text:
    PLOZKE v. DETROIT UNITED RAILWAY.
    '1. Negligence — Evidence of Injuries — Damages—Instructions to Jury — Street Railways.
    In an action for injuries to a passenger while riding on defendant’s street car, it was not error to submit to the jury her testimony concerning her nervous condition, insomnia and pain in her arm and ankle, following the injury, although her physician testified that she did not show any effects of nervousness, that she did complain to him of her right arm, that the insomnia might result from such an accident, and it would be impossible to tell how long the ill effects might continue.
    3. Same — Damages.
    Two thousand dollars is not so excessive an amount, under the testimony, as to warrant the setting aside of the verdict.
    Error to Wayne; Hosmer, J.
    Submitted June 14, 1910.
    (Docket No. 9.)
    Decided September 27, 1910.
    Case by Augusta Plozke against the Detroit United Railway for personal injuries. A judgment for plaintiff of $3,000 damages is reviewed by defendant on writ of error.
    Affirmed.

      Brennan, Donnelly & Van De Mark, for appellant.

      Sellers & Sellers (Cassius Hollenbeck, of counsel), for appellee.
   McAlvay, J.

The injury to plaintiff for which this suit was brought occurred while she was riding as a passenger on a car of defendant in the city of Detroit, when a car was derailed. It is the same occurrence described briefly in the case of Mueller v. Railway, ante., 313 (127 N. W. 335), to which reference is had. No further facts and details as to how the accident occurred are given, for the reason that there is no dispute upon these facts. Upon the trial no evidence was presented on the part of defendant. Plaintiff recovered a verdict of $2,000. Defendant is before this court upon writ of error, claiming that the verdict was excessive, and not justified by the evidence, also that the court erred in permitting the jury by his charge to consider the testimony given by plaintiff relative to her physical condition at the time of the trial, claimed by her to have been the result of her injury.

As we understand defendant’s contention, it is that, because of the testimony of plaintiff’s attending physician as to her condition, her testimony which tended to show a condition up to the time of the trial claimed as resulting from the accident should have been stricken out and withdrawn from consideration. The trial occurred October 20, 1909. The physician first attended her March 27, 1908, two days after the injury. His testimony as to the external injuries visible and found by him is that they were not very severe, and from those, as far as he could say, she had recovered. He says:

The subjective symptoms were the most severe — the limited motion when she went to turn. We can tell when a person is actually hurt or faking in a complaint of that sort, because they will show that it hurts them when they move. * * * Her motions were limited, showing that she had been strained and sore. There is no doubt in my mind that plaintiff had been injured.”

As to whether she had received any nervous shock, he said:

She suffered some, of course. She was not unconscious, and she was not paralyzed. I have treated her since. The attendance was pretty complete after the accident up to the latter part of April, and then I saw her off and on up to September 24th of this year. The treatment up to that time was for nervousness that she complains of. I did not know her before the accident.”

He proceeded:

“ Well, of course, symptoms are entirely subjective.”

He explained that subjective symptoms were things which she complained of, for which he was obliged to take her word.

“I treated her for insomnia and nervousness, and that treatment extended to September of this year. There were no objective symptoms except what I have stated. As to other matters, I have got to determine them upon the history of the case as given by the patient. I ascertained from time to time as nearly as I could what her condition was.”

He stated that the injury to the ankle was nothing severe; that the last time he examined her was on September 24th.

“From the condition which I saw then, I would say in regard to the character of the injuries that there is no evidence of permanency in the symptoms which she presents.”

He treated her in September for lack of power to sleep, as she claimed, and had treated her from time to time since the accident for that complaint. She had been in the office quite often complaining of nervousness and inability to sleep. To a question stated hypothetically describing the accident, injury, etc., the doctor answered that it might produce insomnia. To a question by the court, he answered that such injuries as she gave evidence of when he saw her could be followed by such nervousness and insomnia; that it would be impossible for anybody to tell how long it would continue. On cross-examination he said:

“A person simply looking at her would say that she had healed up and recovered; that she did not have the appearance of a nervous person. All the patient’s reflexes are perfect, which shows that all her powers as far as they are concerned are all right.”

He said she might be suffering from the result of the injury, and no one would or could explain it but herself.

Plaintiff testified that, on being struck on the forehead at the time of the accident, she became unconscious, and knew nothing until she came to in the. undertaker’s shop. She said she was injured upon her nose, arm, chest, mouth, and ankle; that she was in the hospital three days, and confined to her bed at home for eight weeks; that, before the accident, she always had perfect health, doing her own work and going out to work, earning $6 and $6.50 a week. Since the accident she is always sick, dizzy, and, when the weather changes, in pain; that she cannot do her own work now, but must keep her daughters at home for that purpose; that she cannot sleep on account of pains in her arm, chest, and ankle; that she cannot breathe through her nose. The doctor was recalled for further cross-examination, stating that plaintiff did complain to him of her right arm; that he had no opinion as to its cause; that it might be rheumatism or neuralgia; that there was no ocular evidence after the accident to warrant the supposition that this would follow, yet accidents were erratic, and “you cannot tell what will follow.” We have given the substance of all the testimony bearing upon this question.

The charge excepted to is as follows:

“ I am asked to charge you that there is no evidence in the case from which you can find that the trouble with the plaintiff’s right arm, of which she now complains, has resulted from the derailment or the injury received thereby. I cannot say that, gentlemen of the jury. If you find that she was not suffering from the injury of which she now complains before, and she suffers now from the injury, I think it is a matter you may take into consideration, and I think it is a matter you may find. To what extent she suffers in that respect in the right arm at the present time is, of course, wholly a question for you. It is for you to say what credence any of the witnesses which have sworn shall have in your sight.”

We do not agree with defendant’s contention. For the court, under the circumstances, to have taken the course urged would have been palpable error. The testimony of the plaintiff was material and received without objection. The substance of the testimony of the physician who had treated her up to within 30 days of the trial is that although she is, as far as can be seen, recovered, and nothing you could see would warrant one in supposing that the present condition as stated by her would follow this accident, yet it might follow. The question was for the jury. There was not the slightest intimation that the plaintiff falsified. The jury reconciled the testimony of both witnesses, and found for plaintiff. It is not a case where this court will reverse the action of the trial court in refusing to set aside this verdict because it is excessive. The record in our opinion contains nothing which would warrant such action on our part.

The judgment is affirmed.

Ostrander, Hooker, Moore, and Brooke, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    SCOTT v. DOW.
    1. Trial — Cross-Examination—Witnesses.
    To ask a witness, on cross-examination, after he has testified, that he did not remember making certain conflicting statements on another trial, if his testimony was untrue, is not proper cross-examination.
    2. Same — Conduct on Trial Court.
    A reprimand for persisting in improper cross-examination, notwithstanding the adverse ruling of the court, is not reversible error, when it was induced by counsel’s conduct.
    3. Highways — Law on the Road — Motor Vehicles — Personal Injuries.
    In an action by the operator of a motorcycle against the driver of an automobile who collided with him, a request to charge that plaintiff is governed by the motor vehicle law, is sufficiently covered by a charge that he was bound to observe the same rules of the road as defendant, and was prima facie guilty of contributory negligence if he was operating his motorcycle at a greater speed than the laws of the State or the ordinances of the city permit.
    4. Same — Motor Vehicles.
    The charge was more favorable to defendant than he was entitled to, and sufficiently stated the rule that plaintiff was governed by the city traffic ordinance.
    5. Same — Negligence—Violation oe Ordinance.
    Breach of an ordinance is evidence of negligence, not negligence per se.

    6. Same — Presumptions.
    Failure to give a requested instruction that the presumption is against the person on the wrong side of the road, is not error where the court charged that if the plaintiff cut the corner, and the collision resulted, whether by carelessness of the motorman a little greater or more than that of the plaintiff, he could not recover.
    Error to Wayne; Donovan, J.
    Submitted June 14, 1910.
    (Docket No. 56.)
    Decided September 27, 1910.
    Case by Arthur Scott against Alex Dow for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.
    Wilkinson, Post So Oxtoby, for appellant.

      William P. Corbett (Howard B. Bloomer, of counsel), for appellee.
   Brooke, J.

Plaintiff recovered a judgment against defendant for $300 in an action of tort for injuries sustained by him in a collision between a motorcycle, ridden by himself, and an automobile driven by defendant. The collision occurred at the corner • of Woodward and Milwaukee avenues, in the city of Detroit.

Plaintiff entered Woodward avenue from the east and turned south. Defendant was proceeding north on Woodward. Plaintiff claimed that he passed across the center of Woodward avenue before turning south, and that defendant ran his machine diagonally across the street, striking plaintiff’s machine on the west side of Woodward, just south of Milwaukee. Defendant claimed that plaintiff turned south on Woodward upon the east side of the street, when he, defendant, was approaching the intersection of Milwaukee; that, supposing plaintiff intended to stop at the east side of the street, he, defendant, turned slightly to the west to avoid him; that plaintiff suddenly discovered defendant’s approach, and swerved to the west side of Woodward, where the vehicles came together.

Defendant was prosecuted in police court for driving his machine at a rate of speed prohibited by ordinance. Upon that trial plaintiff gave testimony for the people. He there testified that, when he' entered Woodward, he observed defendant approaching from the south at a distance of about from 50 to 70 feet. Later he brought this suit against defendant in the justice’s court, where he testified that he first saw defendant when he was about in the center of the block, between Baltimore and Milwaukee avenues. Upon the trial at circuit, plaintiff testified that, when he first saw defendant, he was nearer Baltimore than Milwaukee avenue. Plaintiff was cross-examined at great length by counsel for defendant upon the discrepancies in his testimony upon the question of distance. Plaintiff testified repeatedly that he did not remember having testified in police and justice’s courts as the record in those proceedings indicated. Counsel for defendant then asked the' following question:

<cQ. And, if you testified differently in police court, your testimony in police court was not true ?
“The Court: You cannot ask any man to testify that way, not the adverse witness. That is for the jury, whether he is mistaken. It is unreasonable to ask anybody whether their testimony is untrue. That is for the jury.
“Mr. Oxtoby: The question is whether he intentionally testified.
' “The Court: I will rule it out. It is impertinent to ask any man whether it was not true.
“<9. If you testified in justice court, Mr. Scott, that, when you first came on Woodward avenue Mr. Dow was 85 feet from you, your testimony in justice court was not true?
“The Court: You need not answer. It is impertinent and insulting to a witness, and a lawyer should not ask it, and I reprimand you now. It is wrong.”

