author: Brooke, J. FELLOWS,' J.

text:
    KIRKPATRICK v. MUSKEGON TRACTION & LIGHTING CO.
    1. Carriers — Alighting from; Car — Street Railways — Contribtp tory Negligence.
    In an action by a passenger against a street car company for personal injuries alleged to have been caused by the starting of the ear while plaintiff was attempting to alight at a point where the street car track crosses a steam railroad track, and where it was customary to stop the car while the conductor went forward to ascertain whether the street car could make the crossing in safety and to allow passengers to get off at such point, a passenger who got up before the car had come to a stop and went to a seat near the rear and waited until the car came to a full stop, when she got up and was injured while attempting to alight from the car, due to the fact that she was not given a reasonable time to get off, was not guilty of contributory negligence.

    2. Same — Trial—Instruction—Negligence—Contributory Negligence.
    In such action an instruction that if, as claimed by plaintiff, before the car came to a stop she got up, and went to the back part of the car, she would not be guilty of any negligence in walking back to a seat in the rear end of the . car and sitting down until the car came to a stop where passengers got off; that it was the duty of the conductor, knowing the custom of passengers to get off at such place, to give them a reasonable time to get off before signaling the car to start; that such passengers had the right to rely upon such duty; but that, if the car had started on its way after it had come to a stop, and before she had got out of her seat and had indicated in any way that she intended to leave the car at such place, and had started on and was crossing the railroad tracks, and then she got up and walked back and stepped off the car while it was in motion, she could not recover, held, to be correct.
    3. Appeal and Error — New Trial — Weight oe Evidence.
    Motion for new trial, in action by a passenger against street railway company for damages for personal injuries received while attempting to alight from car, on ground of insufficiency of evidence to sustain verdict, held properly denied.
    Ostrander. Steere, and Brooke, JJ., dissenting.
    Error to Muskegon; Sullivan, J.
    Submitted January 3, 1917.
    (Docket No. 22.)
    Decided March 30, 1917.
    Case by Letitia Kirkpatrick against the Muskegon Traction & Lighting Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Cross, Vanderwerp, Foote & Boss, for appellant.

      Simpson & Anderson, for appellee.

       On presumption of negligence from sudden starting of car while passenger is alighting, see notes in 13 L. R. A. (N. S.) 611; 29 L. R. A. (N. S.) 814; L. R. A. 1916C, 373.

   Brooke, J.

(dissenting). Defendant company operates a street railway system in the city of Muskegon. One of its lines runs, north and south on Sanford street. On Laketon avenue, which runs east and west, there is located a double track steam railroad operated by the Grand Trunk. Cars of the defendant company approaching said steam railroad tracks are required to stop while the conductor goes forward to ascertain whether the street car can make the crossing in safety. Having satisfied himself that the steam tracks are clear of danger, it is his duty to give the signal to his motorman to proceed to make the crossing. The motorman then starts his car up, and the conductor boards it as it passes him going over the steam tracks. The street cars are equipped with a looking glass placed to the right of the motorman, a short distance outside of the vestibule, a glance in which enables the motorman to see whether any one is in the act of leaving the car before he applies his power. Passengers desiring to leave the car at Laketon avenue usually leave the same when the car stops for the steam railroad tracks, before crossing Laketon avenue.

On the day the accident happened, defendant company operated one of its cars south on Sanford street, stopping on the north side of Laketon avenue, near the Grand Trunk railway tracks. The conductor left the car, went forward, and, having satisfied himself that the track was clear, gave the motorman the signal to proceed, which signal was obeyed. Plaintiff, an old lady of 72 years, was a passenger upon the car, and desired to leave it at Laketon avenue. She testified that she rang the bell as the car left the corner of the street next north of Laketon. While this is denied by the car officials, it would seem to be unimportant because the car was peremptorily obliged to stop before it reached the steam railroad tracks located on Laketon avenue. Plaintiff further testified that she left her seat and started for the rear of the car while it was still in motion; that she saw an acquaintance, a Mrs. Herendeen, near the rear of the car, and sat down for a moment with her ;• that she waited until the car came to a full stop, when she proceeded to the rear platform, stepped down upon the single step, and was -in the act of stepping therefrom to the ground when the car suddenly started up, throwing her violently to the ground. Her fall resulted in certain injuries for which she brought suit. With reference to the steam railroad tracks plaintiff was unable to testify where she fell. Her friend, Mrs. Herendeen, was called by her, and gave testimony to the effect that plaintiff sat down with her a moment on her way to the rear platform; that:

“When we neared the railroad track she got up and went to the rear of the car as it was beginning to slow up. I next saw her in a heap in the street. * * *
“Q. Where did you see her in the street?
_ “A. I couldn’t say whether it 'was just the other side of the railroad or just on it. I couldn’t positively swear to that.”

This witness did not see the accident, so that as to controlling facts plaintiff’s case rests upon her own unsupported testimony. On the part of the defendant, the motorman testified that, having received the signal to go forward across the steam tracks, he looked in the glass from which he could observe the rear step, and saw no one in the act of alighting; that he thereupon applied his power, crossed the tracks, and proceeded to the next east and west street before he knew that plaintiff had fallen from the car. Further, to support the claims of the defendant, it swore two witnesses, both business men of the city of Muskegon, and not connected with the defendant company. These gentlemen were sitting at the rear of the car in full view of the rear entrance. Both testified positively and unequivocally that plaintiff started towards the rear platform after the car had started to cross the railroad tracks, and that she walked out upon the rear platform and stepped off while the car was in motion. They further testified that she fell either upon the steam tracks themselves or just south of them, in this respect being in practical agreement with the testimony of plaintiff’s witness, Mrs. Herendeen. It is undisputed upon the record that the car made but one stop on the north side of Laketon avenue. While the record is silent as to just how close the car went to the steam tracks before stopping, it appears that the car itself is 32 feet long, and if, as testified to by all the witnesses having knowledge of the situation, the plaintiff fell on the steam tracks or south of them, the car must have proceeded from 40 to 60 feet after starting before she fell.

Appellant argues its assignments of error under two heads:

(1) Error is assigned upon the charge of the court.
(2) Error is assigned upon the action of the court in denying defendant’s application for a new trial.

Having instructed the jury with reference to the negligence of the defendant, the court gave the following instruction with reference to the contributory negligence of the plaintiff:

“Now, you see I have called your attention right there to the time of thé accident, and I have given you both sides and the right of both sides in relation to that particular time. The passengers had a right when the car came to a stop there to immediately get up and go to the back of the car and a reasonable opportunity to get off the car before it started, and it was the duty of the conductor to see that she had that reasonable opportunity at that time. If, as claimed by her, before the car had come to a stop she had got up and gone to the back part of the car, she would not be guilty of any negligence in walking back here before the car had come to a stop to where passengers get off or to cross the railway tracks. The conductor, knowing the custom that passengers had of getting off at that place, it was his duty first, or it was his duty to the passenger, anyway, to see that the passenger had a reasonable time to get off before signaling the car to start. That was his duty to the passenger, and she had a right to rely upon that duty, and if they failed to do that duty, and that was the way under which the accident happened, she would be entitled to recover whatever damages she suffered through an injury resulting from the act of the conductor or the motorman in starting the car in that manner that I have charged you. If the car before she had got out of her seat had started, started on its way after it had come to a stop and before she had got out of her seat, indicating in any way that she intended to leave the car at that place, had started on and was crossing the railway tracks, and then she got out and walked back and stepped off the street car while it was in motion, she cannot recover in this case, she would be guilty of contributory negligence. Now, there is the situation, and there is a pure question of fact, gentlemen, with you. It is a question for you to decide.”

With reference to this charge counsel for defendant say:

“We contend that when the court charged the jury in this way, he gave them to understand there could be no contributory negligence on the part of the passenger if the passenger once started from the place in the car where she was seated after the car stopped to let off passengers, and if the car started while this passenger was on her way through the car to alight. In other words, when a passenger starts to leave a car at a regular stopping place, the duty then arises on the part of the employees of the company to see to it that the passenger alights in safety, and if the car starts before the passenger has an opportunity to alight,_ and the passenger attempts to get off the car when it has started and falls in consequence of this, it is wholly the fault of the street car employees who have charge of the car, and the passenger cannot be guilty of any contributory negligence preventing recovery.”

We are of opinion that this criticism of the quoted portion of the charge is justified. It is clear that, even though a passenger starts toward the exit of a car while the car is standing, if the car starts before the passenger has alighted, and while he or she is in a place of safety either inside the car or upon the rear platform, the passenger may not then leave the car while in motion and be excused from the charge of contributory negligence by reason of the fact that a start toward the exit was made while the car was at rest. It is true that the court in other portions of the charge properly instructed the jury upon the same point. We have frequently held, however, that where improper as well as proper instructions are given the jury, error must be presumed because it cannot be known whether the jury followed one or the other. Being of opinion that the case should be reversed because'of the error assigned upon this portion of the charge, it becomes unnecessary to pass upon the court’s denial of the motion for a new trial, though it may be said that the undisputed physical facts tending to discredit the plaintiff’s unsupported statements might well have moved the trial court to grant the motion.

The judgment should be reversed, and a new trial ordered.

Ostrander and Steere, JJ., concurred with Brooke, J.

