merton Fitzpatrick, for appellant.

      G. A. Shepard, for appellee.
   Montgomery, J.

The defendant is a dealer in secondhand articles, and owns a building in the city of Hillsdale. The lower portion consists of two rooms, one occupied by defendant and the other usually rented. In April, 1904, Mr. Judson D. Chappell, who was engaged in the manufacture and sale of harness, etc., and in whose employment the plaintiff was engaged, had negotiations with defendant relative to leasing the portion of the first story not used by defendant in his business. Plaintiff was present and took part in these negotiations. As a result of the negotiations, Chappell and plaintiff moved in. Plaintiff packed some of his belongings in a large box which was taken to an upper floor and stored away. Later on the defendant was found making use of the box to store oats in and plaintiff’s goods had disappeared. This action was brought to recover the,value of plaintiff’s property. A special finding of facts was made. Defendant excepted to the finding, and on error the only question presented which calls for discussion is whether there was any testimony tending to show that defendant was, as to plaintiff’s property, a bailee for hire.

Defendant’s contention is that the defendant rented the room in the first story of" the building to Chappell, and that the permission to store the boxes in the second story was a mere accommodation.

Plaintiff’s counsel, on the other hand, contends that the agreement to store these boxes was a part of the consideration for the leasing, and that defendant assumed the obligation of a bailee for hire;

The testimony offered by plaintiff was as follows: Mr. Judson D. Chappell testified:

‘ ‘ I was present and had a conversation with Mr. Salomon in regard to occupying this room down there by Mr. Henry. Mr. Henry and I had a talk with Mr. Salomon concerning the building that we rented down there, and it was understood and agreed that a partition should be put in and screen doors furnished. We also talked about the terms of rental, and the fact that there was not room enough in the building to store the boxes and other things. We wanted to get them out of the way, and I understood that we were to have room enough upstairs to store Mr. Henry’s boxes, and that they would be cared for, and I supposed it was a part of the consideration for the lease; and the fact that he agreed to store the boxes and furnish room below was one of the inducements that led to the taking of the room.”

Mr. Henry testifies:

“ Mr. Chappell and I went to see Mose about the room, and he said we could have it. I was at that time over to the Mosher house, and he wanted me to go over and look at the rooms. I thought they were pretty small, and asked him if he couldn’t store some things in the boxes upstairs. Some of my best boxes. He said, ‘Yes.’ I unpacked the big box first. I had a lot of moth balls in there. I shook and left them in the box, and put my bundles in. I had my Grand Army suit in, and a quilt and a pair of pants. I put a rug in there, some rope, and burlap; and he said: ‘You can store the big box up there, and the crate with the machine. I can’t do business and have all of them boxes up there.’ ‘ Well,’ I says, ‘ the agreement was, Mose, that you was to store the boxes.’ I didn’t say all the boxes. He agreed to store and take care of the big box and the machine crate right over the part which I was under. That was done for the purpose of making more room below. * * * After he took charge of the box. and my things, and told me he would take care of them I rested easy, supposing they would be all right and cared for, and they would if he had left them alone. I afterwards learned that he had put oats in the box.”

J. H. Pierson says:

“After we had packed up the box Mr. Salomon rolled it into his part, took it onto his elevator and took it upstairs, and put it back in the corner of the building where he said it would be out of his way. I know nothing about any arrangement or agreement to store the box. I didn’t hear any talk about it. He told me where he was going to put the box, and said it would be all right, and out of his way over there.”

This testimony was evidently construed by the circuit judge as establishing the fact that defendant as a' part of the agreement for renting the store building agreed to store the boxes in question. We think it was open to this construction. The defendant, according to this testimony, acted upon the agreement and himself took charge of the box and directed the placing of it. The finding had support, and is as binding upon this court as a verdict of a jury would be.

The judgment is affirmed.