Error is assigned upon this ruling and the accompanying language. We think the question was properly excluded. It was not proper cross-examination, as the court had pointed out earlier in the trial. Counsel had clearly brought out the variations in the plaintiff’s various estimates as to the distance. These discrepancies were proper subjects of comment to the jury. We cannot say that the language in which the ruling was couched constitutes reversible error as it was induced by counsel’s disregard of the court’s previous ruling.

Defendant requested the court to charge as follows:

“ I charge you that the motorcycle on which the plaintiff was riding on October 19, 1907, was a motor vehicle within the meaning of the Michigan motor vehicle law.”'

Error is assigned upon the court’s refusal to give this, request, and it is argued that in so doing he allowed the jury to test the actions of the defendant by the standard, prescribed by the statute, and the actions of the plaintiff,, on the other hand, by the common law. A sufficient, answer to this claim is found in the following excerpts; from the charge:

“ I charge you that the plaintiff in operating his motorcycle on the day in question was bound to observe the same rules of the road as was the defendant in charge of his automobile; that the plaintiff had the right to operate his motorcycle only in compliance with the law and the burden of proof is on him to show that he was lawfully operating his vehicle on Woodward avenue. * * *
“If you find that the plaintiff in going into Woodward avenue from Milwaukee on the day in question was operating his motorcycle at a greater speed than permitted under the laws of Michigan, and the traffic ordinance of the city of Detroit, then he was prima facie guilty of contributory negligence, and could not recover.”

Error is likewise assigned upon the refusal of the court to give the following request:

“I charge you that the motorcycle upon which the plaintiff was riding on October 19, 1907, was a motor vehicle within the traffic ordinance of the city of Detroit, approved April 30, 1907.”

The last paragraph of the charge above quoted sufficiently covers this request, and is more favorable to defendant than was proper. There was much conflict in the testimony as to the rate of speed at which plaintiff entered Woodward avenue. That question, therefore, became a question of fact for the jury. Had the jury determined that plaintiff was at that moment operating his machine at a speed greater than four miles per hour (the ordinance limit), plaintiff’s recovery would not necessarily have been barred. Breach of an ordinance is evidence of negligence, not negligence per se. Blickley v. Luce’s Estate, 148 Mich. 233 (111 N. W. 752), and cases cited.

It is urged that the court erred in refusing to give defendant’s 14th request, as follows:

“I charge you that, where a collision takes place, the presumption is against the person on the wrong side of the road.”

Inasmuch as the collision actually occurred on the west side of Woodward avenue, which was the wrong side of the road for the defendant to be upon when traveling north, it would, at first blush, appear that this request, if given, would have operated against his interest. But it will be remembered that it was defendant’s theory that he had been driven out of his proper course by an effort to avoid collision with plaintiff, who was earlier upon the east side of the street. Upon this point also the testimony of the various witnesses did not agree. The court charged:

“And last, if you find that the plaintiff cut the corner at the southeast corner of Milwaukee avenue and Woodward avenue, in entering upon Woodward avenue, and came into the way of the motorman [defendant], and a collision as a consequence occurred, whether by the carelessness of the motorman, a little greater or more than that of the plaintiff, the plaintiff cannot recover, for he must be without blame or fault in the matter.”

We are of opinion that defendant’s rights were fully protected by the foregoing and other portions of the charge.

The other errors assigned do not require discussion.

The judgment is affirmed.

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


text:
    GOODSPEED v. SMITH.
    1. Brokers — Trover and Conversion — Stock Gambling Transactions — Bucket Shops.
    The making of a contract by plaintiff with defendant for the purchase, as broker, of stock on margins, and its consequent breach, not being denied, the alleged intention of the parties to carry out a gambling transaction, prohibited by Act No. 336, Pub. Acts 1907, as claimed by defendant and as denied by plaintiff, was a question for the jury.

      % Same — Conversion of Stock — Transactions on Margin.
    No conversion could take place where an actual purchase of stock was not contemplated or executed by the broker.
    ,3. Same — Contracts—Illegality.
    The fact that the broker knowingly engaged in a business prohibited by law and made contracts in violation of the statute, would not defeat the plaintiff’s right to damages, if he acted in good faith, and the defendant failed to perform the agreement.
    4. Same.
    The provisions of Act No. 336, Pub. Acts 1907, being merely penal, would not prevent plaintiff’s recovery.
    5. Trover and Conversion — Damages—Inoorreot Theory.
    The submission to the jury of the question of a conversion of stock by a broker who never, in- fact, bought the stock, was not prejudicial error, where the jury determined inplaintiff’s favor by their verdict all the facts necessary to a recovery for breach of contract, and where the measure of damages was the same under either theory.
    Error to the superior court of Grand Rapids; Stuart, J.
    Submitted'June 14, 1910.
    (Docket No. 61.)
    Decided September 27, 1910.
    Trover by Richard O. Goodspeed against Connor H. Smith. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Dunham & Phelps, for appellant.

      Richard O. Goodspeed {Fred P. Geib, of counsel), in pro. per.

   Brooke, J.

During the year 1907 and a part of 1908, defendant maintained a stockbroker’s office in the city of Grand Rapids. He was not a member of any stock exchange, but wired all orders to Stapely & Co. of Cincinnati. That concern failed on May 9, 1908, and defendant ceased doing business on the same day. The plaintiff, a young lawyer, working for a salary of $75 per month and having practically no other resources, had certain dealings with defendant as follows: October' 22, 1907, bought 10 shares of American Car & Foundry at 27£, upon a margin of 5 points per share, or $50. December 12, 1907, bought 10 shares American Locomotive at 35£. March 24, 1908, sold same at 42J, making a profit of $70. January 27, 1908, he ordered from defendant 10 shares Missouri Paeific at 48J, upon a margin of 10 points, paying thereon $100. February 17, 1908, this stock having receded in value, he paid $50 additional thereon. May 7, 1908, he ordered from defendant 10 shares Western Union Telegraph at 51f, upon a margin of 10 points, paying nothing upon the purchase. As to each of the last two deals, plaintiff was notified in writing by defendant that the stocks so ordered had been purchased for plaintiff’s account. On May 9, 1908, defendant’s principal having failed, he closed his business; no settlement having been made with plaintiff on the last two purchases. On May 83, 1908, plaintiff wrote to defendant that he desired to pay the balance due upon the two lots of stock and receive the same. On August 89,1908, another letter to the same effect was written. Defendant paid no attention to either letter. On January 81, 1909, plaintiff tendered to defendant the sum of $840, being the amount due thereon with interest at 5 per cent, from the date of the purchase, and demanded delivery of the stock. In the meantime, both issues had increased largely in value, so that upon the day the tender was made the market value of the 80 shares was about $563 in excess of the amount of the tender. Settlement having been refused by defendant, plaintiff brought suit and recovered a judgment for the above amount, with interest to the date of trial. The first count in the declaration is in trover for the unlawful conversion of the 80 shares of stock. The second and third counts set out the contracts, aver breach thereof, and consequent damage.

It is conceded by plaintiff that in the first and second transactions no stock was ever delivered to him, nor did he have it to deliver when he ordered it sold. Settlement was made upon the market quotations without actual delivery. He testifies, however, that as to all four transactions, it was his intention to actually buy, and, as he was able, to pay for the various stocks in which he dealt. So far as the defendant is concerned, it is clear that neither he nor his principal ever contemplated the actual execution of the orders in question. He was operating what is commonly known as a “bucket shop.” He dealt in about 60,000 shares during the time he was in business, making actual deliveries of but 250 shares of stock within that period, and such deliveries were made only after the purchase price was paid in full.

Act No. 336, Pub. Acts 1907, absolutely prohibits the operation of such a business as defendant was engaged in and makes such operation a crime punishable by fine and imprisonment. By this act the offense is made complete where—

“Both parties or such keeper or proprietor shall contemplate or intend that such contracts, * * * shall be or may be deemed closed or terminated * * * when the market quotations reach a certain figure, * * * wherein the parties thereto do not contemplate the actual or bona fide receipt or delivery of such property, but do contemplate a settlement thereof based upon differences in the price at which said property is or is claimed to be bought and sold.”

The making of the contracts in question, their breach by defendant, and consequent loss to plaintiff, is not denied by defendant. He contends, however, that the contracts were of a gambling character, plaintiff so understanding them, and therefore not enforceable. It is clear from his own testimony that he intended them to be such. Did plaintiff so regard them F Taking into consideration his limited means, his profession, and his knowledge of affairs, it is difficult to believe that he understood the transactions in any different light than did the defendant. This issue was, however, submitted to the jury under proper instructions, and. it was determined in plaintiff’s favor. Upon a full consideration of the matter, we have decided that that determination should not be disturbed.

The court submitted the case to the jury upon the theory that there had been an unlawful conversion, by the defendant, of 20 shares of stock belonging to plaintiff. We think the record clearly shows that there could have been no such conversion, for the reason that neither plaintiff nor defendant ever had possession of the stock in question. Defendant, however, as before stated, notified plaintiff in writing that he had bought the stocks for plaintiff’s account in both instances, and upon the notices so sent appeared the following language:

“The actual delivery of property is in all cases contemplated and understood.”