FELLOWS,' J.

The accident in this case happened in one of two ways, either in the manner claimed by plaintiff, or in the manner claimed by defendant; there were no facts shown calling for any instructions, except those which fitted one or the other of these claims. The plaintiff testified:

“I walked to the door and waited, and it stopped stock still, and I stepped off the platform down on the step, and just as I was stepping my other foot down to get off, the car started up, and threw me off, and broke my arm.”

Mrs. Herendeen, a witness called by plaintiff, testified :

“The car just stopped still, and then I think it started so suddenly that. I raised up to see if she had gotten off. That must have been the reason, because I looked back. I know I had her in my mind. I raised up and looked back and saw her lying in a heap in the road.”

Mr. Anderson, a witness called by defendant, testified :

“As we were talking Mrs. Kirkpatrick got up as the car was going across the tracks, and she started to get off; put her right foot on the step and got the handle in her right hand. The car was in motion, and she jumped, and she fell over on the ground.”

Mr. Nagley, a witness called by defendant, testified:

“As the car was going over the second part she started towards the back of the car, and shé was mumbling something to herself. I don’t know what she was saying, but she stepped down on the step and took hold with her right hand and stepped down with her left leg, and the car was picking up pretty good speed then, and down she went, and she laid there.”

If the accident occurred as claimed by the plaintiff, the defendant was negligent, and plaintiff free from contributory negligence; if it occurred as claimed by defendant, the defendant was not negligent, and plaintiff was guilty of contributory negligence. The instruction of the trial court complained of, I think, fairly submitted these questions to the jury, and is not subject to the criticism urged. It is of no moment so far as this case is concerned what unproven acts would constitute contributory negligence. We are qnly concerned with those acts which have been proven or which may be legitimately inferred from the facts proven. If the instruction fairly covered the case as made, it is sufficient, and what might or might not be contributory negligence under a different state of facts is unimportant. As applied to the facts of this case I do not think the instruction complained of is erroneous and particularly when taken in connection with the entire charge. Entertaining these views, I am constrained to dissent from the opinion of Mr. Justice Brooke.

I am not persuaded that the court erred in overruling defendant’s motion for a new trial. The testimony was in sharp conflict. If plaintiff and Mrs. Herendeen were believed by the jury, and Mrs. Herendeen was equally as disinterested as were Mr. Anderson and Mr. Nagley, the accident occurred when the car started. If the jury believed the testimony of Mr. Anderson and Mr. Nagley, it occurred later and when the car was on the railroad track. While plaintiff is unable to fix the spot where she fell, and whether it was on the railroad track or not, and Mrs. Herendeen is not positive, and in addition to the testimony quoted by Mr. Justice Brooke, also says:

“I don’t know just where she fell. She either fell on the track just as the car was going over the track or this side of the track. When I say this side of the track I mean towards i Muskegon. It was right close to the track,”

—and while no one assisted plaintiff to arise or saw her on the ground, except as detailed, it is a fact to which I think some significance might nave been given by the jury that the conductor who went ahead of the car to see whether there was an approaching train on the steam road, and who must have been on or near the track of the steam road when the accident occurred, saw nothing of it. None of the testimony was taken by depositions. The jury and trial court saw all the . witnesses, and I do not think we can say, as matter of law, that the trial court was in error in refusing a new trial. I think the judgment should be affirmed.

Kuhn, C. J., and Stone, Bird, and Moore, JJ., concurred with Fellows, J.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    BEWERNITZ v. DETROIT, JACKSON & CHICAGO RAILWAY.
    1. Street Railways — Negligence—Killing oe Stock — Highways and Streets — Contributory Negligence — Question eor Jury.
    In an action against an interurban railroad to recover for tbe loss of cows killed by one of defendant's cars while they were being driven on a highway on which the railroad ran, where it appeared that the cows were in such condition that it was necessary that they be allowed to travel at their leisure; that plaintiff allowed them to travel on the railroad tracks as they desired, from time to time, and that defendant’s motorman could see the cattle a half mile away, held, that it was a question for the jury whether plaintiff exercised due care in the manner of driving the cattle at the time and under the circumstances.
    2. Same — Highways and Streets — Trespass—Stock—Rights oe Public.
    Allowing of cattle to range over the portion of the highway occupied by the car tracks did not constitute a trespass, as such portion of the highway is not divested of its character as a public thoroughfare.
    3. Same — Trial—Instructions.
    In such action an instruction that the rights of the plaintiff and defendant in the highway were equal, and that defendant did not have an exclusive right to that portion of the highway where its tracks ran, hut must operate its cars with the understanding that others have rights on the highway, held, to he correct.
    4. Same — Highways and Streets — Duty op User — Negligence.
    The rights and obligations of an interurban railroad run- . ning on a highway, and the driver of cattle on the highway,. upon meeting, are mutual, according to the attending conditions, emergencies, and legitimate use each is making of the highway.
    ■5. Same — Highways and Streets — Negligence — Contributory Negligence.
    It is the duty of an interurban railroad to operate its cars with regard to known existing conditions and dangers, and when its lines running through the country lay open and unguarded along a public road, free to use for travel to. all who have occasion, the increased hazards arising from such conditions cannot be ignored and the questions of negligence and contributory negligence are to be tested by the mutual rights and duties resting upon those legitimately using the highway for their particular purpose, as applied to surrounding conditions and facts shown.
    6. Same — Killing Stock — Negligence—Question for Jury.
    In such action, where it appeared that defendant’s motorman had a straight view from the switch at which the car was standing for the passage of another car for half a mile, and could see the cattle on the track, from time to time, and was running the car at a speed of 45 miles per hour at the time of the accident, held, that it was a question for the jury whether defendant was guilty of negligence.
    7. Same — Rate of Speed — Legislative Question — Negligence.
    While the limit of speed permissible for interurban cars is a legislative, and. not a judicial, question, the fact that a car is traveling at a speed of 45 miles an hour may he negligence as a matter of fact, according to the conditions, although the courts could not hold that such speed is, as a matter of law, conclusively negligent.
    8. Same — Trial—Instructions—Appeal and Error.
    In such action, defendant could not complain of the instruction of the court to the jury that even though they might find that the cows were upon the track some distance back from where the accident occurred, if they found that at the time the car was at such a distance from the cows that it could be stopped, going at the rate of speed it was going, and that the cows were clear of the track and afterwards suddenly darted upon the track when the motorman was unable to stop his car, the plaintiff could not recover; such instruction being favorable to defendant.
    9. Appeal and Error — Harmless Error — Instructions.
    Where an equal number of witnesses are called on both sides in a civil case an instruction that the jury must not count witnesses is not reversible error.
    Error to Wayne; Codd, J.
    Submitted January 3, 1917.
    (Docket No. 20.)
    Decided March 30, 1917.
    Case by August Bewernitz against the Detroit, Jackson & Chicago Railway for .damages for the negligent killing of certain cattle. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Moody, for appellant.

      Edward M. Vining, for appellee.
   Steere, J.

Plaintiff recovered a verdict and judgment against defendant in the circuit court of Wayne county in the sum of $325 as damages for the loss of three cows killed on September 20, 1913, by one of defendant’s interurban cars at a point about three miles west of Dearborn on a highway known as Michigan avenue, along the northerly side and within the limits of which defendant’s track ran.

Plaintiff owned and operated a dairy farm in the township, of Nankin, situated about a mile west of the village of Inkster, in Wayne county, and was driving some cows, which were heavy with calf and soon to become new milch cows, westerly from near Dear-born, where they had been at pasture, to his. home farm, where he could better watch and care for them. He was assisted by an employee, and the two rode during most of the time in a buggy slowly following the cows so as to allow them to move leisurely along, not wishing to crowd or worry them on account of their condition. Shortly before the accident the animals had turned aside and ran down a connecting highway called the “Gully road,” rendering it necessary to go around and head them back on to Michigan avenue. This incident tended to disturb and frighten them, and just as they were again back on Michigan avenue an electric car of defendant passed them going west, in the direction they were being driven. After this they settled down and again walked along Michigan avenue in the right direction with plaintiff and his man following as before. About half a mile west of where the first car passed them was located a switch at which defendant’s cars passed each other. An eastbound car was then standing on this switch awaiting the passage of the one coming from the east. After the west-bound car passed the switch the east-bound started, coming down the track towards the cattle with increasing speed until it was running about 45 miles an hour, and, when it reached where the cattle were, killed three cows which had gone upon the track. The testimony is undisputed that there was a clear view along the track. The car was plainly visible to plaintiff and his man while and from the time it was standing upon the switch, as were also the cattle to "those upon the car, for the same distance. The car was being operated by a so-called “student” who was learning to operate it under direction of the regular motorman, who was on the car sitting in the vestibule eating his dinner.

The facts are practically undisputed; the only claimed material issue in or as to the testimony being whether any of the cattle were upon the track a sufficient length of time for the motorman to have seen them in time to stop his car before striking them.

Appellant assigns as error refusal of the court to direct a verdict because “plaintiff was guilty of contributory negligence in the manner in which he drove the cows in the highway.” “There was no negligence shown on the part of the defendant in the operation of this car,” and the charge of the court was erroneous in instructing the jury that “the rights in the highway, gentlemen, are equal. * * * The railway company has no exclusive right to occupy that part of the highway, and must operate its cars with the understanding that others have rights upon the highway with themselves. * * * You are not to count witnesses.”