McAlvay, C. J., and. Ostrander, Hooker, and Moore, JJ., concurred.


author: Per Curiam.

text:
    REYNOLDS v. MECOSTA CIRCUIT JUDGE.
    1. Mandamus — Propriety — Assault and Battery — Declaration — Averment oe Jurisdiction.
    On the trial of an action for assault and battery, defendant objected to the introduction of any evidence, on the ground that the declaration showed that the assault was committed in another county, and there was no averment that either of the parties resided in the county of the venue; the court invited plaintiff to amend in accordance with what counsel had stated to be the fact as to residence, and, on his declination, discharged the jury from further consideration of the case. Held, that mandamus would not issue to compel the setting aside of the order discharging the jury.
    2. Same — Review by Error.
    If such an averment was not strictly required, as plaintiff contends, either party may secure an order which will dispose of the case in the court below, and review the ruling on error, a proceeding in which they will be entitled to have strict legal rights determined.
    Mandamus by George A. Reynolds to compel Lewis G. Palmer, circuit judge of Mecosta county, to vacate an order dismissing an action for want of jurisdiction.
    Submitted April 16, 1907.
    (Calendar No. 22,230.)
    Writ denied May 18, 1907.

      Cogger & Broomfield, for relator.
   Per Curiam.

There are two reasons for refusing the writ. One is that in making the ruling complained about the circuit judge suggested and invited counsel for plaintiff (relator) to amend the declaration by adding the averment that plaintiff, or defendant, or both, resided in the county of Mecosta when the suit was begun, an averment of a fact asserted by counsel for relator to be true. This amendment, the making of which would have occupied but a moment of time, counsel declined to make, insisting, as they now insist, that strictly no such averment was required to be made. ■ In such a case, and this embodies the second reason, either party may secure an order which will dispose of the case in the court below and review the ruling on error, a proceeding in which they will be entitled to have strict legal rights determined.

Relator began a suit in the circuit court for the county of Mecosta to recover damages for injuries sustained by an assault and battery upon him by defendant, taking out a summons which was personally served upon defendant in said county; proof of such service being returned and filed with the clerk of the court. Defendant entered a general appearance. Plaintiff filed his declaration, in which it was averred that the assault was committed in Newaygo county. Defendant pleaded the general issue. The cause wás duly noticed for trial at the February, 1907, term of said court. The cause came on to be tried at said term of said court. A jury was impaneled and sworn. Counsel for plaintiff (relator ) made his opening statement to the jury, in which he stated that both plaintiff and defendant were residents of the township of Mecosta, in said Mecosta county. Counsel for defendant objected to the introduction of any evidence, on the ground that there was no allegation in the declaration that either plaintiff or defendant resided within the jurisdiction of the court. This objection was argued; the court reserving his opinion until the closing of proofs, at which time in an oral opinion, reported by the stenographer, the court ruled and held that it had no jurisdiction to try the case. He thereupon discharged the jury from any further consideration of the case. Thereafter an order was entered, reciting that counsel for defendant—

“ Objected to the taking of any testimony herein for the reason that the declaration contained no allegation as to the residence of the parties to said suit, and that the subject-matter of said suit occurred in Newaygo county. * * * The court sustained such objection and discharged the jury from further consideration of this cause, to which said ruling said plaintiff duly excepted. ”

Writ denied.


text:
    JULIUS KESSLER & CO. v. VEIO.
    Appeal and Error — Reversal—Retrial—Law oe Case.
    The decision on appeal as to the legal effect of certain warehouse receipts and of their delivery to and retention by defendants is the law of the case on retrial in the circuit court.
    Error to Cheboygan; Shepherd, J.
    Submitted April 15, 1907.
    (Docket No. 113.)
    Decided May 18, 1907.
    Assumpsit by Julius Kessler & Company against Joseph Veio and.Fred Veio, copartners as Veio Bros., for goods sold and delivered. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.
    Affirmed.

      G. S. Reilley, for appellants.

      Frost & Sprague, for appellee.
   Ostrander, J.