These representations as to purchase were false; but, assuming the good faith of plaintiff, defendant cannot be heard to say that, because he misled plaintiff as to the facts, plaintiff must therefore go remediless. The statute above referred to is purely penal in character and has no bearing upon the question here involved. The fact that defendant knowingly engaged in a business prohibited by law, and made contracts in violation of the statute, cannot affect the right of the plaintiff, if he acted in good faith in the transaction, to demand damages growing out of defendant’s failure to perform as he had agreed.

Upon the question of damages, the court charged the jury as follows:

“ If you find that there was an unlawful conversion of any of these stocks by the defendant, then you should give the plaintiff as damages the value of the stock at the time of such conversion, less what the plaintiff owed defendant at that time, with interest from the time of the conversion to the present, at 5 per cent.”

Had the case been submitted to the jury upon the proper theory, i. e., a broken contract and consequent damage, the measure would have been the same as was given by the court upon the conversion theory. As, in order to reach the verdict they did, the jury determined all facts necessary to plaintiff’s recovery in his favor, we conclude that the error pointed out in the charge was without prejudice.

The other assignments of error have been examined, but disclose no reversible error.

The judgment is affirmed.

Ostrander, Hooker, Moore, and MoAlvay, JJ., concurred.


author: Hooker, J.

text:
    KILTS v. BOARD OF SUPERVISORS OF KENT COUNTY.
    1. Negligence — Independent Contractor — Building Contract —Nuisance.
    Contractors constructing a water tower at a county poor farm, under an agreement with the board of supervisors, are not liable for injuries to an employé of the contractors, caused by a collapse of the structure, from the negligence of subcontractors who furnished insufficient “ I ” beams to support it, under plans which the board of supervisors have approved, since the neglect was that of independent contractors.
    2. Municipal Corporations — Governmental Agency — Boards of Supervisors — Public Buildings and Works — Counties.
    A board of supervisors in constructing a water system for the poor farm of a county perform a governmental function, in the execution of which they are exempt from liability for negligent construction.
    3. Nuisance — Negligence—Contractors — Municipal Corporations.
    A nuisance involves not only a defect but threatening or impending danger to the public, or, if a private nuisance, to the property rights or health of persons sustaining peculiar relations to the same.
    4. Same — Definition—Negligence.
    A nuisance is a use made by one of his own property, which works an irreparable injury to another’s property, or which deprives his neighbor of the reasonable or comfortable enjoyment and use of his property, or which violates the unwritten but accepted law of decency, or which endangers or renders insecure the life and health of his neighbor.
    5. Same — Master and Servant.
    Neither the board of supervisors nor the principal contractor are liable to the employé killed by a collapse of a water tower, as for a nuisance, which they owed him a duty not to construct.
    Error to Kent; Perkins, J.
    Submitted June 15, 1910.
    (Docket No. 63.)
    Decided September 27, 1910.

      Case by Lena M. Kilts, administratrix of the estate of James L. Kilts, deceased, against the board of supervisors of Kent county, Frank E. Stevens and Julius A. Ziesse, copartners as the' Phoenix Sprinkling & Heating Company, and the Grand Rapids Bridge Company for the negligent killing of plaintiff’s intestate. A judgment for plaintiff against the Grand Rapids Bridge Company alone is reviewed by her on writ of error.
    Affirmed.

      Holmes & •Holmes and M. A. Nichols, for appellant.

      William B. Brown and Hyde, Earle <& Thornton, for appellees.
   Hooker, J.

The plaintiff, as administratrix of the estate of James L. Kilts, her husband, brought this action in the circuit court for the county of Kent to recover damages for the injury and subsequent death of her husband through the alleged negligence of the defendants. The accident occurred by reason of the giving way of a platform at the top of a water tower at the county farm of Kent county, due to insufficient support; it being conceded that the “ I ” beams used as joists under the platform ,were too light for the support of so heavy a load as was imposed upon them. Deceased and a fellow workman who were at work on the covering for the tank at the time of the collapse of the structure fell a distance of 80 feet, and both died from the fall.

The action is brought against the board of supervisors who authorized the erection of the tower and tank to furnish water for the poorhouse, boilers, closets, etc.; Stevens & Ziesse, copartners, who contracted with the board to erect the tower, etc., and the Grand Rapids Bridge Company, a corporation, being the subcontractor who furnished material and constructed the tower according to plans furnished by itself and acceptable to the board of supervisors. The bridge company did not appear, and its default was entered. Stevens & Ziesse defended upon the ground that the bridge company was an independent contractor, and therefore they were not liable, while the board of supervisors joined to that ground of defense the further one that the erection of the tower was ordered by them in the capacity of a governmental agency. The learned trial judge directed a verdict for Stevens & Ziesse and the board upon the grounds stated, and allowed the jury to render a verdict against the bridge company, upon which judgment was rendered for $5,000 against the bridge company, and the plaintiff has appealed.

"We understand that the appeal relates only to these defendants in whose favor a verdict was directed. That the bridge company was really the one at fault for the defect in the joists which caused the accident is indisputable on this record, and it was primarily liable, as it seems to have conceded by its default. Treating the case as one of negligence, it would seem that the contention of Stevens & Ziesse cannot be successfully resisted. The bridge company was clearly an independent contractor, and Stevens & Ziesse are not liable for its negligence.

The board of supervisors represented the county of Kent, and in making required or necessary provision for the poor performed a governmental function. See 4 Current Law, p. 721. The provision of necessary water for drinking, culinary, and sewer purposes, and as a protection against fire, is well within their implied power, if, indeed, they rest only in implication. Counsel for the county cite many cases from other, as well as our own, courts, sustaining this principle, and justifying its application to this case. We avail ourselves of the opportunity to collect from his brief, and insert in this opinion for convenient reference a list of our own cases upon this subject. City of Detroit v. Blackeby, 21 Mich. 84 (4 Am. Rep. 450); Gale v. Village of Kalamazoo, 23 Mich. 344 (9 Am. Rep. 80); O’Leary v. Board of Fire & Water Com’rs of Marquette, 79 Mich. 286 (44 N. W. 608, 7 L. R. A. 170, 19 Am. St. Rep. 169); Gilboy v. City of Detroit, 115 Mich. 121 (73 N. W. 128); Shipman v. Live Stock Com’n, 115 Mich. 488 (73 N. W. 817); Murray v. Village of Grass Lake, 125 Mich. 2 (83 N. W. 995); Nicholson v. City of Detroit, 129 Mich. 246 (88 N. W. 695, 56 L. R. A. 601); Brink v. City of Grand Rapids, 144 Mich. 472 (108 N. W. 430); Ashley v. City of Port Huron, 35 Mich. 296 (24 Am. Rep. 552); Lenderink v. Village of Rockford, 135 Mich. 531 (98 N. W. 4); Rowland v. Kalamazoo Sup’ts of Poor, 49 Mich. 553 (14 N. W. 494); City of Pontiac v. Carter, 32 Mich. 164; Webster v. County of Hillsdale, 99 Mich. 259 (58 N. W. 317); Larkin v. County of Saginaw, 11 Mich. 88 (82 Am. Dec. 63); Miller v. City of Kalamazoo, 140 Mich. 494 (103 N. W. 845); Hines v. City of Charlotte, 72 Mich. 278 (40 N. W. 333, 1 L. R. A. 844); Sheldon v. Village of Kalamazoo, 24 Mich. 383; Buskirk v. Strickland, 47 Mich. 389 (11 N. W. 210); City of Detroit v. Beckman, 34 Mich. 125 (22 Am. Rep. 507); Barron v. City of Detroit, 94 Mich. 601 (54 N. W. 273, 19 L. R. A. 452, 34 Am. St. Rep. 366). We are of the opinion, therefore, that neither of these two defendants is liable for the negligent injury of deceased.

Counsel for the plaintiff ask us to hold these defendants liable upon another ground, i. e., that the tower was a nuisance, and therefore all the defendants are liable for the injury, upon the theory that all who have to do with creating or maintaining a nuisance are liable for injuries resulting therefrom.

Counsel make an ingenious and plausible argument that this tower and tank constituted a nuisance, for which all concerned in its erection are responsible, and each and every one of them liable for damages resulting therefrom, whether it was due to negligence or not, under an alleged general rule applicable to nuisances. We think this claim, if sustained, would be an extension of the law of nuisance. It is undeniable that when one causes to be erected a building upon his premises so near the street that snow may slide, or its defective walls fall, upon a passerby, upon the highway, it is a public nuisance, and whether the defect was due to the negligence of the owner who may have had no part in the erection of the building or not is unimportant, for the reason that he was bound not to maintain or permit a public nuisance to exist on his premises. And if, instead of being contiguous to a highway, the defective structure was adjacent to an adjoining proprietor’s land so that it was a menace to his property, or to his person in the use of his land, it would be a private nuisance and a breach of the owner’s duty to maintain it. In either case he would be liable for injuries received from a fall of the snow or building, not necessarily because he was negligent in erecting or maintaining it, but because of his wrongful invasion of the rights of the public or his neighbor, liability for which does not depend upon motive. Neither need wait until serious damage has resulted, but the threatened danger may be averted by a proceeding to abate the existing nuisance.

But a private person may use his own premises as he will, so long as he does no injury to the public, or to the property and rights of a private person, and one may erect a weak structure upon his premises, so far from the street and other’s property, that persons not entering upon his premises can be in no danger from it. It is true that trespassers or licensees or persons residing upon the farm may suffer injury, and they may be entitled to redress in many cases on the ground of negligence, but we know of no adjudicated cases that hold that such persons have a right to ask the abatement of such structures, which are in no way related to property rights of theirs. They are volunteers upon the premises, with certain rights of protection, to be sure, but not with the right to ask the owner to remove structures that they may think dangerous. The enunciation of the doctrine contended for would be attended by far-reaching results, and practically make every man the insurer of his help, his guests, and even strangers rightfully upon the premises. Practically it would have a tendency to eliminate the whole doctrine of negligence in large classes of cases, for juries would be asked to find that buildings, machines, walks, roads, and all other articles or structures were nuisances if in any way defective or out of repair, because dangerous to those approaching them. The doctrine of contributory negligence would go with that of negligence if counsel’s contention is correct.