Defendant’s claim that plaintiff was conclusively guilty of contributory negligence as a matter of law is based upon the evidence that he and his helper sat in a buggy following the cattle at a distance of 8 or 10 rods without attempting to confine them to the traveled roadbed and keep them off that portion of the highway occupied by defendant’s track. This contention is apparently based upon the theory that, if the cattle were allowed to range upon defendant’s track as they were being driven along the highway, it was a trespass committed at the owner’s peril; defendant being under no obligation to look out for trespassers or take any precautions for their safety beyond refraining from wantonly running them down when seen upon the track.

The same thought permeates the discussion of defendant’s assignment of error upon the court’s statement that rights in the highway are equal, and defendant did not have exclusive right to that portion of the highway where its tracks ran, but must operate its cars with the understanding that others have rights upon the highway. In so stating, with the explanation given in that connection, the court was not in error. ^ Defendant’s right to run its line along this highway did not divest that portion occupied by its tracks of its characteristics as a public thoroughfare. It was yet all a highway, open to public travel. Plaintiff was neither a trespasser nor guilty of negligence as such ipso facto in not keeping the animals he was driving along the highway confined to any particular portion of the public way.

“Street railway companies have no such proprietary interest in the portion of the street upon which their tracks are laid as limits the rights of the general public to use the same territory as a part of the public highway, so as to impose upon travelers the duty of keeping themselves and horses out of the way of cars on such tracks.” 2 Nellis on Street Railways, § 417.

Plaintiff had as much and equal right to use the highway for the purpose of driving his cattle slowly along it as defendant did to run its interurban cars swiftly along it. The rights and obligations of the meeting parties were mutual, according to the attending conditions, emergencies, and legitimate use each was making of the common thoroughfare. Moving flocks and herds of domestic animals from place to place, as the business interests of their owners require, by driving them along public thoroughfares, is as legitimate and innocent a use of the highways as is running rapid transit railway cars upon them. Although the cars are confined to tracks and cannot turn aside, it is the duty of their owners to operate them with regard to known existing conditions and dangers, and when their lines running through the country lay open and unguarded along a public road free to use for travel by all who have occasion, the increased hazards arising from such conditions cannot be ignored, and the questions of negligence and contributory negligence are to be tested by the mutual rights and duties resting upon those legitimately using the highway for their particular purposes, as applied to surrounding conditions and facts shown.

Of his manner of driving the cattle and reasons for not trying to keep them off defendant’s track, plaintiff testified that they were “going to be milk cows soon,” and “we did not want to run them, * * * they were so heavy with calf that it hurts them”; that they let them go at their leisure; “part of the time there would be one on the track and sometimes two on the track and again three, and then they would buck off; that is the way they went along”; that the motorman had a straight view from the switch for half, a mile, and plaintiff supposed the plainly visible cattle were signal enough to the approaching car. The employee who was assisting plaintiff testified:

“Some of them were on the track all the time. They were not all on the track all of the time; one or more was. on the track all the time. You could not keep them off the track.”

The student operating the car was not a witness. The regular motorman, who was with him, but eating his dinner when the car left the switch, testified that the accident happened about half way between the switch and the Gully road; that shortly before it occurred he got up and saw three head of cattle about 160 feet ahead just coming upon the track; that the student reversed the car, and “my hand went over his like that, and I run about 300 feet after I reversed it and killed all three cattle”; that when the accident occurred they were running about 45 miles an hour. Two passengers testified that, their attention being attracted by something, they looked out and saw the cattle close to the track, coming' upon it just as the brakes were applied, and the car almost instantly struck them. The conductor testified that he was in the closet when they hit the cattle, and had left the student operating the car while the regular motorman was eating his dinner; that it' was broad daylight, and there was no trouble in seeing a cow at least half a mile ahead down the track; that as he remembers it the cattle were shoved or bunted after being struck by the car some 275 or 300 feet.

In support of the contention that a verdict should have been directed in its favor, defendant’s counsel cite, as controlling, Kotila v. Railway Co., 134 Mich. 314 (96 N. W. 437), and Nissly v. Railway Co., 168 Mich. 676 (131 N. W. 145, 135 N. W. 268, Am. & Eng. Ann. Cas. 1913C, 719). In each of those cases a single animal wandering at large suddenly and unexpectedly appeared upon the track a short distance ahead of the car, and it was held in substance that the owner who intentionally or negligently allowed his animal to run at large could not recover for its death, in the absence of Evidence that the motorman saw or should have discovered it in a position of danger in time to have checked or stopped the car and avoided the accident. In this case plaintiff was with his cattle driving them along the highway to his farm. The question whether he exercised due care in the manner of driving them, at the time and under the circumstances disclosed, was, we think, one upon which the minds of reasonable men might reach different conclusions and fairly for the jury to decide from the facts shown. There was clearly abundant testimony bearing upon the negligence of the student motorman to take that question to the jury. Both the conductor and regular motorman testified that at the time of the accident the speed of the car was 45 miles an hour. With these cattle in sight from the time he left the switch, being driven within the narrow confines of the highway towards and inevitably about to meet him, moving irregularly as they traveled, and, if plaintiff’s testimony is true, some of them upon the track all or most of the time, he speeded up his car to what can well be claimed beyond safe control for such a meeting and swept down the track towards them.

It is true, as counsel contend and cite authority to show, that this court has held the limit of speed permissible for interurban cars is a legislative, and not a judicial, question, and the court cannot hold that a speed of 45 miles an hour is as a matter of law conclusively negligent, but it has never held that as a matter of fact it might not be negligent under certain conditions, and therefore a question for the jury.

In the Nissly Case, cited by defendant, where there was evidence the car was running 40 miles an hour, the court said:

“It is undeniable, however, that if his rate of speed was unreasonably great it would be negligent, and we are of the opinion that, if the motorman was running his car so fast that he could not have stopped it within the distance that this colt could have been seen upon a straight track, the jury might have been justified in finding the speed unreasonable.”

The charge of the trial court was, if anything, conservatively favorable to the defendant upon the question of the operator’s negligence. The jury were told:

“That even though you may find that the cows were upon the track some distance back from the accident, if you find that at the time the car was at a distance from the cows, such a distance that it could be stopped going at the rate of speed it was going, and if you should find that the cows were clear of the track, and afterwards suddenly darted upon the track when the motorman was unable to stop his car, of course, then the plaintiff cannot recover.”

It is further urged that the remark of the court to the jury, “You are not to count witnesses,” is reversible error under the ruling in Dupuis v. Traction Co., 146 Mich. 151 (109 N. W. 413). In that case there were numerous witnesses, not only to the claimed accident itself, but others testified to experiments made and the effect Of centrifugal force as bearing upon how the accident might, or might not, have happened, and in charging the jury touching preponderance of evidence the court said:

“The number of witnesses has nothing to do with the case.”

This court there said:

“It is always the duty of the jury to consider the number of the witnesses as well as the quality of their evidence in determining where the truth lies.”

In this case, aside from a witness who testified only as to the values of the cows killed, which was not disputed, each side called just three witnesses. Under such a state of facts it is difficult to see how the inadvertent interjection of the court that they should not be counted could be regarded as favorable or prejudicial to either side. If it can be called an error at all under such circumstances, its effect, if any, is mathematically apportioned impartially between the parties without prejudice, and we cannot affirmatively find that it resulted in a miscarriage of justice.

The judgment is affirmed.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Brooke, and Fellows, JJ., concurred.


text:
    CITY OF CADILLAC v. CITIZENS’ TELEPHONE CO.
    1. Telegraphs and Telephones — Rates—Injunction—Ordinances —Municipal Corporations — Contracts.
    On a bill by a city against tbe assignee of a telephone company to enjoin the alleged violation of an ordinance relating to rates, evidence held, insufficient to show any binding contract,' express or implied, as to rates between the city and either defendant or its grantor.

    2. Same — Contracts — Breach oe Contract — Equity — Jurisdiction.
    There being no binding contract, express or implied, as to rates between the city and either defendant or its grantor, there were no grounds for the assumption of jurisdiction by a court of equity.
    3. Same — Regulation oe Rates — Legislative Question.
    The fixing and regulating of rates to be charged by a telephone company is a governmental, or a legislative, and not a judicial, function.
    4. Same — Railroad Commission — Jurisdiction— Rates — Review by Courts.
    The railroad commission has original jurisdiction to hear and determine the question of telephone rates, and review may be had by the courts.
    Appeal from Wexford; Lamb, J.
    Submitted January 12, 1917.
    (Docket No. 126.)
    Decided March 30, 1917.
    Bill by the city of Cadillac against the Citizens’ Telephone Company for an injunction restraining defendant from increasing its rates and other relief. From a decree for defendant, plaintiff appeals.
    Affirmed.

      E. F. Sawyer, for appellant.

      Travis, Merrick & Warner, for appellee.

      “On power of municipality, apart from contract, to regulate the rates to be charged by public service corporations, see note in 33 L. R. A. (N. S.) 759; 43 L. R. A. (N. S.) 994.

   Steere, J.

