author: Fellows, J. Ostrander, J.

text:
    TOWNSHIP OF CLEARWATER v. BOARD OF SUPERVISORS OF KALKASKA COUNTY.
    1. Highways and Streets — County Road System — Refund — State Reward Roads — Overhead Expense.
    On certiorari to review mandamus proceedings to compel the board of supervisors of respondent county to refund to relator township county road taxes paid for the year 1914 under the provisions of section 4372, 1 Comp. Laws 1915, held, that the proportion of the overhead expense, as well as the amount actually expended in road construction by respondent in said township, should be charged to the township. Ostrander, J., dissenting.
    2. Same — Notice—Condition Precedent.
    Where a township issued bonds and built State reward roads under the provisions of section 4372, 1 Comp. Laws 1915, the notice provided for in section 4373, to be given by the township to the county, of its intention to build such roads, whereupon the county is to furnish an engineer or surveyor to establish the grade, etc., is not a condition precedent to 'the right of said township to a refund of the money paid as county road taxes, in the absence of any showing that the county was prejudiced by the failure to give said notice.
    3. Same — Uniformity.
    Such notice is not necessary in order to obtain uniformity in road construction, since the statute (section 4386, 1 Comp. Laws 1915) requires the State highway commissioner to furnish general plans and specifications for all State reward roads and inspect them after completion, whether built by the township or county road commissioners.
    4. Same — Refund to Township — County Road Taxes — Construction of Statute.
    Under the .provisions of said section 4372, a township is entitled to a refund of all of its ceunty road tax paid in a given year if it has paid in county road taxes “as much money” as shall have been expended on county roads within said township by the county.

      Certiorari to Kalkaska; Lamb, J.
    Submitted January 30, 1917.
    (Calendar No. 27,574.)
    Decided March 30, 1917.
    Mandamus by the township of Clearwater against the board of supervisors of Kalkaska county to compel respondent to return to relator certain county road taxes. An order granting the writ is reviewed by respondent on certiorari.
    Affirmed.

      Parm C. Gilbert, for relator.

      Ernest C. Smith, for respondent.
   Fellows, J.

This court had before it in Clearwater Township v. Kalkaska Supervisors, 187 Mich. 517 (153 N. W. 824), the right of this plaintiff township, under the provisions of Act No. 283, Pub. Acts 1909, as amended by Act No. 355, Pub. Acts 1913 (1 Comp. Laws 1915, § 4287 et seq.), to a refund or return to the township of all moneys paid by it for the then current year as county road taxes, that the same might be applied in payment of its bonds theretofore issued for the purpose of building State reward roads and the proceeds of which were so used. The highway legislation was then reviewed, and it was there held that the legislation did not contemplate that adjustment between township and county must be made yearly on each year’s transaction; that the legislation contemplated a computation covering the period during which the county road system had been in force in the county. This court directed the issuance of the writ of mandamus. Pursuant thereto, the taxes for the year 1913 were refunded to the township.

This case comes up with concise findings of fact and conclusions of law, and it will suffice to say that it appears that in August, 1912, the electors of plaintiff township voted to issue $6,000 of bonds for the ■ building of State reward roads; that such bonds were issued and the proceeds used for such purpose; that at the annual meeting of the defendant board of supervisors. held in October, 1914, the township clerk of plaintiff township duly certified to such board that the amount of such bonds remaining unpaid was $6,-000; the refund for the taxes of that year was requested ; that action thereon was deferred, and finally the refund refused; that at the annual October, 1915, meeting of said board the township clerk of plaintiff township filed a certificate showing that there remained unpaid of said bonds the sum of $4,000, and the refund of the 1914 and 1915 taxes was requested. As the circuit judge held that the request for the refund of the 1915 taxes was prematurely made, and plaintiff has not appealed, it will be unnecessary to further consider the taxes for that year.

The prosecuting attorney advised the board, and very properly so, that in computing the amount of money expended on county roads within the township by the county-road commissioners there should be charged to the township, not only the amount of road expenditures, but its share of the overhead expenses, and advised the employment of a competent bookkeeper to make up the account. Action was deferred by the board until an adjourned meeting held November 15th for the coming in of the account. This account when filed showed that the total county road tax paid by plaintiff township since the adoption of the county road system was $25,089.69. The amount directly expended on county roads in the township during this period was $20,712.20. It also showed the total amount expended in the county, “without doubt, chargeable to overhead expenses,” was $17,-680.22, and $16,455.63 expended in the county which the maker of the account was unable to classify. No attempt seems to have been made to apportion either of these sums among the several townships of the county. On the 17th of November the board refused the refund. Mandamus proceedings were instituted, and upon the hearing the writ was granted as to the 1914 taxes, but refused as to the 1915, for the reason stated.

Defendant brings the case to this court by certiorari, and urges two grounds of defense:

“(a) Because the court erred in holding that the provisions of section 27 of chapter 4 of Act 288, Pub. Acts 1909, are directory, whereas they should be construed as mandatory.
“(b) Because the court erred in holding that the county should repay to the township its 1914 county road tax amounting to $1,830.33 when the condition of the accounts between the county and the township showed that the county had expended within the limits of the said township in the building of roads within $121.86 of as much money as the plaintiff had paid in in county road tax. If any portion of the 1914 tax should be refunded, it should only be the $121.86 which would serve to balance the account between county and township.”

(a) Without setting up section 27 (1 Comp. Laws 1915, § 4373) in full, it will be sufficient to say that it provides that the township board of any township deciding to build one or more miles of State reward road shall give notice thereof to the county road commissioners before May 1st, requires the county road commissioners to furnish an engineer or surveyor, and, if it be a piece of road the county road commissioners intend to improve, it shall be constructed in accordance, with the plans of the county board. This section was in the act of 1909, and has remained there without change despite the various amendments to section 26 (1 Comp. Laws 1915, § 4372). It is urged that compliance with these provisions is a condition precedent to the right to a refund under the provisions of section 26. We are unable to see such connection between these two sections as permits such conclusion. Section 26 clearly contemplates reservation in the township of the right to build State reward roads either by taxation or bonding, without supervision by the county authorities. We discussed this feature to some extent in the former holding. If the township desires the aid of the county engineer or surveyor, it must file a written notice, as provided in section 27, but if it is willing to pay for such engineer or surveyor from its own funds, the county can hardly be heard to complain. There is no intimation in the record or briefs that the county contemplated improving as a county road the stretch of road which was improved by the township, and we cannot find any grounds for saying that the county was or would be prejudiced in any way by failure to give this notice.

It will also be noted that under section 26 the township clerk of townships with bonds outstanding shall certify to the board of supervisors the amount of such bonds remaining unpaid, and no other affirmative action is required on the part of the township, unless we read into this section the provisions of section 27. There might be many years when the township would not be constructing any new State reward roads and section 27 would be wholly inapplicable.

