text:
    HANSEN v. ROLISON.
    Sales— Principal and Agent— Contracts— Ratification— Delivery.
    In an action on a promissory note given as part of the purchase price of a machine, the principal, by retaining the order and note, ratified the contract made by its agent, and was obligated to deliver the goods sold; and delivery to the agent for defendant, and notice to him to come and get the machine, together with his promise to do so, was a sufficient delivery to complete the contract, and plaintiff was entitled to recover.
    Error to Montcalm; Davis, J.
    Submitted January 7, 1909.
    (Docket No. 25.)
    Decided March 30, 1909.
    Assumpsit by Chris Hansen against William H. Rolison upon a promissory note. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      N. 0. Griswold, for appellant.

      Barden & Barden, for appellee.
   Blair, C. J.

This case was determined by the court and at the request of the plaintiff the court made the following findings of fact and of law:

“Findings or Fact.
“ (1) On the 3d day of August, 1901, the plaintiff was acting as agent for the McCormick Harvesting Machine Company, and on that day procured of the defendant a paper writing signed by the defendant, in the following words and figures, viz.:
“‘McCormick Harvesting Machine Co., Chicago, III.
“‘Gentlemen: The undersigned hereby purchases of you to be shipped on or before May 1, 1902, one of your 5-foot vertical lift mowers, including the usual extras, to be consigned to the care of Chris Hansen at Greenville. Upon receipt of the machine the undersigned agrees to pay freight on same and pay you $-in
cash or execute and deliver to you approved notes for the sum of $41.00 as follows: $12.00 payable on the first day of December, 1902, $20.00 payable on the first day of December, 1903, $15.00 payable on the first day of December,-1904. Said notes to draw interest at the rate of 6 per cent, per annum from December 1, 1902, until maturity.’
“ Then follows a warranty of the machine. This order was signed by the defendant only.
“(2) The parties closed the deal on the same day by Rolison making to said company and delivering to Hansen for it the notes in said order provided for, which were dated on that day and made payable December 1, 1902, December 1, 1903, and December 1, 1904, respectively. This Hansen had the authority to do under his agency, as disclosed by the evidence. These notes did not begin to draw interest until December 1, 1902. The first of these notes, being the one sued upon in this case, is in the following words and figures:
‘“$12. Greenville, Mioh., Aug. 3, 1901.
“‘On or before the first day of December, 1902, for value received, I promise to pay to the McCormick Harvesting Machine Company, a corporation organized and existing under the laws of the State of Illinois, and having its chief office and place of business in the city of Chicago, county of Cook, and State of Illinois, or order, at Greenville State Bank, Michigan, twelve dollars with interest at the rate of six per cent, per annum from December 1, 1902, until paid. One of the express conditions of the sale of the mower for which this note is given is that the title to and right of possession of said machine shall not pass from the said McCormick Harvesting Machine Company until such time as this note shall have been paid in full. The makers and indorsers severally waive presentment for payment, protest, notice of nonpayment, diligence in enforcing payment, and agree that time of payment may be extended without affecting their liability.
“ ‘P. O. Lakeview, (3 miles south).
“ ‘Township of Cato, (3 miles east).
“ ‘ County of Montcalm, (of said P. O.).
“ ‘ State of Michigan.
[Signed] “ ‘ William H. Rolison.’
Another note of like import was executed at the same time, for $30, payable on the 1st day of December, 1903, and another of like import executed at the same time by defendant for $15, payable December 1, 1904.
“ (3) Thereupon Hansen gave to the defendant a receipt in the following words and figures:
“ ‘Greenville, Mich., Aug. 3,1901.
“ ‘ Received of Wm. H. Rolison, forty-seven dollars in notes for one 5-foot McCormick vertical lift mower and 30 notes for 18-foot steel McCormick rakes, said mower and rake to be ready for him before May 1, 1903.
[Signed] ‘ • ‘ Chris Hansen. ’
“ The rake mentioned in this receipt was sold that day to Rolison by Hansen personally, and the McCormick Company was not interested in the sale of the rake.
“ (4) The plaintiff sent a copy of the above-mentioned order to the McCormick Harvesting Machine Company, and in the fall of 1901 sent the above-mentioned notes to the McCormick Harvesting Machine Company. After the first note was due, the notes in question were purchased by Hansen and assigned to him by the said McCormick Company.
“ (5) The plaintiff had in his store at Greenville a mower and equipment belonging to said company of the same kind mentioned in said contract at the time the contract was made, which remained there until about May 1, 1903, at which time the plaintiff received of the McCormick Harvesting Machine Company a car load of mowers of the same kind and character mentioned in said contract, one of which was to fill the order in issue.
“ (6) Soon after the 1st of May, 1903, and in that month, Hansen repeatedly notified Rolison to come and get the machine, and Rolison repeatedly promised to do so, but he never came for it, and it still remains at Hansen’s for him.
“ (7) This suit is brought to recover upon the first note, a copy of which is given above. This note, with the others, prior to the commencement of this suit, but after its maturity — that is, after December 1, 1902 — was duly and legally assigned by the payee to the plaintiff.
“Findings op Law.
From the foregoing facts the court -finds the law in this case to be as follows:
“(1) That the transaction on the 3d day of August, 1901, by and between the defendant and the McCormick Harvesting Machine Company, through its agent, Chris Hansen, was and is a legally executed contract between the defendant and said company, valid and binding upon the parties thereto.
(2) That the notes given by the defendant as a part of said contract, and of which the one in issue is the first, were given for a valid and valuable consideration, and were and are legal and binding upon said defendant.
“ (3) That the machine in issue, for the purchase price of which these notes, of which the one sued in this case is one, were given by the defendant, was legally delivered to said defendant within the time prescribed by said contract, by being' delivered to Chris Hansen, his agent, made so for that purpose by the terms of the contract.
“ (4) That this suit is properly planted by the plaintiff against the defendant, and the plaintiff is entitled to judgment for the principal of said note and interest, amounting in all to $15.84, and costs of this suit to be taxed.”

Defendant insists that this case is ruled by McCormick Harvesting Machine Co. v. Cusack, 116 Mich. 647, and judgment should have been rendered in his favor. In the Cusack Case the order given by the defendant was not sent to Chicago; in the present case it was. In the Cusack Case the defendant did not give the notes, but countermanded the order. In the present case defendant gave the notes, which were sent to the company at Chicago, and did not countermand the order, but, on the contrary, promised repeatedly to come and get the machine. By retaining the order and notes, the company ratified the contract on its part, if such ratification were necessary, and became obligated to deliver the machine. The delivery of a machine to Hansen for defendant, in accordance with the order, and the notice to him to come and get it, with his promise to do so, constituted a sufficient delivery to him. The contract was fully performed by the company, and plaintiff was entitled to recover. National Cash Register Co. v. Dehn, 139 Mich. 406.

The judgment is affirmed.

Grant, Montgomery, Moore, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    PEETS v. PEETS.
    Appeal and Error — Chancery Appeals — Credibility oe Witnesses — How Determined.
    On a bill fox- equitable relief, where the determination of the controversy depends entirely upon questions of fact, the finding of the trial court, who heard and saw the witnesses, will be sustained.
    Appeal from Newaygo; Palmer, J.
    Submitted January 12, 1909.
    ( Docket No. 66.)
    Decided March 30, 1909.
    Bill by Lydia Peets against Warren W. Peets and Mary Peets to set aside a deed and for an accounting. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      John C. Anderson, for complainant.

      George Luton, for defendants.
    The purpose of the bill in this cause is the cancellation of a deed and contract made between complainant and her husband and the defendant Warren. The deed and contract bear date April 15, 1903. On June 3, 1903, Mr. Charles W. Peets made a will, bequeathing to his wife all his property during her natural life, which was duly admitted to probate. The deed conveyed to defendant Warren the homestead of complainant and her husband, consisting of 40 acres of land. The deed recites that it is made “in consideration of the fulfilling of the terms of a contract between said Charles W. Peets, Lydia Peets, and said Warren W. Peets. ” The contract recited, among other things, that the defendant Warren “shall furnish said Charles and Lydia a home, and to board and clothe them, and to furnish them necessary medical attendance, and other care and attendance when necessary during their natural lives.” Charles, the father, died July 2, 1904. Matters appear to have gone satisfactorily until his death. This bill was filed April 3, 1907, and charges that the defendants have failed to comply with the contract, have not furnished her with proper food and clothing, and have not taken care of her as the contract requires. An answer was filed, denying the material allegations of the bill. The case was heard upon pleadings and proofs taken in open court, and the bill dismissed.
   Grant, J.

