author: Grant, C. J.

text:
    FISHER ELECTRIC CO. v. BATH IRON WORKS.
    1. Contracts — Government Work — Failure to Provide Specifications — Liability to Subcontractor.
    One engaged in building a gunboat for the government under contract is liable to his subcontractor, who has agreed to equip the boat with electric lights, for damages resulting from delay in furnishing drawings, specifications, and other information mentioned in the contract, although the delay was caused by the government inspector’s failure to provide them.
    2. Same — Construction.
    A subdivision of a contract to install a boat with electric lights was designated as “plant." The first sentence defined the plant as consisting of two engines and two dynamos, and the other provisions in the subdivision referred to the plant in language consistent with such definition. Held, that it had such meaning wherever found in the subdivision, though ordinarily it has a broader meaning, and other subdivisions of the contract used it in the latter sense.

      S. Same — Public Policy.
    In a suit by an electric company upon a subcontract to install a government gunboat with electric lights, plaintiff sought to recover at the rate of $90 per week for extra labor, the actual cost of which to it was only $26.50 per week, claiming that the former amount was agreed upon because of an understanding with the contractor that the government would be “soaked” for extras. Held, that the agreement was against public policy, and void, and that plaintiff could recover only what the services were reasonably worth.

      1. Same — Services not Contemplated — Compensation.
    By the terms of the subcontract, plaintiff agreed to furnish search-lights at a stated price, defendant agreeing to pay all of the cost in excess of that sum. Defendant wrote urging plaintiff to purchase a certain expensive light, and affirming its liability for the excess. Plaintiff’s president, in order to arrange the purchase, made several trips to a distant city, ' but kept no account of his expenses, and rendered no bill therefor at the time. Held, that a charge for such services and expenses should be disallowed, as not within the contemplation of the parties.
    5. Same — Payment op Excessive Sum — Duress.
    A payment made by a contractor to a subcontractor of an excessive charge for labor in order to secure the shipment of materials which he needs, and which the subcontractor has agreed to furnish, is not a ratification of the correctness of the bill, and will not preclude an adjustment of the items upon final settlement.
    Error to Wayne; Lillibridge, J.
    Submitted February 2, 1898.
    Decided March 15, 1898.

      Assumpsit by the Fisher Electric Company against the Bath Iron Works, Limited, to recover a balance due for materials and labor. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Defendant, a corporation of Bath, Me., was, in 1891 f constructing two gunboats for the United States. September 9, 1891, it made a contract with plaintiff to install said boats with electric lights. The contract was based upon specifications issued by the naval department of the United States to defendant, and furnished by it to plaintiff as'the basis for its bid. The contract is evidenced by a written proposition by plaintiff to defendant, and accepted by it. The specifications were attached to the proposition, and are made a part of the contract. They are divided into various subdivisions, such as “plant,” “engines,” “dynamos,” etc. The parts of the specifications essential to an understanding of the points raisea are as follows:
    “ Plant: The plant shall consist of two engines and two dynamos, both to be economical, efficient, and of an approved pattern. Each engine and its corresponding dynamo must be secured to the same bedplate. The latter shall be as light as practicable, and catching all waste oil. The plant must operate at all times practically without noise, and be capable of running continuously with full load without undue heating of bearings. All working parts of the plant must be accessible for examination and repair, and generally it must be the most compact, the lightest, and best adapted for marine work, particularly when at sea, of any that can be obtained at the time it is placed in the ship. It will be located as shown on the plans, and protected from the access of moisture, dust, and dirt. The general dimensions of all parts of the plant must correspond to the place assigned it, leaving ample space for the care, repair, and dismounting of the same. The dynamo room must be amply ventilated, either on the force-in or on the exhaust system, at will, by means of a fan driven by an electric motor, with two pipes independent of all others, one for exhaust and one for the supply of air. Suitable arrangements must be made so that either dynamo may be connected with any or all of the incandescent or arc light circuits. The plant must be fully coiñpleted in every respect, ready for service, and supplied with all appurtenances and appliances necessary for its care, manipulation, and repair, among which may be mentioned two volt and two ampere meters, one apparatus for measuring insulation resistance, one testing generator, one hand tachometer, tools, wrenches, oil-cups, oil-cans, feeders and tray, oil-tank with filter attached, brush-jigs, drip-pans and piping, guards, and hand-rails; all of an approved pattern. Every article of the installation must be weighed in the presence o£ the inspector. The engines, dynamos, and bedplates complete must not exceed 6,000 pounds in weight.”
    This specification was changed by plaintiff’s proposition in the following language:
    “Plant: Clause No. 1. Strike out the words ‘with suitable provision for securing a tachometer.’ You are to furnish necessary system of piping for ventilating fan. Strike out the words ‘two belted tachometers.’ ”
    Under title “Search-Lights” is the clause:
    “All switches, resistance coils, and other appurtenances necessary to connect the projector to the dynamos must be supplied and installed to the satisfaction of the inspector. ”
    ‘ ‘ Spare Parts: Such spare parts of the engines, dynamos, and all other portions of the plant shall be provided as will enable it to be used for a period of three years without additions. All spare parts must be tried in place, and must be to the satisfaction of the inspector in regard to amount, though based upon the supposition that the plant shall receive good and intelligent care; one dynamo always to be in operation; that the lifetime of the lamps is 600 hours, and that each lamp is in use three hours daily.”
    “General Information: A set of drawings of engines and dynamos on tracing cloth must be supplied. Such other information about the plant as may be required by the inspector shall also be supplied. When the construction of the ship has sufficiently progressed, the inspector shall supply a detailed list of the number of lamps, their candle-power and general location, number of sections, and candle-power on each section, various kinds of fixtures, and the number of each, number of switches, junction-boxes, receptacles, spare parts, and all other details necessary and reasonable, in order that the work of installation may be intelligently laid out and the proper materials and supplies ordered.”
    “Inspection and Acceptance: The work of installing the ship shall be subject to the supervision of an inspector representing the Bureau of Equipment, Navy Department.”
    To the specification as to engines was added this clause: “The engines are to be of the type illustrated in blue prints submitted for examination, and we agree to make any detailed alterations or changes the inspector may require.”
    It was-also agreed that plaintiff should, within two months, submit, for the purpose of test by the resident government inspector, one complete engine, dynamo, and switchboard, and that “supplies, appliances, or anything not mentioned in the specifications that may be required shall be paid for as extras.”
    The contract was performed by plaintiff, after which it brought this suit, claiming that defendant was liable for extra material furnished and labor performed, and for damages suffered through the failure of defendant to furnish seasonably drawings, specifications, and other information, required by the contract to be furnished by defendant, and essential to the plaintiff for the prompt performance of the work. A counter charge of delay on the part of plaintiff is made by defendant, but no damages are claimed in consequence thereof. The contract price was $17,300. The total claim of plaintiff is $29,148.03. The total payments made by defendant are $23,100. The verdict was $5,356.20.

      Rowland M. Connor (John D. Conely, of counsel), for appellant.

      Wells, Angelí, Boynton & McMillan, for appellee.
   Grant, C. J.

(after stating the facts). 1. Assuming that there was delay on the part of the inspector to furnish to plaintiff the drawings, specifications, and other information mentioned in the contract, is the defendant liable for such default? It is urged by counsel for the defendant that plaintiff accepted all the chances of delay on the part of the inspector, and thereby relieved it from. any duty in regard to this information. There was no contractual relation between plaintiff and the government. The contract for the construction of the boats was between defendant and the government. Defendant had agreed with the government to furnish these boats with electric light plants. Whether defendant installed them itself or let the contract was immaterial to the' government. The agreement to furnish these drawings, etc., was made with the defendant, and the plaintiff could look to it, and no one else, for the failure to furnish them. The original specifications were furnished to plaintiff, and formed the basis of the contract. The inspector represented the defendant, not the plaintiff. The court was therefore correct in holding the defendant liable for any damages which resulted from delay in furnishing the drawings, etc.

2. During the period from the date of the contract, in 1891, to its completion, in 1893, various improvements had been made in electrical apparatus, and plaintiff furnished some more expensive articles than those commonly known and in use at the time the contract was made. The court instructed the jury that the contract was made with reference to fixtures and appliances best known and in common use at the time the contract was made, and that, if plaintiff was required to and did furnish more expensive articles than those which were in common use at that date, it was entitled to recover for them. The correctness of this instruction depends upon the construction to be given to the term “plant,” used in the specifications; under the title “Plant.” Houston’s Electrical Dictionary defines the term as follows:

“Plant — -a word sometimes used for installation, or for the apparatus required to carry on any manufacturing operation. An electric plant includes the steam engines or other prime motors, the generating dynamo or dynamos, the lamps and other electro-receptive devices, and the circuits connected therewith.”

It is insisted that the term in this contract means a plant as above defined. Defendant’s position is based upon that clause of the contract which' says:

“ All working parts of the plant * * * must be the most compact, the lightest, and best adapted for marine .work, particularly when at sea, of any that can be obtained at the time it is placed in the ship.”

It is insisted that this clause includes everything in every part of the boats which is covered by the numerous specifications. But, clearly, this language is restricted to the plant as defined in the subdivision in which it is used. The parties have there seen fit to define the plant to which this language applies, and have confined it to two engines and two dynamos. All the language of this subdivision is peculiarly appropriate to the plant as described in the first sentence. The mere fact that the term “plant” is used in its broader sense in other subdivisions of the specifications does not affect the construction of the term as restricted by the subdivision in question. The court was therefore correct in holding that the plant meant the engines and dynamos.