Upon a former appeal (142 Mich. 471) the contract of the parties was examined and construed, and it was held there was an executed contract for the sale and purchase of 10 barrels of whiskey, and that title to the whiskey was in defendants. The legal effect of the receipts and of their delivery to and retention by defendants was considered, and a copy of one of the receipts is there given. The suit was begun July 30, 1903, the plea being the general issue. The case having gone down for a new trial, defendants annexed to the plea a notice that they would show in their defense that before ordering the whiskey of plaintiff they opened negotiations therefor with an agent of plaintiff, who represented that the whiskey was stored in United States bonded warehouses, and that warehouse receipts, a form of which he exhibited, would make a complete and valid salé of the whiskey, and that title would pass upon delivery of -such receipts; that such receipts were negotiable, could be sold and disposed of by defendants, they could borrow money on them, and could obtain the whiskey by sending the receipts to plaintiff; that defendants had had no experience in buying whiskey in bond, believed what the said agent told them, and thereafter ordered the whiskey of plaintiff, and received what they supposed were genuine warehouse receipts, and did not learn that said receipts were not genuine until after some 24 days, when they notified plaintiff they were worthless, and returned them the receipts ; that the receipts were duplicate warehouse receipts, not negotiable, defendants could not borrow money on them, or dispose of them at any time; that title to the whiskey could not pass to defendants, except upon delivery of the original warehouse receipts; that the receipts sent were fraudulent, void, and of no value whatever. The court excluded evidence of a conversation with plaintiff’s agent, had before the order for whiskey was sent to plaintiff, and testimony of a witness that the receipts upon their face were duplicate receipts and passed title to no particular whiskey. The court said to counsel for defendants :

“ If you can show that the plaintiff before this suit was brought had given anybody else any authority to take those particular barrels of whiskey, you can do so.”

Counsel replied:

“We cannot do it, your honor. We cannot make any such showing. What we offer to show is that tho.se receipts are what is known as duplicate receipts; that they do not transfer the title of the property mentioned in the receipts to Veio Bros. They are absolutely worthless as receipts.”

This was the very question litigated and determined upon the first trial. Such an issue cannot be tried piecemeal. The undisputed evidence is that the whiskey described in the receipts was set apart for defendants, and is now in bonded warehouse, subject to their order upon payment of the purchase price. In the letter ordering the whiskey it is stated: “We always pay cash thirty days, less discount.” It is said the receipts sent were not unconditional and negotiable, because the whiskey would not be delivered without payment of the purchase price. It would seem that one way to secure relief from this situation, if relief was desired, would be to pay the purchase price as agreed. The receipts expressly state that the whiskey is “deliverable only upon * * * payment of the purchase price of said whiskey, or of the notes given therefor, and upon the return of this receipt properly indorsed and the written order of the holder thereof.” No error was committed in excluding testimony, or in directing a verdict.

The judgment is affirmed.

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


author: Hooker, J.

text:
    HILBORN v. SMITH.
    Fish — Fishing Rights —Owner of Shore —Right to Set Gill Nets.
    A gill net is within the prohibition of section 5857, 2 Comp. Laws, making it unlawful for any person to set “any species of seines or continuous trap nets” in waters fronting on land where fish are taken by the owner or occupant of the lands.
    Error to Cheboygan; Shepherd, J.
    Submitted April 15, 1907.
    (Docket No. 114.)
    Decided May 18, 1907.
    Trespass vi et armis by John R. Hilborn against Egbert A. Smith. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed, and no new trial ordered.

      Frost & Sprague, for appellant.

      Benjamin & Quay ( Oscar M. Springer, of counsel), for appellee.
   Hooker, J.

The defendant is vice president of a corporation named Thompson Smith’s Sons. It owns the land abutting upon Duncan Bay, on Lake Huron, and claims exclusive fishing rights in the waters of the bay, under the provisions of section 5857, % Comp. Laws. The section provides:

“ (5857) Seo. 10. It shall be unlawful for any person or persons to put into any of the waters fronting or bordering land where fish are taken by the legal owner or occupant of such lands, any vessel or ship ballast, stone, sand, coal cinder, ashes, log slabs, decayed wood, bark, sawdust, or obstruction, or filth of any other description, or to place or drive any pound net piles or stakes, or any other piles or stakes, or posts, or build any platforms, or piers, or any species of seines or continuous trap nets, to the extent of the breadth of such legal owner or occupant’s lands so far as the channel banks of the rivers, and to one mile from the beach or shore, at low water mark of the lakes, straits, inlets and bays on said waters fronting such owner or occupant’s lands, and it shall subject any boat owner, or captain of any vessel, to a fine of not exceeding fifty dollars, who shall willfully run into or molest any pound net, trap, or other stationary nets, or fixtures set in the lakes for fishing purposes.”