(after stating the facts). It would furnish no precedent of value to set forth the proofs upon which each party relies. The complainant and her husband evidently lived in moderate circumstances. The deed was subject to a mortgage of $300. Complainant gave testimony tending to sustain the allegations of her bill. If her statement is true, she is entitled to the relief sought. The testimony of defendants is in direct contradiction to that of complainant, and if their evidence is believed, the decree rendered is correct.

The testimony in behalf of complainant, aside from her own, is not very convincing. The testimony on behalf of the defendants, aside from their own, that they provided her with a living and care commensurate with their ability, is certainly as strong as that on the part of the complainant that they did not. This is one of those cases where the result depends largely upon the character of the witnesses, to be derived from their appearance, and for that reason the conclusion of the circuit judge should prevail. We cannot say that there is a preponderance of evidence in favor of the complainant.

The decree is affirmed, without costs.

Blair, C. J., and Montgomery, Ostrander, and Brooke, JJ., concurred.


author: Montgomery, J.

text:
    CAULKINS v. LAVIGNE.
    1. Accounting —Contracts —Inventions— Patents —Equitable Interest.
    Complainants and defendant L, entered into a contract, in which it was recited that L. had invented an automobile and was desirous of securing funds for the purpose of buying materials for its construction; that complainants would advance money up to the sum of $1,200; that L. would devote his time and labor to perfect the machine and to secure patents upon his inventions; and that the parties, if complainants considered the automobile a success, would incorporate on the basis of two-thirds to complainants and one-third to L. Complainants advanced more than the amount agreed upon, and, not being disposed to make further advances, in- ■ dicated to L. that, if he could find an opportunity to dispose of the automobile and the patents so as to get out the money they had invested, they would be satisfied with such arrangement. L. interested the defendant corporation in his inventions and turned over to it the machine and the patents in consideration of $10,000 of stock in defendant company. Held, that credit was not extended to L. to the amount of complainants’ investment, and that complainants had an equitable interest in the proceeds of the machine and patents which would only be protected in a court of equity.
    3. Same — Decree.
    On such bill, a decree against defendant corporation for the pay- . ment of an amount of money cannot be sustained, since to so hold would be to create a new contract between the parties.
    Appeal from Wayne; Sharpe, J., presiding.
    Submitted January 12, 1909.
    (Docket No. 70.)
    Decided March 30, 1909.
    Bill by Edward B. Caulkins and others against Joseph P. Lavigne and the Bloomstrom Manufacturing Company to establish certain rights under a contract, and for an accounting. From a decree for complainants, defendants appeal.
    Modified and affirmed.

      Prentis & Mulford, for complainants.

      Oscar M. Springer, for defendants.
   Montgomery, J.

On the 6th of December, 1906, the defendant, Joseph F. Lavigne, of the first part, and the four complainants, as parties of the second part, entered into a contract reciting that Lavigne had invented a friction disc automobile, and was desirous of securing sufficient money for the purpose of buying materials necessary to construct an automobile with gasoline engine complete, and had requested parties of the second part to raise $1,200 with which to pay all the expenses of building said automobile. It was thereupon agreed that the parties of the second part should furnish $1,200 required, and that the party of the first part should devote his time and labor in building, and his rights to said automobile and engine, on the condition that, when the automobile was completed by the party of the first part, the parties to the agreement, provided they considered the automobile a success, should incorporate a company, to be capitalized at $50,000, of which $15,000, the par value of the stock, should be shared one-third to the party of the first part and two-thirds to the parties of the second part, the balance of the shares to remain in the treasury of the comp’any. The party of the first part also agreed to take out patents on said automobile engine, provided it was found patentable, and, when received, to assign, sell, transfer, and set over to the corporation or to the parties of the second part all his right, title, and interest in and to said patent by a sufficient conveyance, and that the parties of the second part, or the corporation, should have the benefit of all patents and improvements that the first party might make on said automobile. The parties entered upon the performance of this agreement, and constructed an automobile which was run to some extent, the complainants having advanced therefor the sum of $1,652.78, instead of $1,200 as agreed, and the complainants, not being disposed to advance more money, indicated to the defendant Lavigne that, if he could find an opportunity of disposing of the automobile and patents so as to get their money out, they would be satisfied with such an arrangement. Lavigne proceeded to interest the defendants the Bloomstrom Manufacturing Company in the enterprise, and turned over to them the automobile that was manufactured at the expense of the complainants, and also the patents which he had upon the invention, in consideration of $10,000 of stock in the defendant company. Upon learning of this transaction, complainants filed this bill, averring that the defendant company, through its officers, were acquainted with the rights of the complainant when they became purchasers from Lavigne, and asking that their rights be protected to the automobile and engine and to the patents, and that the defendants be required to transfer the same to the complainants. The answer of defendants denies that the Bloomstrom Company was a purchaser with notice. Lavigne also avers that complainants gave him authority to dispose of this automobile, and that he was acting within his authority when he sold to the defendant company. The case was tried in open court before Hon. Nelson Sharpe, of the thirty-fourth circuit, sitting in the Wayne circuit, and a decree entered affirming the complainants’ right to a two-thirds interest in the automobile and patent rights, and decreeing that the defendant Lavigne pay to the complainants the sum advanced, with interest from the 13th of September, 1907, within 40 days, and that, in case of his failure to pay, the complainants recover the sum from the defendant, the Bloomstrom Manufacturing Company. It was further adjudged that the complainants have a lien upon the automobile engine and patent rights mentioned in the bill of complaint to secure the payment of the sums of money so far as decreed, and that, in case the Bloomstrom Manufacturing Company should be required to make payment, said company should have a lien upon the stock standing in the name of Lavigne on the books of the Bloomstrom Manufacturing Company to secure the repayment of the sums so paid by defendant. From this decree both defendants appeal.

The testimony on the trial as to the knowledge of defendant’s officers of the complainants’ rights in this automobile was conflicting, but the circuit judge, who saw the witnesses, was convinced that the officers of the defendant company did have knowledge of the complainants’ equities. Upon full consideration we are not disposed to disturb this finding.

It is also contended that the testimony shows that the defendant Lavigne was given authority by the complainants to dispose of the property as best he might, and pay to the complainants the amount that they had invested. We are satisfied, upon a careful reading of the record, that none of complainants ever understood, nor did defendant Lavigne understand, that credit was to be extended to defendant Lavigne to the amount of money advanced by complainants. Defendant undoubtedly was authorized to enter into negotiations and to attempt to make a disposition of the property, subject to the approval of the complainants, but it was, of course, expected that, when such disposition was to be made, they would be consulted and their rights protected. It is therefore obvious that defendant having taken this property in which complainants had the larger interest, and without authority disposed of it to the defendant the Bloomstrom Manufacturing Company, complainants should be entitled to some remedy to recover their interest therein.

It is contended by the appellant that this is not a case for specific performance, the ground of contention being that the contract is unequal, and that there is want of mutuality in that it was optional on the part of the complainants whether they would go on with the contract or not. As a matter of fact, the contract provided that, if they considered the automobile a success, they should go on and incorporate the company. Of course, good faith would be required in determining whether it was a success, and, if it were not, in their honest belief, it could be said that they would not be required to go on. We need not determine whether this was an optional contract in such a sense that a court of equity would refuse specific performance, as we do not regard this bill as a bill for specific performance. It is a bill to adjust acquired property rights between parties who occupy a relation analogous to that of copartners. The complainants’ money has been invested in this property. As complainants they complied with all that was required of them by their contract and more to entitle them to a two-thirds interest in the manufactured automobile and patents, and it would seem clear that they have a right to have that interest protected in some court, and to an accounting. In other words, they have a present equitable interest in the automobile and in the patents, and a court of equity is the only court that can give them adequate relief.

As to the form of decree, the evidence offered by the defendant shows that the stock received by Lavigne was of the value of $10,000. He has therefore received a sum far in excess of the amount invested by complainants, and is not in a position to complain of a decree for this amount.

Complainants, we think, are also entitled to a lien upon the automobile and an interest in the patents transferred to the Bloomstrom Manufacturing Company, and also to a lien upon the stock which represents the purchase price of said patents and automobile in the hands of an innocent purchaser not subject to be reached. In other words, :the complainants would be entitled to follow the proceeds.