It is urged that, in order to obtain uniformity in road constructing, it is necessary that the full force contended for by defendant should be given those two sections, and that the purpose of section 27 was to obtain such uniformity, and that uniformity in road construction is desirable. But is not the question of policy for the legislature, and has the legislature not provided the means to obtain such uniformity? 'We think both questions must be answered in the affirmative. Section 9, chap. 5, Act No. 283, Pub. Acts 1909 (amended by Act No. 75, Pub. Acts 1915; section 4386, 1 Comp. Laws 1915), requires the State highway commissioner to furnish general plans and specifications, whether the State reward roads are to be built by the township or county road commissioners. By whatever municipal subdivision they are constructed the inspection is by the State highway department before the reward is paid. The plans and specifications flow from one source, and the inspection is made by the same department, whether township or county builds and supervises the work. We think these provisions secure a uniformity and a uniformity that is State-wide. If they are not sufficient to attain the uniformity desired, the question of further steps is for the legislature. We think that section 26 was Intended to preserve the rights of townships which, either by means of taxation or bond issue, improve their own roads and to prevent an undue and unequal burden resting upon them, and that we should not read into that section as a condition precedent to obtaining such rights the provisions of section 27.

(&) It is urged by the defendant that under the provisions of section 26 the plaintiff is not entitled to the return of its road tax for the year 1914, but only such sum as is found on balancing of accounts to have been paid by it over and above the amount expended. Counsel submits that the plaintiff has paid in county road tax $25,089.69; that the direct expenditure by the county in building county roads in the township was $20,712.20. The court found the “overhead charges” apportionable to plaintiff township to be $2,700; that the county has refunded the taxes for the year 1913, under the order of this court, to the amount of $1,555.63, thus leaving the sum of $121.86 as the amount the township had paid in county road taxes in excess of the amount expended on county roads within the township by the county road commissioners, and counsel insists that the refund or repayment should be limited to this amount. The statute does not so provide. It expressly provides for a return to the township of the county road tax paid by it, not part, but all of it, subject to the condition found in the following’ proviso:

“Provided, however, that no township shall be entitled to the return of its county road tax until it shall have paid as much money in county road taxes as may have been expended on county roads within said township by the county road commissioners.” (1 Comp. Laws 1915, § 4872).

If it has paid “as much money” as has been expended, it is entitled to the return of its county road tax. That condition is found here. While it is true that in making the computation between the township and county the township should be charged with its share of the “overhead expenses,” and should not be credited (at least without a corresponding charge) with any sum which has been refunded, because an amount turned in to the county treasurer only to be returned presently cannot be regarded as “paid” within the meaning and intent of this act, still, when such a computation shows a balance in favor of the township, as it does here, the township is entitled to a return of its road tax, and the whole of it, to be used exclusively in payment of its bonds.

The circuit judge so held, and the order is affirmed, with costs.

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

Ostrander, J.

It is unnecessary to determine in this case, and I doubt if the court can ever determine the apportionment — make the apportionment — between townships of any general public expenditure in the county. Otherwise than this I agree with the construction of the law and the conclusion indicated in the opinion.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    COLLINS v. CITY OF DETROIT.
    1. Constitutional Law — Municipal Corporations — Annexation op Territory — Legislative Districts.
    In submitting tbe question of annexing territory to a city under the home rule act (sections 3309-3312, 1 Comp. Laws 1915), tbe constitutional requirement for tbe preservation of representative districts was satisfied by including in the order of submission by tbe board of supervisors a provision that tbe annexation should be for all purposes save that of electing representatives, and the fact that neither tbe notices nor ballots contained tbe provision, as provided in tbe resolution, did not invalidate tbe proceedings.
    2. Municipal Corporations — Boards op Supervisors — Counties— Public Records — Notice—Presumption.
    Tbe board of supervisors is tbe legislative body of tbe county, and its proceedings are matter of public record of which tbe electors are presumed to have notice.
    3. Same — Publication op Proceedings — Compliance with Statute — Evidence—Presumptions.
    It will be presumed that tbe board of supervisors published a report of its proceedings in a newspaper in compliance with section 2272, 1 Comp. Laws 1915, in tbe absence of proof to tbe contrary, and hence that tbe electors bad notice that tbe integrity of legislative districts would be preserved in accordance with a resolution, submitting to tbe electors tbe question of annexing territory to a city for all other purposes.
    4. Same — Constitutional Law — Home Rule Act.
    Although tbe home rule act (Act No. 279, Pub. Acts 1909, 1 Comp. Laws 1915, § 3304 et seq.), does not, in terms, provide the exact machinery for preserving tbe franchise to tbe electors of territory annexed to a city, it is not therefore unconstitutional and void as an entirety, since tbe necessary legal steps to preserve tbe right of franchise were seasonably taken by amending tbe charter of the city and attaching tbe annexed territory to tbe adjoining wards.

      5. Same — Schools and School Districts — School Bonds.
    The home rule act provides for the changing of the territorial limits of cities and villages and not of school districts; hence school districts within annexed territory and school bonds are not affected by action annexing territory to a city under said act.
    Appeal from Wayne; Sullivan, J., presiding.
    Submitted October 25, 1916.
    (Docket No. 158.)
    Decided March 30, 1917.
    Bill by Thomas H. Collins and others against the city of Detroit and others to have certain annexation proceedings declared void and for other relief. From a decree for defendants, plaintiffs appeal.
    Affirmed.

      Harold, H. Emmons, for appellants.

      Harry J. Dingeman and Paul W. Voorheis, for appellees.
    The bill in this case is filed for the purpose of testing the validity of certain annexation proceedings by means of which, at the November election in 1915, certain territory in the townships of Greenfield, Hamtramck, and Gratiot was added to the city of Detroit. The complainants are residents of, and two of them are electors in, the city of Detroit. One of them is the owner of real estate and a taxpayer in the city of Detroit, the other two being owners of real estate in that portion of the township of Greenfield annexed. The defendants are the city of Detroit, its board of assessors and the three townships. The proceedings were taken under the provisions of the so-called “Home Rule Act,” being Act No. 279, Pub. Acts 1909 (sections 5447-5455, 2 How. Stat. [2d Ed.], 1 Comp. Laws 1915, § 3304 et seq.). It appears that in the summer of 1915, statutory petitions for said annexations were filed with the board of supervisors of Wayne county, which board later passed a series of resolutions, directing that the question of the several annexations be submitted to the electors of the city of Detroit and the several townships at the election to be held November 2, 1915. Each of these resolutions contained the following:
    “Said annexation to be, and to be stated in all notices of said election, and the ballots thereon, for all purposes, save the one purpose of electing representatives to the State legislature, and the said annexation, if accomplished, to have no effect whatever as to such election of representatives to the State legislature.”
    At the election held on November 2, 1915, the several propositions for the annexation of territories involved in this proceeding were carried by very large majorities. A canvass of the votes was made by the board of county canvassers, and the result announced on November 10, 1915. Thereafter the city of Detroit, through its officers, extended its municipal activities over the annexed territories. At the time of the hearing, September 5, 1916, the city had expended in the newly annexed territories upwards of $200,000 in laying water mains to supply city water to the residents of the new territory. Through its proper officers it had approved of 22 new plats within said annexed territory. It had provided for and partially expended for sewers in the new territory, $450,000, and had expended through its board of works for other labor and improvements upwards of $2,600. It had also expended for the installation of street lights in the annexed territory upwards of $30,000, and had made added appropriations to the several ward street-cleaning funds because of the addition of the new territory to several of the old wards. The city also extended its fire protection over the newly annexed districts. A considerable portion of the territory annexed was at the time of its annexation thickly populated, and was not adequately supplied with either sewer facilities or water, it therefore became necessary in the interest of the public health to afford these facilities at the earliest possible moment. The bill in the case at bar was filed on June 2, 1916, exactly eight months after election day, and more than six months after the annexation had become operative, if said annexation was legally effected. After a full hearing on the merits the bill was dismissed. From this decree plaintiffs appeal.
   Brooke, J.