We are of the opinion that a nuisance involves, not only a defect, but threatening or impending danger to the public, or, if a private nuisance, to the property rights or health of persons sustaining peculiar relations to the same, and that the doctrine should be confined to such cases; While adjudicated cases have been so variable that courts generally regard a technical and comprehensive definition difficult if not impracticable, the trend of opinion seems to be that the circumstances must be examined with a view to ascertaining whether the alleged condition is one so serious as to interfere with the comfort of life and enjoyment of property, or so threatening as to constitute an impending danger to persons in the enjoyment of their legitimate rights. The following quotations indicate this rule:

“Anything wrongfully done or permitted which injures or annoys another in the enjoyment of his legal rights.” Village of Cardington v. Fredericks, 46 Ohio St. 442 (21 N. E. 766).
“ Injury to property, with reference to its reasonable and ordinary use, by continuous hurtful acts, constituted a nuisance undoubtedly.” Sparhawk v. Railway Co., 54 Pa. 401, 421, per Thompson, J.
“A ‘nuisance’ is a term for all practices, avocations, erections, establishments, etc., against which courts will give relief, although they are not intrinsically criminal, because of their tendency to create annoyance, ill health, or inconvenience.” Gifford v. Hulett, 62 Vt. 342, 346 (19 Atl. 231), per Taft, J. (A case of a barn.)
“ The real question in all the cases is the question of fact, viz., whether the annoyance is such as materially to interfere with the ordinary comfort of human existence.” Crump v. Lambert, L. R. 3 Eq. Cas. 409, 413, per Lord Romily, M. R.
“Anything not warranted by law which annoys and disturbs one in the. use of his property, rendering its ordinary use and occupation uncomfortable to him, is a nuisance. If the annoyance is such as to materially interfere with the ordinary comfort of human existence, it is a nuisance.” Nolan v. City of New Britain, 69 Conn. 668, 678 (38 Atl. 706), per Andrews, C. J.
“ Nuisances to one’s dwelling house are all acts done by another which render the enjoyment of life within the house uncomfortable, whether it be by infecting the air with noisome smells, or with gases injurious to health.” Cropsey v. Murphy, 1 Hilt. (N. Y.) 126, 127, per Brady, J.
“It is not necessary that the smell should be unwholesome. It is enough if it renders the enjoyment of life and property uncomfortable.” Rex v. White, 1 Burr. 333, 337, per Lord Mansfield.

Blackstone defines “ private nuisance” to be:

“Anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another.” 3 Black. Commentaries, p. *216.
In State v. Beardsley, 108 Iowa, 396 (79 N. W. 138), it was said:
“A nuisance is the unlawful use of one’s own property, working an injury to the right of another or of the public, and producing such inconvenience, discomfort, or hurt that the law will presume a consequent damage.”

See, also, definition in Joyce on Nuisances, p. 18.

“A use made by one of his own property which works an irreparable injury to another’s property, or which deprives his neighbor of the reasonable and comfortable enjoyment and use of his property, or which violates the unwritten but accepted law of decency, or which endangers or renders insecure the life and health of his neighbor, is a nuisance. So every enjoyment by one of his own property which conflicts with the rights of another in an essential degree is a nuisance. Another definition is: A private nuisance is ‘ where one so uses his property as to damage another’s or disturb his quiet enjoyment of it.’ A nuisance is also defined as ‘a tort.’ It is ‘the use of one’s own property which involves injury to the property, or other right, or interest of the neighborhood.’ So where anything is constructed on a person’s premises, which of itself, or by its intended use, directly injures a neighbor in the proper use and enjoyment of his property, it is a nuisance.”

Running through all of these is the element of a wrongful, continuing, impending danger to the lives, limbs, or health of the public, or to the legitimate property or personal rights of private persons peculiarly subject to the danger. The defendants in this case owed no duty to the deceased not to erect or maintain this structure. They committed no wrong against him in doing so, for they had no relations with him and he had no right upon the premises up to the time that he was employed to cover the tank. His rights under such employment, such as the right to a safe place to work, and to warning of danger, are to be measured by the ordinary rules of negligence cases, and grow out of his contract of employment, whether the tower was a private nuisance as to other persons or not. In this cause counsel’s contention would subject every person who had anything to do with the authorizing, planning, or erecting of this tower and tank to liability for the injury to the intestate.

We fail to find adjudicated cases sustaining such a rule, and are therefore constrained to affirm the judgment.

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


author: Bird, O. J.

text:
    O’DONNELL v. LANGE.
    1. Negligence — Evidence.
    Negligence cannot be established alone by proof of an injury. 3. Same.
    But the manner of the accident and the circumstances surrounding it may warrant an inference or presumption of negligence.
    3. Same — Highways and Streets — Law oh the Road — Personal Injuries.
    Evidence that defendant drove her horse against a street cleaner who was rightfully in the street, in the daylight, while there was plenty of room on either side of him, and no other vehicles in the way, and that the horse was within defendant's control, going slowly, presents a question of fact as to defendant’s negligence.
    4. Same — Contributory Negligence.
    Whether the plaintiff was using ordinary care in the performance of his work was a question for .the jury, and he was not bound to neglect his work to escape collision with those who were not using reasonable care.
    Error to Muskegon; Davis, J., presiding.
    Submitted June 20, 1910.
    (Docket No. 95.)
    Decided September 27, 1910.
    Trespass vi et armis by John O’Donnell against Emma Lange. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      James E. Sullivan, for appellant.

      William Carpenter, for appellee.
   Bird, O. J.

This is a personal injury case brought by the plaintiff to recover damages for being run into and knocked down by defendant’s horse, while she was driving it on Western avenue, in the city of Muskegon.

The plaintiff is an old naan 70 years of age, and is employed as a street cleaner in the city of Muskegon. Western avenue is paved, and extends from east to west. A street car track occupies the center of the avenue. On either side of the track, between the outer rail and the curbing, is a traveled way of 22 feet. In the early afternoon of November 19, 1909, plaintiff was working about midway of the traveled way on the north side of the car track with his face towards the west. He was scraping dirt ahead of him. While so at work defendant drove up from the rear with a single horse and buggy, and drove her horse against the plaintiff, striking him in the back, and thereby throwing him to the pavement, after which the carriage passed over him, and he was injured. The plaintiff testified that he did not hear nor see the defendant drive toward him. His companion, who was working upon the other side of the street car track, with his. face towards the west, testified that he did not hear nor' see defendant. No other vehicles or teams were on the street at the time. The plaintiff charged defendant in his declaration with carelessly, negligently, and with force and arms driving her horse in and upon him and injuring him. At the conclusion of plaintiff’s testimony, the defendant offered none, but requested the court to direct a verdict for the defendant, for the following reasons:

(1) Because no negligence was shown on the part of the defendant; and,

(2) If negligence were shown upon the part of the defendant, the plaintiff was guilty of contributory negligence, and cannot recover.

The trial court agreed with the position of defendant’s counsel and directed a verdict for the defendant.

1. There is practically no disagreement between counsel as to what the law is. Their disagreement arises as to what the evidence shows. The contention of defendant’s counsel is that the evidence establishes nothing but the fact of the injury, and that under the well-settled rule that negligence cannot be established alone by the proofs of the injury, the plaintiff failed to make a case. Quincy Mining Company v. Kitts, 42 Mich. 34 (3 N. W. 240). On the other hand, plaintiff’s counsel insists that something more is shown by the evidence than a mere injury, and he insists that the testimony brings it within another rule, viz., that, where the manner of the accident and the circumstances surrounding it are shown, they warrant an inference or presumption of negligence. Lillibridge v. McCann, 117 Mich. 84 (75 N. W. 288, 41 L. R. A. 381, 72 Am. St. Rep. 553). We are inclined to the view of the plaintiff that the testimony shows something besides the bare fact of an injury. It shows that defendant was employed by the city of Muskegon to clean the streets, that he.was so employed at the time, and that '.he was rightfully in the street. It further shows that the ¡street was wide enough so that she might have driven upon either side of him without driving upon the street car track; that there were no other vehicles on the street at the time; that it was daylight; and that her horse was within her control and going slowly. Considering in connection with these facts her duty to use reasonable care to avoid injuring those who might be at work in or using the highway, we think there was such a case made as entitled the plaintiff to go to the jury upon the question of her negligence. The defendant was driving in the direction of the plaintiff, and she could observe, if she had looked in the direction in which she was going, that plaintiff was at work, and had his back to her, and she might have assumed that the scraper with which he was working was making some noise, and, as she drew nearer, she could have observed that his inattention indicated that he did not know she was approaching, and had she exercised, in a slight degree, that care which she was bound to, undér the law, the accident might have been avoided.

2. "Was the plaintiff guilty of contributory negligence? It is well understood that streets must be repaired and must be kept clean, and necessarily men must be employed to do the work. Plaintiff was engaged in the lawful discharge of his duties, and while he was bound to use ordinary care to avoid injury from passing vehicles, and could not recover if he failed in that duty, we do not think he was obliged to neglect his work to escape collision with those who were not using reasonable care in that regard. 18 Am. & Eng. Enc. Law (2d Ed.), p. 586; Smith v. Bailey, 14 App. Div. (N. Y.) 285 (48 N. Y. Supp. 856). Whether the plaintiff did give such attention on this occasion as he should have given, having due regard for his work, was a question for the jury.

The cáse is reversed, and a new trial ordered.