Thompson Smith’s Sons had in previous years leased fishing privileges in this bay to the plaintiff, but at the time of plaintiff’s complaint they were leased to one Olmstead, who had complained to Thompson Smith’s Sons that others were fishing there and requested that it be stopped. Express notice was given to the plaintiff, and the master of his tug, to refrain and desist from placing nets in Duncan Bay, but the latter persisted, and set out a gill net, several miles in length, a portion of which was in Duncan Bay, and less than a mile from shore. Thereupon the defendant, acting for Thompson Smith’s Sons, caused that portion of the net in Duncan Bay to be removed. The plaintiff thereupon brought this action against the defendant personally to recover in trespass for his injuries, consisting of damage to the net, and loss of profits, and was permitted to recover a verdict and judgment. The defendant has appealed.

No claim is made that the statute is invalid, but plaintiff asserts that it has no application to gill nets. The questions raised by the record relate to the construction to be placed on section 5857 and the measure of damages. The nets mentioned in the act are “ any species of seines or continuous trap nets,” and it forbids the building of these. It also forbids the placing or driving “ any pound net piles, or stakes, or any other piles or stakes or posts.” A seine as used in the rivers and lakes is a long net, of sufficient width to extend from the surface of the water, usually to the bottom. It is strung on two lines of rope, one, the cork line, being provided with cork or wooden floats at short intervals, to make it float, the other, or lead- line, provided with leaden weights to sink it and hold it down, generally upon the bed of the stream or water, thereby spreading the net from surface to bed. It is generally used by drawing it, and surrounding and inclosing the fish. A gill net is much like a seine, except in its method, of use. Its meshes are made of a proper size to permit the head of the fish to pass through beyond the gills, which prevents the fish from withdrawing it, and it is thereby trapped and captured. While fishermen might be expected to distinguish between seines and gill nets, and pound or pond nets, calling each by its distinguishing name, if all might not be called by the generic name of seines, certainly the gill net is a species of trap net. It is urged that to bring a net within the prohibition of the statute it must be fastened to the ground by stakes driven into the bed. The evidence shows that each end of the net was anchored to the'ground by a stone and rope, and that it was thereby effectively prevented from drifting away. We have no doubt that the act was designed to protect abutting landowners against the use of nets by other fishermen, and not only is a gill net covered by the description “any species of seines or continuous-trap nets,” but to sustain plaintiff’s contention would practically deprive abutting owners of any benefit from the statute. The evidence shows a plain invasion of the rights of Thompson Smith’s Sons by the plaintiff, and it had the right to remove the nets, and this defendant, acting for the company and as its vice president, and at the request of Olmstead, its lessee, is not chargeable with trespass in so doing.

From our examination of the record we reach the conclusion that there is no necessity for discussing any other questions. ■

The judgment is reversed, and no new trial ordered.

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


author: Moore, J.

text:
    ZUEHLKE v. STONE.
    Sheriffs — Wrongful Levy — Execution Against Husband — Property Held by Entireties — Defenses—Estoppel—Failure to Assert Title.
    Where a sheriff levied -upon property as that of the husband, and neither the husband or wife, though present at the time of levy, inventory, and appraisement, claimed that the wife had any interest therein, or that they were holding the property as tenants by the entirety, but permitted the sheriff to treat the property as that of the husband, they are estopped to thereafter assert that the title to the property was other than in the husband.
    Error to Sanilac; Beach, J.
    Submitted April 15,1907.
    (Docket No. 91.)
    Decided May 18, 1907.
    Trespass vi et armis by Charles Zuehlke and Mary Zuehlke against Maitland M. Stone, sheriff of Sanilac county. There was judgment for plaintiffs, and defendant brings error.
    Reversed.