We think, however, that in one respect the decree should be modified. A conditional money decree was given against the Bloomstrom Manufacturing Company. We do not know upon what authority this can be done. Their supposed interest in the patents and the model may be reached, but the court cannot create a contract between the complainants and them and require a payment for this model and patent in any way except that in which they have contracted to make it.

In other respects the decree will stand affirmed.

In view of the modification of the decree, no costs will be awarded to either party in this court. ■

Blair, C. J., and Grant, Ostrander, and Moore, JJ., concurred.


author: Ostrander, J.

text:
    BOOKER v. GRAND RAPIDS MEDICAL COLLEGE.
    1. Certiorari — Scope op Review.
    In certiorari proceedings the appellate court considers questions of law only, and such questions must be raised in the affidavit for the writ.
    2. Colleges and Universities — Admission op Students —Discrimination — Constitutional Law.
    Private institutions of learning, although, incorporated, may select those whom they will receive as students, and may discriminate by sex, age, proficiency in learning, and otherwise; and the arbitrary refusal to receive any student, in the first instance, would not violate any privilege or immunity resting in positive law, protected or guaranteed by the Federal or the State Constitution.
    8. Same.
    Although such discrimination may be made on the original application of prospective students, such institutions may not, after having accepted and partially performed their contract, arbitrarily refuse to permit further attendance; there being no lack of mutuality nor want of consideration in the contract.
    4. Mandamus — Propriety op Remedy — Enforcement op Contracts.
    The writ of mandamus will not be granted to compel a private corporation to perform its obligations resting in oontract with an individual.
    Certiorari to Kent; Perkins, J.
    Submitted January-12, 1909.
    (Calendar No. 23,193.)
    Decided March 30, 1909.
    Mandamus by Felix D. Booker and another to compel the Grand Rapids Medical College to receive relators as students. There was an order granting the writ, and respondent brings certiorari.
    Reversed, and writ dismissed.

      Martin H. Oarmody, for relators.

      Hatch & Raymond, for respondent.
   Ostrander, J.

The respondent is an institution incorporated under chapter 218, 2 Comp. Laws. Its purposes, expressed in its articles of association, are to establish and operate a college for teaching medicine and surgery, chemistry, dentistry, veterinary medicine and surgery, and horseshoeing, and to grant degrees and issue diplomas in various departments of the college in conformity with law, etc. Its rules and prospectuses do not distinguish or specify, except by age, character, and educational qualifications, the persons to whom instruction will be given. It has capital stock, is conducted for private gain, and is supported by tuition fees paid by students. Relators are citizens, respectively, of the States of Kansas and of Michigan, who attended the college in the department of veterinary medicine and surgery for one — the freshman — year, and were refused admission therein the second year for the sole reason that they were negroes. They applied to the circuit court for the county of Kent for a writ of mandamus to compel the respondent to admit them as students in the college. An order to show cause was entered and an answer to relators’ petition was filed. Thereupon 30 issues of fact were proposed by relators, and an order was made that issues be framed as proposed, and that they be submitted to the court for determination. A hearing was had, a large amount of testimony was taken, and the writ was issued. The respondent sued out a writ of certiorari, the affidavit for the writ setting out the petition, the answer, the testimony, verbatim or. by way of recital, the issues of fact which were proposed by relators, and the reasons relied upon for a reversal of the order granting the writ. The return to the writ is, like the affidavit, voluminous, and sets out in full the testimony produced at the hearing. It does not appear in what manner the court determined any of the issues, of fact, and the reasons given for the conclusion which was reached are not found in the record. In certiorari proceedings this court considers questions of law only, and such questions of law as are supposed to be presented in the particular case must be raised in the affidavit for the writ.

In this case the errors specified are:

“First. That relators base their right to the writ of mandamus on an alleged contract, and mandamus will not issue for the purpose of enforcing contract rights.
“Second. Even if mandamus would issue in such case,' relators do not set up in. their petition a valid and enforceable contract with respondent by the terms of which respondent would be bound to admit relators to said college for the session of 1908-09.
Third. The evidence shows that no contract, in fact, existed between relators and respondent which would entitle relators to be admitted to said college for the session of 1908-09.
Fourth. That there was no evidence of any contract entered into between relators and respondent by the terms of which relators would be entitled to attend said college for the entire course of three years, beginning with the session of 1907.
“Fifth. That there was no evidence of any contract between relators and respondent which would entitle relators to be admitted as students to said college for the session of 1908-09.
“ Sixth. That relators cannot obtain the right to enter said college as students, except by making a contract with respondent by the terms of which relators would be entitled to be admitted as students, and no such contract is shown to have existed. Neither did any such contract in fact exist.
Seventh. That the alleged contract set forth in the petition is void for the reason that by its terms it was not to be performed within one year from the making thereof, and there was no note or memorandum thereof in writing signed by either party or by some person by such party thereunto lawfully authorized.
“Eighth. That the alleged contract set forth in the petition is void for the reason that it lacked mutuality, relators not being bound thereby to return to said college and enter for either session subsequent to that of 1907-08, or pay therefor.
“Ninth. There was no consideration moving from relators for the alleged contract set forth in the petition on the part of respondent to admit relators to the session of 1908-09.
“Tenth. No legal duty rested upon respondent to admit relators to said college for the session of 1908-09. Respondent carries on a private school, and has the right to select such students to attend such school as it shall see fit. No person has the right to demand that he shall be admitted to said school, and respondent has the right to accept or reject any applicants for admission to said school or to any session thereof.
Eleventh. The' effect of said order is to compel respondent to enter into a contract with relators against the will of its officers and board of trustees, in violation of its right to contract or not, as its officers and board of trustees shall see fit.
“Twelfth. Said order prescribes the terms and conditions of the contract which said order undertakes to compel respondent to make with relators in violation of the right of respondent to make such terms and conditions to the contracts into which it may enter as it shall see fit within the limits of its corporate powers.”

While relators do contend that the facts set out in the petition and supported by testimony establish contract relations between the parties, they also assert that the statute imposes a duty, public in its nature, upon the institution incorporated thereunder, to receive them, to compel the performance of which duty the writ of mandamus is appropriate. In the absence of findings, we have examined the record for evidence which will sustain the order of the court below. It is plain that respondent is organized for the very purpose of giving the instruction sought for by relators. The course of study adopted cannot be finished in one year. The statute requires at least two years’ study before candidates may be given a diploma. In fact, the course is one of three years. It is empowered to grant diplomas and degrees to students who finish the course. The course of study adopted is not pursued by students who attend the college for the sole purpose of gaining instruction, but for the further purpose of securing, at the end of the course, the diploma and degree which respondent is empowered to confer. By the laws of this and of other States the diploma confers upon the possessor the right to a license to practice the adopted profession. It is expressly provided in the act that diplomas granted by the trustees shall entitle the possessor to all the immunities which by usage or statute are allowed to possessors of similar diplomas granted by any similar institution in the United States. 2 Comp. Laws, § 8143. Relators matriculated, attended the college for one year, and have the standing necessary to continue the course. They are obnoxious to no rule of the institution. There is testimony tending to prove that during the year relators attended college one and perhaps more than one student withdrew because colored men were admitted, and that a considerable number of students threaten to withdraw if they are now allowed to attend.