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


text:
    CRAIG v. INSURANCE CO. OF THE STATE OF PENNSYLVANIA.
    Vendor and Purchaser — Insurance—Equity—Fraud.
    Where, in pursuance of a written contract for the sale of land, the vendee procured insurance payable as the interest of the vendor might appear, but after the expiration of the policy procured another in his own name which, after the loss, he assigned to a third party, equity will enforce the agreement by declaring the proceeds of the insurance a trust fund and applying the same upon the land contract in payment of the balance due the vendor.
    Appeal from Wayne; Rohnert, J.
    Submitted June 20, 1910.
    (Docket No. 113.)
    Decided September 27, 1910.
    Bill by John Craig against the Insurance Company of the State of Pennsylvania, impleaded with Rose C. Delisle and Henry Lezotte to reform a policy of insurance, and to establish a trust. From a decree for complainant, defendants Delisle and Lezotte appeal.
    Affirmed.

      Lucking, Emmons & Helfman, for complainant.

      May & Dingeman, for defendants.
    The trial court, in its decree, made the following findings:
    The court finds that, under the contract for the sale of real estate, by the complainant to the defendant, Henry Lezotte, the said Lezotte agreed to insure the buildings against loss by fire, in an amount approved by complainant, and to assign the policies to complainant; that said Lezotte did not so insure the premises; but that he did on August 3, 1908, take out insurance thereon, but made the same payable to himself, without any provision, as required by said contract, for the protection of complainant; that complainant trusted Lezotte to procure the insurance in accordance with the contract, and had no notice or knowledge that he had not done so until after the loss; that on September 14, Í908, said property was damaged by fire; that the loss thereon was subsequently adjusted as a total loss; that after such loss defendant Lezotte attempted to assign the proceeds of said insurance and other insurance to his sister, the defendant Rose C. Delisle, who had full notice and knowledge of complainant’s rights; that said assignment is void and of no effect as against the complainant; that said Rose Delisle brought suit on the law side of this court against the defendant the Insurance Company of the State of Pennsylvania on November 18, 1908, and on February 8, 1909, took judgment thereon without contest or trial; that thereafter, upon order of this court, the proceeds of said policy, to' wit, $1,150, were paid into the registry of this court to be held pending the determination of this case; that, by reason of the failure of said Lezotte to have the proper clause, rider, or provisions attached to the said policy to protect said complainant, the said Lezotte committed a fraud upon complainant and became a trustee as to any funds derived from said insurance; that the insurance moneys so paid into this court constitute a trust fund which should be devoted to the payment of the amount due to the complainant under the said contract upon the deposit by complainant with the said register of a conveyance of said land.
   Hooker, J.

Complainant sold certain premises to Lezotte upon land contract; his claim being secured by an insurance policy to Lezotte with a provision that the loss, if any, should be paid to him as his interest might appear. When the time for it to expire arrived, Lezotte took a policy in another company; the provision for complainant’s indemnity being omitted. Soon after this, the building upon the premises burned, and Delisle, to whom the policy had been assigned, sued the company which issued the policy and obtained a judgment for the amount of the policy. Thereupon the bill was filed in this case praying a reformation of the policy, and the application of the amount due on the policy to the payment of complainant’s claim and the bill as amended asks that it be treated as a trust fund. The defendants Delisle and Lezotte have appealed from a decree in favor of the complainant.

We see no occasion for a lengthy review of the testimony in this case. As to the question of fact, we are convinced of the truth and justice of the complainant’s claim. The decree rendered upon such conclusion by the learned circuit judge is fully justified by the cases of Miller v. Aldrich, 31 Mich. 408; Balen v. Insurance Co., 67 Mich. 179 (34 N. W. 654); American Ice Co. v. Trust Co., 188 U. S. 626 (23 Sup. Ct. 432), cited by counsel.

The decree is affirmed, with costs against appellants, and a charge against the fund.

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


author: Bird, C. J.

text:
    DELORIA v. VAN WINKLE.
    1. Corporations — Liability op Directors for Failure to File Report — Statutes.
    The contention that a corporate director is not shown to be liable for the debts of the company during the failure to file an annual report, as required by Act No. 194, Pub. Acts 1905, amending Act No. 232, Pub. Acts 1903, because, under the testimony, he might have joined in making a report, which the corporation failed to file, is not sustainable where the evidence tended to show that the secretary did not verify a report because the directors failed to prepare it.
    2. Evidence — Directors—Parol Proof — Best Evidence.
    Parol proof that defendant was a director of the corporation was admissible after the foundation was laid for its admission by a showing that the secretary was unable to find the corporate records.
    3. Appeal and Error — Saving Questions for Review — Trial.
    Where a case was tried on the theory that the corporation which failed to file its annual report was a Michigan corporation and the declaration alleged that it was a corporation organized under the laws of Michigan, and where the defendant failed to make the point on the trial that there was a failure of proof in that respect, the point will not be considered’on error.
    Error to Delta; Cooper, J., presiding.
    Submitted June 20, 1910.
    (Docket No. 1.)
    Decided September 27, 1910.
    Assumpsit by Fred Deloria and Joseph Gibbs, copartners as Deloria & Gibbs, against Louis Yan Winkle for goods sold and delivered. A judgment for plaintiffs on a verdict directed by the court is reviewed by defendant on writ of error.
    Affirmed.

      A. H. Byall, for appellant.

      Henry B. Dotsch and Cummiskey & Spencer, for appellees.
   Bird, C. J.

The plaintiffs recovered a judgment against the' defendant on account of hay sold by the plaintiffs to the Escanaba Transportation Company. The defendant was director and president of the company, and his liability arose under the statute for his neglect and failure to join in the making of the annual report of the company for the year 1905. After the plaintiffs rested their case, the court directed a verdict for the plaintiffs, and the defendant has removed the case to this court for review, claiming the evidence was insufficient upon which to base the judgment. To prove their case the plaintiffs introduced in evidence the certificate of the secretary of State that the Escanaba Transportation Company did not file a report of its affairs for the year 1905, and they produced the secretary of the Escanaba Transportation Company, who testified that he signed no report of the company for that year. The books were not available at the time of the trial, and parol proof was made that the defendant was a director of the company during the defaulting period. Defendant contends that this testimony did not make out a prima facie case of liability, because the defendant might have joined in the making of the report and the report never have been filed; that the duty of the filing of the report is not upon the defendant director, but upon the corporation; and that the statute is penal in its nature and must be strictly construed.

The statute involved is Act No,. 232, § 12, of the Public Acts of 1903, as amended by Act No. 194 of the Public Acts of 1905. The material portion of this section reads as follows:

“If any corporation neglect or refuse to make and file the reports required by this section, within the time herein specified, and shall continue in default for ten days after the 1st day of February, its corporate powers shall be suspended thereafter until it shall file such report, and it shall not maintain an action in any court of this State upon any contract entered into during the time of such default. And any director of such corporation so in default, who has neglected or refused to join in the making of such report, shall be liable for all the debts of such corporation, contracted since the filing of the last report of such corporation, and shall also be liable to such corporation for any damages sustained by it, by reason of such refusal or neglect.”

By referring to section 12 of Act No. 282, it will be observed that it was there made the duty of the directors to file the report in question. The amendment of 1905 changed this, and placed that duty upon the corporation. If the only evidence offered of defendant’s default had been the certificate of the secretary of State that no report for that year had been filed, there would be much force to defendant’s contention, because the defendant might have joined in the making of the report, and the failure to file it might have been the fault or neglect of the corporation. The testimony of the secretary of the company, however, made it reasonably clear that it was not the default of the corporation’s failure to file, but was due to the neglect and failure of the directors to join in the making. The law requires the report to be verified by the secretary of the company, but this he could not well do until after it was made, and the fact that he did not verify it, together with the further fact that none was filed, where the law requires it to be filed, we think raised a prima facie case as to defendant’s default. Hall v. Kellogg, 16 Mich. 135.

Defendant also complains that there was no competent testimony offered that defendant was a director of the company. The court permitted this fact to be shown by parol evidence, and the . foundation laid for its admission was undoubtedly sufficient.

It is also said by defendant that no proof was offered to show that the Escanaba Transportation Company was a corporation coming within this act, and that, if there were evidence of this fact, there was nothing to show whether it was a Michigan or Wisconsin corporation. We do not find any direct proof in the record that this was a Michigan corporation, subject to the provisions of Act No. 232, but the case was tried throughout by both counsel on this theory, presumably because the status of defendant as a Michigan corporation subject to Act No. 232 was fixed by this court in Deloria v. Atkins, 158 Mich. 232 (122 N. W. 559). The declaration alleged that the company was organized under the laws of Michigan, and further alleged that it was the duty of defendant, as director and president of the company, under section 12 of Act No. 232 of the Public Acts of 1903, as amended, to join in making a report of its affairs for the year 1905. Defendant’s counsel, upon cross-examination of plaintiff’s witness, developed the number and names of the stockholders, and the number of shares each owned, and the number and names of the directors. At the close of the case, defendant’s counsel stated to the court, in his application for a directed verdict, “that he principally relied upon the fact that there was no evidence of the statutory negligence of the directors.” After trying the case upon the theory that it was a Michigan corporation, subject to the provisions of Act No. 232, and developing upon cross-examination who the stockholders and the directors were, and making no point in the trial court of plaintiffs’ failure in this regard, we think the defendant is in no position to raise this question on appeal. Hamilton v. Ames, 74 Mich. 298 (41 N. W. 930).

The judgment of the trial court is affirmed.