On December 3, 1894, one Henry W. Sill petitioned the mayor and common council of Cadillac for permission to use the public streets and alleys of the city for the purpose of erecting telephone and telegraph poles. This communication was referred to the street committee which, on December 17, 1894, recommended “that the petition of Henry Sill for the use of streets and alleys for. the placing of telephone poles be granted: Provided the city be allowed the free use of the tops of the poles.” The report was accepted and adopted. Sill soon thereafter installed a telephone system of modest proportions and operated the same, charging rates satisfactory to him and his subscribers, so far as shown.

On March 12, 1900, a general ordinance was passed by the common council, entitled:

“An ordinance to regulate the construction and maintenance of telephone lines in the city of Cadillac, and to establish rates for telephone service.”

This ordinance made no reference to Sill, and, so far as shown, did not in any way require him to change his manner of using the streets, method of operating his telephone system, or the prices he was then charging. The ordinance is devoted largely to specifications as to use of streets, etc., requires that before setting poles notice should be given of such intention and the work thereafter done under supervision of the board of public works or its authorized agent, and contains various other provisions common to such ordinances, not material here. It further provides that any person or company to whom permission is given to install a telephone line under the ordinance shall have the right—

“to erect, control and maintain an electric telephone plant in said city, and to repair and extend the same and carry on the business of renting electric telephones and furnishing telephone service: Provided, however, that the yearly rate for telephones used for business purposes anywhere in said city shall not exceed $24, and the yearly rate for private residences anywhere in said city shall not exceed $15.”

These were the rates then charged by Sill. He is not shown to have formally accepted this ordinance, nor to have been required to recognize it in any particular. He continued with his business as before, charging the same rates, and operating his system undisturbed and apparently in an acceptable manner until-he sold out his plant and business in 1902 to the defendant Citizens’ Telephone Company, which then took over and has since operated it.

No application for permission to operate its plant or to install any of its lines under the ordinance was ever made by defendant, nor was any express agreement entered into between it and the city. Defendant’s general manager testified that he knew nothing about the ordinance until four or five years after they bought Sill out, but always supposed and claimed that defendant was using the highways in the city of Cadillac by authority of the telephone law under which it was organized; recognizing, however, under that law, the police power of the city to reasonably regulate the manner in which poles and other apparatus should be erected, installed, and maintained in its streets, for which reason, and not because of the ordinance, all reasonable requirements of the city in that particular have been observed and complied with.

No fault is found by plaintiff as to defendant’s use of the streets or method of doing business except in the matter of rates recently charged, which, it is claimed, are in violation of those authorized by the ordinance, and excessive, for which reason this bill is filed to restrain- defendant from violating the ordinance (on the ground that it is a binding contract between the parties), and (on the further ground that it is violating the general telephone act) —

“from in any way, shape or manner increasing any rate, toll, rental or charge for telephone service, and from altering any classification, control, practice, rule or regulation so as to increase the rate, toll, rental or charge heretofore made to its patrons under the ordinance aforesaid, except upon application to the State railroad commission made in accordance with Act No. 206, Pub. Acts 1913, and after due permission and order made by such commission in conformity therewith,” etc.

The trial court held that no binding contract between the parties was proven for violation of which injunction could be granted; that plaintiff’s claim and conflicting testimony relative to a failure of defendant to comply with the telephone law touching rates was, in the first instance, cognizable only by the Michigan railroad commission, to which administration of the law was committed by statute, and plaintiff was therefore not entitled to equitable relief in that particular.

It is conclusively shown that neither Sill nor defendant ever directly accepted or consented to be bound by the terms of the ordinance, and it certainly never became an express contract between the parties. If intended to apply to and bind Sill or those who might succeed to his property and rights, it was unhappily worded to that end. By section 1 it provided that all telephone lines, etc., hereafter erected and maintained in the city of Cadillac shall be erected and maintained in accordance with provisions of the ordinance. It provided that any person or firm desiring to erect or maintain a telephone line should “first make application to the city council,” and in such application expressly-agree to be bound by the terms of the ordinance, following which is the provision before quoted as to rates, etc. Six years before the adoption of this ordinance Sill had erected and up to that time been operating his telephone system in the city with permission from the council, without any contract, express or implied, as to rates. He then had the undoubted right, serving the public without discrimination, to fix and change his schedule of rates, making such charges to his patrons for service as were acceptable to him and them. He had also acquired vested rights and interests by virtue of his expenditures in installing a public utility plant with the city’s acquiescence, which could not be destroyed by a subsequent ordinance not accepted by him. While the city might have power to contract as to rates with those willing to contract, it is not shown nor presumed to have been empowered by its charter to regulate or fix the rates which might be charged. Having purchased Sill’s legally installed and operating public utility and business, defendant had, in addition to the rights acquired from him, the further right under the law by which it was incorporated to maintain, construct, and operate its lines “along, over, across,” etc., “any public places, streets and highways * * * in this State,” subject to the police power of the city to control, for public safety and convenience, the manner of so doing. The testimony in this case fails to show any binding contract as to rates, express or implied, between the city and either Sill or defendant. Therefore the grounds for exercise of. original equity jurisdiction, before the State railroad commission acted or was appealed to, recognized in City of Monroe v. Railroad, 187 Mich. 364 (153 N. W. 669), and City of Traverse City v. Telephone Co., ante, 373 (161 N. W. 983), are wanting.

It is further contended for plaintiff that the city is entitled to remedy by injunction to protect its citizens from excessive and illegal rates, exacted by defendant, a chartered public utility corporation, in violation of section 10 of Act No. 206, Pub. Acts 1913 (2 Comp. Laws 1915, § 6698), which forbids telephone companies increasing any rate or charge, or so altering any classification, contract, or rule as to result in an increase of rates, under any circumstances, except upon application to the railroad commission, and a finding by it that the increase is justified — such application to be accompanied by notice with proof of its publication in a newspaper of general circulation in the territory served, followed by a hearing at a date fixed by the commission.

The facts and circumstances relating to that feature of the case are quite similar to those disclosed in City of Traverse City v. Telephone Co., supra. The contention arose here, as there, over a move made by defendant to increase the rate it was charging old subscribers for a certain kind of service .to the same it was exacting from newer subscribers. On February 7,1913, it filed a schedule with the State railroad commission .purporting to be a statement of the various-rates it was then charging and collecting, but which in fact did not disclose the true situation. No aggressive effort was made to uniformly enforce the schedule rates until the following December, when it served notice upon a large number of old subscribers, who were paying less than the claimed schedule rate for individual line residence service, that they must pay an increased charge equaling that rate unless they accepted a so-called “select party line service,” which was a different and léss satisfactory service scheduled at a lower rate. It is claimed by plaintiff that this was a change and increase in charges (existing when, before and after the schedule was filed, and which had been regularly charged and collected) made without permission of the commission, and a palpable violation of the statute which plaintiff in behalf of its citizens is entitled to have restrained by injunction.

Under the law which plaintiff seeks to restrain defendant from violating in the matter of rates, telephone companies are made common carriers, and administration of the law is committed to the railroad commission with large vicarious powers to regulate and control them as a governmental agency. Supervision of rates is included within its powers. The commission is authorized to entertain complaints, adopt rules to govern its proceedings, and “to hear and determine all complaints against the practices, rates, tolls, rentals, or charges, or services rendered, or facilities furnished, or complaints as to services withheld or refused to be rendered,” etc. A severe penalty is provided for failure or refusal to observe any rate, charge, toll, or order fixed or established by the commission. Detailed provision is made for review of any action or order of the commission in the circuit court in chancery, at the instance of dissatisfied parties. Control of a threatened or actual violation of this penal statute is expressly delegated to the commission with plenary power to act.

The fixing and regulation of rates to be charged by public utilities is a governmental or legislative, not a judicial function. No issue of reasonableness of rates is raised here by the pleadings or proof. The complaint is of rates charged contrary to contract and in violation of the statute. Plaintiff has failed in proof upon the first; as to the latter, original jurisdiction to hear and determine the question of rates has been committed to the commission by legislative enactment, with ample provision for review by the courts. We find no occasion for the courts to interfere with the prescribed course by prematurely assuming jurisdiction.

The decree is affirmed, with costs to defendant.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Brooke, and Fellows, JJ., concurred.


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    ERICSSON MANUFACTURING CO. v. CAILLE BROS. CO.
    1. Principal and Agent — Contracts — Authority oe Agent — Ratification.
    It is immaterial whether an agent of, a corporation had authority to make an oral contract for work and labor to be done for the corporation, where it repeatedly admitted the existence of an oral contract in subsequent correspondence.
    2. Same — Sales—Contracts—Place of Sale — Foreign Corporations — Presumptions.
    Where an oral order for machinery was personally taken - within the State by the vice president and general manager, of a foreign corporation, it must be presumed that . such officer had authority to accept the order so as to constitute such contract one made within the State.
    3. Same — Authority of Purchasing Agent — Presumptions.
    In the absence of evidence to the contrary, it will be presumed that the purchasing agent of defendant corporation had authority to purchase the machinery.
    4. Sales — Manufactured Article —Work and Labor — Frauds, Statute of.
    A contract for an article which, while of a general character coming within the seller’s line of manufacture, is not in detail of a kind which it regularly makes up and usually has for sale in the common course of business, but is made especially for the buyer according to specifications, is a contract for work and labor, and not of sale.
    S5. Frauds, Statute of — Sales—Manufactured Article — Work and Labor.
    An agreement by one to construct an article especially for or according to the plans of another, whether at an agreed price or not, although the transaction is to result in the sale of the article, is a contract for work and labor and is not within the statute of frauds, but if the article to be made and delivered is of a kind which the producer usually has for sale, in the course of his business, it is a contract for sale and must be in writing.