3. All labor charges for overtime were made by the plaintiff at $1.50 per hour, or $15 a day. For most of this work plaintiff actually paid $26.50 a week. Upon this point Mr. Fisher testified as follows :

‘ ‘ The labor charge was agreed upon by Mr. Hanscom and myself at $1.50 per hour. I had the conversation fixing the charge for labor at $1.50 per hour with Mr. Hanscom, the superintendent of the defendant company, in December, 1891.
‘ ‘ Q. What was that conversation ?
“A. The conversation was with reference to the extras, and Mr. Hanscom said: ‘Of course, we expect to make a good deal of money out of this extra work. The government expects to be soaked on it, and we will help you get all you can for it — for anything extra.
“Q. What was said about the price ?
“A. I think that I told him at that time that we should charge on all labor at the rate of $15 a day for extra work.
“Q. And this deal was made in accordance with this arrangement ?'
“A. Yes, sir.”

On cross-examination he testified:

ltQ. You had a positive agreement with Hanscom to allow you $15 a day?
“A. Yes, sir.
“Q. That was upon the understanding that the government would be soaked ?
“A. Yes, sir.”

The circuit judge instructed the jury that, if the parties entered into an agreement to charge an excessive price to the government, or “soak” it, such an agreement was against public policy, and void; and added:

“But, if you believe that the agreement between Fisher and Hanscom was, as counsel for the plaintiff claims, that the United States government expected to be ‘soaked’ in the matter, and that the agreement was that the Bath Iron Works would allow $1.50 an hour, if that agreement was made, then it is binding; and if you believe from the testimony that such an agreement was made between Hanscom and Fisher, that settles the question of extra labor, and you must allow $1.50 an hour.”

.The charge is grossly excessive. Under the instructions, plaintiff was permitted to recover about four times what the actual damages were. As an illustration, one Moag, plaintiff’s employé, who was paid $26.50 per week, was engaged on board the boats in putting in the plant. Under the contract, defendant was to drill holes through the framework of the boats for the insertion of wires, etc. Moag testified that during the absence at various times of one Swanton, who superintended this work for the defendant, he directed the drillers, and estimated his time at 600 hours, and plaintiff charged for it $900. He “kept no track of his time, because he didn’t think he had to.” In the absence of a special agreement, plaintiff could only recover what such services were reasonably worth. The agreement is positively denied by defendant, and when the bill was rendered it made an emphatic protest. The contract, therefore, rests entirely upon the testimony of Mr. Fisher. The sole ground he urges to sustain such a grossly-excessive charge is that it was made “upon the understanding that the government would be soaked.” All such contracts, whether based upon an express agreement or simply an understanding, are against public policy, and void. The law does not permit the accomplishment of such an illegal pux*pose under the guise of an “understanding..” This contract, based upon any view of Mr. Fisher’s version of it, is void. The court should have so instructed the jury, and further should have instructed them that plaintiff could recover only what such servcies were reasonably worth.

4. By the terms of the contract, plaintiff agreed to furnish search-lights for $800. The contract contained this clause:'

“If the department insist upon imported lamps, or we are unable to satisfy them with lamps of American manufacture which shall not exceed $800 in price, you are to pay the additional net cost.”

On January 15, 1892, defendant wrote plaintiff:

“Webelieve that, if an approved type of search-light can be bought outright for a reasonable price, much delay will be saved, and should like to get the price of the 18-inch light befox’e doing more about it.”

In reply to this, January 21st, plaintiff wrote:

“Notingyour remarks of January 15th, the search-light outfits will cost, according to quotations made us by the Thomson-Houston Electric Co., $1,715 each, and we, ourselves, consider delay would be avoided if they are purchased outright. Under the contract, you are to pay all in excess of $800. We think the search-lights can be duplicated for not more than $1,200. If you wish to autlxorize the additional expense, kindly do so in writing, and we will place the .order for them, that delivery may not be delayed.”

To this defendant replied, January 26th:

“The matter of obtaining search-light has been referred by me at length to Mr. Hanscom and Gen. Hyde. Their decision is that it is desirable to obtain all our apparatus as soon as possible, and do everything to forward the work, and I am authorized to say that, if two searchlight outfits, guaranteed to pass government inspection, can be bought for approximately 81,715 each, the Bath Iron Works will pay the excess in cost over 8800 each, or about nine hundred and fifteen dollars (8915) each.”

Plaintiff purchased the search-lights, and rendered a bill of 83,430. Mr. Fisher obtained a reduction of $430. After obtaining the reduction, plaintiff did not credit defendant with the $430, and was permitted to recover it in this case upon the ground that he had made two trips to New York to purchase the lights, and that this was a proper charge for his services and expenses. Fisher made no charge for this upon plaintiff’s books, kept no account of his expenses, and rendered no bill for it at the time. His testimony is very indefinite. He- says he made two or three trips to New York, was gone four or five days each trip, and probably allowed himself $20 per day. No such charge was contemplated by the contract, or agreed upon, and the court should have directed its disallowance.

5. On October 20, 1893, plaintiff wrote defendant as follows:

“Inclosed please find bills for ‘placing the switchboard on the Machias,’ repairing switchboard for ‘Castine,’ and ‘testing circuits.’ The switchboard and armatures will be sent forward when you deposit with the agent of the United States Express Co. at Bath the sum of bills rendered to date ($1,943.80).”

Bills covering this amount, it appears, had previously been rendered, and in reply to them, on September 30, 1893, defendant wrote to plaintiff:

“I have answered your telegram as follows: ‘Have not sent check. Bills excessive.’ You should be ashamed of sending out such prices. They are much more than double what the thing is worth. * * * You may as well understand first as last that we shall pay no such bills. How do you justify charging $1.50 per hour?”

In reply to the letter of October 20th, defendant wrote:

“We have today given the American Express Co. check for $1,944, and they have promised to wire their people to send the switchboard and 'armature along. We do not feel satisfied with the bills, but have had no chance to write you about it before. Please explain on what grounds you charge $1.50 per hour for Moag and his helpers. Also would like to have you tell me if the other bills are based in a similar manner, because I have to put in a bill for fixing the armature to the government, and do not want to put in a bill they will refuse to pay. If you will assure me that the charge of the armature is a fair one, I can put in a bill. As far as the $15 a day is concerned, you know as well as we do that no jury will allow it, and we do not suppose for a moment that you intend to insist upon such a ridiculous charge.”

It is manifest that plaintiff was endeavoring to force a payment. It was necessary for defendant to have the goods, which were placed in the express office at Detroit, immediately. Its own witness Moag so testified. Under these circumstances, payment by the defendant was not a ratification of the correctness of the bills, and upon final settlement the items of these bills were open for adjustment. The court should have so instructed the jury.

There are other small items to which defendant objects on the ground that there was no evidence to sustain them. We think there was a conflict of evidence upon them, and that they were properly submitted to the jury.

Judgment reversed, and new trial ordered, unless counsel can agree upon the amounts to be deducted from the verdict and judgment under this opinion, and have a judgment entered in this court, and thus end the controversy.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    CRANE LUMBER CO. v. BELLOWS.
    1. Pleading — Amendment op Declaration — Continuance.
    Defendant’s motion for a continuance in an action for conversion, made after the plaintiff’s proof is all in and without any showing, is properly overruled, although the court has in effect allowed the plaintiff to amend his declaration with reference to the time of the conversion.
    2. Evidence — Witnesses—Memoranda to Refresh Memory.

      Memoranda in the shape of books and papers purporting to contain a daily scale of logs and lumber, made in the course of business by and under the supervision of the witness producing them, may be used by him to refresh his recollection, and, so used, are admissible in evidence.
    3. Trial — Protracted Cross-Examination — Remarks op Court.
    A remark by the court in the course of a cross-examination which he thought was being unduly protracted, with reference to a mistake which the witness claimed to have made in his testimony, that he did not see the materiality of the matter, that the witness had stated that he had made a mistake, and that it was clear upon the record that he did make a mistake, — was not prejudicial to the cross-examining party, where no question or answer was excluded
    4 Conversion — What Constitutes — Demand.
    Appropriating and sawing the logs of another, though without knowledge or fault, and commingling the lumber with one’s own, so that it cannot be identified, is a conversion, and no demand is necessary.
    Error to Benzie; Aldrich, J.
    Submitted February 3, 1898.
    Decided March 15, 1898.
    Trover by the Crane Lumber Company against Elwin E. Bellows and another. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      George Whitbeck and Dodge & Govell, for appellants.

      Pratt & Davis, for appellee.
   Hooker, J.

The plaintiff and defendants were sawmill owners, their respective mills being situate upon opposite shores of Betsie Lake. Both parties obtained logs by floating them down Betsie river to the lake, to a boom, where the logs were separated. The action is trover, it being claimed that the defendants sawed, and thereby converted to their own use, a large number of the plaintiff’s saw-logs. A verdict of 1992 was rendered in plaintiff’s favor. The defendants have taken a writ of error.

It is claimed on the part of the defendants that, if a conversion is shown, it occurred after May 1, 1895, the time fixed by the declaration and bill of particulars, and that proof of such acts of conversion was not admissible. The question was raised at the beginning of the trial. The court thought the testimonji admissible, but said that, if not, an amendment would be permitted, and allowed the testimony to come in. No motion to continue was made until the plaintiff’s proof was all in, and then no showing was made. The court denied the motion, and, we think, properly so. It does not appear that the defendants were surprised, or in any way injured, and, though a formal amendment was not made, what was done and said was equivalent thereto.