The statute imposes no general public duty upon respondent to admit as students any and all citizens to its capacity. There is no specific duty imposed bylaw to admit relators. It seems clear that private institutions of learning, though incorporated, may select those whom it will receive, and may discriminate by sex, age, proficiency in learning, and otherwise. Probably no reason need be given for refusing in the first instance to admit any student. Relators have been denied no privilege or immunity resting in positive law protected or guaranteed by the Federal or the State Constitution. Such rights as they have grow out of the relations they have established with respondent, and are no other or different than those of any citizen who has established like relations with a similar institution. These relations, while in some respects peculiar, are, in fact, easily classified. There is no agreement by the terms of which respondent undertakes to bestow and they to receive and to pay for a three years’ course of study upon the conditions which the rules of the institution impose. Relators are at liberty to terminate all relations at any time. It does not follow that respondent has the same right. In fact, when one is admitted to a college, there is an implied understanding that he shall not be arbitrarily dismissed therefrom. The required fees may be paid annually, and may be no more than fair fees for the advantages received by the student during the year, and yet it is clear that the fees for the first year are, in fact, paid and received with the understanding that the work of the year will not be made fruitless, a graduation and a degree made impossible, by an arbitrary refusal to permit further attendance. In this understanding there is no want of mutuality. There is no want of good and valuable consideration. There is written evidence of it in the articles of association and the prospectuses of respondent and in the rolls of the college in which relators’ names are entered as matriculates. There is no good reason why the law should not recognize, as growing out of these relations, a right of relators resting in contract to be continued as students by the respondent. It is the general rule that mandamus does not lie to compel a private corporation to perform its obligations resting in contract with an individual. We are referred to no decision of this court recognizing any other rule. A case in which the rule was enforced by denying the writ to one who had completed a course in an incorporated college and had been refused a diploma is State, ex rel. Burg, v. Milwaukee Medical College, 128 Wis. 7 (3 L. R. A. [N. S.] 1115). In the opinion in that case and in the motion for a rehearing many authorities are cited, among them Clarke v. Hill, 132 Mich. 434. The writ was held to be the only adequate remedy in Baltimore University v. Colton, 98 Md. 623 (64 L. R. A. 108), and in People, ex rel. Cecil, v. Bellevue Hospital Medical College, 60 Hun (N. Y.), 107, 128 N. Y. 621. It cannot be said that relators are members of an incorporated society, and have been wrongfully deprived of the privileges of members, which is the ground of decision in Baltimore University v. Colton, supra. It may be said, perhaps, that the New York decision is rested upon the notion that relator had acquired a status, evidence of which, in the form of a degree, was arbitrarily refused. The court of appeals delivered no opinion. If mere expedition in securing some remedy is to be made the test, it may be said there is no other adequate remedy for relators. And, if enforcement of the obligations of private corporations by mandamus is to be entered upon by the courts, we know of no rule by which it can be determined in what cases the writ should be refused. The apparent hardship of a particular situation is not a good reason for departing from the rule.

The order granting the writ is reversed, with costs to plaintiff in certiorari.

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


text:
    NEWCOMB v. THORPE.
    Accounting — Partnership—Estoppel.
    On a bill for a partnership accounting, it appeared that defendant induced N., M., and H. to form a limited partnership for the development of a mining claim; that, finding said claim unavailable for lack of improvements, defendant secured a transfer of another claim to himself which he sold to a corporation, organized by the members of the development company, receiving therefor a certain amount of stock in the corporation together with promissory notes, of which he assigned a one-third interest to N., M. and H.; and that said notes and stock were later adjudged void as .a profit secretly made from a transaction with the corporation in which they were directors. Held, that, as the parties had assented to the terms of the sale, their assignees were not equitably entitled to compel defendant to account on the theory of a failure of consideration; such shares and notes being, in effect, forfeited on the ground of public policy.

      Appeal from Wayne; Donovan, J.
    Submitted January 13,1909.
    (Docket No. 77.)
    Decided March 30, 1909.
    Bill by William W. Newcomb and Edward J. Tisdale against William A. Thorpe and Henry C. Rees for a partnership accounting. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Willard E. Warner, for complainants.

      McGhregor & Bloomer, for defendant Thorpe.
   Montgomery, J.

In September, 1905, the defendant William A. Thorpe made an examination of a mining claim in the Cobalt region, known as lot 7. He approached complainant Newcomb, Archibald McPhail, and Charles M. Hovey, all of Detroit, and proposed to interest them in the development of the property. The parties entered into an agreement for a partnership association limited, in which they were to be equal partners, the company to have a capital stock of $10,000, the property to be contributed to consist of the mining claim in question at $9,000, and $1,000 in cash to be contributed by Newcomb, McPhail, and Hovey in equal parts. It was also agreed at the time that as to the proceeds of the first property developed, according to the claim of defendant, but as complainant now claims as to the proceeds of lot 7, the parties should share in a somewhat different ratio, namely, that Mr. Thorpe was to have one-third, Mr. Rees one-third, and the other three parties, Messrs. Newcomb, Hovey, and McPhail, the remaining one-third of the proceeds. The copartnership papers it appears, although signed, were never formally filed, but the parties interested proceeded to act under them to some extent. Within a few days after this copartnership arrangement, the Ruethel Mining Company was organized by the same parties. Small sums of money were paid in to the development company by the parties, and Mr. Thorpe went to the Cobalt district, his expenses being paid by the development company, and he, having decided that lot 7 was not available for development for the reason that sufficient work had not been done to satisfy the Canadian authorities, negotiated with McMahon Bros., and secured a transfer of another lot in the same neighborhood numbered 15. He acquired this lot in his own name, and on the 18th of November, 1905, he transferred it to the Ruethel Mining Company for a consideration of $17,000 and other considerations, to be paid as follows: The sum of $3,500 in promissory notes of the company, and the issue to Thorpe of 66,700 shares of the capital stock of the company, of which 45,000 shares should be taken in part payment for the property at 30 cents on the dollar, and the balance of 21,700 shares should be held by Thorpe in trust to be disposed of with the consent of the directors at a price not less than 30 cents per share, and the proceeds thereof to be applied in payment of the amount due Thorpe upon promissory notes, and the balance to be paid to the treasurer of the company to be applied on expenses for the development of the property sold, etc. At this time defendants Thorpe and Rees, complainant Newcomb, C. M. Hovey, J. W. Wolst, and C. J. Munsell, were the directors of the mining company. Upon receipt of this purchase price from the company, and on the same day, the defendant Thorpe divided the proceeds of the sale of lot 15 among the members of the development company in the ratio of one-third to himself, one-third to Rees, and the remaining one-third among the three other members of the development company, Newcomb, McPhail, and Hovey. In 1907 the Ruethel Mining Company filed a bill in the high court of justice for Ontario, alleging that the purchase of lot 15 by Thorpe was made for the Ruethel Mining Company, and that in the transaction by which he sold the lot to the mining company and received the stock and notes therefor he had defrauded the company. In the meantime the complainant Newcomb had deposited his stock with the secretary of the company to be canceled if the court should determine the case adversely to the defendants. Rees, McPhail, and Hovey were codefendants with Thorpe in that case. The court found in its decree that Thorpe did not buy the property for the Ruethel Mining Company, but held that the sale was made by Thorpe on behalf of the development company, and that, Hovey, McPhail, and Rees having received a portion of the proceeds of such sale without the knowledge of some of their co-directors, they occupied the position of directors who had taken and retained secret profits in a transaction; that they were in the strictest sense trustees of the company, and had assumed a position in which their interests conflicted with their duty; and that they did this at the peril of being made accountable to the company at it's election for any profits secretly made out of the transaction with the company, and therefore decreed that as to these parties the stock should be held void, and the notes canceled. The complainants, by assignment having become possessed of all the rights of McPhail and Hovey,1 bring this bill for an accounting, claiming, first, that by the original transaction Hovey, McPhail, and Newcomb were entitled to one-fifth each of the proceeds of lot 15 as partnership property ; second, that by the cancellation of the stock issued to them, consideration for a release of their rights to the defendant Thorpe having failed, they are entitled now to share with him to the same extent as though the $15,000 of stock and the $3,500 in notes had been the sole consideration received upon the sale of lot 15.

The first proposition is purely a question of fact. The testimony of the complainant Newcomb, and that of the defendant Thorpe, is in direct conflict upon the question as to whether the agreement for the division of the proceeds of the first property exploited in the ratio of one-third each to Thorpe and Rees and the remaining one-third to be divided among the other three related to lot 15, or whether it was limited to lot 7, which was the lot originally intended to be exploited. The testimony of the complainant Newcomb given in the Canadian court and that on the present trial is in many respects in conflict. We think the weight of the evidence sustains the conclusion of the trial judge that this agreement for a division in the ratio stated was intended to apply to whatever lot was the first one exploited by the company, and this proved to be lot 15. If the testimony were more evenly balanced, the fact that without dissent or serious objection the division of the avails of the property when the sale was made to the Ruethel Mining Company was upon this basis would be almost conclusive as to the understanding of the parties.