(after stating the facts). Counsel for appellants argue three propositions as follows:

“(1) The annexation proceedings are invalid because the question of annexation was not so submitted to the voters as to indicate that the annexation was not to make the territory a part of the city for the purpose of representation in the State legislature, and that the boundaries of representative districts were not to be changed thereby.
“(2) The annexation statute is invalid because it does not secure to the electors in annexed territory the right to vote after annexation.
“(3) The annexation proceedings are invalid because the annexation in question involves the assumption by the city of the school district indebtedness resting upon the annexed territory and because the women taxpayers of the city having the qualifications; of male electors were not permitted to vote upon the question of annexation.”

We are of opinion that the point first discussed by plaintiff is ruled in principle by Oakman v. Board of Supervisors, 185 Mich. 359 (152 N. W. 89). We there held that the constitutional requirement for the preservation of the integrity of the representative districts would be satisfied by including in the order of submission a provision that the annexation shall be for all purposes save for the one purpose of electing representatives. It is not contended that the resolution of submission did not contain the necessary provision, but it is urged that because the resolution provided that the election notices and the ballots should contain the provision, and as neither the notices nor ballots did contain the same, that therefore the constitutional safeguard has been invaded. It is urged that the resolution must not only clearly show that the annexation shall not change the representative districts, but that the question itself must be submitted as framed, so that the voters may understand upon what they are voting. We are unable to agree with this contention. The board of supervisors is the legislative body of the county, and its proceedings are matter of public record of which the electors are presumed to have notice. People v. Hartwell, 12 Mich. 508 (86 Am. Dec. 70). Section 965, 1 How. Stat. (2d Ed.) (1 Comp. Laws 1915, § 2272), provides that the board of supervisors shall cause to be made out and published, immediately after each session, in at least one well-established newspaper, a report of the proceedings of said board at such session. While there is no proof in this record of such publication, there is none to the contrary, and it must be assumed that the publication was made according to law. The electors about to act upon the proposals must therefore be presumed to have known that the integrity of the legislative districts would be preserved in accordance with the resolution of submission. We therefore think it was unnecessary to set out the proviso herewith in election notices or the ballots, even though the resolution of submission provided therefor.

It is next asserted by counsel for appellants that the so-called “Home Rule Act” is invalid in its entirety because it does not, in terms, secure to the electors in annexed territory the right to vote after annexation. In support of the position taken counsel rely upon the case of People v. Maynard, 15 Mich. 463, where a statute purporting to organize a new county from territory taken from an old one, but containing no organized township, was held void because it did not provide for the organization of townships. The annexa-. tion here under consideration was effected in the fall of 1915. No general election was thereafter to be held until the fall of 1916. Shortly after the election an attempt was made by the common council, by the adoption of an ordinance, to attach the annexed territory to the adjoining wards. It is claimed by counsel for appellants that this, action was wholly nugatory, and this position is not seriously questioned by counsel for defendants, but it is asserted in the brief for defendants that on August 27, 1916, the defendant city’s charter was so amended as to make the annexed territory a part of the adjoining wards, thus enabling all qualified voters in the annexed territory to vote at the primaries and the ensuing election. At the same time the charter itself was amended so as to give the common council the authority to fix or change ward boundaries. Inasmuch as it is apparent that no elector entitled to vote has been deprived of his right of franchise, and that the necessary legal steps to preserve that right were seasonably taken, we are of opinion that the entire act should not be held unconstitutional simply because it does not, in terms, provide the exact machinery for preserving the franchise to the electors of the annexed territory.

The third and last position taken by counsel for appellants is, in our opinion, untenable. A change in the territorial limits of the municipality of the city of Detroit of itself can have no effect upon the school districts within the annexed territory, nor upon the school bonds, covering said' districts. They will be affected only when action is taken by the several township boards and a committee of the Detroit board of education, under sections 10062-10066, 4 How. Stat. (2d Ed.) (2 Comp. Laws 1915, §§ 5860-5864). We have repeatedly held that education, in this State is not a matter of local concern, but belongs to the State at large. Board of Education v. City of Detroit, 30 Mich. 505, 510; Attorney General v. Thompson, 168 Mich. 511 (134 N. W. 722). The “Home Rule Act,” itself relating to the annexation of territory, provides (sections 5447-5450, 2 How. Stat. [2d Ed.], 1 Comp. Laws 1915, §§ 3309-3312) for the changing of the territorial limits of cities and villages, not of school districts.

The decree dismissing the bill is affirmed.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. Person, J., did not sit.


text:
    JOHN D. GRUBER CO. v. SMITH.
    1. Sales — Failure of Consideration — Evidence—Bills and Notes.
    Where plaintiff’s president -wrote in a letter more than two years after the sale of a gas tractor and other farm machinery that it was his experience that less than 10 per cent, of the purchasers of gas tractors were successful with them, testimony of defendant that, if he had known that fact at the time of the making of the contract he would not have bought the engine, was inadmissible, in an action on a note given as part of the purchase price, where the defense was failure of consideration through fraudulent representations and breach of warranty, since there was no evidence tending to show that at the time the sale was made plaintiff’s president had any such information or experience.

      2. Same — Misrepresentations—Fraud—Conjecture.
    In such action, testimony by defendant that prior to said sale plaintiff’s agent had represented that the tractor and plows would plow 640 acres that spring, was inadmissible as mere conjecture.
    3. Same — Defenses—Instructions—Warranty—Trial.
    It was error for the trial court to instruct the jury that if the seller, in good faith, had sold the tractor to defendant, relying on the manufacturer’s warranty or guaranty, it would have a right of action against the manufacturer, since the jury might conclude that a verdict for defendant would work no injury to plaintiff.
    4. Same — Evidence—Contracts—Instructions — Parol Evidence —Written Contracts.
    It was error for the trial court , to instruct the jury that they might consider parol testimony and correspondence between the parties as bearing upon what the original arrangement was, where the contract was in writing, was very voluminous, and expressly stated that it contained all the terms of the agreement.
    5. Same — Warranty—Implied Warranty.
    Where there is a written contract containing an express warranty, no other or different warranty can be implied.
    6. Same — Evidence—Parol Warranty — Written Contracts.
    Oral representations by the seller as to the power, speed, and capacity of the tractor, and cost per acre of plowing with it, were inadmissible to vary the terms of the written contract.
    7. Same — Misrepresentations—“Puffing.”
    Representations by the seller that the buyer could pay for the tractor and machinery out of the earnings and that any man of ordinary intelligence, after a few hours of instruction, could operate the same, was mere “puffing,” and did not amount to fraudulent representations.
    8. Same — Rescission—Delay.
    Where the written contract provided the time within which the buyer could rescind if the tractor proved defective, a delay of nearly two years before attempting to rescind was wholly beyond reason.
    9. Same.
    An attempt to rescind did not amount to a rescission where the buyer continued to use the outfit.