Error is assigned upon the admission of certain papers and books, alleged to contain the list and aggregate of daily scales of logs and lumber. This testimony came in as memoranda made by and under the supervision of the witnesses in course of the business, and was in the nature of memoranda used to refresh the recollection about matters and details that could not otherwise be recollected. As used, we think they were properly received.

Counsel also assign error upon the remark of the court in relation to a mistake that one of the witnesses stated that he had made in his testimony. Counsel was cross-examining him about the matter, when the court said: “I don’t see why this is all material. He stated he made a mistake, and it is clear upon the record that he did make a mistake.” The colloquy that followed shows that the court thought the examination was being unduly protracted, but he did not exclude any question or answer. We see no evidence that the remark complained of was injurious.

The court instructed the jury that, if logs got into the defendants’ yard without their knowledge or fault, and they sawed the lumber, and commingled it with their own, so that it could not be identified, and kept no account of it, it was a conversion, and no demand was necessary. We think there was no error in this, as demand and refusal are but one evidence of a conversion, which may be shown by appropriation to the exclusion of the true owner

The judgment is affirmed.

The other Justices concurred.


author: Lonu, J.

text:
    KAUMEIER v. CITY ELECTRIC RAILWAY CO.
    1. Trespassers — Street Railways — Unguarded Cars.
    One wlio, in sport, attempts to make use of a street car left unguarded upon the track in the public highway, is a trespasser.
    2. Negligence — Dangerous Machinery — Unsecured Car —Injury to Child.
    A small fiat or platform car, mounted on four wheels, plainly constructed, with no machinery about it, is not a dangerous machine, within the rule recognized by some of the courts that one who leaves upon his property dangerous machinery, likely to attract children, so unsecured that children may put it in motion, is guilty of negligence.

      3. • Same — Notice.
    A street-railway company, therefore, which leaves a car of such description unblocked upon the track in the highway, is not liable for injuries received by a child by falling under the wheels of the car while it was being pushed along the track by her companions, although the company knew that children were accustomed to make such use of the car when it was left unguarded.
    Error to St. Clair; Vance, J.
    Submitted February 2, 1898.
    Decided March 15, 1898.
    Case by Hazel Kaumeier, an infant, against the City Electric Railway Company, for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Phillips & Jenks, for appellant.

      Muir & Smith (Avery Bros. & Walsh, of counsel), for appellee.
   Lonu, J.

This action was commenced to recover damages for injuries sustained by plaintiff by one of defendant’s cars, which, it is claimed, was negligently left by it on a side track without being guarded, or brakes set, or other means employed to prevent children from moving it. On the trial it appeared that the plaintiff was nearly seven years old when the accident upon which this action is founded happened, — September 17, 1895. Defendant operated a street railway in the city of Port Huron. The car which caused the injury was a small flat or platform car, and was about 14 feet long by 6 feet wide, with a box about 12 feet long, having drop sides, and leaving 1 foot of platform at each end projecting beyond the box, the platform being about 26 inches from the ground. The weight of the car was from 1,500 to 1,800 pounds. It had four iron wheels, and had no brake upon it, or other means to prevent its being moved. On the afternoon of the accident, an order was received by the company to go to Huronia Beach, a point about four miles north of the center of the city. The employes operating the combination of motor car and flat car decided to leave the platform car at the point of the accident, while they proceeded with the motor car alone to Huronia Beach to get some trunks and return, which would occupy from 40 to 45 minutes, and avoid the necessity of drawing the flat car, and making switches that would be necessary in order to reverse the position of the cars on the return trip. There is testimony that this car was in that place in the morning and noon, and that there were then no blocks or anything under or beside the wheels to prevent the car’s being rolled; and the car was in the same place when 'witness came from school at night, about the time of the accident. The, place of the accident was the only point on the company’s line where the platform car could be left without interference with other cars, and it had been left in the same way and place a number of times before under similar circumstances. The conductor in charge of the cars on this occasion testified that, when the flat car was left at this point on this occasion, he blocked the wheels with a stone and a stick, which could be removed, however, by the kick of a small boy, if he hit it right, and that he always blocked this car every time he left it there.

The plaintiff lived about the length of a block from the place where this car was left, and, coming from school in the afternoon of September 17th, seeing children playing upon the car, came to the place of the accident. At that time there were eight or ten children playing with it, pushing the car a short distance west, and then returning it east. A part were pushing, the others riding. At this point there is a slight descent to the west, but not enough to start the car of itself, and there was much dust upon the track. At the time the plaintiff arrived, the children playing with the car were just starting or about to start it towards the west, and had run it up and down the track a number of times, and there were then no blocks under the wheels. She climbed upon the west end of the platform to ride, and, without having got into the box, either slipped or was pushed in the play from the car, falling in front of the wheels, one of the wheels running over her leg, and causing the injuries complained of. The plaintiff had been told by her mother “not to go near the cars, that she was liable to be hurt; ” but the danger was not explained to her, and she testified she did not think or know it was dangerous. She was not told not to go near the car on this day. This car had been left in the same position before, and children had played upon it, and pushed it, and street-car employes had taken the car from that position when the children were playing upon it, and the children had helped the street-car men shove the flat car up to the motor car for the purpose of connecting it. The plaintiff was injured almost immediately after going to the car. The children had been playing upon the car from three-quarters of an hour to an hour.

At the conclusion of the proofs, counsel for defendant requested the court to instruct the jury, among other matters, that, under the undisputed evidence, the defendant was entitled to a verdict. This was refused, and, inasmuch as this is the only question discussed in appellant’s brief, we need not state the other requests to charge. The court submitted two questions to the jury:

1. Whether the defendant was guilty of negligence.
2. Whether the plaintiff was guilty of contributory negligence.

Upon the first the court instructed the jury as follows:

‘ ‘ If this car had been left there by the railway company at other times, and the street-railway company knew of that fact, knew that children were in the habit of going there and playing with this car, and moving it up and down the track, and riding upon it, and with that knowledge left the car there, and left it unfastened and unblocked; and, in your opinion, taking all the surrounding facts and circumstances into consideration, you deem the use of that car in that manner by children dangerous to them, and that careful, cautious, and prudent men would not have left it there in that condition, — you would be justified in finding that the railway company was liable for the injury that this child suffered, provided that she has not been guilty of contributory negligence.”

Upon the second question the court charged the jury, substantially, that they might take into consideration the age of the child, the means she had of knowing the danger,. the judgment, intelligence, and reason of the child, and say whether, under all the circumstances of the case, she was capable of being guilty of contributory negligence; and, “if you feel that she was, and that any act of hers contributed to the injury, you should deny her claim; otherwise, if she did contribute to it, and you think that in her tender years, and in her judgment and reasoning powers, she was incapable of knowing any better, you would be justified in passing that over.”

Plaintiff recovered, and defendant brings ei’ror.

Plaintiff contends that, this car track being in a public highway, the child was not a trespasser, either in moving the car or in getting upon i't. The plaintiff does not contend that the car was of itself an object dangerous to children, but that, the car being so light that children could move it on the track, it became a dangerous object in being moved along the track, and, being an attractive object, they were likely to move it, and thhs be put in danger; that the defendant’s employes knew, before leaving the car there on that occasion, that on former occasions children were attracted to it, had moved it along the track, and that such employes had countenanced the children in thus playing with it; that, with this evidence in the case, the court very properly left the question to the jury to determine whether, taking all these matters and the surrounding circumstances into consideration, careful, cautious, and prudent men would have left the car there in that condition. In support of this contention counsel cite the Turntable Oases in note to 27 Am. & Eng. Enc. Law, 344. It is said in that text:

“The general rule of liability, as laid down by the Supreme Court of the United States and adopted by the great majority of the State courts, is that if a railway-company leaves a turntable or other like machinery upon its own property, likely to attract children, so unsecured that children may put it in motion, the company is negligent, and, if a child is injured thereby, will be liable in damages.”

We are not called upon in the present case to express any opinion upon the questions decided by those cases. In Massachusetts and New Hampshire that ruling is not followed, it' being held in those States that a railroad company is not liable for injuries sustained by a child while playing upon a turntable, either upon the ground of an implied invitation to come there, or of a duty on the part of the company to make the place safe. Daniels v. Railroad Co., 154 Mass. 349 (13 L. R A. 248, 26 Am. St. Rep. 253); Frost v. Eastern Railroad, 64 N. H. 220 (10 Am. St. Rep. 396). All the Turntable Cases are rested upon Railroad Co. v. Stout, 17 Wall. 657. In that case a child of six years was injured by playing upon the defendant’s turntable. The turntable was unlocked and unguarded. The court charged the jury, upon the question of the defendant’s negligence in the management or condition of the turntable, that—

“To maintain the action, it must appear by the evidence that the turntable, in the condition, situation, and place where it then was, was a dangerous machine, — one which, if unguarded or unlocked, would be likely to cause injury to children; that if, in its construction, and the manner in which it was left, it was not dangerous in its nature, the defendant was not liable for negligence; that they were further to consider whether, situated as it was, as the defendant’s property in a small town, somewhat remote from habitations, there was negligence in not anticipating that injury might occur if it were left unlocked or unguarded; that, if it did not have reason to anticipate that children would be likely to resort to it, or that they would be likely to be injured if they did resort to it, then there was no negligence.”