Are the complainants in a position to now assert that the transaction to which they were parties by which the sale was made by Thorpe to the Ruethel Mining Company was other or different from that which the parties assented to at the time ? In other words, is this a case of failure of consideration, except as the result of an infraction of public policy by the holders of this stock ? We think not. The parties Newcomb, McPhail, and Hovey were fully cognizant of their relations to this property and of Thorpe’s relation thereto. Assuming that all parties were acting in good faith, Thorpe did not consent to part with the title to lot 15, the legal title being in his name, except upon the very terms which the parties all assented to, and upon the division of the proceeds which was then agreed upon and made. It now transpires that three of these parties have been defeated of the profits which they would have made, and they have inured to the benefit of the company, and this on the ground of public policy that the directors of a corporation may not profit at the expense of the corporation itself. In effect, a forfeiture has been declared against them in favor of the company. But a court of equity will not be open to permit them to recoup their loss through their own misconduct by creating a new contract with the defendant Thorpe more favorable to them than that which they were content to enter into.

The conclusion of the circuit judge that the bill of complaint is without equity was correct. The decree dismissing the bill will stand affirmed, with costs of both courts to the defendant.

Blair, C. J., and Grant, Ostrander, and Mc-Alvay, JJ., concurred.


text:
    CITY OF DETROIT v. DETROIT UNITED RAILWAY.
    1. Statutes — Construction—Rule.
    While a statute, remedial in its nature, should be liberally construed for the advancement of the remedy, such rule does not warrant a disregard of its terms or a judicial determination of what should have been the legislative conception in passing it.
    2. Municipal Corporations — Railroads — Highways and Streets — Separation op Grades — Damages.
    In a proceeding under the statute (chapter 102, 2 Comp. Laws), to separate the grade of a street and that of several railroads, by a single improvement, which required the grade of the street to be lowered and the grade of the railroads to be elevated, the city having appealed from an order confirming certain awards made by a jury, it is held:

      (a) Interested property owners may not profit out of the change, and compensation for damages may not be awarded upon any theory of punishing the municipality.
    (b) Compensation may not be awarded for damages caused by the elevation of the railroad tracks.
    (c) Compensation is to be awarded for damages to property abutting upon the portion of the street where the grade is changed and for such damages only as result from — are caused by — the change of the grade of the street.
    (d) The just compensation to which the owner of property abutting the street is entitled is the difference in the value of the property (if any) before the change of grade and its value after the change of grade. The provision

      in the statute for an assessment for special benefits to property within a district to be created does not preclude the application of this rule.
    (e) Damages to a business, as such, whether carried on by the owper of the abutting .property or by his tenant, may not be recovered.
    (/) The damages to the interest of a tenant of abutting property are not necessarily measured, in all cases, by the value of the term less the rent reseiwed.
    (g) Rendering the street in its changed condition less convenient for use and closing the street in whole or in part to public travel during the progress of the work, are not matters supporting a claim for damages.
    3. Same — Damages—Evidence.
    In such proceedings it was not error to exclude testimony of the effect of other separation of grades upon the property in the immediate vicinity of changes, nor to exclude evidence that on other streets where such improvements had been completed, the slope or inclination of the street exceeded that of the street in question.
    4. Same — Damages—Burden of Proof — Instructions.
    It was error to instruct the jury that “the onus of any uncertainty that exists here is upon the petitioner. This is not an action upon contract, but is more in the nature of an action of tort, wherein these respondents had no chance to agree or disagree with the proposed improvement, but were entirely innocent parties; and, if anybody has to suffer by reason of the necessary uncertainty of the testimony, it ought in all justice to be the active, moving party, the petitioner, and not the innocent, passive parties, the respondents.” Testimony too uncertain in its nature to establish the right to compensation under the provisions of the statute may not be made certain by assuming that upon the municipality rests any responsibility for such uncertainty.
    5. Same — Agreements—Effect—Waiver—Instructions.
    Prior to instituting the proceeding, the city, certain railroads, and a street railway entered into an agreement in which, among other things, it was agreed by said street railway that it waived “any and all claim for damages by reason of the change of grade of any of said streets to any abutting property owned or controlled” by it, and it is held, construing the agreement, that it applied to all property of said street railway whether used by it in the operation of its road or not.
    Error to the recorder’s court of Detroit; Connolly, J.
    Submitted May 6, 1908.
    (Docket No. 99.)
    Reargued February 8, 1909.
    (Docket No. 56.)
    Decided March 30, 1909.
    Petition by the city of Detroit for the separation of grades in a certain street. The Detroit United Railway and others intervened, claiming damages. There was judgment confirming the award of the jury, and petitioner brings error.
    Reversed.
    P. J. M. Hally ( Timothy E. Tarsney, of counsel), for appellant.
    Brennan, Donnelly & Van De Mark, for appellee Detroit United Railway.

      Arthur G. O'Connor, for appellee Croul.

      Frank D. Andrus, for appellee Lindsay.

      Thomas L. Dalton and Charles E. Love, for appellee McNutt.

      Corliss, Leete & Joslyn, for appellee Penberthy Injector Co.

      Edmund Atkinson ( Chamberlain, May, Denby & Webster, Beaumont, Smith & Harris, and Choate & Webster, of counsel), for appellees Snyder and Union Transfer & Storage Co.
   Ostrander, J.

In conformity with an act entitled: “An act to provide separate grades for railroads and public highways and streets where railroads intersect such highways and streets” (2 Comp. Laws, §§ 4229-4261), an agreement was made between the city of Detroit, party of the first part, and three steam railroad companies and the Detroit United Railway, described as parties of the second part, for a separation of grades at various points in said city, for paying the cost of making and maintaining such separation of grades, and for a division of the total expense thereof between the parties thereto. Thereafter proceedings were instituted in the recorder’s court for said city for a separation of grades at Greenwood avenue, with the result that the necessity for such improvement was found, and the awards made by a jury were confirmed. The city, a motion for a new trial having been denied, appeals from the determination in so far as it affects (1) the Detroit United Railway; (2) the Penberthy Injector Company; (3) William R. Croul; (4) David Lindsay; (5) Martin G. McNutt. Of these the first two are owners of property abutting upon the said avenue; the others are tenants occupying, for business purposes, property so abutting. The land of the Penberthy Injector Company adjoins the right of way of a railroad company, and a portion of it is used by the owner for manufacturing purposes. The agreement referred to, after reciting the desire on the part of the city to discontinue, as it may be reasonably practicable to do so, grade crossings at the intersection of the several streets in the district between Woodward and Michigan avenues (and at streets hereafter to be laid out and opened), with the rights of way of the said railroad companies, and to substitute therefor overhead crossings by said railroads at such intersections, and after further reciting that a uniform profile fixing the level to which the railroad tracks shall be raised has been agreed upon, and an agreement reached concerning the method, the terms, conditions, and general specifications for effecting changes at such crossings and particular plans and specifications as to certain named crossings, contains, among many others, the following provisions:

“Now, therefore, in consideration of the premises and the mutual undertakings of the parties hereinafter expressed, it is agreed; * * *
“(2) That the city * * * shall, and hereby does, assume the payment of all abuttal damages, if any there be, to property of persons other than the parties of the second part, arising in any way from said change in the grade of any of such streets, and all cost, expense, charges, or liability in any proceedings which may be instituted to effect such separation of grades, or which may be instituted to prevent the performance of this agreement, * * * and the parties of the second part hereby waive any and all claim for damage by reason of the change of grade of any of said streets to any abutting property owned or controlled by them, or any of them.
“ (3) * * * The said second parties, and each of them, shall release all damages, charges, or claim arising from loss of traffic or otherwise, occasioned by said changes of grade.”

Greenwood avenue is within the district lying between Woodward and Michigan avenues. It was deemed by the city inexpedient to attempt settlement or compromise with property owners, for which reason the intervention of a jury became necessary.

The particular improvement, which was in fact a single one, required the elevation of tracks of three railroad companies and a considerable change — lowering—of the grade and level of the street. The elevation of the tracks made it necessary to remove, and afterwards relay, a spur track which accommodated the Penberthy Injector Company. Interruption of business and resulting private loss was occasioned by interference with public travel on the street while the work was in progress. The principal question presented is the one of the statute meaning of the phrase “ the amount of damages to such property as may be damaged thereby,” this being what the jury is required to ascertain and determine; compensation for “such damages” being what is to be awarded “to the parties interested.” 2 Comp. Laws, § 4244. Included in this is the question whether compensation must be made for any damages caused by the change of the grade of the railroad right of way — by the elevation of the tracks.