      Error to Ionia; Davis, J.
    Submitted October 9, 1916.
    (Docket No. 90.)
    Decided March 30, 1917.
    Assumpsit by the John D. Gruber Company against Dale A. Smith and another on a promissory note. Judgment for defendants. Plaintiff brings error.
    Reversed.

      Hawley & Eldred, for appellant.

      George E. Nichols (A. R. Loche, of counsel), for appellees.
    The claimant is a corporation engaged, among other activities, in selling, farm implements and machinery. Its" principal place of business is at Minneapolis, Minn. The defendants, residents of the same city, had, for some years prior to 1911, contemplated going farther west and entering into the farming business upon a large scale. One of the defendants, Dale A. Smith, seems to have been well acquainted with John D. Gruber, president of the plaintiff company, for many years. After very extended negotiations between the defendants and the plaintiff company, on March 21, 1911, the following order was given:
    “Minneapolis, Minn., March 21, 1911.
    “John D. Gruber Company,
    “Minneapolis,
    “Minn.

      “Gentlemen:

    “Please deliver to me the goods described below and charge the same to my account on your books. I hereby expressly agree that title to and ownership of all property delivered on this order shall be and remain in you and the goods shall be subject to your order without any process, of law until full payment shall have been made for the same. It is further understood that these goods are bought and sold subject to the manufacturer’s usual warranty, and my acceptanee of delivery shall be considered prima facie evidence that the said goods are in perfect order; except, it shall be understood that if any defects shall develop within a reasonable time while using said goods, and such defects can be shown, that such defective parts shall be replaced free of any charge to me. It is further agreed that interest shall be charged at the rate of .eight per cent, per annum from date of delivery of goods.
    “Clarence R. Smith,
    “Dale A. Smith,
    “Purchaser.
    “F. o. b. factory.
    No. of Pieces. Description. Price.
    1— 1 25 H. P. International gas tractor, latest model .............................. $2,500 00
    2— 1 ,6 bottom Case engine gang plow with 6 breaker bottoms .................... 630 00
    3— 1 22 disc Hoosier double disc drill and G-. D. attachment ...................... 150 00
    4— 1 16 by 16 Case disc harrow............ 40 00
    5— 1 Dakota truck with box................ 55 00 1 7 ft. Wilder clod crusher .............. 55 00
    “One-half October 1, 1911, balance October 1, 1912; $400 discount for all cash 10 — 11.
    “The above is accepted subject to the approval of John D. Gruber Co.
    “John D. Gruber, President.
    “Witness: C. W. Conroy.”
    And on the 29th day of March, 1911, the following contract was executed:
    “This contract and agreement entered into this day by and between John D. Gruber Co., a Minnesota corporation, who shall hereafter be designated as a party of the first part, and Dale A. Smith and Clarence R. Smith, who shall hereafter be designated as party of the second part, as follows to wit:

      “Sale and Purchase. — The party of the first part does hereby bargain and sell unto the party of the second part, and the party of the second part does hereby purchase from the party of the first part the following described farm machinery:
    “1 25 H. P. international gas tractor.
    “1 6 bottom Case engine gang plow with 6 breaker bottoms.
    “1 22 disc Hoosier drill with grass seed attachment.
    “1 16 by 16 disc harrow.
    “1 Dakota farm truck with common box.
    “1 7 ft. Wilder clod crusher.

      “Consideration. — In consideration of the delivery to the party of the second part by the party of the first part of the above-described machinery free on board cars at the factories, where the said machinery is manufactured, the party of the second part agrees to pay to the party of the first part, the sum of $3,430.00 lawful money of the United States in the manner and according to the terms hereinafter set forth.

      “Terms of Payment. — The party of the second part hereby agrees to give notes to the party of the first part as follows: One note for $1,715.00 due October 1, 1911, drawing interest as described on the note; another note for $1,715.00 due October 1, 1912, and bearing interest as described on the note.

      “Discount. — If party of the second part shall find it convenient to pay all cash for the machinery above described not later than December "1, 1911, hereby taking up both of the above-described notes, then the party of the first part shall allow to the party of the second part a discount of $400.00.

      “Title and Ownership. — It is distinctly understood by and between both parties hereto that title to and ownership of the above-described farm machinery shall remain in the name of the John D. Gruber Co. until the same shall have been fully paid for in lawful money of the United States. Settlement by note at future dates shall not be considered as payment and shall in no way change title or ownership.

      “Collateral and Security. — In view of the fact that the party of the second part is unable to make immediate cash payment for the above-described machinery, Dale A. Smith of the said second party hereby agrees to give to the party of the first part a warranty deed to a certain parcel of property at Lake Minnetonka, Minn., described as follows: Lots 13 by 14, block 8, Dreamwood, Hennepin county, Minnesota, according to the plat now on file in the office of the register of deeds in said county. In addition to the above, the party of the second part hereby agrees to give to the party of the first part a chattel mortgage on all the machinery above listed, said chattel mortgage to be filed in the State and county in which the machinery above described is intended to be used, and permission is hereby given to the party of the second part by the party of the first part to transport all of the above-described machinery into Corson county, South * Dakota.

      “Default in Payments. — It is hereby understood and agreed by the party of the second part that if the said party of the second part should default in the payment of any of the maturing notes that shall be given as settlement for the above, then the party of the first part shall have the privilege and is hereby authorized by said Dale A. Smith of the second party, to indorse on the said maturing note or notes the sum of $1,000.00 as full payment and full consideration for the above-described property in Dreamwood, Lake Minnetonka, and the party of the first part shall immediately have full authority to dispose of said property as the said party of the first part may deem advisable, provided that if upon such sale a larger sum than $1,000.00 shall be realized, then in that event it is understood and agreed by the party of the first part that the party of the second part shall have the full benefit of the total amount realized from the sale of said property, less all legitimate expenses incurred in making the said sale.