      C. F. Gates, for appellant.

      F. G. Babcock, for appellee.
   Moore, J.

In November, 1905, the defendant, as sheriff, had an execution against the goods and chattels of plaintiff Charles Zuehlke, issued out of justice’s court, and of him demanded payment, which was refused, whereupon the sheriff levied upon certain property, among other things a team and harness which were afterwards sold. Later this suit was brought. The declaration filed in the case claimed the property levied upon to be exempt, and charged, “ which said team and harness was then worth not more than $160,” and claimed damages by reason of the defendant not leaving sufficient exempt property as required by law. The case was tried by the court without a jury. Findings of fact and conclusions of law were filed. The case is here upon those findings and exceptions.

The judge found among other facts:

“10. The team and harness were taken by the sheriff on the 13th day of November, 1905, and demand in'writing was made the next day for its return by the sheriff by Charles, and refused, and property subsequently sold by the sheriff at public sale. Charles and father-in-law wereJ present and bid at the sale, and neither of them raised any objection to the sale at the sale.
“11. That both of the plaintiffs were present at the time of the levy and inventory, and neither of them claimed that the plaintiff Mary Zuehlke had any interest whatever in and to any property appraised, or that they were holding any such property as tenants in the entirety.
‘ ‘ 12. That both of the said plaintiffs were present when the sheriff made the inventory of the property and when the appraisers appraised the same, and the sheriff, in the presence of both of said plaintiffs, fully explained to them their rights of selection and neither of the said plaintiffs made any claim that the plaintiff Mary Zuehlke, had any interest in any of said property or that any of the said property was held as tenants by the entirety, but plaintiff Mary Zuehlke started up the horses that plaintiff Charles Zuehlke was driving so that said plaintiff would not make any selection.”

The judge found as a conclusion of law that the property was the “joint property of Charles and his wife, and not subject to levy for the individual debt of Charles. The record of the deed to Charles and wife was notice of character of the ownership of such property” — and found a judgment in favor of plaintiffs. A great many interesting questions are presented by counsel which we think it unnecessary to discuss.

The sheriff had placed in his hands an execution. It was his duty to collect the same, if he could. He levied upon considerable property which he found upon the farm worked by Charles Zuehlke. Included in this property was the property in controversy. , The sheriff urged Charles to take the team as exempt.- He refused to do so. When the appraisers completed their appraisement, they advised him also to select the team. Again he refused. The sheriff then set out from the property levied upon, property as exempt, of the appraised value of $333.75 and proceeded, as before stated, to make a sale of the balance. The plaintiffs both knew what the sheriff was doing. He was evidently attempting in good faith to perform his duty under the writ. The plaintiffs permitted him to treat the property as the property of Charles Zuehlke when it is now claimed it was not his property, and was known by plaintiffs at the time not to be his property. Good faith required the plaintiffs to advise the sheriff of the exact situation. This they did not do, and we think now they should be estopped from asserting title to this property.

Judgment is reversed, and new trial ordered.

McAlvay, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    MACLAM v. CITY OF MARQUETTE.
    1. Municipal Corporations — Highways — Sidewalks — Marquette Charter — Personal Injuries — Liability op City.
    Under subd. 16, of section 1, chapter 7, of its charter (Act No. 409, Local Acts 1895), the city of Marquette is not liable for damages sustained by a pedestrian in consequence of obstructions left upon a sidewalk by an occupant of the premises, notwithstanding the general law of the State provides a general liability against municipalities in such cases.
    -2. Same — Statutes—Repeal.
    Subdivision 16, section 1, chapter 7, of the charter of Marquette (Act No.'409, Looal Acts 1895), is not repealed by Act No. 423, Local Acts 1899, no attempt being made in the later act to repeal or modify the earlier one, and the two acts being such that both may stand and not be in conflict.
    3. Same — Constitutional Law — Class Legislation.
    The provision of the charter of Marquette (subd. 16, §1, chap. 7, Act No. 409, Local Acts 1895), exempting the city from liability for damages occasioned by obstructions on its sidewalks, is not invalid as class legislation.
    Error to Marquette; Stone, J.
    Submitted April 16, 1907.
    (Docket No. 123.)
    Decided May 18, 1907.
    Case by Bobert A. Maclam against the city of Marquette for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      J. L. Heffernan and W. 1. Potter, for appellant.