The court, in passing upon and approving this charge, said:

“That the turntable was a dangerous machine, which would be likely to cause injury to children who resorted to it, might fairly be inferred from the injury which actually occurred to the plaintiff. There was the same liability to injury to him, and no greater, that existed with reference to all children. When the jury learned from the evidence that he [plaintiff] had suffered a serious injury by his foot being caught between the fixed rail of the roadbed and the turning rail of the table, they were justified in believing that there was a probability of the occurrence of such accidents. So, * * * when it was proved to' the jury that several boys were at play there on this occasion, and that they had been at play upon the turntable on other occasions, and within the observation and to the knowledge of the employés of the defendant, the jury were justified in believing that children would probably resort to it, and that defendant should have anticipated that such would be the case.”

It is difficult to see how that case can be likened to the present. In that case a dangerous piece of machinery, was left open, exposed, and unguarded, to the knowledge of the defendant. The turntable itself was dangerous.

In Peters v. Bowman, 115 Cal. 349, the court said :

‘ ‘ The rule of the Turntable Oases is an exception to the general principle that the owner of land is under no legal duty to keep it in a safe condition for others than those whom he invites there, and that trespassers take the risk of injuries from ordinary visible causes; and it should not be carried beyond the class of cases to which it has been applied.”

Even in some of these Turntable Gases it is held that railroad cars are not dangerous machines, and attractive to children, within the meaning of those cases. Elliott, R. R. § 1260, says that this is. regarded as the true rule. In Railroad Co. v. Stout, 17 Wall. 657, the court charged the jury that: “If the turntable in question, in its construction and the manner in which it was left, was not dangerous in its nature, the defendant was not liable for negligence.” The car in question in the present case was not dangerous in its construction. It was a plain car, with four wheels, with no machinery about it.’ It had no brake, but was a small platform car. It is true that it stood upon a track where it might be moved by several children applying their united strength. Several children might, in the same way, move a wagon or carriage left beside the highway. We apprehend that no claim of negligence could be sustained against the owner of such a vehicle if one of the children climbing upon it should fall off and be run over, even if the wheels were left without blocking. , In Robinson v. Railway Co., 7 Utah, 493 (13 L. R. A. 765), it appeared that a hand-car had been left beside the track. Some boys had lifted it upon the track, and were running it back and forth, when plaintiff, being attracted by it, went there, and was injured by jumping or falling from it while in motion. The boys had used this car eight or ten times before, with the permission of the “boss,” while the men were there at work; but he had never given them such permission while the men were not at work. This car weighed six or seven hundred pounds. It was held that the car was not a thing dangerous in itself, and that the company was not negligent in leaving it unlocked beside the track. In the present case, assuming that the defendant left the car without sufficient blocking, it must be held that plaintiff could not maintain this action, for the reason that there is nothing in the case showing or tending to show any negligence on the part of the defendant.

It is not necessary to determine whether the plaintiff was guilty of contributory negligence, or whether that question was properly left to the jury. Neither is it necessary to say that the plaintiff was a trespasser in going upon the track there, which was laid along the highway. It is proper, however, to say that she was a trespasser in any attempt to use this car. The defendant had just as much right to leave this car where it did as a farmer would have to leave his wagon or carriage upon his own side of the highway, and no one would have the right to move it, except upon the claim that it impeded public travel. The car being rightfully left where it was upon the track, and not being a thing dangerous in itself, the court should have directed the verdict in favor of the defendant.

Judgment below must be reversed. No new trial will be ordered.

The other Justices concurred.


author: Long, J. Per Curiam.

text:
    HENRY v. ANN ARBOR RAILROAD CO.
    Railroads — Removal of Tracks — Injunction—Suits by Private Individuals.
    The fact that private individuals, resident and owning property in a given city, contributed money towards the building and equipping of a line of railroad through such city, upon the representation and understanding that the road would increase the value of their property, does not give them the right to maintain a bill in equity to restrain the company from taking up or discontinuing-the use of its track through the city, at least where the injury resulting from such action is not specific to them or their property, but is common to all citizens and property holders of the city; the remedy being by suit in the name of the proper officer of the State.
    Appeal from Gratiot; Person, J., presiding.
    Submitted February 2-, 1898.
    Decided March 15, 1898.
    Rehearing denied June 28, 1898.
    Bill by James Henry, Lemuel Saviers, George H. Scriver, Archibald B. Darragh, and Parker Merrill, residents and property owners- in the city of St. Louis, to enjoin the Ann Arbor Railroad Company from discontinuing its line of road through said city. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      E. A. Cooley and Fatio Colt (Benton Hanchett and C. W. Giddings, of counsel), for complainants.

      Alexander• L. Smith, for defendant.
   Long, J.

The bill in this cause is filed by the above-named complainants for the purpose of restraining the defendant, by injunction, from making any change in the operation of its road in and through the city of St. Louis, this State, and from diverting any portion of its traffic, either freight or passenger, from the line now passing through and by said city; from taking up or discontinuing the use of the tracks, or any portion thereof, now operated and used by it to and from that city; and from in any waj' violating or departing from a certain agreement made by the Toledo, Ann Arbor & North Michigan Railway Company with complainants and other citizens of St. Louis, of which railway company the defendant is the successor. It is also claimed by the bill that no pro•ceedings under the statute have been taken by the defendant to obtain the right to abandon or take up or cease operating the tracks now extending into and through the said city.

The contract which the complainants contend the defendant is violating is substantially • that in 1883 the Toledo, Ann Arbor & North Michigan Railway Company proposed building a railroad from South Lyon to Frankfort, and also to Alpena, in this State, constructing a line from South Lyon to St. Louis, via Owosso, and from St. Louis diverging lines, one running to Frankfort and one to Alpena; that said company made a map showing the direction and route of its proposed lines, and thereupon solicited aid and assistance to build and equip said lines of road from the citizens and property owners of said city, and, in furtherance thereof, proposed to build a road which would become a great trunk line, handling and carrying a large amount of business, that would be of great value to the residents and property owners of St. Louis, and would greatly increase the value of property; that the complainants and other citizens of St. Louis and vicinity, relying upon these representations, contributed upwards of $20,000 to said company, and gave it the right of way through St. Louis. The bill alleges that the road was completed, and freight and passenger depots built within the corporate limits of that city; that property interests have advanced by the operation of said road; that the relative value of property in different parts of the city has been changed by the construction and operation of the road; that certain property advantageously located with reference to the use of facilities afforded by said road has been largely increased in value; that, to a certain extent, the places selected by residents of the city for the construction of business buildings and residences have been affected and determined by the location of said road; and that in other respects the property interests of the complainants and other property owners have been affected by the building of the road; and that to now change the method of operating and using the road would cause great and irreparable injury to the complainants and others of the said citizens and property holders contributing to the aid of said road. The bill sets out that complainant Henry contributed $1,600, Merrill $50, Saviers $500, Darragh $500, and Scriver $600, to aid in building the road. It is quite unnecessary to set out the various changes made in the corporation subsequent to the building of the road. It is claimed by the bill that the bondholders of the Toledo, Ann Arbor & North Michigan Railway Company sold the road under its mortgage bonds, and that the defendant company subsequently became the owner of the rights and franchises of the original road, and now operates it, and that it threatens to take up its tracks, change the location of its main line, and leave the city of St. Louis without the rights and privileges which it had enjoyed, and which it was represented, when the aid was given, that it would have.

The defendant answered the bill, and admitted that it expected and intended to change its main line, and discontinue its through line to St. Louis; that this is to be done to straighten its line, and avoid a dangerous curve and steep grade, which make it impossible to operate successfully heavy trains over its line as now located. From the view we take of the case, it is unnecessary to set out all the defenses interposed by the answer. It is averred, however, that the complainants are not entitled to the relief asked by the bill, and the benefit of a demurrer is prayed. The cause was heard in open court, and the bill dismissed.

We need consider but one question, as, under defendant’s contention, that must dispose of the case upon this record. The action is not brought to recover the bonuses, but to compel the defendant to continue to perform duties claimed to be imposed upon it by the statutes. It is true that the bill alleges that complainants are property owners in the city of St. Louis, and that they, as well as other residents of that city, will suffer great and irreparable injury by the proposed change. The injury, however, is not specific to them or their property, but common to all citizens and property holders of that city. As well claimed by counsel for defendant, such suit must be brought in the name or by authority of the State, through some public officer properly authorized, and cannot be maintained by private individuals. Section 3304, 1 How. Stat., provides for the bringing of such suits by the proper officers of the State; section 3306 saves the rights of private parties to bring suits against railroad companies for private damages; and sections 8148, 8149, 2 How. Stat., give to courts of equity, in suits brought under the direction of the attorney general, power to grant injunctions to restrain any corporation from transacting any business not authorized by the charter of such corporation.

In Kinealy v. Railway Co., 69 Mo. 658, the question came before that court whether a private citizen might recover damages from a railroad company, sustained in the depreciation of his property by such company’s discontinuing its old route for the passage of its through trains, and its construction of a new route for that purpose. It was held not competent for the citizen to raise the question that such acts of the company were in violation of its charter, as such question could be-raised only by the State. It was said by the court:

“Whether the defendant acted in violation of its charter when constructing its new, and withdrawing its trains from its old, route, past Jennings’ Station, is a question we do not propose to discuss, as it is a question which can only be raised by the State, except where such collateral inquiry by a private citizen is expressly granted by law. But, disregarding any consideration of this nature, plaintiffs’ standing in court is not thereby bettered; for they do not allege that the injury complained of is one special and peculiar to the party complaining, — an injury not shared by the other members of the community. For aught that appears in the petition, every lot owner in Jennings’ Station, every owner of real estate in the vicinity, is as much damaged as is the wife of plaintiff by the withdrawal of defendant’s trains, and the consequent depreciation in the value of real estate. It is well settled that, where a highway is altered, obstructed, or altogether vacated, no action will lie except by him who ‘ has greater trust or incommodity than every other man has,’” — citing Holman v. Inhabitants of Townsend, 13 Metc. (Mass.) 297; Stetson v. Faxon, 19 Pick. 147 (31 Am. Dec. 123); Brainard v. Railroad Co., 48 Vt. 107.