      “Return of Property. — It is hereby agreed by the party of the first part that if all of the notes herein-before described shall be promptly taken up by the party of the second part as they mature, then the party of the first part hereby agree promptly to deed back to the said Dale A. Smith of the second party the parcel of Lake Minnetonka property above described.
    “It is hereby understood that both parties to this agreement have read each article carefully and all the conditions set forth in all the articles are hereby agreed to, and it is further agreed between both parties hereto that there shall be an understanding or agreement outside of this written instrument.
    “Signed, sealed and delivered in duplicate this 29th day of March, 1911.
    “John D. Gruber Co.,
    “By John D, Gruber, Pres.
    “Dale A. Smith,
    “Clarence R. Smith.
    “R. B. Campbell, Witness.
    “Lillian A. Jeffery, Witness.
    “Subscribed and sworn to before me this 29th day of March, A. D. 1911.
    “Lillian A. Jeffery, Notary Public.”
    The “manufacturer’s usual warranty” referred to in the customer’s order follows:
    “Warranty and Agreement.
    “International Harvester Company of America (incorporated) warrants the within described engine to do good work, to be well made, of good materials, and durable_ if used with proper care. If upon one day’s trial, with proper care, the engine fails to work well, the purchaser shall immediately give written notice to International Harvester Company of America, at Chicago, Illinois, and to the dealer from whom it was received, stating wherein the engine fails, shall allow a reasonable time for a competent man to be sent to put it in good order, and render necessary and friendly assistance to operate it. If the engine cannot then be made to work well, the purchaser shall immediately return it to said dealer, and the price paid shall be refunded which shall constitute a settlement in full of the transaction.
    . “Use of the engine after three days, or failure to give written notice to said company and said dealer, or failure to return the engine as above specified, shall operate as an acceptance of it - and a fulfillment of this warranty. No agent has power to change the contract of warranty in any respect.
    “This express warranty excludes all implied warranties, and said company and said dealer in no event shall be liable for breach of warranty in an amount exceeding the purchase price of the engine. If within ■ ninety days’ time any part proves defective, a new part will be furnished on receipt of part showing defect.”
    In the month following, April, 1911, the outfit was shipped to South Dakota, where it was unloaded by defendants about April 27th, and immediately put in operation. After a trial of a day or two defendant Dale A. Smith wrote plaintiff as follows:
    “The land we are plowing is somewhat rolling and rather tough in places. We aré pulling the six plows on the down grade and fiye back on the up grade. I think the engine is a dandy, also the plows, when we get them set right. I may be hard to please but I think the plows can be made to pull easier and do better work and yet several farmers who have watched us at work say that the work can’t be better.”
    On May 3, 1911, defendant wrote plaintiff as follows:
    “The plow expert showed up Saturday and on Sunday adjusted the plow in fine shape and it is a dandy.”
    Then follows a detailed statement of certain engine troubles. On May 4, 1911, a letter from defendant to plaintiff contains the following:
    “As you note in my last letter the plowman was here and the plows are-working fine. On some of the bouts the engine pulled the six plows with lots of reserve power, but where I have hills or sharp knolls or blow outs to contend with I have to cut down the plows. She pulled five plows and the roller nicely, too.”
    On May 13th, defendant again wrote plaintiff a letter in which we find the following:
    “Have been getting along nicely with the engine where I have been working but I can’t keep supplied with gasoline as there is practically none being shipped in either at Firesteel or Isabel. * * * I have a nice job started, 80 acres, one mile long. Make a round trip in 50 minutes with four plows and roller. I had considerable trouble with the timer. Couldn’t make it stay right, but have it set tight now and think the engine is giving a good account of herself, although I am disappointed in not being able to pull more than four plows.”
    On May 19, 1911, defendant wrote the plaintiff a typical letter, excerpts from which follow:
    “Wednesday morning we started the engine with five plows and roller because she had made easy work of four or five the day before. She worked easily with plenty of reserve — exploding from two to seven or eight times and then skipping. The average was about four and five explosions to one skip. I thought that was not working her too hard as the expert and a book he gave me said the average should be about six explosions then skip under a normal load. That forenoon we made six two mile bouts plowing about 7% acres. That pleased me and I felt satisfied that I had the engine I wanted and could plow about 15 acres a day. After dinner we started her, filled the water tank and run about half a mile with no load but herself and she began to miss fire and stopped. We couldn’t find anything wrong and after about a half hour started her with practically no trouble, plowed a little, went a mile and the same thing happened. Went over the wiring, cleaned the magneto and in about two hours she started again and run like a top, fine and dandy. After another mile she misfired and stopped again, and we couldn’t start her. So I went to Isabel and wired for an expert. Aberdeen says there will be one here today and tomorrow. Yesterday afternoon my brother started it again and plowed about two rounds. This morning we have plowed about two rounds with two stops. We have hunted the darned thing over and over and can’t locate the trouble — batteries, wiring, magneto, spark plugs, fuel supply, compression. Can’t locate it and am mighty anxious to keep working. The engine has not given me two successive days’ work of 10 hours each since I have had her without bucking. And I want to see some one get at least that much work out of her before I’ll think she is worth a damn. Some of the troubles are trivals — like a connection working loose and one to be expected and I don’t recall having the same difficulty twice. * * * If the engine will only work as it has for a day and a half at a stretch I can plow 15 acres a day allowing plenty of time for oiling, wiping and looking it over, but if it is going to keep on breaking I’ll be glad when I have it paid for and sold to somebody else.”
    Following this letter a suggestion was made by plaintiff that defendants hire an expert to operate the machine. On May 25, 1911, defendant wrote as follows:
    “I have gotten two good solid days’ work out of the engine without any expert. Put in new batteries, others were weak. Going fine; plowed between 14 and 15 acres yesterday. Think I will put on a night shift if gasoline comes. Forget the holler I made — I’ll win out yet.
    “Dale A. Smith.”
    Various letters follow from defendant to plaintiff’s president, until on June 19, 1911, Dale A. Smith was laid up with rheumatism. On that date he wrote a letter in which the following appears:
    “I can’t write my opinion of the I. H. Co.’s engines for it is uncomplimentary. I wanted one and I’ve got it — and got it right. But if I was a dealer in engines I would look for one that was substantial enough to work on level ground without falling to pieces. This is no reflection on you, John, but I am surprised that the I. H. Co. build a machine with so many weak features. I do not think it any reasonable excuse that others have trouble, also. No one should be justified to taking a man’s good money for such inferior construction.”
    Defendants continued to use the outfit with indifferent success during the remainder of the season 1911, making frequent complaints to plaintiff with reference to engine trouble, but occasionally speaking hopefully. To all the letters written by defendant to plaintiff, plaintiff, through its president, replied at large, giving such advice as his experience warranted and allowing such concessions as to payments as défendants’ situation demanded. Late in October, defendants’ house on the Minnesota property, which had been deeded to plaintiff as security, was destroyéd by fire. The insurance on the same amounted to $500, which was paid to plaintiff and credited upon defendants’ account, less $50, which was returned to defendants by plaintiff to help them through the winter. Defendants again • started the outfit in the spring of 1912, and on April 24th wrote a letter to plaintiff, in which we. find the following:
    “The last two days I have been plowing. The engine is working good but the plowing is hard. Broke a spoke in the right driver today — the wheel with the cracked hub that I have spoken of before. Had the spoke welded and I guess it will hold all right. Only lost three hours’ time but hope no more will break. The springs on the ignitor are getting worn as is the packing in the water pump so I will order those and have them on hand when I need them.”
    On July 8, 1912, after defendants had had the outfit in their possession for upwards of a year, in response to a letter written by plaintiff, asking what repairs they believed they were entitled to have furnished and why, defendant wrote to plaintiff to the effect that the cylinder and hubs of the drive-wheels had given evidence of defective workmanship or material. In this letter defendant said:
    “Other defects in the engine such as the pump, detent arm, rocker arm, roller shifter, and various other troubles I presume aré due to the type of engine and wear and tear and cannot be called defective workmanship.”
    On the same date, in another letter, defendant says:
    “I realize fully the fine treatment I have had from you, and that the encouragement you have given me has kept my courage up when I felt more like starting the engine going and letting it run wild across country, hoping it would land in hell, if there was one for gas engines. I also realize that I have it to pay for it and I want to get as near ‘value received’ as possible, and I believe fully that I will be disappointed in that as the engine had never given indications of doing 50 per cent, of the work it should do in a season. I want to use it right away as I have work engaged.”
    During the balance of the year 1912, correspondence between the parties continued, consisting largely on the part of defendant of complaints as to the working of the engine, and on the part of the plaintiff of suggestions as to how conditions might be improved. During this period, too, there was much correspondence with reference to postponement of payments due from defendants to plaintiff on account of the engine outfit. In the spring of 1913, plaintiff caused an attachment to issue against defendants’ farm in Michigan. After that time further negotiations were had between the parties as to the sale of the Michigan property and the application of the funds arising therefrom to defendants’ indebtedness, but nothing appears to have been accomplished in that line.
    In the present suit plaintiff seeks to recover upon one of the notes given by defendants at the time of the purchase. The defendants interposed a plea of the general issue with a notice under which they claimed to be able to show that the written contract was made and the note in suit given under and by reason of “the following representations, agreements, guaranties’and warranties upon the part of said plaintiff.” Then follow averments of certain alleged verbal warranties said to have been made by plaintiff to the defendants, among them the following:
    1. That the machinery sold was “all of the best make and material, and superior to all other kinds of like machinery and farm utensils, and would under all conditions and circumstances meet the representations and claims made for the same in the advertising matter of the manufacturers thereof,, and that they, the said plaintiffs, would guarantee and warrant their statements in that respect to be true.”
    2. “That it [said gas tractor] would prove perfectly satisfactory in every way to said defendants, and would prove efficient in doing the work which defendants intended to accomplish therewith.”
    3. “That it would plow, harrow, drill and roll at least 15 acres of land per day, without annoyance, hindrances or trouble; and that said defendants could and would be able to plow 1,000 acres during any one spring season; and that said engine, and all other machinery was complete, sound, and practical in construction, and not defective in any way, and was built of good material, and sound mechanism.”
    The foregoing are but a few of the alleged oral warranties, made by plaintiff’s, president to the defendants. The plea proceeds to negative each of the said alleged warranties, and claims damages, on account of the failure of said alleged warranties in the sum of $5,000.
    The trial started on the 8th day of February, 1915, and after it had been in progress, a week, on February 15, 1915, defendant filed an amended plea and notice, setting forth, in substance, the same alleged statements contained in the original notice, but defendant claimed that said alleged statements constituted fraud, and that therefore there was no consideration for the note sued upon. Two special questions were submitted to and were answered by the jury as follows:
    “(1) Q. Was there any consideration for the notes given by defendants to plaintiff?