      Error to Wayne; Kendrick, J., presiding.
    Submitted January 2, 1917.
    (Docket No. 3.)
    Decided March 30, 1917.
    Rehearing denied September 28, 1917.
    Assumpsit by Ericsson Manufacturing Company against Caille Brothers Company for goods sold and delivered. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      A. W. Sempliner, for appellant.

      Clarence P. Milligan, for appellee.

      'On distinction between sales of personalty and agreements for work and labor, see notes in 14 L. R. A. 230; 30 L. R. A. (N. S.) 319; 43 L. R. A. (N. S.) 97.

   Steere, J.

Plaintiff is a manufacturing corporation of Buffalo, N. Y., especially engaged in making and selling telephones and magnetos. Defendant is a Michigan corporation located in Detroit, and at the time events involved -in this controversy arose was engaged, among other things, in making and about to put on the market a small outboard or portable motor appliance for rowboats and launches. This action was brought to recover for 50 small magnetos to be used in that connection, claimed to have been manufactured by plaintiff in 1913, and shipped to defendant under a special order for the same, at an agreed price of $18 each, but which when delivered defendant refused to accept and pay for.

Plaintiff declared upon the common counts in assumpsit, and defendant pleaded the general issue. The case was tried before a court and jury.in the circuit court of Wayne county in April, 1916. At the conclusion of plaintiff’s testimony defendant also rested without offering any evidence, and counsel requested a directed verdict in its favor on the ground that the alleged contract was void under the statute of frauds, and no authority was shown on the part of Mr. Howe, by whom the order was given, to contract for defendant. Plaintiff’s counsel also requested a directed verdict in its favor,, and after hearing arguments the court instructed the jury to render a verdict in plaintiff’s favor for the sum of $900, being the purchase price of the 50 magnetos, with interest at 5 per cent, from the date of shipment, apparently computed without dispute at $103.19. A judgment on directed verdict was thereafter entered for $1,003.19.

The claims made and argued in defendant’s brief are that the alleged contract was void under the statute of frauds, being for the purchase of articles which the producer advertised in its catalogues for general sale and handled in the usual course of its business; that the alleged contract is not shown to have been made with or by an authorized agent of defendant; that in any event issues of fact were involved which the court' could not decide and which should have been submitted to the jury.

The evidence introduced for plaintiff consisted mostly of that given by a witness named Pardee, who was its vice president and general manager, and correspondence between the parties. Pardee testified to having visited Detroit more than once in 1913 as a representative of plaintiff to try to interest the Caille Bros. Company in plaintiff’s magnetos and get an order. He first identified a letter dated April 15, 1913, received from “The Caille Perfection Motor Co., per Brady Bradbeer,” asking for plaintiff’s catalogue and specifications for “the small type magneto for single cylinder,” stating, “We are about to put on the market a small outboard or portable motor for rowboats and launches,” and then identified a copy of a letter from himself dated April 22, 1913, replying to one from the Caille Perfection Motor Company, in which he mentions having called upon it in Detroit, stating he saw Mr. Howe and Mr. Liberty, but unfortunately did not see Mr. Bradbeer, discusses the subject at some length, apparently answering inquiries, and asked for certain particulars, stating in conclusion that on receipt of the requested information “we shall be glad to send sample if your desire, and also will take up with you at the earliest possible date our new cheap type, which is possibly smaller and better fitted to your requirements.” He then testified that about June 10th he again went to Detroit and called upon defendant, where he saw Mr. Liberty and Mr. Howe, the latter telling him that the Caille Bros, and Caille Perfection Motor Company were one and the same thing; that Mr. Howe was the purchasing agent, and witness knew this to be the case because he went to the office and asked for the purchasing agent and was referred to Mr. Howe’s desk; that he asked Mr. Howe if they were not about ready to place an order for some magnetos and was told by him to see Mr. Liberty, the superintendent, which witness did, and, on returning to Mr. Howe, informed the latter that Liberty had reported favorably upon a sample which had been sent him, stating he thought it was a very good machine, and said, “We will need some very shortly, and you had better get ready 50 of the singles, or 50 magnetos for one-cylinder motors, and have them ready for shipment by July 15th, and I will give you shipping instructions before that time”; that he then wrote out the order as specified, asking for the rotation of the magneto, which meant the way it turned, and for the position of the time lever, getting the specific direction as to manufacture from Mr. Howe and Mr. Liberty; that it was necessary to do this “because of the difference in the motors that were designed by the different manufacturers we were forced to make magnetos to fit their conditions; we could not use any definite standard and had to make the magnetos to order to fit their specifications.” Witness further testified that the measurement between different holes in the base for mounting, the height of the center of the shaft, whether they should be “clockwise” or the reverse, the lever left or right, whether “ground stop” was to be used, and other special matters had to be known, and no order was started through the shop until the specifications for it were ascertained and given to their engineer from whose office it went to the shop with any penciled memoranda necessary; that plaintiff refused to take these magnetos back and did not offer to try and revamp them for some one else owing to this, because it might involve radical changes if a purchaser was found, “for example, from clockwise to anti-clockwise, or the lever left to lever right, whichever it was, reversing either of them or both of them, would have meant completely rebuilding, the machine, except for actually machining parts.”

A witness named Buck, who was a machinist and foreman of plaintiff at the time these magnetos were manufactured, testified that they were a special order, told the methods followed in filling it, manner of testing and inspecting the magnetos, and that he inspected them before they were packed and shipped.

Pardee testified also that when he took the order in Detroit he at the same time filled out an order blank embodying the essentials as they agreed upon them and mailed the same to their factory in Buffalo, following it himself a few days later; that the order was there entered and copies made of it, one being sent to defendant for verification according to custom. He produced and identified a copy of the order. It is sufficient to state that it is dated June 16, 1913, contains in somewhat disjunctive composition the names of the parties and their location, shipping directions, time of shipment (July 15th), price and terms, number of magnetos (50), with an apparently ample description of the kind and manner in which they should be made up according to his explanation of certain technical or trade names used. It is not signed by defendant or any one in its behalf. To the copy sent defendant on receipt of the order was added: “The following is a copy of your order as entered. Advise immediately if not correct” — with a space for “acknowledgment.” Work was begun on this order on June 16th. After his return to Buffalo Pardee wrote in plaintiff’s, name a letter to defendant, dated June 28th, in its material part as follows:

“We beg to acknowledge with thanks receipt of your verbal order, given to writer, for 50 single magnetos, and acknowledgment has been sent you under separate cover. This order was started through at once, so that we will be able to ship them July 15th, as specified by Mr. Howe, and we will appreciate your sending us confirming order right away, if you will: We will have the machines all ready for you on time.”

Defendant did not acknowledge receipt of the copy of order sent it, or of the above letter, except as indicated by the following:

“July 2d, 1913.
“Ericsson Mfg. Co.,
“Buffalo, N. Y.
“Gentlemen: Kindly hold up until further notice the shipment of the single magnetos, a verbal order which you received from the writer. We find ourselves overstocked with Bosch magnetos at the present time and it will be impossible for us to use yours conveniently at the present time.
“Yours very truly,
“The Caille Bros. Co.,
“Per L. H. Howe.”

At the time this letter was received the magnetos were yet under manufacture, but the order was timely completed and packed in wooden boxes by plaintiff, awaiting defendant’s order for shipment for a time, after which several letters were written defendant relative to shipping them which were not directly answered until December, although defendant wrote relative to 2-cylinder magnetos of a different description. On December 30th plaintiff shipped the goods to defendant, at the same time sending a letter stating it had carried the 50 magnetos at defendant’s request for several months, and felt that it could not in reason be asked to do so longer. On December 31st defendant wrote plaintiff:

“December 31, 1913.
“Ericsson Manufacturing Company,
“Buffalo, N. Y.
“Gentlemen: Replying to your letter of the 30th, beg to state that under no circumstances must you ship the magnetos ordered last July. We find .that we do not use this type magneto any more, and as there was nothing special made to our order, there is nothing to hinder us from canceling the order. We kindly ask you, therefore, to cancel our order, with the assurance that we will take magnetos from you within the coming .year.
“Yours very truly,
“Caille Bros. Co.”

On January 5, 1914, plaintiff replied, stating in part the “magnetos ordered by you last July really were special and made for your order,” offering to give an April 1st dating and insisting on defendant accepting them. On January 20, 1914, defendant answered acknowledging receipt of the consignment, claiming the magnetos were unsatisfactory, had been ordered subject to 30 days’ trial, complained that they “are for one cylinder only, and we could not use 50 in a year,” stated “we kindly ask you to accept them back,” and wrote plaintiff three days later that they had been shipped back as “unsatisfactory.” Plaintiff refused to receive them, and considerable correspondence followed, in which, admitting an oral order, defendant made various and not altogether consistent claims in regard to it which, if sustained by any proof on the trial, would have raised issues of fact,, but nowhere deny the authority of Howe as purchasing agent to give the order, although his name is more than once mentioned in the correspondence. In one letter the writer states:

“In some way your representative induced Mr. Howe and Mr. Liberty to place an order with him for some magnetos. As I understand it, the order was given verbally for 50 two-cylinder, but in writing up the order they specified single cylinder.”