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


text:
    GILKEY v. GILKEY.
    1. Trusts — Lien for Alimony — Divorce.
    A decree awarding alimony to the wife in divorce proceedings-cannot be made a lien upon a trust estate which was created by the father of defendant, providing after the payment of his debts, that the proceeds should be used for the support of himself and family, including defendant, his son, that the trustee might distribute the estate when he should deem it advisable and the trust should terminate in twenty years; notwithstanding that the claims of the other beneficiaries had been satisfied by the trustee with the consent of complainant and defendant, since the payment of alimony is not within the uses to which the trustee was authorized to apply the trust estate.
    2. Same — Debtor and Creditor.
    Money received by the trustee belonging to defendant, to-whose use it has been applied, is, however, applicable to the payment of alimony and may not be held in trust as against defendant’s creditors.
    Appeal from Kalamazoo; Knappen, J.
    Submitted June 22, 1910.
    (Docket No. 119.)
    Decided September 27, 1910.
    Bill by Elizabeth R. Gilkey against Clarence F. Gilkey and William H. Bennett, trustee, for a divorce. From a decree for complainant, and making the award of alimony a lien upon the trust, defendant Bennett appeals.
    Reversed and remanded.

      A. M. & O. H. Stearns, for complainant.

      Harry O. Howard, for appellant.
   Hooker, J.

On January 21, 1910, complainant was granted a decree of divorce with alimony, $4,000 in amount. The decree provided that this sum should be a lien upon certain land held by William H. Bennett as trustee for defendant Clarence Gilkey, said Bennett as trustee having been made a party defendant by leave of court. An appeal was taken by Bennett. The question in the case is whether the court should have made the decree for alimony a lien upon the property in the hands of the trustee.

The history of the trust is as follows: On November 14, 1906, Edgar W. Gilkey, a man in failing health and the owner of considerable property, his wife joining, made a deed of his property to George L. Gilkey, a relative, in trust for the following purposes:

(1) To pay the debts and adjust his grantor’s business affairs.

(2) To pay out of the profits, proceeds, and rents of said property to Edgar W. Gilkey or his family during his lifetime such sums as the trustee should deem reasonable and necessary for the proper care and support of himself and family, including his wife, son Clarence and daughter Grace, and to reinvest the remainder.

(3) After Edgar W. Gilkey’s death, to pay his widow, Anna, should she survive him, such sums as the trustee should deem necessary for her maintenance and support, and to do the same in relation to the son and daughter, Clarence and Grace.

(4) The trustee or his successor or successors was authorized to distribute the property, as directed in the will, whenever he should deem it advisable.

(5) The trust should terminate within 20 years.

The trust was accepted, and has so far been carried out, in a way. The evidence in this proceeding shows that the trustee has in effect made distribution of a portion of the trust fund to the extent of satisfying the widow and daughter of Edgar Gilkey, with the sanction of the chancery court, on a petition filed by him. He did this with the consent of Clarence Gilkey, the only other cestui que trust, and his wife, the complainant. He made no distribution as to him, but, on the contrary, every step in the proceeding from the petition to the decree shows that there was no intention to turn over to Clarence Gilkey the title to said trust property, but, on the contrary, all expressly provided that the property remaining shall continue in trust under the terms of Edgar’s deed. We need not concern ourselves with questions regarding the action of the court in the premises further than to say that the effect was not to create a new and different trust from that created by Edgar’s deeds, so far as the property conveyed by said deed is concerned. Until the trustee shall convey (i. e., distribute) to Clarence Gilkey said property, it is not subject to seizure by the court to pay alimony allowed to the wife, for that is not within the uses to which the trustee was authorized to apply it. We cannot, therefore, sustain the decree in respect to the provision creating a lien.

There is evidence in the case that indicates that certain money received from another source by Bennett as guardian ad litem for his ward Glarence Gilkey has been used in removingincumbrancesfrom the land received by him from Edgar Gilkey in trust. This is not sufficiently definite to enable us to determine the amount, and possibly it may be that the fact was not established. But such a claim is made. If such moneys have been so used, we think the proceeds of it cannot be held as a trust fund against creditors, for one cannot cut off his creditors by deeding all of his property to one in trust for his own uses, to the exclusion of creditors. See Hackley v. Littell, 150 Mich. 106 (113 N. W. 787), and cases cited. To the extent, therefore, that such fund has been applied to the payment of ¡mortgages on trust property deeded by Edgar Gilkey and still in the name and hands of the trustee, such a lien might have been decreed, and presently enforced by proper proceedings. The decree will be reversed, and one entered in this court in accordance with this opinion and remanding the cause with leave to take further proof, with a view to determining the facts, and the making of such decree as they shall warrant, as indicated herein.

Bird, O. J., and Ostrander, Blair, and Stone, JJ., concurred.


text:
    FIFTH AVENUE LIBRARY SOCIETY v. GATES.
    1. Sales — Delivery—Evidence—Taking Case from Jury — Carriers.
    No error was committed in refusing to direct a verdict for the seller of books, under a contract providing for delivery to the purchaser, where there was a dispute as to the actual delivery of the books to defendant by an express company which carried the merchandise.
    2. Same — Delivery to Carrier.
    The receipt of the books by the carrier, or by the local agent of the company, did not constitute a sufficient delivery.
    Error to Washtenaw; Kinne, J.
    Submitted June 23, 1910.
    (Docket No. 130.)
    Decided September 27, 1910.
    Assumpsit by the Fifth Avenue Library Society against Neil A. Gates upon an account stated. A judgment for defendant is reviewed by plaintiff on writ of error.
    Affirmed.

      Edward B. Benscoe (Carl Storm, of counsel), for appellant.

      George J. Burke (M,. J. Cavanaugh, of counsel), for appellee.
   Hooker, J.

Defendant is a resident of Dexter, Mich. Plaintiff is a New York concern. It sued defendant in justice’s court upon the following contract, filing an affidavit of amount due and statement of account. Issue was joined, plaintiff had judgment, and defendant appealed.-

The cause was tried by jury in the circuit. The affidavit was offered in evidence. Upon objection the court remarked, “I think you'would better offer your proofs.” Exception was taken. The affidavit follows:

“ Statement.
“New York, March 2, 1909, “Dr. Neil A. Gates, Dexter, Mich.,
“In Account with “Fifth Avenue Library Society.
“Total amount of contract_______________________- $79 20
“Total amount paid to date....................... 00 00
“Balance................-.................. 579 20
“State of New York, ) “County of New York, y
. s • •
“(Affidavit of Emory A. Elrod, Treasurer.)
'. “Emory A. Elrod, being duly sworn, deposes and says that he is treasurer of the Fifth Avenue Library Society of New York. That Neil A. Gates, M. D., of Dexter, Michigan, owes said Fifth Avenue Library Society $79.20, being balance due on the purchase price of a set of Rid-path Library of Universal Literature, consisting of twenty-five volumes. That said Neil A. Gates signed a contract agreeing to pay $79.20 for said set of books. That no part of said sum has been paid. That there are no counterclaims or offsets against the same. That the books were shipped to said Gates in accordance with said contract, and that the agreement has been performed in every respect by said Fifth Avenue Library Society, and that the copy of account herewith annexed is a true statement of the account as it appears on the books of the said Fifth Avenue Library Society.
“ Emory A. Elrod, Treas.”
“ Contract.
“ Carefully fill in all blanks. Subscriber should retain duplicate of this order.
“Fifth Avenue Library Society,
114 Fifth Avenue, New York City.
“Dexter, Mich., April 28, 1907.
“ Express prepaid.
‘ ‘ Gentlemen: Please deliver to me one set Renaissance Edition de Luxe of ‘ The Ridpath Library of Universal Literature ’ in twenty-five volumes, bound in full leather, gilt top, for which I agree to pay you $79.20 payable as follows: $15.00 on receipt of books and $5.00 each month thereafter until the full amount is paid, default of which renders the whole amount due. The title to said books does not pass to me until they are paid for in full. I understand this order is not subject to countermand or cancellation. No agreement is valid other than embodied in this contract.
“ Paid to salesman on account-. (15.00 will remit on receipt of books.)
“ Deliver books as soon as convenient after above date.
“ Salesman, Alf. A. Simmonds.
“Subscriber’s signature, Neil A. Gates.
“ Subscriber’s occupation, Physician and Surgeon.
“ Subscriber’s business address, Dexter, Mich.
“Subscriber’s residence, Dexter, Mich.
“ Deliver books at Dexter.”

On the back of which contract the following indorsements appear:

“John A. Taylor Co.
“Gentlemen: In accordance with our indorsement advertising contract with you, we authorize you to allow a credit equal to the value of 14 volumes in the purchase price of the Ridpath Library to those persons you may select.
“Fifth Avenue Library Society,
“ E. A. Elrod, Treas.
“ Special Reduction. Authorized.
25 volumes, complete set..........................$200 00
14 volumes credit................................. 112 00
$88 00
“ Cash discount 10 per cent.
“John A. Taylor Co.
“Gentlemen: I agree to furnish a written opinion on the Ridpath Library within thirty days from receipt of complete edition and give you and the publishers the privilege of using same in advertising the library. I understand this matter is to be treated strictly confidential.
[Signed] “ Neil A. Gates.”

As it was subsequently admitted and held to make a prima facie case, there is no occasion to discuss this question further. The court held that under this contract it was necessary that the books be delivered to the defendant in Dexter, and that delivering the same to an express company directed to defendant at Dexter did not constitute a delivery to defendant at Dexter. There was no error in this. The intention, as shown by the contract, was that the defendant was to have the books delivered to him at Dexter, before becoming liable for their price. The order should receive no other construction. Hence the receipt of the books by the local agent of the express company was not sufficient. As there was conflicting testimony regarding an alleged delivery by the express agent at Dexter to defendant, the court did not err in refusing to direct a verdict for plaintiff.

It is unnecessary to discuss other questions further than to say that our examination of them has convinced us that there was no error.

The judgment is affirmed.

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


author: Ostrander, J.

text:
    UNION TRUST CO. v. DETROIT RIVER TRANSIT CO.
    1. Contracts — Sales—Warranties—Parol Evidence to Vary Written Instrument — Interpretation.
    No evidence of a warranty made orally by the agent of the seller of a steam hoist is competent to vary the terms of the contract of sale, where it appeared that the seller wrote the buyer, after oral negotiations terminated, that the agent had reported to him the making of the sale on terms stated in the letter, to which the vendee replied that his understanding was correct.