In People, ex rel. Bristol, v. Supervisors of Ingham Co., 20 Mich. 95, the board of supervisors, by resolution, purported to discontinue a certain portion of a State road. The case came into this court by certiorari at the instance of the plaintiffs to review that action. Plaintiffs did not claim to own any land along that part of the road thus discontinued, but claimed to own property on the line of the road, and that, having occasion to travel it almost daily, the discontinuance of this portion deprived them of a direct road to Lansing; that the discontinuance worked a great hardship and inconvenience, imposing unnecessary travel on all persons using the road; and that it materially depreciated the value of the plaintiffs’ property. It was said by this court.:

“ The parties who seek to reverse the action of the board are not the owners of the land through which the discontinued portion of the road passes. They show no rights affected but such as are common to all other owners of property anywhere along the line of those portions of the road not discontinued, if, in fact, they show anything more than the mere right of travel common to all the people of the State. The whole burden of their complaint is that they are deprived of a direct road to the city of Lansing, and, as far as we can judge from the case, will be compelled to travel from a quarter to half a mile farther in going to and returning from that place. They complain of this, it is true, as depreciating the value of their property. But this, if there be any such damage, being a mere incident arising from the interference with the general public right of travel common to all the people of this State, can hardly be looked upon as a vested right of property which it would not be competent for the legislature to take without compensation; and, if they are entitled to compensation, the fourth section of the original act and the twenty-eighth section of the act of 1851 make full provision for obtaining it.”

See Buhl v. Union Depot Co., 98 Mich. 596.

The question is not before us in the present case whether the complainants have a right of action against the railroad company for the recovery of the subscriptions to aid in building the road. .The only question is whether the complainants, as private parties, may maintain this bill to restrain the defendant company from changing its line of road, and discontinuing that portion through the city. It is evident that, under our statutes, mo such bill can be maintained by a private party. The action is one to inquire into the right of the defendant company to carry on its business, and necessarily to inquire by what right the defendant exercises its franchises. Such inquiry can be made only by the proper officers of the State.

But, if a private party could maintain such a bill, no such showing is made in this case as entitles the complainants to maintain the present bill. The injury complained of is common to all the citizens of St. Louis, and the case falls directly within the ruling of the cases cited.

We do not see how an amendment to the bill would aid the complainants.

The ordex* of the court below dismissing the bill must be affirmed, but without prejudice to the complainants’ pursuing any other remedy they may have. Defendant will recover costs of both courts.

The other Justices concurred.

ON APPLICATION FOR REHEARING.

Per Curiam.

Motion is made for a rehearing in this case, and counsel now claim that the case should be treated as though the attorney general were a party. We have re-examined the case, and are satisfied that the result reached, as the record now stands, is the correct result. The record does not show that the attorney general was ever consulted about the case, or was ever asked to permit the bill to be filed in his name, or ever authorized the proceedings to be so commenced. Since the hearing, no effort appears to have been made to cause the attorney general to intervene. The motion for a rehearing must therefore be denied.


author: Hooker, J. Grant, C. J.

text:
    COMISKIE v. CITY OF YPSILANTI.
    1. Municipal Corporations — Street Crossings.
    A city is under legal obligation to maintain in a reasonably safe condition for pedestrians that section of the highway at a street crossing which lies within the lines of the sidewalk if extended, where it appears, from the existence of a beaten foot-path at such point, that the same is used for public travel, even though the city has constructed a cross-walk on the opposite side of the street.
    2. Same — Negligence—Question for Jury.
    “Whether the highway at such a crossing was in a reasonably safe condition for public travel was a question for the jury, where it appeared that a tile drain, which received the water from an open ditch on the opposite side of the street, was allowed to discharge it into a continuation of the ditch at a point within the lines of the sidewalk if extended.
    Grant, C. J., dissenting.
    Error to.Washtenaw; Kinne, J.
    Submitted February 3. 1898,
    Decided March 15, 1898.
    Case by Yirgie A. Comiskie against the city of Ypsilanti for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Lehman Bros., Smith & Stivers, for appellant.

      Darwin C. Griff en {J. Willard Babbitt, of counsel), for appellee.
   Hooker, J.

Ballard and Emmett streets, in the city of Ypsilanti, cross each other at right angles, the former running north and south, and at the point of intersection and vicinity are well built up with residences. Sidewalks have existed for some time upon both sides of Ballard street, both north and south of Emmett street, but no cross-walk has ever been laid across Emmett street connecting the sidewalk to the north and south on the east side of Ballard street. Upon the south side of Emmett street was an open ditch, outside of the sidewalk, for the purposes of a highway drain, which was carried across Ballard street by means of tile, which received the water from the open ditch at the west side of Ballard street, and discharged it into a continuation of the open ditch at the east side of Ballard street. While there was no crosswalk at this point, pedestrians crossed Emmett street there, and their travel had made a beaten path. The tile drain did not extend as far east as the east line of the sidewalk on Ballard street, and the path curved sufficiently far to the west to avoid the open ditch at that point, which, at the end of the tile, is shown by some of the testimony to have been about 20 inches deep. In crossing in the darkness, the plaintiff got out of the path, and was injured by stepping or falling into the open ditch.

While there was no cross-walk provided at this point, it was obvious to the city, from the existence of the beaten path, that citizens crossed at that point, and it was under a legal obligation to keep the way in condition reasonably safe for public travel. Whether this highway, at the point mentioned, was so, was a question for the jury. We do not mean to imply that the city should have built a cross-walk, or that covered drains must be constructed at all points, or even across other highways; but whether the construction of this tile drain, and its junction at that particular point with the open drain, was a reasonable one, under all the circumstances and conditions, taking into consideration the grade of the sides of the ditch, the proximity of public light, etc., was a proper question for a jury. It is within the rule of Baker v. City of Grand Rapids, 111 Mich. 447; Malloy v. Township of Walker, 77 Mich. 448 (6 L. R. A. 695).

The question of contributory negligence is not discussed,’ and an examination of the testimony indicates that, if in the case, it was for the jury upon this record.

The judgment is reversed, and a new trial ordered.

Montgomery, Moore, and Long, JJ., concurred with Hooker, J.

Grant, C. J.

(dissenting). I think that no case of negligence on the part of the defendant is established by the proofs, and that the court was correct in directing a verdict. Plaintiff stepped into a gutter which was about 18 inches deep, with a slant of 22 inches. The gutter was properly constructed to carry off the water. It was the natural and necessary way to conduct it down the hill. All the streets on this hillside have open gutters. They exist on the east side of Ballard in all the streets from Emmett to Congress, and are from 10 to 20 inches deep. Is the city liable if a traveler leaves the side and cross walks in the night, and falls into a gutter? One Mr. Bouse, a witness for the plaintiff, who lives across the road from the place where plaintiff fell, testified that the place at the end of the gutter “is not as dangerous as out here at the corner of the street opposite the court-house [in the city of Ann Arbor].” These gutters exist in all cities, and, if there is any liability here, it is because the city had failed to construct a cross-walk, or put up barriers as a protection against the gutter. It is under no legal obligation to construct such cross-walk or barriers. There was a sidewalk and a cross-walk on the other side of the street, over which plaintiff might have gone. The fact that people cross there on foot creates no obligation to build a cross-walk or protect the gutter. The gutter, in its then condition, had existed for some time. Plaintiff testified: “There was no cross-walk there, but we thought it was just as safe as the other side.” If she and her companions chose to walk there, instead of taking the ■sidewalk upon the opposite side, where they knew they could walk with safety, she cannot complain, or hold the city liable for injuries received. O’Laughlin v. City of Dubuque, 42 Iowa, 541. It is said in that case: “Sidewalks and cross-walks alone are constructed for foot travelers, and he who, without some good and sufficient reason, w'alks elsewhere and is injured, should not be permitted to complain that he has been injured through the fault and negligence of the city.” I do not see how Baker v. City of Grand Rapids, 111 Mich. 447, has any application here. In that case a sewer was being constructed, and the opening was left unguarded by barriers or light.

I think the judgment should be affirmed.


author: Grant, O. J.

text:
    ROGERS v. VILLAGE OF ORION.
    1. Municipal Corporations — Defective Sidewalks — Notice.
    Notifying a member of the street committee of a village of a loose plank in a sidewalk, without specifying the location, is not sufficient to charge the village with notice of the defect.
    2. Personal Injuries — Action by Married Woman — Damages— Physician’s Services.
    In an action by á married woman for personal injuries, a recovery cannot be had for the services of a physician, where there is no testimony that she has paid or has promised to pay him therefor.
    3. Witnesses — Opinion. Evidence.
    The opinion of a witness that a sidewalk in front of the premises of a railroad company was rebuilt because it needed rebuilding is inadmissible, where witnesses in the employ of the company have testified that the walk was in sound condition, and was rebuilt because of a change in grade.
    4. Evidence — Probabilities.
    In an action against a village for injuries caused by a defective sidewalk, it is competent for defendant to show that it was the duty of one of its witnesses to look after the walk in question, as bearing upon the probability of his having made the examination testified to by him.

      Error to Oakland; Smith, J.
    Submitted February 4, 1898.
    Decided March 15, 1898.
    Case by Jennie Rogers against the village of Orion for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      A. <& 8. H. Perry, for appellant.