      W. S. Hill, for appellee.
   Moore, J.

The plaintiff, a resident of the city of Marquette, claims he was injured by reason of poultry crates being negligently permitted by the defendant to obstruct a sidewalk in said city. His claim is that about 8 o’clock in the evening, accompanied by three friends, he was traveling over the sidewalk mentioned, and that he stumbled over a crate which extended upon the sidewalk, and, to save himself, put out his hand, knocking another crate down and falling over it; his attention at the time of these occurrences being suddenly taken by some talk of his friends. After the plaintiff had closed his case, the defendant asked the court to direct a verdict in favor of the defendant under subd. 16 of section 1, chap. 7, of its charter (Act No. 409, Local Acts 1895), which reads as follows:

‘ ‘ Sixteenth. To compel all persons' in such part or parts of the city as the common council may deem proper, to keep sidewalks in front of premises owned or occupied by them clear from snow, ice, dirt, wood or obstructions; but the city shall never be liable for any damage sustained by any person in consequence of the neglect of any person to keep any such sidewalk clear from snow, ice, dirt, wood or other obstructions.”

The court held that the charter provision exempted the city from the liability imposed by the general statutes of the State, and directed a verdict for defendant. The case is brought here by writ of error.

Counsel for appellant state the questions involved as follows:

The law relating to this case is confined to the question of the validity of the charter provision exempting the city from liability for injuries to persons; and, if the same is considered valid, whether it has not been repealed by later acts; and, further, if finally it is considered not repealed, whether the council ever took any action to enforce the provision, as defendant’s counsel clearly confined themselves to these questions in asking for a verdict, and the court went no further in its charge or opinion.”

The first important question is: Does the general statute make the city liable, notwithstanding the provision of the charter ? Counsel say the case of Campbell v. City of Kalamazoo, 80 Mich. 655, answers this question in the affirmative. An examination of the original record and briefs in that case shows, as may be inferred from the opinion, that the charter of Kalamazoo had no provision like the one before quoted. This case is also quoted to the proposition that the general statutes repealed the charter provision. We will refer to this point later.

It is also suggested that the charter provision is repealed by the provision contained in Act No. 423, Local Acts 1899. A reference thereto will show that no attempt was made to modify or repeal subdivision. 16 of section 1 of chapter 7 of the charter. The two provisions may both stand, and not be in conflict.

The remaining important question is whether the charter provision is invalid because it is class legislation. Counsel insist it is, citing many cases, among others Hincks v. City of Milwaukee, 46 Wis. 566. The last-named case sustains the contention of counsel; but, as will appear later, is not in harmony with the decisions of this court in relation to what constitutes class legislation.

After this case was heard in the court below, a motion for reheáring was made. In overruling it the learned trial judge filed a written opinion, which so ably states the question that we insert it here. After quoting the charter provision, the judge said:

“It was the opinion of the court that by reason of the last clause of the above provision, and under the evidence in the case, the plaintiff was not entitled to recover.
“This provision has existed in the charter of said city since its organization in 1871, and was re-enacted in the amendments of 1895. The grounds of the motion for a new trial are that the court erred in directing a verdict for the defendant for many reasons.
“ It is urged that the above provision is void as opposed to the general law of the State creating liability of cities, and the case of Campbell v. City of Kalamazoo, 80 Mich. 655, is cited in support of the position. As I understand that case, the charter of the city of Kalamazoo was silent upon the subject of liability. That being so, of course, the general law of 1887 would apply, and govern. So I do not think that case controlling here. I understand it to be also claimed that the general act of 1887 repealed this clause of the charter. I do not so understand it.
“In People v. Wenzel, 105 Mich., at top of page 73, the court said:
“ ‘ It is a general rule that repeals by implication are not favored, especially where the effect is to repeal a special act by a general law. Endlich on Interpretation of Statutes, §§ 210, 227, 228. Unless the legislative intent to repeal a charter is deducible from a subsequent general act, the law will hold that the charter is not repealed by implication, and presume an intention to except the municipality from the operation of the general law’ — citing cases.
“ Can it be said that the intent to repeal is plain here ? I think not.
“ It is urged by plaintiff’s counsel with much earnestness that this charter provision is unconstitutional and void as class legislation. Whatever may be the rule in Wisconsin and other States, what constitutes void class legislation in Michigan is pretty well settled by cur Supreme Court. It does not follow that because an act is local, or special, or even exceptional, in its application, that it is void as class legislation, if it be general in its application to the class or locality to which it applies. There has been a wide range of decisions covering many subjects. I shall refer to some of the cases. Beginning with the latest, and going backwards, we find the following cases:
‘ ‘ In Attorney General, ex rel. Beadle, v. Arnott, 145 Mich. 416, it was held that the statute authorizing the organization of corporations for the purpose of furnishing water power for manufacturing purposes, with power to divert, for the purposes of the act, waters from Lake Superior, or St. Mary’s river, is not void as class legislation, for the reasons there stated.
“In White v. Bracelin, 144 Mich. 332, it was held that Act No. 663, Local Acts of 1905, making it a penal offense for any person to keep a saloon within 100 rods of any public school in Berrien county, is not unconstitutional as special legislation. In discussing the principle involved, the court does not put it upon the ground that it was a liquor case, over which subject the courts have a broad control, but the court said:
“ ‘ The only questionable point is whether this act, being legislation pertaining to a portion of the State, is private legislation of a class which infringes constitutional rights of persons residing in Berrien county. In discussing the question of “unequal or partial legislation,” Mr. Justice Cooley has said:
“ ‘ “Laws public in their objects may, unless express constitutional provision forbids, be either general or local in their application; they may embrace many subjects or one, and they may extend to all citizens, or be confined to particular classes, as minors or married women, bankers or traders, and the like. The authority that legislates for the State at large must determine whether particular rules shall extend to the whole State and all its citizens, or, on the other hand, to a subdivision of the State or a single class of its citizens only. The circumstances of a particular locality, or the prevailing public sentiment in that section of the State, may require or make acceptable different police regulations from those demanded in another, or call for different taxation, and a different application of the public moneys. The legislature may therefore prescribe or authorize different laws of police, allow the right of eminent domain to be exercised in different cases and through different agencies, and prescribe peculiar restrictions upon taxation in each distinct municipality, provided the State Constitution does not forbid. These discriminations are made constantly; and the fact that the laws are of local or special operation only is not supposed to render them obnoxious in principle. The legislature may also deem it desirable to prescribe peculiar rules for the several occupations, and to establish distinctions in the rights, obligations, duties, and capacities of citizens. The business of common carriers, for instance, or of bankers, may require special statutory regulations for the general benefit, and it may be matter of public policy to give laborers in one business a specific lien for their wages, when it would be impracticable or impolitic to do the same for persons engaged in some other employments. If the laws be otherwise unobjectionable, all that can be required in these cases is, that they be general'in their application to the class or locality to which they apply; and they are then public in character, and of their propriety and policy the legislature must judge.” Cooley on Constitutional Limitations (6th Ed.), p. 479