      2. Same — Evidence.
    A subsequent letter of the vendor to the vendee stating in response to complaints made by the purchaser, that he had referred the matter to the agent who would see the purchaser about it, was not an admission of the warranty.
    Error to Wayne; Murfin, J.
    Submitted June 23, 1910.
    (Docket No. 135.)
    Decided September 27, 1910.
    Assumpsit by the Union Trust Company, administrator of Joseph H. Berry, deceased, against the Detroit River Transit Company for goods sold and delivered. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      George W. Badford, for appellant.
    Angelí, Boynton, McMillan & Bodman, for appellee,
    Joseph H. Berry sold and delivered to the Detroit River' Transit Company a steam clam shell hoist. The vende© Eebruary 27, 1907, filed its declaration in the Wayn© circuit court, the substance of the allegations therein, in addition to the common counts in assumpsit, being that plaintiff had a contract to transport and deliver sand in Canada and purchased the hoist in question to be used in carrying out said contract in unloading sand from its vessel; that it was represented and warranted to said plaintiff, vendee, by said Berry, through his agent, French, that the hoist and appurtenant machinery were in good condition, in working order, of first-class material, suitable for the purpose aforesaid. Breaches of the alleged warranties are set out with particularity, and the resulting damages are stated. Plaintiff’s bill of particulars includes items for loss of profits, wages paid to men, the expense of making repairs, etc., the total of them with the down payment being $5,513.53. To this declaration defendant Berry pleaded the general issue, and on March 14, 1907, he filed a declaration in said court containing the common counts in assumpsit to recover of the Detroit River Transit Company the balance of the pur-chase price of the hoist. The plea was the general issue with n'otice of the special matters of defense contained in the declaration in the first mentioned cause. Mr. Berry-died, and the Union Trust Company, as administrator of his estate, was thus brought upon the record. There was an order consolidating the causes, and, upon the trial of the consolidated cause, a verdict was directed in favor of the administrator for the balance of the purchase price of the hoist and interest, and upon this verdict the Union Trust Company had judgment.
    It appeared that, having concluded negotiations for the sale of the hoist for Mr. Berry, and having received from the Detroit River Transit Company its check for $500, Mr. French, the agent of Mr. Berry, composed a letter which, with the check, was delivered to Mr. Berry, who ¡signed and sent the letter to the treasurer of the Detroit River Transit Company, and received a reply thereto. It appeared that the check was not actually paid, through the clearinghouse, until October 29th; but no one testified concerning the actual date of its deposit or the date when it was indorsed by Mr. Berry. It bears his indorsement, that of Berry Bros., Limited, and that of their indorsee, the Commercial National Bank. It was drawn upon .American Exchange National Bank. Both banks are in Detroit. The letters referred to read as follows:
    “ Detroit, October 26th, 1906. “Mr. H. E. Beecher, Treasurer,
    “Detroit River Transit Company,
    “ Detroit, Mich.
    “Dear Sir: Referring to our conversation regarding the steam clam-shell hoist, Mr. French reports that he has arranged to sell you this hoist as it now stands on the river front on Private Claim 10 for the sum of $2,250.00. He has today handed me your check for $500.00 which is hereby acknowledged, and it is understood that the balance of $1,750.00 is to be paid on December 15th, 1906. If this arrangement is as you understand it, will you kindly acknowledge, and oblige,
    “Yours very truly,
    “ J. H. Berry.”

      "October 29, 1906.
    " Mr. J. H. Berry,
    " c /o Berry Bros.,
    " City.

      “jDear Sir: Answering yours of the 26th regarding the Steam Clam-Shell Hoist, would say that your understanding of the matter is correct.
    “ Tours truly,
    " H. E. Beecher.” •
    Later, in November, 1906, two other letters passed. They are here set out:
    "Nov. 23, 1906.
    "Mr. Jos. Berry,
    " Berry Bros. Co.
    " City.

      “Dear Sir: Referring to the unloading derrick which we bought from you recently would say that your Mr. French represented and sold this to us as being in perfect working condition with the possible exceptions of one or two parts which were missing and which he said had been stolen while laying on the shore. Had we known the conditions of this machine was in we would not have taken it as a gift, because by the time we pay the expense of putting this in working order it will have cost us as much as a new machine.
    "We have spent more than two solid weeks with a crowd of boiler makers and machinists trying to get this in working order and at the present writing it is not yet in shape. Among a few of the serious items which were badly in need of repairs were the boiler tubes and the piston rod to the bucket. We were obliged to have a brand new set of boiler tubes installed and also have the piston rod of the clam shell straightened. This was sprung so much that it was impossible to pry open the jaws of the clam shell.
    “As soon as we find out definitely what our repair bill on this machine will be we are going to make a claim on you for it and we are notifying you to this effect now, so that should you desire, you can have your Mr. French make an examination of it and investigate our claims. The most serious loss which we have had due to this clam shell is that we have our boat waiting with a load for one week to be unloaded. This, of course, at this time of the year means a very serious loss to us.
    “Yours truly,
    “H. E. Beechee.”
    “Detroit, November 24th, 1906. “Mr. H. E. Beecher, Treasurer,
    “Detroit River Transit Company, Detroit.
    “ Dear Sir: Answering your favor of the 23rd inst., beg to say I have referred same to Mr. French, with request that he see you in reference to the complaint you make.
    “Yours very truly,
    “ J. H. Berry.”
    It appeared that the hoist had been used by Mr. Berry, who purchased it as a second-hand hoist, and stood on his land in Detroit. It was there examined by a representative of the vendee, and was there received by it. The case for plaintiff was made by the first two letters which have been referred to and by proof of the amount of the unpaid purchase price and interest. In substance and effect the court excluded all testimony offered by the vendee claimed to have a tendency to vary or contradict or explain the terms of the said letters. In excluding the last two letters of the correspondence, the court said:
    “ I may say that the basis of the exclusion is twofold. In the first place,'it has a tendency, at least in parts, directly to contradict the contract that these parties entered into, and, further, as I construe this contract, giving it the most favorable construction for the defendant’s side of this case, the best that could be said is that there might be an implied warranty of fitness and, under those circumstances, that letter, I do not think, would be proper. In the absence of the expression in Ex. 1, ‘ Sell you this hoist as it now stands,’ I should hold there was an implied warranty of fitness, because counsel has shown that these parties knew the uses to which the machine was to have been put. I would hold there was an implied warranty of fitness, and they could complain of latent defects, so that they could have returned the machine. I would hold that it is their duty to make an examination within a reasonable time and discover such defects as were discoverable, and then either affirm or reject. Failing to do that, they cannot now be heard to complain.”
    The errors assigned upon exceptions to these rulings present the meritorious questions.

       As to right to show parol warranty in connection with contract of sale of personalty, see note to Electric Storage Battery Co. v. Waterloo, C. F. & N. R. Co. (Iowa), 19 L. R. A. (N. S.) 1183.

   Ostrander, J.

(after stating the facts). The question in this as in all similar cases is whether the writing produced as evidence of the agreement purports to contain all of the terms of the contract. In a particular case, as, for example, Electrical Appliance Co. v. Standard Electric Co., 151 Mich. 662 (115 N. W. 982), it may appear upon the face of the writing that some term has been omitted. In Beld v. Darst, 146 Mich. 143 (109 N. W. 275), a majority of the court, in view of peculiar circumstances recited in the opinion, sustained the ruling of the trial court admitting testimony of a parol contemporaneous agreement of the parties, although the writing relied upon as evidence of the principal agreement appeared to be complete. In the case now presented it is apparent that Mr. French, representing Mr. Berry, and the representative of the Detroit River Transit Company, had orally agreed about the sale of the hoist — had made a bargain — before any letter was written. It seems to be quite as apparent that the only purpose which the immediate correspondence served, or could have intended to serve, was to state, in writing, the terms of the bargain as between the principals thereto. Mr. Berry advises the vendee that he is stating the terms of the agreement as they had been reported to him by his agent. There is no apparent ambiguity in the language employed. No warranty or representation is referred to. On the contrary, the language aptly affirms the absence of conditions or warranties, express or implied, and the understanding that the vendee took the property as it stood; that is, in the condition in which it was found, and that delivery was made on the river front on his land. The understanding of the terms of the sale, as thus expressed, is declared by the vendee to be his understanding also. Interpretation of the agreement, thus evidenced, is not affected by the fact, if it was a fact, that the vendee had taken possession of the hoist or by the fact, if it was a fact, that Mr. Berry had transferred the check before the correspondence was concluded. The last letter appearing in the correspondence of the parties cannot be treated as an admission of the. facts stated in the one to which it is a reply or as the vendor’s interpretation of the meaning of the words used in his first letter. And it was followed by action on the part of the vendor which negatives any such idea.

The court below made a proper disposition of the matter, and the judgment is affirmed.

Bird, C. J., and Hooker, Blair, and Stone, JJ.a concurred.


text:
    HARDY v. STOPPEL.
    1. Damages — Sales—Breach of Warranty.
    In an action for breach, of warranty for selling plaintiff a horse which was blind, it was a correct rule to charge the jury that the damages would equal the difference between the actual value at the time of the sale and the value of the horse, if it had been as it was warranted.
    3. Sales — Warranty.
    A request to charge that the plaintiff must show that he relied upon the warranty is sufficiently covered by a charge that the jury must- find that the warranty was made and relied on, and that there must be a warranty and a reliance on it to justify a recovery.