      “A. Yes.
    “ (2) Q. Were the defendants induced to enter into the contract of purchase of the machinery in question by the fraudulent and false statements, made by the plaintiff’s agents or officers?

      “A. Yes.”
    A verdict was rendered in favor of the defendants.
   Brooke, J.

(after stating the facts). The first two assignments of error argued in appellant’s brief relate to the admission of certain testimony. While we are of opinion that the testimony of which complaint was made was immaterial to the issue, its admission can scarcely be regarded as prejudicial error.

The third assignment of error relates to the following matter: On April 4, 1913, plaintiff’s president

had written defendant a letter which contained the following:

“Our experience with gas tractors is that less than 10 per cent, of the people who buy gas tractors of any make whatsoever are successful. This is our experience and we have tried them all.”

Referring to this letter, defendant Dale A. Smith was permitted, over objection, to testify that if he had known that that had been the experience of the plaintiff, he would not have bought the engine. We are of opinion that the admission of this testimony was erroneous, for the reason that the letter containing the statement was dated more than two years after the contract covering the machinery was made, and there is no evidence in the record tending to show that at the time the contract was made plaintiff’s president had any such information or experience.

The fourth assignment of error is based upon the fact that defendant was permitted to testify, over objection, that plaintiff through its agents had represented prior to the sale that the outfit would plow 640 acres that spring. This testimony was inadmissible. The statement, if made, amounted merely to conjecture. Allis v. McLean, 48 Mich. 428 (12 N. W. 640); Truman v. Machine Co., 169 Mich. 153 (135 N. W. 89). In the course of the charge the following language appears:

“It appears from the testimony in the case that the defendants never entered into any contract with the International Harvester Company or any other manufacturing concern in relation to this machinery or outfit; that the order as originally given was to John D. Gruber Company, and accepted by said John D. Gruber Company, the plaintiff, and the only right of action or defense by way of no consideration for the notes or recoupment of damages is against the said John D. Gruber Company, and the defendants are not obliged in any way to look to any other concern, corporation, or person. If John D. Gruber Company acted in good faith and sold this machinery, including this tractor engine, to the defendants relying upon the manufacturer’s guaranty or warranty, and that has not been fulfilled, then and in that case they might have an action against the manufacturer, but the defendants must look directly and only to John D. Gruber Company.”

This instruction would seem to be clearly erroneous. The action at bar is between the John D. Gruber Company and the defendants Smith. The rights of either of the parties over against third persons not parties to the action are wholly immaterial. Upon this instruction the jury might very well conclude that a verdict in favor of the defendants would work no injury to plaintiff who might recover therefor against the manufacturer, the International Harvester Company. The court further charged:

“Also take into consideration this voluminous correspondence it has taken some days to read in your presence, not for the purpose of taking the representations that were made in these letters to vitiate and set aside this contract, but for the purpose of throwing light upon what the real' contract and arrangements were, what the representations really were made by the plaintiff and bearing upon the probability or improbability of whether the defendants believed and relied upon what the plaintiff said in that connection. How did the plaintiff treat this subject by virtue of this correspondence, does that throw light upon what the original arrangement was and what the representations were. How does the defendant in that correspondence treat the question. As though he understood what this machinery was, its quality, its condition, and its character and its efficiency and what it would do? Or did he rely entirely and rest entirely upon the strength of the statements made by the plaintiff’s agent Gruber, when he made this contract? And so you are to consider the testimony orally given by these parties and the several witnesses upon this question they gave in the depositions for the purpose of ascertaining what light you can receive upon the original arrangement. What was it? It is not to be set aside because of any representations made in the letters; they are only to be received as bearing upon what the original arrangement was; whether fraud, deceit, and deception was practiced by the plaintiff at that time, or whether there was later, under the consideration of the matters or arrangements, whether it was sold with a certain guaranty the law implies, and whether there has been damage suffered by defendants without fault on their part.”

We think error is properly assigned upon this por-, tion of the charge. The contract in question in the case was very voluminous, was in writing, and expressly states that it contains all the terms of the agreement. Under these circumstances it was clearly improper to permit the jury to consider the correspondence or the testimony as an aid in determining what the original contract was, when the parties thereto had reduced that contract to writing. Day Leather Co. v. Leather Co., 141 Mich. 533 (104 N. W. 797); Detroit Shipbuilding Co. v. Comstock, 144 Mich. 516 (108 N. W. 286).

With reference to warranty the court charged as follows:

“If you find that the defendants fully and fairly stated to the plaintiff, through its agents and representatives, the purpose and object of the purchase and the use that they expected to make of this machinery, and that the plaintiff through its agents and representatives fully understood the purpose, object, and intention and expectations of the defendants, and thereupon recommended and sold to the defendants the outfit in question, an implied warranty by law was created which was to the effect — that is, the law says that the machinery would do and perform the work, and it should be adequate and efficient for the purpose for which it was purchased. * * * But it makes no difference in this case whether the defendant saw this manufacturer’s guaranty or warranty or not, because there is an implied warranty that this, as well as all machinery or other property, where the seller knows the purchaser is buying the property for a special purpose and use, that the machinery and property will meet the requirements and. is suitable and efficient for that purpose, and of a kind, character, and condition qualified for such use.”