Counsel entertain widely differing opinions about the scope and effect of this legislation, for which they find reasons, in the meaning they give to the words, in the general purpose of the law and in the previous state of the law. As would be expected, these opinions favor on the one hand a liberal construction of what is denominated a “remedial statute,” on the other hand a construetion which will not expand or enlarge the meaning which the words employed will bear. Without setting out the arguments, by which we have profited, we state the conclusions we have reached and the reasons therefor. This is a remedial statute, in essence a declaration of the right of the individual to compensation for damages sustained by him for the public benefit. A rule often stated is that a remedial statute should be construed liberally for the advancement of the remedy; but neither this rule nor the one of strict construction is a warrant for disregarding the language of a statute, or for amending the law to conform to a judicial conception of what should have been the legislative conception in passing it. We have other statutes which provide for compensation when the grade of a street or of a sidewalk is changed. By 1 Comp. Laws, § 2784, compensation to the owner for all damages to such (adjacent) property, resulting therefrom is required. See, also, 1 Comp. Laws, § 3179. The remedy afforded by these statutes, and by the one we are considering, is made effective when the designated person or class secures compensation reckoned according to the legislative formula. No person of the statute class should be denied the compensation which the statute provides for. If the legislative designation of the class is uncertain, or if the formula for reckoning compensation is uncertain, or is incomplete, the courts may then perhaps advance the general legislative purpose by construction.

The statute now considered points out the class entitled to compensation. It denies compensation for damages unless they result from the change of the grade of the street. A noticeable provision of the statute is the one which requires that an accurate profile and map be made of the portions of the street and of the railroads the grades of which are to be changed, and a detail plan of the improvement itself, as well when the improvement is made by agreement as when it is made at the instance of the railroad and street-crossing board. It is the necessity for the improvement so proposed and planned which the jury determines. It must be assumed that the changes of grade, as well in the railroad right of way as in the streets, indicated by the plan of the improvement, are made in the public interest; that if demanded by public necessity they may be compelled. These considerations and the words of section 42áá seem at first to support a construction of the act which will afford compensation as well for damages caused by the elevation of tracks as for those resulting from a change of grade of the street. The record discloses the fact, which would in any event be inferred, that not only at the points of intersection with streets, but at all points the tracks must be elevated. If we reject the words of the statute, found in various sections thereof, which specifically limit the interested class to those having “ an interest in any lands abutting on that portion of the street or highway within the city of which the grade is to be changed according to the said agreement,” these being the persons with whom compromises may be made, being also the only persons who are necessary parties to the petition, it is clear that we greatly enlarge the class of persons whose interests must be respected. Excepting the repeated use of the words “abutting owners” and “abutting property” and “such property as maybe damaged thereby,” or words of equivalent meaning, the statute does not describe either the property to be considered or the owners thereof otherwise than in, or by reference to, the terms “abutting on that part [or portion] of the street or highway of which the grade is to be changed.” It is reasonable to say that the words “owners” and “property damaged thereby ” are used with reference to such property; that when “abutting property” is spoken of, it means property abutting upon the street, and with such meanings the various provisions are consistent with each other. Otherwise they are inconsistent. We have not lost sight of the fact that a highway or street may be carried over, as well as under, railroad tracks for the purpose of a separation of grades. In such a case it is conceivable that the abutting property, or some of it, would be rendered wholly worthless for uses to which it had been previously devoted, if not worthless for any purpose. Much would depend, of course, upon the character of the structure. If such a structure was erected without legislative authority, it would seem .that the rule of City of Pontiac v. Carter, 32 Mich. 164, would not be controlling of the right of abutting owners to damages. Schneider v. City of Detroit, 72 Mich. 240 (2 L. R. A. 54); Phelps v. City of Detroit, 120 Mich. 447. See Ranson v. City of Sault Ste. Marie, 143 Mich. 661 (15 L. R. A. [N. S.] 49); Vanderlip v. City of Grand Rapids, 73 Mich. 522 (3 L. R. A. 247). Considering all of the provisions of the statute together, we conclude that it does not permit an award for any damages resulting from the elevation of the tracks. Compensation must be given only for damages to property abutting upon that portion of the street the grade of which is to be changed, and for such damages only as result from — are caused by — such change of grade. Those interested, as owners or otherwise, in such abutting property are the persons making up the class entitled, upon proper showing, to compensation. These views were not adopted by the recorder.

Abutting property, none of which is taken, is not damaged, within the meaning of this statute, which is worth no less after the improvement is made than it was worth before it was made.

“If the fair market value of the property is as much immediately after the construction of the improvement as it was before the improvement was made, no damage has been sustained, and no recovery can be had.” Springer v. City of Chicago, 135 Ill. 552 (12 L. R. A. 609, 615).
“The instruction refused and those given are based upon the theory that the cost of putting the property in as good condition as it was before the change of grade, less resulting benefits, is the measure of damages. Such, we think, is not the best and plainest statement of the true measure of recovery. The right to recover is derived from the statute alone (Code, § 469), and is not based upon alleged wrong, as in the cases cited by the appellant. The evident purpose of the statute is to make the property-owner whole, and no more. The difference in the value of his property as it was just before the change of grade, and as it was just after, as affected by the change, is the exact amount to which he has been damaged. If, because of benefits resulting to the property from the change, it is rendered as valuable, or more so, than before, there is no damage; but, if less valuable, there is, to the extent of the difference. Resulting benefits are considered in these cases. McCash v. City of Burlington, 72 Iowa, 26. It is true that the reasonable cost of putting the property in the same condition in which it was before the change, less resulting benefits, will lead to the same result as tibe rule we have stated; but there are several reasons why that is not the plainest and best statement of the measure of damages. It does not plainly and directly present to the minds of a jury the ultimate fact to be arrived at, and generally, if not uniformly, the property has not or cannot be put in the exact condition that it was before the change; as, in this case, a sum is expended in refitting the property to the new grade, and in doing so it has new material and new walls instead of the old. It is not refitted to be the same as before, and the jury must go through confusing investigations of the value of the new material and betterments over the old. Evidence as to the reasonable cost of putting the property in the same condition that it was in before the change is admissible, and proper to be considered, as it is one means of arriving at the difference in value as caused by the change. Another means is the opinion of competent witnesses as to the value of the property before and after. The ultimate fact to be arrived at is the difference in the value of the property as caused by the change of grade. This should be given to the jury as the measure of damages. This measure is alike applicable whether the property has been refitted to the new grade or not. See Meyer v. City of Burlington, 52 Iowa, 560.” Stewart v. City of Council Bluffs, 84 Iowa, 61.

We approve of the rule thus stated by the supreme court of Iowa. See, also, Chase v. City of Portland, 86 Me. 367; Com. v. Sessions of Norfolk, 5 Mass. 435; Buell v. County of Worcester, 119 Mass. 372; Chambers v. South Chester, 140 Pa. 510; Philadelphia Ball Club v. City of Philadelphia, 192 Pa. 632 (46 L. R. A. 724); Parker v. City of Atchison, 46 Kan. 14; Swift & Co. v. City of Newport News, 105 Va. 108 (3 L. R. A. [N. S. ] 404); City of Covington v. Taffee, 24 Ky. Law Rep. 373; City Council of Augusta v. Schrameck, 96 Ga. 426; City Council of Montgomery v. Maddox, 89 Ala. 181; 28 Cyc. p. 1069 et seq. There are portions of the charge to the jury which seem to be in accord with this rule. We cannot say that it was the rule, announced in view of the fact that the recorder was of the opinion, and so stated, that, because the statute contained a provision for an assessment for special benefits upon property in the vicinity of the improvement, the jury could take no account of any peculiar or particular private benefits resulting from the improvement. If, after the street is graded, the abutting property is worth as much, in the condition in which the new grade leaves it, as it was worth before the change was made, it is not damaged by the change of grade. The fact that, if it is damaged, an assessment to pay the damages may be, later on, made upon property in the neighborhood, in accordance with some notion of special benefits, does not seem to be a reason for refusing to apply the rule announced. Nothing is to he considered but the effect of the change — the structural change — in the street, upon the particular property. This rule applies as well to the interests of tenants as to those of owners. We do not consider, although we are asked to do so, whether the agreement entered into by the city, herein referred to, precludes a special assessment upon property found to have been specially benefited by the improvement. The question is not, necessarily, involved.