      3. Same — Patent Defects — Warranty.
    To charge the jury that plaintiff could not recover for breach of warranty of soundness if the defect was patent, and that if it was such as to require the exercise of more than ordinary care to discover it, plaintiff might rely on the warranty, sufficiently covered a requested instruction that if plaintiff could have discovered the defective eyesight by a reasonable examination he was estopped to claim damages therefor.
    Error to Ingham; Collingwood, J.
    Submitted June 23, 1910.
    (Docket No. 133.)
    Decided September 27, 1910.
    Assumpsit by James Hardy against Theodore H. Stoppel and Ered Szepanak, copartners as the South Lansing Coal Company, for breach of warranty on the sale of a horse. A judgment for plaintiff is reviewed by defendants on writ of error.
    Affirmed.

      John J. Zimmer, for appellants.

      Jason E. Nichols, for appellee.
   Bird, C. J.

Plaintiff purchased a horse of the defendants under a claimed warranty that it was sound. Soon after taking the horse into his possession, plaintiff discovered that the horse was blind in one eye, and that the sight of the other was impaired. The horse was affected with amaurosis of the eyes, a disease which affects the optic nerve, and one which is not easily discoverable by the ordinary observer. Plaintiff brought suit on his warranty. The defendants admitted that the horse was blind in one eye, but denied the warranty. The plaintiff recovered a judgment and the defendants assign error.

Upon the question of damages, the court charged the jury, in substance, that, if they found that plaintiff was entitled to recover, they should award him the difference between the value of the horse at the time of the sale, if the horse had been as warranted, and its actual value at that time. Defendants’ counsel takes exception to this instruction, and insists that this was not the proper rule to be applied in this case. We think the court stated the rule correctly, and is in accord with the rule laid down in Barker v. Cleveland, 19 Mich. 230, and Jackson Sleigh Co. v. Holmes, 129 Mich. 370 (88 N. W. 895).

Defendants’ counsel requested the court to charge “ that the plaintiff must show by a preponderance of the evidence that he relied upon the warranty,” and assigns error upon the failure of the court to so instruct the jury. At one place in his charge, the court instructs the jury that:

“You have heard all the evidence in the case, and you are to decide whether, under all the circumstances in the case, Mr. Szepanak warranted that horse to be sound, and you must further, from the evidence in the case, decide whether Mr. Hardy relied on that statement.”

Later in the charge, he instructed them “that there must be a warranty, and a reliance on that warranty, before you can find for the plaintiff.” We think this fairly covered the request of defendants, and gave the jury to understand that, before they could find for the plaintiff, they must not only find a warranty, but that the plaintiff relied on the warranty.

Defendants’ counsel also complains because of the refusal of the court to give the following request:

“ If the plaintiff could have discovered, by a reasonable examination, the defective eyesight of the horse, then he is estopped from claiming damages for such defective eyesight.”

The court did not give this in the language of the request, but instructed the jury upon this question as follows:

“ In regard to the question of warranty, you must take into consideration a latent defect and a patent defect. If the horse had been warranted sound, and had in reality lost an ear, it would be such a defect as any one could see, and he could not claim for such a defect as that. But, if the defect was such that it was necessary to use more than ordinary care in examining it, that could be taken into consideration.”

While the court might have made this part of the charge more clear and explicit, what he did say to them on this subject was, in substance, what was requested by counsel. In view of this, we do not think it can be said that the court refused to give the request.

The other errors assigned have been examined and considered, but we are not of the opinion that they demand a reversal of the case.

The judgment of the trial court is affirmed.

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


author: Bird, C. J. Hooker, J.

text:
    CAIRBRE v. McQUILLEN.

    1. Trial — Cross-Examination—Evidence.
    It is within the discretion of a trial judge to permit leading questions to be asked of a party, by his counsel.
    2. Same — Leading Questions.
    It is not an abuse of discretion for the trial court to permit plaintiff’s counsel to ask plaintiff questions from the bill of particulars, and ask leading questions to refresh his recollection as to items and dates; the witness being unable to see distinctly or to recall certain dates and amounts.
    3. Pleading — Bill oe Particulars — Payments —Credit Items.
    The plaintiff’s bill'of particulars need not show credit items of payments made by defendant.
    4. Same — Statute oe Limitations.
    The plaintiff in an action of assumpsit for money loaned may testify to payments not credited on his bill of particulars.

      5. Statute of Limitations — Defense—Surprise.
    Where credits are shown by a plaintiff in order to rescue a claim from the operation of the statute of limitations and the defendant is surprised and unable to go forward for want of preparation, his remedy is an application to the trial court for further time.
    6. Trial — Cross-Examination—Parties—Witnesses.
    Where a party is made a witness by the opposing counsel, he may be cross-examined as to material facts not brought out on direct examination. Blackwood v. Brown, 82 Mich. 104, overruled.
    7. Same — Waiver of Error.
    Error committed in refusing to permit such cross-examination is waived by the party who subsequently takes the stand in his own behalf and gives testimony upon the principal issues.
    Error to Marquette; Cooper, J., presiding.
    Submitted June 23, 1910.
    (Docket No. 139.)
    Decided September 27, 1910.
    Assumpsit by Bernard Cairbre against James McQuillen for money had and received. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      T. J, Dundon (Samuel H. Davis, of counsel), for appellant.

      J. L\ Heffernan, for appellee.

       Rehearing applied for December 22, 1910.

   Bird, C. J.

Plaintiff sued defendant in assumpsit to recover on an account which he claims was incurred by defendant between the years 1870 and 1886. In compliance with a demand, plaintiff filed a bill of particulars showing 25 separate items, aggregating $3,065.85. It was claimed by plaintiff that defendant made various payments upon the account from 1870 to 1886. Since 1883 defendant has resided outside of the State.

Defendant denied that he had ever received any money from plaintiff. He admitted that, while attending medical college in Montreal, he had received money from home, but claimed it was advanced to him by his mother, who was then the wife of plaintiff. This money he claimed to have repaid. In addition to his general denial and notice of set-off, he relied upon the statute of limitations. Plaintiff recovered a judgment, and defendant assigns error. (This case was before this court on a former occasion, and the opinion will be found reported in 151 Mich. 590 [115 N. W. 737]).

It is assigned as error that plaintiff’s counsel was permitted to read to plaintiff while on the witness stand certain items in the bill of particulars, and to ask leading questions thereon to refresh his recollection. It appears from the record that the bill of particulars had been prepared from memoranda furnished by the plaintiff to his counsel, and some of them were in the handwriting of plaintiff. Plaintiff’s eyesight was so poor that he. could not read, but could identify, his memoranda. The plaintiff while testifying could not recall the items nor the dates of them without prompting. Under these circumstances, the court permitted counsel to read to plaintiff certain items from the bill of particulars, and to ask some leading questions to refresh his recollection. It is within the discretion of the trial judge to permit leading questions to be asked of a witness (Webb v. Feathers’ Estate, 119 Mich. 475 [78 N. W. 550]), and, under the circumstances as they existed here, we see nothing which would justify us in saying that the trial judge abused that discretion.

Defendant insists that the trial court was in error when he permitted the plaintiff to testify to certain payments which he claims were made by defendant, because they were not shown by plaintiff’s bill of particulars. This raises the question as to whether the plaintiff’s bill of particulars must show credit as well as debit items. It is not our understanding that the rule requires plaintiff’s bill of particulars to show credit items. Ryckman v. Haight, 15 Johns. (N. Y.) 222. In the case before us defendant demanded a bill of particulars of plaintiff’s claim for which he sought a recovery. He did not demand a bill of particulars of his own set-off or payment, and we can see no reason why more should be required or furnished than was demanded. The defendant is supposed to be informed of the state of his own account and of the payments which he has made. In cases like the present one, where credits are sought to be shown, in order to rescue the claim from the operation of the statute of limitations, instances may arise where the defendant is surprised and unable to go forward for want of preparation, but in such cases application can be made to the trial court for time in which to prepare to meet the unexpected claim.

Another error relied upon by defendant’s counsel is that his right of cross-examination was unduly abridged by the trial court. Plaintiff’s counsel called the defendant as a witness to show that he had resided outside of the State since the year 1883. He examined him upon no other subject. Defendant’s counsel then claimed the right to cross-examine the witness upon that and other subjects. Plaintiff’s counsel objected to this, and insisted that the rule of cross-examination would not permit him to cross-examine on any other subject than the one on which the witness was examined in chief. The court held this to be the rule. We think the court was in error in this ruling. The plaintiff made the defendant his witness, and he was sworn and testified in his behalf. This gave defendant’s counsel the right, under the well-settled rule in Michigan, to cross-examine him upon any material question in the case. People v. Barker, 60 Mich. 277 (27 N. W. 539, 1 Am. St. Rep. 501); Ireland v. Railroad Co., 79 Mich. 163 (44 N. W. 426); Hemminger v. Assurance Co., 95 Mich. 355 (54 N. W. 949). And the fact that the witness was one of the parties to the case rather than a third party would not create an exception to the rule. New York Iron Mine v. Negaunee Bank, 39 Mich. 644. After the ruling of the court, defendant took the witness stand and testified in his own behalf, and went into the issues fully, and, for aught the record shows, he testified to everything that he would have testified to if he had been cross-examined. Under these circumstances, we think the error was waived. Hemminger v. Assurance Co., supra. The case of Blackwood v. Brown, 32 Mich. 104, is cited by appellee to sustain the ruling. A like question was raised in that case, but some language is made use of in the opinion which indicates that the ruling of the trial court was sustained for other reasons, namely, the stage of the trial at which the cross-examination was attempted and the lack of relevancy of the direct questions to the matters in issue. But, if that case can be said» to be at variance with the rule laid down in the Barker Case, it must give way before the more liberal rule declared in that case.

The judgment of the trial court is affirmed.

Ostrander, McAlvay, and Blair, JJ., concurred.

Hooker, J.

I concur in the result upon the ground of waiver, but doubt the propriety of holding that a defendant may make his defense on cross-examination by his own counsel whenever he shall have been called upon a single point by his adversary.