In so instructing the jury, the court was clearly in error. We have many times held that where there is a written contract containing an express warranty, no other or different warranty can be implied: Hall v. Car Co., 168 Mich. 634, 640 (135 N. W. 118); Remy, Schmidt & Pleissner v. Healey, 161 Mich. 266 (126 N. W. 202, 29 L. R. A. [N. S.] 139, 21 Am. & Eng. Ann. Cas. 74); Hallwood Cash Register Co. v. Millard, 127 Mich. 316 (86 N. W. 833); Dowagiac Manfg. Co. v. Corbit, 127 Mich. 473 (86 N. W. 954, 87 N. W. 886); D. M. Osborne & Co. v. Wigent, 127 Mich. 624 (86 N. W. 1022); National Cash Register Co. v. Blumenthal, 85 Mich. 464 (48 N. W. 622); Nichols, Shepard & Co. v. Crandall, 77 Mich. 401 (43 N. W. 875, 6 L. R. A. 412).

The jury found in favor of the defendants, because according to their answer to the second special question the contract was induced by fraudulent representations made by plaintiff’s agent. These representations, according to the testimony, and briefly stated, consisted in the following:

(1) That the engine had sufficient power to haul six gang plows with breaker bottoms, a packer, and a drill.
(2) That it had ample power to haul the same at the rate of 2 to 2miles an hour.
(3) That it would plow at least an acre an hour.
(4) That the said defendants could pay for the said machinery and outfit out of the earnings of the same.
(5) That any man of ordinary intelligence, after a few hours of instruction, could operate the same.
(6) That the engine and machinery were first-class and the best that was made, and would be sufficient to meet all the requirements and demands of said defendants in their operation of plowing, as stated by the plaintiff.
(7) That it would plow an acre per hour at a cost not to exceed a dollar an acre (Amended plea, Rec. p. 11).

It is a fact worthy of note that in the very voluminous correspondence carried on during a period of two years between the defendants and the plaintiff, defendants at no time charged plaintiff’s agent who effected the sale with any misrepresentation in connection therewith.

With reference to Nos. 1, 2, 3, and 7 the representations, even if made orally, before the execution of the contract, would clearly fall within our holding in the case of Detroit Shipbuilding Co. v. Comstock, supra, and Linderman Machine Co. v. Shaw-Walker Co., 187 Mich. 28 (153 N. W. 34).

Nos. 4 and 5 fall within that class of representations commonly known as “puffing,” and No. 6 is covered by the written warranty in the contract itself.

It is the claim of defendants that the contract was rescinded in October, 1912, after two full seasons of operation. Aside from the fact that the contract itself provides for the time in which defendants may rescind after trial, it is clear that such delay as was indulged in by the defendants in this case is wholly beyond reason. Gill & Co. v. Gaslight Co., 172 Mich. 295 (137 N. W. 690); Emert v. Nibblink, 179 Mich. 335 (146 N. W. 120).

In addition to this, after the alleged rescission, defendants continued to use the outfit, plowing 75 or 80 acres with it in the spring of 1913 and doing further work with it during 1914. Under our own authorities, rescission under such circumstances is impossible. Kupfer v. Clothing Co., 141 Mich. 325 (104 N. W. 582); Hakes v. Thayer, 165 Mich. 476 (131 N. W. 174); Linderman Machine Co. v. Shaw-Walker Co., supra.

Under the proof as it appeared at the close of the testimony in this case, we are of opinion that the plaintiff’s first request to charge, which was for a directed verdict in its favor, should have been given.

The judgment is reversed, with costs, and a new trial ordered.

Kuhn, C. J., and Stone, Ostrander, Moore, and Steere, JJ., concurred. Bird and Person, JJ., did not sit.


author: Steere, J..

text:
    VILLAGE OF MANCHESTER v. CLARKSON.
    1. Highways and Streets — Prescription — Easements — Public Alley — Question for Jury.
    In an action by a village to recover a delinquent sewer tax, evidence of tbe use made of the alley, in which the sewer was laid, by the public for more than 15 years, and defendant’s notice of said use, raised an issue as to whether said alley was a public way by prescription, under section 4307, 1 Comp. Laws 1915, which should have been submitted to the jury.

      2. Same — Statutes — Limitation of Actions — Prescription — Notice.
    Such statute in all such cases is a fair notice to the owner that, if he means to dispute the rightfulness of the public use, he must assert his right within the prescribed period.
    3. Same — Municipal Corporations — Public Improvements — Easements.
    That public alleys involve easements in the nature of ways for the installation of water pipes, sewers, and other urban services for the general welfare, under municipal regulation, is well settled.
    4. Same — Action oe Counsel — Estoppel.
    Said village was not estopped, as a matter of law, from asserting rights acquired under said user, by the action of its attorney in attempting to obtain a right of way for the sewer from defendant and others.
    5. Same — Prescription—Notice—Directed Verdict.
    In view of the well-known rule that actual notice to the owner is not required, if the user is. such that he ought to have known of it, the court was in error in directing a verdict for defendant.
    6. Same — Prescription—Shape—Controlling Question.
    The fact that the alley was crooked is immaterial, as it is the use made of it by the public, rather than its shape, which is controlling.
    Error to Jackson; Parkinson, J.
    Submitted October 17, 1916.
    (Docket No. 166.)
    Decided March 30, 1917.
    Rehearing denied June 1, 1917.
    Assumpsit in justice’s court by the village of Manchester against Edgar B. Clarkson for the recovery of a delinquent sewer tax. From a judgment for defendant, plaintiff appealed to the circuit court. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      A. J. Waters (F. M. Freeman, of counsel), for appellant.

      A. F. Freeman, for appellee.

       On public easement acquired by prescription, see note in 11 L. R. A. 55.

   Steere, J..

This action was brought under section

2848, 1 Comp. Laws (1 Comp. Laws. 1915, § 2721), to recover of defendant a delinquent tax of $46.55 imposed by special assessment upon two lots owned by him in block 22 of the village of Manchester as his proper proportion of the cost of a sewer which ran centrally through said block across his two lots conveniently back of business buildings located upon them.

Acting upon a petition of property owners in the district to be affected, the village council of Manchester in the year 1914 decided that the proposed sewer was a necessary public improvement, and instituted proceedings to construct the same under authority given by statute. To defray the cost a special assessment was levied on property in the block on the basis of resultant benefits. The various steps pointed out by statute for such proceedings appear to have been complied with and no serious question is raised as to them. Defendant’s reasons for refusing to pay the tax assessed against him involve, as calling for consideration, but the one question of whether the assessment is void because the sewer was run across his private property without permission.

On an appeal by plaintiff from an adverse decision in justice’s court the case was tried by jury in Jackson county. The trial court rightly held that the controlling issue was whether the sewer followed a public alley established by user, indicating during the progress of the trial that was an issue of fact for the jury, but at conclusion of the testimony finally held as a matter of law plaintiff’s testimony failed to raise an issue of fact upon that question, and directed a verdict for defendant. The substance of plaintiff’s assignment of errors is that the evidence squarely raised a controlling issue of fact, in deciding which the court invaded the province of the jury.