      Joseph H. Holman (Fred A. Baker, of counsel), for appellee.
   Grant, O. J.

Plaintiff recovered verdict and judgment for damages claimed to have been received on account of a defective sidewalk.

1. In order to show notice on the part of the defendant, plaintiff introduced one Russell, who testified that, before the accident to plaintiff, he also had fallen over a loose plank, and was afterwards shown the plank where plaintiff fell, and that it was at the same place. He testified that, the next morning after he fell, he went to one Kessel, who was a member of the street committee. His testimony on direct examination is as follows:

“I notified him the morning of the 27th. It was in the evening that I fell, but I didn’t- see him until the next morning. I knew he kept the books there. He was always there when the council board met. I went there for the purpose of notifying him. I told him, — -I explained to him that I had fallen, and come near breaking my neck; and, of course, I didn’t use the bad words I used when I fell, but I- told him that if my wife ever passed over that sidewalk, and. she would get hurt over it, that I would make somebody pay dear for it. He didn’t say anything at all to me in reply.”

On cross-examination he testified:

“I told him that, if my wife should fall, I would make somebody pay dear for it. That’s what I told him right there, sir. That’s the question asked between him and me. That was all the conversation there was. The substance of what I said was: ‘ Mr. Kessel, there is a loose plank up here, and, if my wife should fall over that, why, I would make the city pay dear for it.’ ”

He also testified that he did not know the name of a single street in the village. This testimony was left to the jury as evidence of notice. Mr. Kessel positively denied any such conversation. The judge instructed the jury that, if the testimony of Russell were true, this was notice to the village. There is nothing in the testimony of the witness Russell to show that he notified Kessel where the loose plank was. If Russell had testified that he told Kessel what the defect was, and the spot where it was, and it was the same one that caused plaintiff’s injury, there would have been no error in the charge.

2. The court erred in directing the jury that plaintiff could recover for the services of the physician. There was no testimony to indicate that she had paid or had promised to pay him. She was therefore under no legal duty to pay him. State v. City of Detroit, 113 Mich. 643.

3. The railroad company, in front of whose premises was this walk, rebuilt the walk some months after the accident. On cross-examination of one Blanchard, a witness .for defendant, he was permitted to answer the following question: “Well, it was rebuilt because it needed rebuilding, wasn’t it?” Witnesses in the employ of the railroad company had testified that the walk was in sound condition, and that it was rebuilt because of a change in grade. The opinion of the witness as to the reason for rebuilding was incompetent.

4. One Farrell, the station agent at the railroad depot, testified as to the condition of the walk, and his examination of it. Defendant offered testimony to show that it was one of the duties of Farrell to look after this walk, and this was excluded. The avowed purpose was to show the reason for his making the examination. If it was his duty to make it, that fact bears upon the probability of his having done so. The jury would have a right to infer that it was probable he did make it if that duty was imposed upon him. It is always proper to show reasons and opportunities for such, examinations.

We are not prepared to say that the last two errors alone were so prejudicial as to justify a reversal of the case. We decide them, inasmuch as the questions may arise upon a new trial. We find no other errors.

Judgment reversed, and new trial ordered.

Hooker and Long, JJ., concurred with Grant, O. J. Montgomery and Moore, JJ., concurred in the result.


text:
    SEAMAN v. CITY OF MARSHALL.
    1. Municipal Corporations — Sewers — Negligence — Flooding Private Premises.
    A city is bound to use due caution in establishing a system of drainage; and if, through its negligence in not providing reasonably efficient means to carry off the water that it should reasonably expect to accumulate by reason of its gutters, water is collected and cast upon premises which otherwise would not have been invaded, the city is liable for the resulting damages.
    2. Same — Sufficiency of Declaration.
    A declaration, in an action against a city, which, alleges the ownership by the city of gutters and sewers, its duty to keep them open and clear, and not to permit them to become dammed, or the flow of the water through them to be impeded in any way, and charges that the city negligently permitted and allowed to remain in the gutters and sewers of a certain street divers impediments, by reason of which, and of the improper construction of said gutters and sewers, the water became dammed up until it overflowed the gutter, and ran down upon and injured plaintiff’s property,’ — is sufficient to sustain a verdict for negligence in not removing obstructions, or in constructing a sewer inadequate for the exigencies of ordinary floods.
    Error to Calboun; Smith, J.
    Submitted February 3, 1898.
    Decided March 15, 1898.

      Case by Frank Gr. Seaman against tbe city of Marshall for the negligent flooding of his store building. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Richard 8. LocMon, for appellant.

      Herbert E. Winsor, for appellee.
   Hooker, J.

State and Mansion streets, in the city of Marshall, are parallel streets, running east and west. Plaintiff’s store fronts the former. Division street intersects, but does not cross, Mansion, from the north. Near the intersection of the east side of Division and the north side of Mansion there is a catch-basin, into which 12-inch tile drains enter from the north, upon both sides of Division street, and from the east upon the north, side of Mansion street. There is also a 10-inch tile drain which enters from the west upon the north side of Mansion street. Whether these are more than surface drains does not appear, and it is not material to this opinion. A brick sewer 2 feet in diameter extends south across Mansion street, where there is another catch-basin, and thence eastward along the south side of Mansion street. An 8-inch tile drain enters this last-mentioned catch-basin, coming from the west a distance of about 10 rods, where it receives the water from an open street gutter. The plaintiff’s store is in the vicinity of the junction of the tile and open gutter, and is on low ground, which is drained by a catch-basin connecting with the main sewer. In July a heavy storm occurred, during which the 8-inch tile failed to carry off the water, which accumulated in and overflowed the open gutter, street, and sidewalk, and ran down the alley towards the plaintiff’s store. In the morning he found 3 feet of water in his basement, and sued for and recovered a judgment against the city for injuries to his property contained in the basement. The defendant has brought the case to this court by writ of error.

The declaration alleges the ownership by the city of gutters and sewers, its duty to keep them open and clear, and not to permit the gutters and sewers to become dammed, or the water to be impeded in any way from flowing freely down and through said gutters and sewers, and that it negligently permitted and allowed to remain in said gutters and sewers of said Mansion street divers impediments, and by reason of such impediments, and the improper construction of said gutters and sewers, the water became dammed up and held back until it overflowed the sides and top of the gutter, and ran down upon and injured plaintiff’s property.

There was evidence in the case that this was originally an open gutter to the catch-basin, but that some years ago the 10 rods of 8-inch tile was laid by direction of the common council, and that the gutter ‘had satisfactorily disposed of the water theretofore. Several witnesses stated that their opinions were that the tile was inadequate, and that it was frequently stopped up by rubbish at its upper end. There was evidence tending to show that the open gutter served as the outlet of water which fell upon several blocks. The principal contention of counsel for the defendant is that the -injury resulted from the inadequacy of the 8-inch tile or main sewer, and not from any defect in the construction; that the direction of the construction of this tile drain was a legislative act; and that the city is not liable for the failure of the council to plan such a sewer as should protect the plaintiff from all injury. It is insisted that the uncontradicted testimony establishes the fact that the accumulation of water was due merely to the inadequacy of the sewer — possibly the 8-inch tile, but probably the 2-foot sewer — to take care of the flood which was occasioned by the violent storm, and that there was no evidence to support the allegation of impediments in the drain, or to justify a recovery for injuries resulting from the inadequacy of the sewer, if it should be held that a recovery can be had in such a case.

We are of the opinion that there may be a right of action where an injury results from a sewer, although built with all due care, and in strict conformity to the plan adopted by the council. Such liability is recognized where it is permitted to collect water and dischai'ge it upon the lands of a private person, as said in Defer v. City of Detroit, 67 Mich. 346, where this subject is considered, or, as held in Rice v. City of Flint, Id. 401, where it backs up a drain and floods a cellar. See, also, Ashley v. City of Port Huron, 35 Mich. 301 (24 Am. Rep. 552). This subject is elaborately discussed in 2 Dill. Mun. Corp. § 1042 et seq.

Upon the uncontradicted testimony, we are able to say that the city of Marshall caused an accumulation of water that would not have occurred but for its street gutters, and that by reason of the inadequacy of the outlet, or its stoppage, this water overflowed the gutter upon plaintiffs premises, to his injury. There is no doubt of the authority of the city to establish a system of drainage for the benefit of the highway and the citizens, and it cannot be said that it must be sufficient for every possible emergency. But the city is required to use due caution, and if, through its negligence in not providing reasonably efficacious means to take care of the water that it should reasonably expect to accumulate by reason of its gutters, a person is injured by the overflow upon his premises of water collected by the sewers, and brought to such premises, and which would not otherwise have invaded them, the city is liable for the damages. While we are able to say that the court might have properly charged the jury that the plaintiff was injured by water the bringing of which to that point was chargeable to the defendant’s act, and that he was injured to the amount found by the jury, it was for the jury to determine whether the defendant was guilty of negligence in the premises, thereby causing the injury. Whether such negligence was declared upon is a question for the court.