What is just compensation within the meaning of the statute ? It is not easy, perhaps is impossible, to lay down any but broad, general rules. Section 4231 provides for a compromise by the municipality with “ any person having an interest in any lands abutting on that portion of the street or highway within the city of which the grade is to be changed according to the said agreement, and which may be damaged by the proposed change of grade.” If the separation of grades is ordered by the board of railroad and street crossings, or takes place pursuant to an agreement, and no such compromise is made, in either case the petition which is required to be filed (section 4239) must contain a description of “the property abutting on that part of said street or highway of which the grade is to be changed, also a statement of the manner in which said property * * * will be affected by said change,” and shall further state that it is made and filed ‘ for the purpose * * * and for making just compensation to all persons sustaining damage thereby.” The jury is impaneled (section 4241) “to ascertain and determine the just compensation to be made therefor ” to “ persons interested in the abutting property made parties respondent to said petition. * * *” The jury (section 4243) is sworn to “ impartially ascertain and determine the compensation to be made to the parties respondent and unknown parties in interest named in said petition,” and in the verdict (section 4244) shall ascertain and determine the amount of damages to such property as may be damaged thereby, and award to the parties interested compensation for such damages. These provisions are broad enough to secure to persons interested in the abutting property indemnity for such damages to the property, and to their respective interests therein, as result from the change of the grade of the street. It is obvious that not all injuries resulting from the making of the improvement are within this rule. Inconvenience caused to the general public and to the claimant, temporarily or permanently, on account of rendering the street less convenient for use; injury and inconvenience resulting from closing the street, in whole or in part, to public travel during the progress of the work — do not, except in degree, affect those within the district differently than it does those outside of it. They do not support a claim for damages. The fact that the legislature has confined the inquiry to the property within the limited territory affected by the change of the grade of the street, and to those damages resulting from such change of the grade, is a sufficient reason for concluding that the provisions above referred to are not broad enough to secure damages to a business, as such, carried on upon the land, whether by the owner of the land or by a tenant.

In the contemplation of the statute compensation is to be awarded, in gross, before the improvement is begun, and to be apportioned among those interested in the land. It would be mere speculation to attempt to determine the loss of profits of a business to be continued on the premises, to be occasioned by a change of grade to be made. The fact that in the present case the improvement was completed before this proceeding was instituted, and the fact, if it is a fact, that certain profits claimed to have been lost can now be certainly proven, do not aid us in arriving at the statute measure of compensation. As has been said, the statute contemplates an award before the improvement is made. Where the right to use premises attaches to the interest of the claimant in such premises, and it is apparent that such use will be wholly and permanently lost, or will be abridged, as a result of the effect of the change of grade upon the premises, the fixing of just compensation may involve some inquiry into the nature of the use and the effect of its loss or abridgment. We have heretofore held (City of Detroit v. C. H. Little Co., 146 Mich. 373) that just compensation to a tenant evicted by the change of grade is not necessarily the value of his term less the rent reserved. That rule might, and it might not, afford indemnity. In a majority of eases it undoubtedly would afford just compensation, and any mere abridgment of the value of the tenant’s interest in the property will usually be recompensed in the application of the rule. We do not intimate that the nature of the title upon which interest is grounded, the duration of a tenant’s term, and the right of the landlord, by notice or by statutory proceedings, to determine the term, and so the interest in the 'premises, is not to be considered by the jury in arriving at a proper award. But if the effect of the change would be to cause a removal from the premises which would not otherwise be made, just compensation may require payment of the cost of such removal, and, perhaps (the point is not involved on this appeal), payment for the loss of net earnings of a business for a reasonable period necessary to removal. It is not to be supposed that any interested person will profit out of the transaction, or that compensation will be awarded with any notion of punishing the municipality. In his charge the recorder laid down rules more liberal to respondents than those we have stated.

We cannot say that it was error to exclude testimony of the effect of other separations of grades upon the property in the immediate vicinity of those changes, or to exclude evidence of the fact that on other streets in the city the slope or inclination of the street exceeded that upon the street in question after the improvement was completed. There are many circumstances and conditions affecting particular localities in cities. A comparison of existing and known conditions invites innumerable issues. The number of such issues will not be diminished in any attempt to prove that the same results will follow the same improvements in different localities.

The recorder said to the jury:

“The onus of any uncertainty that exists here is upon the petitioner. This is not an action upon contract, but it is more in the nature of an action of tort, wherein these respondents had no chance to agree or disagree with the proposed improvement, but were entirely innocent parties; and, if anybody has to suffer by reason of the necessary uncertainty of the testimony, it ought in all justice to be the active, moving party, the petitioner, and not the innocent, passive parties, the respondents.”

In this we think he was in error. Testimony too uncertain in its nature to establish a right to compensation under the provisions of this statute may not be made certain by indulging the idea that upon the city rests any responsibility for such uncertainty.

Some other questions are argued in the briefs. None of them are related to the facts involved in the particular appeals. The views we have expressed require a reversal of the order of the court below as to all of the appellees except the Detroit United Railway.

Respondent Lindsay is sublessee of the Goebel Brewing Company, lessee of Charles A. Kandt, who owns two lots affected by the improvement. The owner valued his property at $7,500 before the work of improvement was begun. Goebel Brewing Company had a written lease of a building on the property, expiring in 1908, the rent reserved being $55 a month. Lindsay, who occupies the building with a grocery and saloon, under a parol lease from the brewing company, paid $55 a month to that company. The jury awarded the owner $4,400, the Brewing Company $700, and Mr. Lindsay $1,500, a total of $6,600. The awards to the owner and to the brewing company are not involved in this appeal. The award to Mr. Lindsay is based wholly upon testimony tending to prove loss of profits and deflection of his trade, occasioned by inconvenience of access to his store and interference, generally, with travel upon the street and upon the railroad property adjoining his property. The same is true of respondents Croul and McNutt. They are tenants from month to month. We award a new trial to each of these respondents, assuming that they may regard themselves entitled to some damages under proper rules.

As to respondent Detroit United Railway, the question is one of interpretation of the agreement, the initial act in the proceeding, to which agreement it was a party. It is a provision of the agreement that the city assumes the payment of all abuttal damages to property of persons other than the parties of the second part, arising in any way from said change of grade and all cost, expense, charges, or liability in any proceedings which may be instituted to effect or to prevent the contemplated changes of grade, “and the parties of the second part hereby waive any and all claim for damage by reason of the change of grade of any of said streets to any abutting property owned or controlled by them, or any of them.” That the waiver is intended to apply only in such cases and on such streets as respondent uses in operating its road at the point of intersection with the steam railroad ways, is the claim made for respondent. The recorder instructed the jury:

“That the waiver claimed by the city in the agreement existing between the city and the Detroit United Railway does not cover the property in question in the contemplation of the statute, which was the basis of the agreement made between the city and the Detroit United Railway.”

The statute, as we have seen, contemplates the payment of damages to street railway companies for interference with tracks. It places no part of the original burden of cost of separation of grades upon them, and the respondent is a voluntary party to the agreement which was made. It is admitted that in some of the streets affected by the agreement the street railway has no interest ; in others it is interested as owner of abutting property, or of a railway in operation, or both as owner of abutting property and of a railway. The agreement in general terms imposes upon “the parties of the second part ” responsibilities and liabilities which it is clear are to be borne by the railroad companies alone. If the agreement did not also, in other portions of it, deal specifically with the liabilities assumed by each of the parties of the second part, there would be more force to the argument made for respondent. But it does in detail specify the things which each party of the second part agrees to do. It does not, however, in terms, modify or enlarge the liability assumed on the part of the city to pay “ all abuttal damages to property of persons other than the parties of the second part. ” There is no modification of the waiver above recited. There is the further distinct waiver that “the said second parties, and each of them, shall release all damages, charges, or claim arising from loss of traffic, or otherwise, occasioned by said changes of grade.” The mutual promises and obligations of each of the parties stand opposed, in their entirety, to those of each of the other parties to the agreement, and the agreement is fairly susceptible of but one interpretation, which is that respondent waived its right to the damages awarded to it by the jury. The award should not have been confirmed, and the order of confirmation is reversed. There is, however, no occasion for a new trial of this issue.

We award costs of this appeal against the appellees, ■ jointly and severally, to the appellant city.