In another letter the main defense now made is foreshadowed as follows':

“You received no confirming order for the 50 magnetos in the first place and you know yourself that it is a bad business policy to ship magnetos or anything else unless you have a written order for them.”

Whatever might otherwise be urged as to the sufficiency of Pardee’s testimony as to Howe’s- authority, defendant’s repeated admissions of an oral contract in subsequent correspondence deprives that question of materiality, even if any reasonable doubt could arise as to the fact.

At the close of the testimony both parties claimed they were entitled to a directed verdict. Plaintiff on the ground that, in the absence of any testimony by the defendant, its liability was- established by the undisputed evidence, and defendant on the sole ground, aside from Howe’s authority, that the contract sought to be enforced was not in writing and void under the statute of frauds. No suggestion is shown to have been made to the court that under any contingency an issue of the fact for the jury was involved.

Under the condition of this record we discover no debatable issue beyond the question of whether the undisputed facts bring the admitted oral contract within the statute of frauds. It is undisputed that a memorandum in writing .was made of the contract when the order was taken, and later a copy sent defendant from Buffalo by plaintiff with request to acknowledge and advise if not correct. It is admitted that the xnemoranaum in writing, or order, was not signed by defendant nor receipt of the copy acknowledged.

Defendant contends the statute applies because no memorandum of the contract in writing is signed by the party sought to be charged, and it was for articles of merchandise which the producer usually made and had for sale to the nublic in the customary course of trade.

Plaintiff urges that the statute of frauds does not apply, because the contract was, in effect, for work and labor to be done, an agreement to construct a particular article for another in a particular way, according to his special needs and instructions; that the agreement is not a.Michigan, but a New York, contract, consummated in Buffalo, where the order was accepted and the commodity bargained for was to be manufactured, and, in the absence of any proof of the laws of that State to the contrary, the contract is presumed to have become valid when the order was accepted and approved, citing Kling v. Fries, 33 Mich. 275, and Sullivan v. Sullivan, 70 Mich. 583 (38 N. W. 472).

Plaintiff’s contention that this was a New York contract calls for scant consideration, and may be relegated with defendant’s claim that Howe had no authority to contract. Pardee was plaintiff’s vice president and general manager. His testimony shows an oral order was given by defendant’s purchasing agent to him in Detroit and there agreed upon between them. In the absence of testimony to the contrary, the presumption'would be as strong that the vice president and general manager had authority to contract for and accept an order as that the purchasing agent had authority to purchase.

Defendant’s contention that this was a contract for sale of an article of general merchandise, and not for work and labor, is based chiefly on it appearing that the type of magnetos as designated in the order by Pardee was M-ll; that plaintiff’s catalogue refers to such a type which he testified was a general design, single-cylinder magneto manufactured by plaintiff, and that, if M-ll was ordered specifying the location of the timing lever and whether clockwise or anticlockwise, it would tell them all they wanted for making a magneto of that type except the ground. He had, however, explained in that connection that M-ll was one of five different general types plaintiff manufactured, and in explaining its mechanism said, amongst other things:

"With this lever on the left, or the right — in other words, with only those two features or specifications —there are possibly at least four different combinations of that same machine that would still be called ‘M-ll,’ if it had certain mounting dimensions and one cylinder. The fact that it is called ‘M-ll’ does not necessarily mean that all are the same. That tells the story of our general dimensions that we wanted to know. It was for our own particular purpose.”

We find nothing in the record to negative plaintiff’s positive testimony that this was a special contract for articles not then existing in the state in which they were to be delivered; that they were to be made by the seller in a particular manner under agreed specifications for particular features to meet the buyer’s wants, were not such as could or would be made for a general trade nor suitable for all, or most, who might wish to buy or traffic in the articles, and that by the provisions, of the agreement the price for the completed articles blends, together compensation for material, work, labor, and- skill so that they are not discriminated.

It is. a well-settled general rule of law that such contracts are without the statute of frauds. 3 Parsons on Contracts (9th Ed.), p. 60.

This vexed question was exhaustively discussed and many authorities reviewed by Justice Stone in Re Gies’ Estate, 160 Mich. 502 (125 N. W. 420, 30 L. R. A. [N. S.] 318, 19 Am. & Eng. Ann. Cas. 1288), where the rule adopted by the Massachusetts courts is stated with approval as follows:

"An agreement by one to construct an article especially for or according to the plans of another, whether at an agreed price or not, although the transaction is to result in a sale of the article, is a contract for work and labor, and not within the statute; but, if the article to be made and delivered Is of a kind which the producer usually has for sale in the course of his business, it is a contract for sale and must be in writing.”

Plaintiff’s testimony is positive that the articles contracted for, while of a general character coming within its line of manufacture, were not, in details, of a kind which it regularly made up and usually had for sale in the common course of business, but were made specially for and according to specifications of defendant.

Defendant introduced no testimony to meet or modify the case made by plaintiff, whose direct and positive proof as to the nature of this contract was undisputed by any conflicting evidence raising an issue of fact. It became the duty of the court to apply the law to the undisputed facts as proven. As the record stands, a strong prima facie case for plaintiff was presented by the established facts, and the trial court could not do otherwise than so instruct the jury.

The judgment is therefore affirmed.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Brooke, and Fellows, JJ., concurred.


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    WESSBORG v. MERRILL.
    1. Executors and Administrators — Trusts—Accounting — Probate Court — Jurisdiction.
    Under section 28, Act No. 25S, Pub. Acts 1899 (3 Comp. Laws 1915, § 14076), providing that the probate court may compel a final judicial settlement of the account of a testamentary trustee where the trust created by the will is ready to be executed, so that the persons beneficially interested are, by .the terms of the will, or by operation of law, entitled to receive any money or other property from the trustee, where a person appointed as executor, and also as testamentary trustee, qualifies and acts in the capacity of testamentary trustee rather than as executor, the probate court has jurisdiction to demand an accounting by such trustee.
    2. Same.
    The probate court has jurisdiction of an action against an executor for an accounting.
    3. Same — Wills—Trusts—Accounting—Estoppel.
    Where persons who are appointed as executors and also as trustees under a will take possession of corporate stock as executors, charge themselves with it as executors, inventory and appraise it as an asset of the estate, continue to hold it in the name of the estate, untransferred, collect dividends paid to them as executors by checks drawn in favor of the estate, indorse checks as executors, and deposit them in a bank to the estate’s account and as executors draw cheeks on such account in distributing dividends to the beneficiaries and never qualify as trustees, they are estopped to claim that they hold such stock in any other capacity than that of executors.
    4. Same — Bond.
    One who is appointed as testamentary trustee can accept the trust and perform the duties of trustee only after filing the required bond.
    5. Wills — Executors and Administrators — Legacy—Vesting oe Title — Time.
    Where there is no gift of personalty, but directions to executors or trustees to pay or divide and to pay at a future time, the vesting of the estate will not take place until such time or act.
    6. Same — Legacy—Principal—Interest.
    Where a gift is to he severed instanter from the general estate for the benefit of the legatee and in the meantime the interest thereof is to be paid him, it is indicative of the intention of the testator that the legatee shall in all events have the principal, and is to wait only for the payment until the date set.
    7. Same — Legacy—Vesting of Title — Gift of Interest.
    Where a bequest is made of personalty, a gift of the interest for the interim to or for the benefit of the legatee vests the principal.
    8. Same — Construction—Legacy—Gift to a Class.
    There is no gift of corporate stock to a class where a testator bequeaths stock in trust for his wife and children to be held intact until a specified date, and during the interim dividends are to be paid to the wife and children in equal shares, and after the expiration of such period the stock is to be equally divided, and all the beneficiaries are living at the time of the death of the testator, as the number of persons is definite at the time the gift takes effect, the date of the death of the testator.
    9. Election of Remedies — Inconsistent Remedies — Accounting.
    There is no election of remedies by the executor of the estate of a beneficiary under a will of a portion of stock, which was bequeathed to trustees in trust for the benefit of testator’s wife and children, including plaintiff’s testate, to be held until a specified date, the dividends to be paid equally to the beneficiaries, and the principal equally divided after the expiration of such period, where the executor of the estate of such beneficiary first unsuccessfully attempts by a bill in chancery to secure a share of the dividends due to the estate of such beneficiary and petitions for the removal of the executor, and, after the expiration of such period, files a petition in the probate court asking for an accounting of the dividends declared and paid since the death of said beneficiary and to compel the payment of same to him as executor of the estate of such beneficiary, as the remedies were not inconsistent.
    Error to Saginaw; Searl, J., presiding.
    Submitted January 8, 1917.
    (Docket No. 49.)
    Decided March 30, 1917.
    Rehearing denied June 1, 1917.
    Petition in probate court by Eric S. Wessborg, executor of the last will and testament of Alice E. Wessborg, deceased, against Herbert W. Merrill and others, executors of the last will and testament of William Merrill, deceased, for a decree requiring respondents to transfer to petitioner, as such executor, certain stock and stock dividends. From an order granting the prayer of the petition, respondents appealed to the circuit court. Judgment for petitioner. Respondents bring error.
    Affirmed.