“ ‘ This law is general in the sense that the author indicates. It applies to every one who lives or comes within the State. It is not limited to citizens of Berrien county. It is true that it prohibits saloons only in that county, and it may be that there is not the same necessity for that particular prohibition elsewhere. Innumerable instances of such legislation can be found. All of our local option laws involve this principle, and it is a common thing for the legislature to pass special acts, establishing exceptional municipal bodies, such as cities, villages, and school districts.’
‘ ‘ I call special attention to the remainder of this opinion, and especially to that part of it holding that the statute in question does not violate the Fourteenth Amendment of the Federal Constitution. That amendment aims specially at class legislation of a certain kind, and what is said and quoted upon that subject should be read.
“In People v. De Blaay, 137 Mich. 402, it was held that the statute prohibiting peddling without license, but, making an exception in favor of wholesale merchants selling by samples, and manufacturers, farmers, mechanics, and nurserymen selling their own products, is not class legislation.
“In Lagoo v. Seaman, 136 Mich. 418, it was held that the log lien law, in allowing full costs in justice’s court, is not unconstitutional as class legislation, although under other statutes the costs are limited.
“In U. S. Heater Co. v. Molders’ Union, 129 Mich. 354, it was held that the act authorizing the maintenance of suits by or against unincorporated voluntary associations, etc., was not void as class legislation, directed against organized labor; its scope being limited in no such, manner.
“In Osborn v. Charlevoix Circuit Judge, 114 Mich. 655, it was held that an act regulating the catching of fish in the waters of the State is not void as class legislation because the closed season is shorter in the waters adjoining a particular county than elsewhere.
“In People v. Japinga, 115 Mich. 222, it was held that the exemption from the statute of minors accompanied by their fathers or legal guardians, in visiting saloons, does not' amount to an unconstitutional discrimination against minors not so accompanied.
“ In People v. Smith, 108 Mich. 527 (32 L. R. A. 853), it was held that a statute requiring the use of emery wheels with blowers was not class legislation, since it applied to all operating such wheels.
“In Jones v. Shiawassee Circuit Judge, 105 Mich. 664, it was held that an act exempting parties in certain cases from giving security for costs was not unconstitutional as being class legislation, and the language of Judge Cooley heretofore quoted is quoted in full.
“In Woodmere Cemetery v. Roulo, 104 Mich. 595, it was held that a special act authorizing condemnation proceedings to lay out a street through Woodmere Cemetery was valid and not class legislation.
“In Toll v. Jerome, 101 Mich. 468, it was held that a special act requiring certain specified circuit judges to hold court in other circuits was not void as class legislation.
“In People v. Bellet, 99 Mich. 151 (22 L. R. A. 696), it was held that the act requiring barbers to close their shops on Sunday was not class legislation, and class legislation is there defined by the court.
“ This list might be extended almost indefinitely, but I do not deem it necessary. Upon the other hand, there are numerous cases condemning legislation as void and unconstitutional, because class legislation. Some of them are cited by the plaintiff’s counsel.
“In People, ex rel. Valentine, v. Berrien Circuit Judge, 124 Mich. 664 (50 L. R. A. 493), an act requiring merchants who sell farm produce upon commission to execute bonds, etc., was held void, as unreasonable and as an unjustifiable interference with a lawful business and as class legislation.
“In Rodgers v. Kent Circuit Judge, 115 Mich. 441, an act relating to peddlers was held void and as class legislation because there was discrimination against nonresidents.
“In Burrows v. Brooks, 113 Mich. 307, it was held that a statute which made limited exemptions on executions for labor claims was class legislation and unconstitutional.
“In O’Connell v. Lumber Co., 113 Mich. 124, the act there in question was held void, and class legislation, because it gave special privileges to suitors upon specified classes of claims and also excluded corporations from the benefit of its provisions.
“The line of demarcation between the four cases last above cited and those which preceded them is so plain and distinct that comment is unnecessary.
“ I must adhere to the view that the charter provision is valid, and leaves the plaintiff to his remedy, if he has any, against the o.wner or occupant of the premises, whose duty it was to keep the sidewalk clear from snow, ice, dirt, wood, or other obstructions.”

Many of the villages and cities in this State have provisions that place limitations upon rights of action growing out of injuries upon sidewalks and highways not reasonably safe and fit for travel. These limitations do not apply to all of the municipalities of the State, and, so far as we now recall, not at all to the townships of the State; but it has not been successfully urged' against them that they were void because they were class legislation. On the contrary, they have been held valid. See Klass v. City of Detroit, 129 Mich. 35; Blumrich v. Village of Highland Park, 131 Mich. 209.

We agree with the trial judge that the-charter provision is valid and controlling.

Judgment is affirmed.

McAlvay, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.