Blair, O. J., and Grant, Montgomery, Moore, McAlvay, and Brooke, JJ., concurred. Hooker, J., on account of illness, took no part in the decision.


text:
    CITY OF DETROIT v. MICHIGAN CENTRAL RAILROAD CO.
    1. Municipal Corporations — Railroads — Highways and Streets — Separation op Grades — Damages.
    Where, under the statute (chap. 102, 2 Comp. Laws), damages to property owners occasioned by the change of grades are recoverable only by the owners of such property as abuts upon that portion of the street affected, an agreement by the city with certain railroads to save them harmless from all abuttal damages occasioned by a change of grades, did not contemplate such damages as resulted to owners of property abutting upon the right of way of the railroads and not upon the streets where the improvement was to be made.
    2. Railroads — Change op Grades — Damages—Contracts.
    Aside from constitutional or statutory requirements, the relation between manufacturers and railroad companies as to the construction and maintenance of side tracks rests entirely in contract; and where, in the absence of an express contract, a railroad company constructs a side track to facilitate the handling of the products of a manufacturer, no contract is implied binding either to a continuance of the arrangement, nor is the manufacturer entitled to damages against the railroad company occasioned by reason of changes in the grade of such railroad necessitating a like change in the side track.
    3. Same.
    And the fact, that in the interest of the public, certain statutory requirements have been made in regard to securing railroad facilities, does not affect the right of the railroad companies to change the grade of their tracks, nor give the manufacturer damages therefor.
    Error to the recorder’s court of Detroit; Connolly, J.
    Submitted January 22, 1909.
    (Docket Nos. 57, 58.)
    Decided March 30, 1909.
    Petition by the city of Detroit for the separation of grades in a certain street. • The American Car & Foundry Company intervened claiming damages. There was judgment confirming the award of the jury, and both parties bring error.
    Reversed, and intervener’s petition dismissed.
    P. J. M. Hally, for petitioner.

      Angelí, Boynton, Stevens, McMillan & Bodman, for , intervener American Car & Foundry Co.
    This is a proceeding to separate grades at the intersection of Junction avenue with the rights of way with the Michigan Central Railroad Company and other railroads. The act for such separation and the contract between the city and the several roads and the proceedings instituted are identical with those in the case of the separation of such grades in Greenwood avenue, and are sufficiently set forth in an opinion handed down herewith in that case. The American Car & Foundry Company was not made a party to the original petition, but was permitted to intervene, claiming the right to damages resulting from such separation.
    The city contends that the land of the American Car & Foundry Company does not abut upon the street, and therefore is not within the purview of the act. The court held that the company was entitled to intervene and to recover damages. The company claimed damages only for the expense it was compelled to incur in changing its plant and buildings to correspond with the elevation of the railroad so as to preserve its connection with the railroad company. It claims that such actual expenses were conclusively shown to be $25,000. The jury awarded a verdict of $8,500. Both parties appeal — the city because it denies liability, and the company because the verdict did not award its actual damages. The company’s land is triangular in shape, bounded on the northwesterly side by the right of way of the Lake Shore & Michigan Southern Railway Company, and on the southerly side by the right of way of the Michigan Central Railroad Company. The nearest point of its land to the side line of Junction avenue is about 100 feet, while from the point where its siding enters the railroad right of way is 208.6 feet. The entrance to its works from the street was from Clark avenue. In order to preserve its side track with the Michigan Central Railroad Company and thus enable it to remove its manufactured cars for shipment, it was compelled to remove one or two of its buildings and to elevate its tracks through its extensive plant, so as to get the proper grade for doing its work and moving out its product.
   Grant, J.

{after stating the facts). It is determined in the case above referred to that the statute under which those proceedings were taken include damages only to those whose lands abut on the street. Further discussion of this subject therefore is unnecessary. It follows that the contract between the city and the railroad companies did not contemplate damages resulting to those whose property abuts upon the railroad rights of way, and not upon the streets where the improvements are to be made. This further very plainly appears from the language of the contract, wherein the city assumes the payment of all abuttal damages and to hold the companies discharged from all liability to abutting owners. To hold the city liable for elevating its tracks upon its roadbed abutting the land of the American Car & Foundry Company would be to read into the contract a liability which its terms we think clearly exclude. If there is any liability on the part of the railroad company, it must have been created by contract between the two companies, or by some constitutional or statutory provision. The record contains no evidence of any contract, verbal or written, unless one is to be implied from the mere fact that some time, long ago, a switch track was constructed into the plant of the Car & Foundry Company. In the construction of these switch or side tracks to manufacturing plants, three parties are interested — the manufacturer desiring the most inexpensive way to get his wares to market, the railroad company in obtaining business and profit by transporting such wares, and the public, who consume or use the product of the manufacturer. If the railroad company considers that the transportation of the product of the manufacturer will compensate it and yield it a profit, it usually, upon request, puts in the necessary side track and switches. By the construction of such a track, at the request of one and the assent of the other, no contract is implied binding either to the continuance of such arrangement for any specified time. Clearly the manufacturer has made no contract by which he is liable to the railroad company in damages for discontinuing its shipment at any time or for any reason. He may move his plant within a month after the construction of the side track. He may conclude to ship his goods to market by other railroads or by other routes. I am not aware that any claim was ever made that the manufacturer is bound by such an arrangement to ship his goods over the one railroad. Neither can a contract be implied on the part of the railroad company to maintain the side track and ship the goods of the manufacturer at a loss or without profit. Neither is a contract implied by which the railroad cannot under its charter raise or depress its tracks for the better management of its road, or for the protection of the public, without paying the manufacturer all damages which may result to him from such act on the part of the road. The railroad company in this case obtained its right of way either by agreement or by condemnation. In either event, it paid to the abutting owners all damages, present and prospective, which could result from the legitimate use of its property.' It obtained the right to erect railroad buildings upon its right of way, to cover its right of way with tracks, and to arrange those tracks in such manner as would best conduce to the successful management of its own business and the protection and benefit of the public. It follows that the Car & Foundry Company has no contract with the railroad company for a violation of which it can recover damages. Aside from constitutional or statutory requirements, the relation between manufacturers and railroad companies as to the construction and maintenance of side tracks rests entirely in contract.

But for the interests and rights of the third party interested, the relation between shipper and carrier would rest, entirely in the hands of those two parties, and be governed entirely by the contracts which they might choose to make, but the third party, the public, is interested, and therefore has certain rights which it may enforce through the government. Among these is the right to regulate and prescribe, to some extent, the facilities which railroad corporations must furnish for the transportation of the products and produce of the country. Among these is the right to compel switch connections with the plants of manufacturers whenever, as stated by the learned counsel for the Car & Foundry Company, 4 4 such connection is reasonably practicable and can be put in with safety, and the manufacturer will furnish sufficient business to warrant it.” Hence Act No. 312, Pub. Acts 1907, § 6a, and 34 U. S. Stat. p. 584. But these statutes do not prevent railroad corporations from changing the grade of their tracks or from any other action authorized by their charter, or required for the better protection of the public, nor does it give damages for such action. It does not provide that such side track shall remain as first established, at the will of the manufacturer. Changes therein, after once constructed, are governed by the same principles as govern the original construction. These acts only provide that, if the parties more directly concerned cannot make satisfactory arrangements for such connections, the railroad commissions may be appealed to and the railroad companies compelled to install such tracks upon reasonable terms and conditions, and also maintain them. Chicago, etc., R. Co. v. Suffern, 129 Ill. 274.

In New York, etc., R. Co. v. Blacker, 178 Mass. 386, under an act of the legislature, the railroad company was required to elevate its tracks. In doing so it required additional land, and condemned certain land of the respondents adjoining the track. There was a possibility that the spur tracks upon the respondent’s land would have to be discontinued. It was held that such possibility was proper to be considered as affecting the market value of the property; but it was held that the respondents could not recover for the cost of removing contents of the buildings, or the cost of removing lumber, or for the disturbance and interruption of business or for waste. We are not, however, dealing with a case where the manufacturer has been deprived of his switching facilities, but with a case where, in consequence of the necessary improvements, he has been put to expense because required to make changes in his plant to meet the new conditions. His switching facilities have not been taken away or interfered with except temporarily. The railroad extends several miles through the city of Detroit, and manufacturing establishments are located along its track. If compelled to pay all damages which such improvements cause to their owners, it would result in a most onerous burden. If any liability attaches to the railroad company for such changes, it could only be under the above statutes to put its switching tracks in pi’oper condition to meet the change. But that question is not here involved.

Judgment reversed, and the petition of the American Car & Foundry Company dismissed.

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