      G. W. Davis, for appellants.

      Weadock & Weadock, for appellee.
   Steere, J.

This case came to the circuit court of Saginaw county on an appeal taken by the executors of the last will and testament of William Merrill, deceased, from an order of the probate court of that county, which, amongst other things, required them to pay one-sixth of the dividends declared on certain stock, left by their decedent for his wife and children, to Eric S. Wessborg, executor and trustee of the estate of his wife, Alice E. Merrill Wessborg, deceased, who was a daughter of William Merrill. The case was tried in the-circuit court before a jury; but at conclusion of the proofs it was conceded by counsel for the respective parties that questions of law controlled, and, after argument of counsel, the court directed a verdict and rendered judgment thereon affirming in substance the order made by the probate court. The executors thereupon removed the proceedings to this court for review by writ of error.

The serious controversy between these parties centers around certain stock, known as the “Mitts & Merrill stock,” owned by William Merrill at the time of his death and disposed of in his will as will later appear.

S. S. Mitts and William Merrill, brothers-in-law, were together for many years as partners in a profitable manufacturing business located at Saginaw, Mich., devoted principally to making special kinds of machinery, tools, and equipment used in woodworking factories and sawmills. In 1904 they organized their business into a corporation under the name of Mitts & Merrill with a capital stock of $50,000 divided into shares of $100 each, of which each of them took 249 shares and gave to each of their wives one. share. Upon organization as a corporation, composed of the former partners and their wives, Mitts was elected president, his wife vice president, and William Merrill secretary and treasurer.

On the 16th day of February, 1907, William Merrill died, leaving a widow, Eudora B. Merrill, and five children, Herbert W. Merrill, the oldest, aged 32, Elizabeth M. Gage, Alice E. Merrill, George P. Merrill, and Edith J. Merrill, the youngest, aged 17 years. He left a last will and testament executed on February 8, 1905, approximately 2 years before he died. This will consists of 17 paragraphs containing numerous provisions and bequests, most of which are not questioned nor material to this inquiry. By the ninth paragraph, which is the chief subject of contention here, deceased disposed of his Mitts & Merrill stock as follows:

“I give and bequeath unto my wife, Eudora B. Merrill, my son, Herbert W. Merrill, and to my son-in-law, Phillips H. Gage, and to their survivors, all my stock in Mitts & Merrill, a corporation, in trust, however, for my wife and five children, to hold said stock intact until August 11th, 1914, and to pay the dividends from said stock to my wife Eudora B. Merrill, and to each of my five children and to their respective heirs, share and share alike (except as stated in paragraphs 11 and 12). After August 11th, 1914, the stock shall be equally divided among them (except as stated in paragraph 12), and each may dispose of his or her own stock at will, under this condition, however, that the stock shall be sold to one of their own number, to keep it in the family, providing the price obtained is as good as any outsider will give.”

Paragraphs 10 and 16 provide:

“Tenth. All the rest and residue of the property of which I may die seised or possessed, I give, bequeath, and devise unto my wife, Eudora B. Merrill, and to my two sons, and three daughters share and share alike and to their respective heirs, except as stated in paragraphs 12 and 13.”
“Sixteenth. I appoint my wife, the said Eudora B. Merrill, and my son, the said Herbert W. Merrill, and my son-in-law, the said Phillips H. Gage, executors of this my last will and testament.”

This will was admitted to probate on the 3d day of April, 1907, and the executors named in it qualified as such, giving bond for the faithful performance of their duties. An inventory of the estate which was filed in the probate court and verified by the usual oath of the executors as “a true and perfect inventory” showed assets aggregating something over $84,000, including the Mitts & Merrill stock, which was appraised at $37,350; but the estate and this stock ultimately proved to be of much greater value.

About four months after her father’s death Alice E. Merrill was married to Wessborg, appellee herein. No children were born to them, but on December 24, 1912, they legally adopted as their daughter and heir at law, an infant girl born the preceding February, named in the records, of her adoption Greta Wessborg, and thereafter assumed towards her in fact and law the relation of parents. On March 24, 1913, Alice E. Merrill Wessborg died testate, survived by her husband and adopted daughter, Greta. By her will, executed March 15, 1913, she nominated Wessborg, her husband, executor and trustee of her estate, which she provided should be impounded in trust until after the death of her mother and an aunt and until her “daughter, Greta Wessborg,” should arrive at the age of 25 years, when it should be divided between her and “my said husband, Eric Wessborg,” if both survived ; otherwise the survivor should receive the whole thereof. In the meantime the net proceeds of her estate were to be distributed between her husband and daughter, her mother, an aunt, and a cousin, in specified portions and manner.

Aside from the Mitts & Merrill stock, the duties of the executors were such as would usually arise in the probation of an estate with little indebtedness and in reasonably good condition for assembling and distributing its assets to beneficiaries, and with approval of the other executors Herbert Merrill looked after the details and performed the active duties demanded of the executors. The certificate for 249 shares in the Mitts & Merrill company issued to William Merrill was found after his death in his private safe at the office of the corporation, and was taken charge of by Herbert under authority of the will, but remained as an asset of the estate in his father’s name, untransferred on the books of the corporation.

Owing to a failure to agree as to salaries, no director was chosen to fill William Merrill’s place on the board of directors for nearly a year after his death, and on January 7, 1908, a paper was signed by Phillips H. Gage, Eudora B. Merrill, and Herbert W. Merrill agreeing between themselves “as executors and trustees of the estate of William Merrill” that Herbert should have full authority to represent the interests of the estate in the Mitts & Merrill corporation and vote the 249 shares of stock at all stockholders’ meetings. By its express terms this agreement expired April 1, 1909, but Herbert testified that he was permitted to act under it until the time of the trial. This was supplemented by the following agreement, approved by the probate court, dated April 13, 1908:

“In the Matter of the Estate of William Merrill, Deceased.
“Whereas, the estate of William Merrill, deceased, owns a half interest in the corporation of Mitts & Merrill, lacking one share, which is owned by Eudora B. Merrill; and whereas, it has been impossible to make satisfactory arrangements regarding the salary of H. W. Merrill who represents the interests of the estate of William Merrill, deceased, in the corporation, acting as a director, and secretary and treasurer thereof:
“Therefore we, the undersigned executors and heirs of the estate of William Merrill, deceased, do most respectfully petition your, honorable probate court that an order be issued allowing said H. W. Merrill for his services, as representative of said estate, a yearly salary as follows: The sum of $628 to make his salary $2,500 for the year ending February 29, 1908, and thereafter the sum of three thousand dollars ($3,000) per year until such time as the corporation of Mitts & Merrill shall arrange to pay a satisfactory salary to said representative.
“Alice E. Wessborg.
“Eudora B. Merrill.
“Eudora B. Merrill, Ex’r.
“Elizabeth M. Gage.
“Phillips H. Gage, Executor.”

Herbert drew the salary provided for in this agreement until March 1, 1910, after which an arrangement was made settling the disagreement as to salary for acting in his father’s previous capacity as secretary and treasurer for the company, and he thereafter was paid by it.

Over $185,000 was received by the executors as dividends on the 249 shares of stock in the Mitts & Merrill corporation, paid by its checks drawn in favor of the estate of William Merrill, in whose name the stock continued on the corporation books. These checks were indorsed by the executors and deposited to the credit of the estate in a Saginaw bank. In checking on this account the executors used a special form of check headed “William Merrill Estate.”

From the time of William Merrill’s, death to that of his daughter Alice, all dividends received on the Mitts & Merrill stock were paid by the executors in equal shares to his widow and five children, Alice regularly receiving her one-sixth with the rest, but none of the dividends accruing since her death have been paid to Eric Wessborg, her husband and executor of her estate. He testifies that his inquiry of Herbert as to dividends was answered evasively, and they talked about Wessborg selling his and his baby’s share in the estate, as a result of which Herbert made a memorandum of a proposal and handed it to him to sign, but he declined, and later he went and talked to Phillips Gage about it, who told him there was talk in the family as to whether hé and Greta had any interest or right in the estate, over which there was some diversity of opinion, and Gage suggested that he take legal counsel before making any settlement with Herbert. This he did. Being denied, after demand, participation in the dividends and refused recognition as executor of his wife’s estate, he first attempted legal proceedings to secure the same by a bill in chancery and a petition .for removal of the executor, which proved abortive, and after the period specified in paragraph 9 of William Merrill’s will had expired he filed his petition with the probate court, asking for a determination of the dividends declared and paid on the Mitts & Merrill stock since the death of Alice E. M. Wessborg, for an order requiring the executors to pay him one-sixth of the same and to turn over one-sixth of said stock to him, as executor of the last will and testament of his wife, Alice.