There was evidence tending to show that the accumulation was due to one or more of several causes, viz., the inadequacy of the main outlet, the insufficient size of the 8-inch tile, stoppage of the same by rubbish, and, lastly, the extraordinary character of the storm and quantity of water by which the city was deluged. The declaration was sufficient to sustain a verdict for negligence in not removing obstructions, or for constructing a gutter which it should have known, or have reasonably expected, would bring water to the point in controversy faster than the means provided could reasonably be expected to take care of it, under conditions reasonably to be anticipated, whether by reason of the inadequacy of the 8-inch tile or that of the 2-foot brick sewer. The declaration was not demurred to, and its allegations that the drain was negligently constructed, and negligently allowed to become clogged, which it says in substance, should be held sufficient. It was also for the jury to determine whether the flood was of such an unusual character that it was not negligence in the city to fail to anticipate and provide against such, and, if they found it due to obstructions, whether reasonable diligence had not been used in the matter of their removal, although, under the circumstances, inadequate, which questions could not be tested by the result alone. The jury were instructed that:

“If you find as a fact that that portion of Mansion street from the Jefferson-street manhole to the west side of the ‘Cook Property,’ so called, was so defective in construction as not to take care of the water under ordinary conditions, and by reason thereof the water which fell upon said highway and the adjoining highways of the city and near to this locality was dammed up and held back by reason' of such defective construction, so that it was forced over and upon the property of the plaintiff, then the city is liable for the damage done, provided the plaintiff was free from negligence, and the city had knowledge or notice of such defective construction of the highway, and, after such knowledge or notice, had a reasonable time to repair it; and notice or knowledge by the officers of the city would be knowledge or notice to the city. The city of Marshall is a municipality, hence exercises control and ownership of its streets and highways, and is bound to keep them and all parts thereof in reasonable repair, and must use them so that no one, in person or property, may be injured by reason of the negligence of the city to keep them in repair; and I instruct you, if you find as a fact tnat any injury was caused to the property of the plaintiff by reason of the negligent acts or negligent want of action of the city authorities after they became aware of the defects, or had notice thereof, and water was forced over and into the cellar of the plaintiff on account of such defects in the highway of the defendant, then the city is liable for such damages as have been proven in the case. The defendant — that is, the city- — has the right to determine what part of Mansion street should be devoted to the various purposes of travel or passage, and what part for sidewalks, trees, and gutters, and other suitable uses, and upon such subject the municipal discretion must prevail, and is beyond judicial review, unless some distinct legal duty has been imposed and violated; but if the city, in constructing its streets, so arranges or elevates the same that the water accumulates in large quantities on any part thereof, then it is the duty of the city to so construct such streets that the water accumulating there under ordinary circumstances will be taken care of, and not held back so ■that the water will overflow the street, and injure the property of any one by reason of such overflow.
“You see, gentlemen, there may be two questions for you to consider: First, has the defendant been negligent in the care of its street where the injury complained of is alleged to have been occasioned ? and you determine that from the evidence in the case, and under the law as I have given it to you. If, from the evidence in the case, you shall find that the sewerage system of the city pertaining to Mansion street and its immediate connections took care of the water or rainfall under ordinary conditions, then the city would not be liable. In other words, the city cannot be held liable for extraordinary conditions; that is, conditions which cannot be anticipated by ordinary care and foresight, and guarded against. Nor would the city be liable for the damage, if any such occurred, from surface water coming into the cellar, if any such did come in, from other ways or sources other than from Mansion street on account of the alleged negligent act of the city in'the construction of the sewer complained of. In other words, if the city is liable at all, it must be for its negligent act occurring from the negligence alleged against it; that is, the defective construction of Mansion street from the Jefferson-street manhole to the west side of the ‘ Cook property,’ so called. If upon this first question you shall find the city not guilty of the negligence urged against it, — or, in other words, not liable for the damage done, — then that would end the case, and your verdict will be, ‘No cause of action.’ On the other hand, if you shall find the city liable on account of its negligent, acts, then you will take up the question of damages.”

In substance, the jury were told that, if the defendant caused water to accumulate there, and flow upon the plaintiff’s land, it would be liable for the consequences of its failure to provide for the exigencies of ordinary floods, and that otherwise it would not. This comprehended the entire question of negligence, and, as the other essentials were conclusively established, it was sufficient. The requests to charge were sufficiently covered, and the instruction was as favorable as the defendant had a right to expect.

The judgment is affirmed.

The other Justices concurred.


author: Long, J.

text:
    PENINSULAR TRUST CO. v. BARKER.
    1. Wills — Testamentary Capacity.
    One has sufficient capacity to make a will where he understands the business in which he is engaged, and the extent and value of his property, and knows who are his relatives, and who would be his heirs at law if no will were made
    2. Same — Delusions.
    That a testator was subject to certain delusions does not invalidate his will if they did not dictate its provisions.
    3. Same — Undue Influence — Evidence.
    Upon a review of the evidence on the contest of a will, held, that there was nothing to .go to the jury upon the question either of mental incompetency or of undue influence.
    Error to Kent; Adsit, J.
    Submitted February 3, 1898.
    Decided March 15, 1898.

      The Peninsular Trust Company presented for probate the will of George M. Barker, deceased, which was duly allowed by the probate court. Silas Barker and Imogene Chappell appealed to the circuit. From a judgment for contestants, proponent brings error.
    Reversed.

      Taggart, Knappen & Denison, for appellant.

      Maher & Salsbury, for appellees.
   Long, J.

October 13, 1890, George M. Barker made and executed his last will and testament, by which $9,000 was divided among certain church benevolences, $500 given to each of two of his own relatives, including his brother, and $500 each to two of his wife’s relatives, and small bequests to others, the residue of his estate being given to the Michigan Association of the Church of the New Jerusalem. This will was duly probated, and, on appeal to the circuit court, the jury found in favor of the contestants, who are the nephew and niece of deceased.

It appears that the testator was married in 1839. He and his wife lived together until 1889, when Mrs. Barker died. No children were born to them. During these years the parties had accumulated considerable property, though poor at the time of their marriage. In 1845 Mr. Barker purchased 40 acres of land, which is now within the corporate limits of the city of Grand Rapids. It was the rapid increase in the value of this land which brought the property of which Mr. Barker died seised. He and his wife were members of the “New” or “Swedenborgian ” Church, to which they were in the habit of making regular contributions. Some time prior to 1870 they made a special contribution of $1,000 for the support of the church educational institutions. Mrs. Barker’s health had not been good for many years, she being practically helpless, requiring the constant attendance of her husband, which he gave her. In 1876 she was regarded as seriously ill. At this time she was desirous that a portion of the property possessed by them should be given for the benefit of the church educational institutions. Her husband was apparently equally interested in this benevolence. In order that the gift might be made in his wife’s name, he, on July 1,- 1876, conveyed to her practically one-half of his property (himself drafting the deed), for the sole purpose of carrying out their mutual plan of devoting the property to church purposes. They were especially at this time interested in Urbana (Ohio) University. On the same day that the conveyance was made by Mr. Barker to his wife, he wrote the president of the university as follows:

“The health of my wife is gradually failing, and she will probably leave this world at no very distant day. She has property, real estate, in her own right, which, in my judgment, is worth, at a moderate calculation, ten or twelve thousand dollars, which she intends to bequeath to the New Church, to apply towards some of their many uses. She would like very much to help the university, but wants first to see that young women have the same privilege there that men have. Now, will you be so kind as to inform us whether, in your opinion, we have any reason to expect anything of the kind,” etc.

The president of the university, Mr. Sewall, replied to this letter on July 5th; and, on receiving this reply, Mr. Barker drew his wife’s will, giving to the trustees of Urbana University all the lands so conveyed to her by him, and appointing the president of that university executor of the will. On July 21st following, Mr. Barker wrote the president of the university again, saying:

“Yours of the 5th inst. was duly received, and the statements concerning the desires and intentions of the trustees of Urbana University with regard to granting to females equal privileges with males are quite satisfactory,” etc.

On January 29, 1878, Mrs. Barker added a codicil to her will, giving the life use of this property to her husband. Before her death, she and her husband made direct conveyance of two lots to the university. At the time of Mrs. Barker’s death, her husband had practically used up the whole of his own property in the care of his wife and their joint support. Mrs. Barker’s will was presented for probate by the university. The heirs of Mrs. Barker contested the probate of the will, and prevailed by reason of the failure to prove by the witnesses thereto that the will was signed by Mrs. Barker in their presence and in the presence of each other. The setting aside of this will left the title of one-half of the real estate in Mr. Barker, the remaining one-half being vested in seven heirs at law of Mrs. Barker. Four of these heirs released their interest to Mr. Barker, but the three others refused to do so. In October, 1890, Mr. Barker filed his bill in the Kent county circuit, in chancery, against these three heirs, asking to have the deed from him to his wife set aside on the ground of total failure of consideration through the noneffectiveness of the will. The court entered a decree adjudging that, by reason of the failure to probate Mrs. Barker’s will, the consideration for the deed had wholly failed, and decreeing that the deed be canceled and held for naught. The case was removed to this court, and that decree affirmed. Barker v. Smith, 93 Mich. 336. After the decision denying the probate of his wife’s will, and just prior to the time of filing the bill to set aside the deed given to his wife, Mr. Barker drafted with his own hand a form of will. From this the present will was drawn by his attorney.

On the trial below, the claim of the contestants was that the will was executed under undue influence, and that the testator had no sufficient mental capacity to execute a will. A large amount of testimony was given upon the trial, which we have carefully examined. The proponent of the will asked the court to charge the jury that there was no evidence of undue influence. This the court refused, and submitted the question to the jury. We are satisfied from an examination of the recoi’d that the court erred in this refusal to so charge. It appears from the record that it was the intention of Mr. and Mrs. Barker for many years to give the bulk of their property to these benevolent purposes; that Mr. Barker had in mind, when he deeded this property to his wife, that the gift should he made in her name, as is seen from the letters written to the president of the university at Urbana. After her death, he was willing that her will should be carried into effect; but her heirs contested the probate, and, after the will was defeated, he immediately took steps to have the deed set aside which he had given his wife, bringing the estate back into his own hands; and even before that was accomplished, and evidently in anticipation of such action, he made the will in controversy. It is true that in 1893 he made a codicil to the will, by which he revoked the $500 bequests to the four persons named; but he gave his reasons therefor by saying that he intended in his lifetime to give these persons such property or money as he should deem right, and that in some cases he had already done so.

Upon the question of mental incompetency, the court was asked to instruct the jury:

“6. There is no evidence in the case of any mental unsoundness or of any undue influence operating upon the mind of Mr. Barker at the time of the execution of the original will of October 13, 1890; and such will must therefore be admitted to probate, and must stand as so drawn, except as the same may be changed by one or more of such codicils thereto, in case the jury so find one or more of such codicils duly established.”

It appears that Mr. Barker had charge of his property up to July 12, 1894, when he made a power of attorney to the Peninsular Trust Company, to take charge of and manage it. In 1886 he made several conveyances of the real estate. He also made six conveyances in 1888, one in 1890, four in 1891, five in 1892, ten in 1893, six in 1894, and one in 1895, the year of his death. The will was made in 1890. The testimony is overwhelming that he managed the property with good judgment and discretion. Yet it is contended that he had insane delusions; that he on many occasions claimed to have been guided by his departed wife; that these delusions and other acts of his are evidences of senile dementia.

“1?. If the jury find that Mr. Barker had sufficient mental capacity at the time of making his will, or*at the time of making either or both of the codicils, to understand the business in which he was engaged, to know and understand the extent and value of his property, and how he wanted to dispose of it, and to keep those facts in his mind long enough to dictate his will without prompting from others, he had sufficient capacity to make a will. If he had sufficient mind to clearly discern the nature and extent of his property, and the objects of his bounty, and the scope and provisions "of the will, he was mentally competent to make it.”
“23. It is established by the undisputed evidence that, at the time of making this will, Mr. Barker did understand the business in which he was engaged, and did know and understand the extent and value of his property, and did know who were his relatives, and who would be his heirs at law if no will were made.”

These requests should have been given, for the evidence in the case clearly shows, and without contradiction, that Mr. Barker clearly comprehended the nature and extent of his property and his own business, and who* were his relatives and his heirs at law. He had at that time the sole management of his property, had commenced litigation to recover the title, and apparently for the very purpose of making a will for the benefit of the New Church, to carry out the understanding which he and his wife had that the property should be so devoted after his own death. If it were established that the testator was subject to certain delusions, the existence of such delusions would not vitiate the will so long as they did not dictate its provisions. As was said in Fraser v. Jennison, 42 Mich. 231:

“ It is not an uncommon impression that a will must be set aside whenever the existence of any mental disorder at the time of its execution is established. That this is not the law is apparent from the fact that the testamentary dispositions of monomaniacs are often sustained in spite of the mental disorder. When the monomania is conceded, it is only necessary to inquire further whether the provisions of the will are or are not affected by it, and the will stands or falls by that test.”

See cases cited in support of this rule.

Counsel also asked the court to charge the jury:

“There is no evidence in the case that Mr. Barker was affected by religious monomania at the time of making the will in question.”

This request should have been given. Prom an examination of the record we are unable to find any evidence that Mr. Barker was influenced in making this will by any monomania, but, rather, that it was made under a long-settled purpose to dispose of his property for the benefit of the New Church.

The court should have directed the verdict in favor of the proponent, and was in error in refusing a new trial.

The judgment below must be reversed, and a new trial ordered.

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


text:
    BREITENWISCHER v. CLOUGH.
    1. Appeal — Retrial—Conclusiveness of Prior Decision.
    Where the court, upon reversing a. judgment, rules adversely to the appellant on some of his assignments of error, the questions raised by such assignments are not open for consideration on a second appeal.

    2. Replevin — Defenses—Change op Theory.

      A defense pleaded upon the retrial of a suit in replevin, that defendant’s father deeded to plaintiff a farm leased to defendant, in consideration of an agreement that' defendant should be allowed to raise thereon a crop of wheat, a portion of which was replevied by plaintiff, is substantially the same as a defense decided on a former appeal to be permissible, that the deed was in consideration of-an agreement that the grantor should be allowed to raise the wheat, which agreement inured to defendant’s benefit, — and the same rule of law is applicable to both.
    3. Same — Evidence.
    The fact that plaintiff bases his right to the wheat replevied upon a cropping agreement between defendant and himself, the making of which is denied by defendant, does not render inadmissible evidence of the arrangement between plaintiff and defendant’s father, since such evidence tends to throw light upon the transaction, and to corroborate defendant’s denial.
    4. Same — Breach op Contract — Remedy.
    Even if it were admitted that both bargains were made, it would be competent to show that defendant did not perform one, and did put in the wheat by consent of his father under the other; in which case plaintiff’s remedy would be an action for damages for not raising wheat under his contract, not replevin for the wheat raised under a valid contract with another.

      5. Witnesses — Impeachment—1Testimony on Former Trial.
    A witness cannot be impeached by introducing a bill of exceptions containing a statement of his testimony on a former trial, unless the correctness of the transcript is established; the usual method being to call the stenographer, and prove the statements made upon his oath.
    Error to Washtenaw; Kinne, J.
    Submitted February 3, 1898.
    Decided March 15, 1898.
    Replevin by Henry Breitenwischer against Elmer Clough. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      A. F. & F. M. Freeman, for appellant.

      Thomas D. Kearney and Thomas A. Bogle, for appellee.

       The numerous and not altogether harmonious authorities on the conclusiveness of prior decisions upon subsequent appeals are analyzed and discussed in a note to Hastings v. Foxworthy, (Neb.) 34 L. R. A. 321.

   Hooker, J.

This cause has been before us on a former occasion upon a writ of error issued at the instance of the plaintiff. Ill Mich. 6. On that occasion we held that it was competent for the defendant to offer to show a certain defense, viz., that, when defendant’s father deeded the place to the plaintiff, the consideration was an agreement that the grantor should be allowed to grow 20 or 25 acres of wheat upon the premises, and that this inured to the defendant’s benefit. Hpon the last trial the plaintiff was careful, in stating his case to the jury, to base his right to the wheat which he had replevied upon a bargain made between himself and the defendant, by which the latter was to raise a crop on shares, one-third to go to the plaintiff; and he says that he relied on no other claim. Thereupon the defendant’s counsel stated the defense, in the course of which he said that the defendant’s father, owning the farm, leased it to the defendant for a year in May, 1893, and that he afterwards deeded to the plaintiff, in consideration of an agreement that the defendant should be allowed to raise 20 or 25 acres of wheat, and that in reliance upon this arrangement, and by consent of his father, the defendant sowed and harvested the wheat in question, of which plaintiff replevied one-third in this action. An objection to the introduction of any testimony tending to prove this statement was overruled, and this is one of the errors assigned. Counsel assert that this is not a statement of the same defense that was passed upon in our former opinion. They also claim that the question decided was not raised by the former record. If they are right in the former, it is unnecessary to discuss the latter, question; but we think the defense stated is substantially the same, though technically it was not, because upon one record the statement was that the contract was that Clough should have the right to raise wheat, which accrued to the son, while in the other it was that the son should be allowed to raise the wheat. The same rule of law is applicable to both statements. • In replevin a defendant may show any state of facts which controverts the plaintiff’s right of possession, and he is not precluded from showing circumstances consistent with his own or another’s title by a claim of title on the part of plaintiff, disproval of which would be a complete defense, thus reducing the trial to a single issue of his own selection, although the pleadings do not thus restrict it.

We are of the opinion that counsel have misconceived the other case. They alleged two errors,' — -one that, although the trial court excluded the proposed testimony, it was error to permit the defendant to state to the jury what he proposed to prove upon that subject. The court, as is its custom where a question is sure to arise upon a second trial, discussed and determined it. The question was raised by the assignments of error, and would have reversed the case had we taken plaintiff’s view of it. As it was, the case turned on the question of demand. Our former opinion has settled the principle applicable to this casé.

If it be conceded that, notwithstanding the agreement between plaintiff and the father, a valid contract for cropping might be made between the plaintiff and the defendant, thereby admitting that the former is not necessarily' a defense to the plaintiff’s claim, this testimony throws light upon the transaction, and tends to corroborate the defendant’s denial. Even if it be admitted that both bargains were made, it would be competent to show that the son did not perform one, and did put in the wheat by consent of his father under the other. In such case the plaintiff’s remedy would be an action for damages for not raising wheat under his contract, not a replevin of the wheat actually raised under a different and valid contract with another. The right to show that this wheat was thus raised is not lessened by the fact that the defendant does not admit the making of the two contracts, and denies the bargain stated by the plaintiff.

The fourth request was given in substance, which we have frequently said dispenses with the necessity of giving specific requests.

Counsel urge that the only agreement proved was, not that plaintiff would allow the father of defendant to raise wheat, but the son. We think this would not alter the rights of the son, if, by consent of his father, hq raised this wheat. It was none the less his wheat, and none the more the wheat of the plaintiff.

We must decline to again discuss the question of the alleged variation of the deed by parol, as it was covered and settled upon the former hearing.

Counsel sought to impeach a witness by introducing the former bill of exceptions containing a statement of his testimony. This was clearly inadmissible, as it had not the sanction of an oath. It is usual to call the stenographer, and prove the statements made upon his oath.

The judgment is affirmed.

The other Justices concurred.