The petition and answer are lengthy and elaborate pleadings, presenting numerous issues and subissues, but the substance of all serious controversy between the parties is stated in three questions proposed by appellants’ counsel to the trial court as presenting the issues raised on their appeal, which are:

“(1) Is the Mitts & Merrill corporation stock and the .dividends arising therefrom which have not been paid to the petitioner or to his decedent in the respondents’ possession as executors of the last will and testament of William Merrill, deceased, or in the possession of the individuals Herbert W. Merrill, Eudora B. Merrill, and Phillips H. Gage, as legatees and trustees thereof?
“(2) Was there a settlement made by and between the legatees of William Merrill, deceased, and the executors of his last will and testament and distribution of his estate made, as provided by his will?
“ (3) Did the title to the Mitts & Merrill stock at the date of the death of William Merrill vest in the three persons named as legatees and trustees of said stock, to be kept by them intact until August 11, 1914?”

There is no proof to sustain the affirmative of the second question so far as the Mitts & Merrill stock is concerned, and it calls for no consideration.

Upon the proposition involved in the first question appellants’ counsel quotes from Perry on Trusts the statement that, “if a testator in his will appoints his executor to be a trustee, it is as if different persons had been appointed to each office,” and contends, as we gather from the lengthy discussion of their powers and the jurisdiction over them in both capacities, that appellants held this stock under the will as trustees, and not as executors, for which reason the probate court was without jurisdiction to act, a chancery court being the proper tribunal in which to demand an accounting from a trustee, citing authorities.

The petition runs against appellants as “executors and trustees under the last will and testament of William Merrill,” and we are impressed that, had they qualified and acted in the capacity of testamentary trustees rather than executors, the probate court would have jurisdiction under the provisions of Act No. 253, Pub. Acts 1899 (re-enacted in the recent judicature act [Act No. 314, Pub. Acts 1915; 3 Comp. Laws 1915, § 14052 et seq.), entitled:

“An act to establish and confirm the jurisdictiofi of probate courts over testamentary trusts and trustees, and to provide for the administration and control of such trusts in said courts.”

Under this act every testamentary trustee before entering upon his duties as such is required to give a bond to be approved by the court for faithful performance of the trust in various stated particulars, among which is “to perform all orders and decrees of the probate court, by the trustee to be performed in the premises” (section 3), and section 28 provides that “the probate court may compel a final judicial settlement of the account of a testamentary trustee” where the trust created by the will is ready to be executed, “so that the persons beneficially interested are, by the terms of the will, or by operation of law, entitled to receive any money or other property from the trustee.”

Paragraph 9 of the will makes clear that after August 11, 1914 (except as stated in paragraph 12, which is irrelevant here), the persons beneficially interested are entitled to receive from appellants the 249 shares of Mitts & Merrill stock with any collected dividends yet unpaid, whether in their hands as executors or trustees. The proof is, however, convincing that they received, handled, and hold this stock as executors. They took possession of it as such, charged themselves with it as executors, inventoried and appraised it as an asset of the William Merrill estate, continued to hold it in the name of the estate, untransferred, collected dividends paid to them as executors by checks drawn in favor of the estate, indorsed the checks as executors, and deposited them in bank to the estate’s account, and as executors drew checks on that account in distributing the dividends to beneficiaries. They never qualified as trustees, filed no bond, which was a prerequisite to legal possession and control of the property in that capacity, and made no assignment of the stock to themselves as trustees. They could accept the trust and perform the duties of trustee only after filing the required bond. In re Erdman’s Estate, 179 Mich. 567 (146 N. W. 400). The estate has not been closed, and no order of the probate court has been made assigning this stock to them as trustees or releasing them from accountability for it under their executor’s bond as an inventoried asset of the estate.

The period of trust having expired, and the persons named in the will to act as executors and trustees being the same, the stressed- question of their official capacity impresses us under the present situation of affairs, as of minor significance and somewhat academic; but, whatever its importance, we fully agree with the trial court that, under the undisputed evidence, appellants held, handled, controlled, were legally in possession of, and accountable for, this stock and the dividends from it as executors, and by their own acts and admissions of record they are not in a position to' successfully maintain before a court to the contrary.

The propositions urged for appellants ■ under the third question- are, in substance, that by the provisions of paragraph 9 of his. will the testator made no direct present gift of the Mitts & Merrill stock to the beneficiaries named, but bequeathed it in trust to appellants to hold intact and in their names until a designated date, with directions that when that future time arrived they should divide it amongst specified beneficiaries, not as a gift in prsesenti with enjoyment deferred, but with only present enjoyment of income and a gift in futuro; that the future distribution was to a class, and confined to persons of that class in. existence at the date when the distribution is directed to be made, and the contemplated gift to any individual of that class is contingent upon survivorship; that appellee’s wife, Alice, having died over a year before the date of distribution, neither she nor her estate as a fictitious or juridical person could participate.

The rule of construction relied upon in support of these propositions, as applied by appellants’ counsel, with abundant citation of authority, to certain provisions and omissions specially pointed out in the will, is. thus concisely stated in Warner v. Durant, 76 N. Y. 133, and quoted with approval in Palms v. Palms, 68 Mich. 355 (36 N. W. 419):

“Where there is no gift, but by a direction to executors or trustees-to pay or divide, and to pay at a future time, the vesting will not take place until that time arrives.”

There is, however, a marked exception to this rule, or “distinction grafted upon it,” also stated in Warner v. Durant, as follows:

“Where the gift is to be severed instanter -from the general estate,'for the benefit of the legatee, and in the meantime the interest thereof is to be paid bim, that is indicative of the intent of the testator that the legatee shall at all events have the principal, and is to wait only for the payment until the day fixed.”

In Toms v. Williams, 41 Mich. 552 (2 N. W. 814), this distinction was recognized and applied, it being said:

“While there has been some variance among the authorities concerning the legal distinctions between vested and contingent estates, they chiefly agree: First, in favoring the vesting of interests; and, second, in treating future interests as vested where there is any present interest in the income of the property. * * * The New York cases, which are quite as technical as any others in raising difficulties against perpetuities, are quite clear in favoring construction in aid of vesting” — citing 20-odd cases.

To the same effect, vide, also, Taylor v. Richards, 153 Mich. 667 (117 N. W. 208).

It is true that in the paragraph disposing of the Mitts & Merrill stock the testator did not in exact language first make gift direct to the intended beneficiaries, but he did expressly provide that the named stock should be set apart, severed instanter from his general estate, and held intact by appellants under a naked, impassive trust “for my wife and five children” until a specified date, but in the meantime the dividends realized from it were to be paid to his wife and to each of his five children, and to their respective heirs, “share and share alike.” His wife and five children so provided for in his will, made two years before, were all living when he died, and were regularly paid “share and share alike” the liberal dividends this stock furnished until the daughter Alice died six years later.

It is to be noted that the property under consideration here is personal, and while the general rule as to vesting of title in personal and real estate is broadly the same, yet in construing the language of a will relating to an interest in land where more technical terms may be essential to make plain the nature of the estate granted than in a gift of personalty a more critical consideration of the words, or language used, is sometimes important. In Hawkins on Wills (2d Ed.), p. 223, it is said:

“The rules as to the vesting of gifts by will differ according as the subject-matter is personal estate, real estate, or a legacy charged on land.”

On page 227 the author lays down the rule that:

“In bequests of personal estate, a gift of the whole .nterim interest to or for the benefit of the legatee prima facie vests the principal. * * * The rule is the same where the interest is given to other persons to be applied for the benefit of the legatee. Thus a bequest to the children of A. when they attain 21, the interest to be applied for their maintenance and education during their minorities, vests in the children at birth.”

In Beach on the Law of Wills, § 178, under heading “The Effect of a Bequest of Intermediate Income,” this subject is more amply discussed, with citation of authorities, fully sustaining the rule above stated.

The characteristics of a class do not apply to deceased’s wife and five children under the facts in the case and provisions of the will. There is no language in the will naming them as a class or indicating that they are so intended. All are made equal objects of testator’s bounty, and each is given a distinct, equal part, share and share alike, of his holding in the capital stock of this corporation which is divided into shares. Each was living when the will wa$ made and when the testator died, from which time his will spoke, and the estate vested in his beneficiaries in the absence of clear and unambiguous language plainly directing to the contrary. No condition of survivorship is found stated in the will, mor provision for lapsed legacies, nor words of exclusion used. Each was given the intermediate income of his or her share until the date for final distribution, which involved no stated contingencies, and was certain to arrive. It is said in Re Brown, 154 N. Y. 313 (48 N. E. 537) :

“In legal contemplation a gift to a class is an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are to take in equal, or in some other definite proportions, the share of each being dependent for its amount upon the ultimate number.”

Vide, also, In re Ives’ Estate, 182 Mich. 699 (148 N. W. 727).

We think this is primarily a matter for the probate court under the holding in Brooks v. Hargrave, 179 Mich. 136 (146 N. W. 325), and the action taken by appellee prior to July 11, 1914, did not amount to an election of remedies which precluded this petition, but rather was in the nature of an attempt to pursue a wrong but not inconsistent remedy.

Under the foregoing conclusions upon the controlling question, no errors are found requiring that the judgment of the trial court should be disturbed, and the same is hereby affirmed, with costs, with the exception that, being strongly of the opinion this record is unreasonably enlarged by a detailed volume of matter unnecessary to the controlling questions involved, inserted on the insistence of the appellee, half of the costs of printing the record shall be borne by the latter.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Brooke, and Fellows, JJ., concurred.