Block 22 of the village of Manchester is located centrally in the business district, extending east and west on the north side of the principal business thoroughfare, known as Exchange Place street. Its front on that street is fully occupied with buildings devoted to business, including a hotel, bank, post office, stores, shops, etc. The block is said to be ten rods wide, and is apparently about three times as long, although no scale is furnished with the plat found in the record. It is otherwise bounded on the east end by the Raisin river, over which is a bridge on Exchange Place street, on the north side by a back street called Madison, apparently ending at the river, and on the west end by Clinton street. The buildings fronting on Exchange Place are said to be from 60 to 80 feet deep, back of which, towards Madison street, the block is mostly unoccupied, there being, however, scattered over it a few outbuildings in the nature of storehouses, sheds, icehouses, barns, etc. It is conceded that no alley through this- block was provided in the platting or ever formally laid out and dedicated by the owners, but it is shown practically without dispute that for many years a well-defined passage, or driveway, has extended into the property connecting with Madison street at each end, but running centrally of the block east and west in the rear of a majority of the business places which front on Exchange Place, including defendant’s property. The sewer in question followed the east and west line of this driveway where it crossed defendant’s property, and it is claimed on behalf of plaintiff that by long-continued and undisturbed public use, coupled with assumption of control over it and expenditure of public money in its maintenance by the village authorities, an implied dedication and acceptance of it as a public alley or thoroughfare arose.

To support this contention plaintiff produced witnesses who testified that a plainly defined alley, or roadway, in common and public use had existed for many years extending centrally east and west through that portion of block 22 where the sewer crossed defendant’s lots, used by all who had occasion without objection from any one, generally known and understood to be a public alley or passageway, and that the street commissioner under authority of the city council had frequently improved and repaired it at public expense, openly and notoriously, for more than 15 years prior to the time of constructing a sewer along the portion of it running east and west directly back of defendant’s and other buildings. Witnesses testified that the “same beaten path” had been used for over 15 years, “a driveway up there the same as an alley.”

“The village has repaired that alley a good many times right where it crosses Mr. Clarkson’s premises.”
“I know of its having been used since about 1889 or 1890.”
“Any one that went on the premises or near the premises could clearly see there was a roadway maintained by somebody. It shows somebody is keeping it up.”
“Practically every year since 1890 work has been applied there by the street commissioner. I remember of one time putting on what is known as a horse road scraper and going up in there the whole distance.”

An old resident who had been in business there for many years, and had at times been a member of the village council, testified that this alley or driveway had been used generally for 30 years by everybody who had occasion to; that, while his place of business was across the river, he had himself used it every year ■until the last; that, before he was on the council it had been “customary for the village to maintain that alley and keep it up.” This witness further said in part:

“Along the rear lines of stores I should think the width was perhaps 20 feet. * * * There has been work done there. Because I was chairman of the street committee of the village I know it has been directed by the council, gravel drawn in, and I think at different times there was ashes drawn in. At one time we graded that all up through there in pretty good shape. At this particular time I think they only dr awed gravel. * * * I could not tell the dates; it was when I was on the council some ten years ago. * * *■ It was done in the daytime. Everybody saw it and everybody thought it was a good job. * * * There was a track there. It was a straight line until you got to the curve. * * * When I was a village official, it would be necessary to repair that for the safety of the public. * * * The council thought it was necessary to fix it, and went on and done some work there to my knowledge, when I was on the street committee and chairman of that committee. * * * I supposed it was a public alley belonging to the village. * * * There was nobody to my knowledge except the village keeping that alley or driveway in repair.”

This line of testimony, standing alone, would seem to at least raise an issue of fact upon plaintiff’s claim that a prescriptive easement of public travel over this way was established by user and public improvement of it years before the sewer was laid along it. Section 4061, 2 Comp. Laws (1 Comp. Laws 1915, § 4307), provides in part:'

“All roads that shall have been used as such for ten years or more, whether any record or other proof exists that they were ever established as highways or not, * * * shall be deemed public highways.”

Of this it was said in Ellsworth v. City of Grand Rapids, 27 Mich. 250:

“The statute in all such cases is a fair notice to the owner that, if he means to dispute the rightfulness of the public user, he must assert his right within the prescribed period in some way calculated to interfere with, disturb, or interrupt such use by the public, or by the institution of a suit for the judicial determination of the right.”

In Campau v. City of Detroit, 104 Mich. 560 (62 N. W. 718), this court said:

“We consider the statute one of repose, and the effect of user of land as a highway by the public is not dependent upon extrinsic evidence which might tend to show that, while the user implied a dedication, in fact none was made. The question is sufficiently discussed in the following cases: Bumpus v. Miller, 4 Mich. 159; City of Detroit v. Railroad Co., 23 Mich. 173; Ellsworth v. Grand Rapids, 27 Mich. 255; Nye v. Clark, 55 Mich. 603 [22 N. W. 57]; Coleman v. Railroad Co., 64 Mich. 164 [31 N. W. 47]; Kruger v. Le Blanc, 70 Mich. 76 [37 N. W. 880]; Adams v. Iron Cliffs Co., 78 Mich. 283 [44 N. W. 270, 18 Am. St. Rep. 441].”

The vexed question of distinction between a street, road, and alley, which sometimes becomes of more or less importance in the decision of a case, is immaterial here. The issue before us involves only plaintiff’s right to put in a public sewer along this claimed alley. That public alleys, involve easements in the nature of ways for the installation of water pipes, sewers, and other urban services for the general welfare under municipal regulation is well settled. In 2 Corpus Juris, p. 1151, it is said that the word “alley,” “when not qualified by the term ‘private,’ is conventionally understood in its relation to towns or cities” to mean “a narrow street in common use,” and in Leete v. Roney, 127 Mich. 92 (86 N. W. 519), the statutory period of limitation was held applicable to an alley.

Section 2775, 1 Comp. Laws (1 Comp. Laws 1915, § 2646), gives a village council supervision and control of all public highways, streets, alleys, etc., within the village, with like authority over the same as is given by the general laws of the State.

Defendant contended, and the trial court held, that, whatever user was shown, the attending circumstances negatived any implication of presumed dedication and acceptance, for the reason that the north portion of block 22, at the rear of the business buildings which faced on Exchange Place, was mostly unoccupied, open to the public, and in effect a common, because of crookedness of the traveled track claimed to be an alley and defendant’s lack of knowledge or acquiescence in its use, and the further fact that shortly before the sewer was built the then village attorney sought to and did obtain from most of the owners .of property across which the sewer ran their signatures to a writing granting the village a right of way, which defendant declined to sign. Of his refusal defendant testified:

“He [the village attorney] said he would take proceedings to condemn it. He merely said they were going to put the sewer there, and he came to get me to sign that paper, and I wouldn’t sign it, and he said he would force me to, or would take proceedings to build the sewer without my signing it, and I says, ‘Thát is your pleasure.’ ”

In directing a verdict the trial court laid stress upon the attempt of plaintiff’s attorney to obtain a right of way for the sewer from defendant and others, emphasizing it as a conclusive admission that no public alley existed there which operated as a matter of law to estop plaintiff from subsequently so claiming. It appears that in its course to the river the sewer also ran through land in block 22 not traversed by the claimed alley, but, taken at its strongest, the securing or attempt to secure a release was only evidence bearing upon a disputed question of fact, and did not as a legal proposition conclude the village from acting on and asserting rights already acquired. While very proper evidence for a jury to consider as tending td show that previous user was not under any claim of right, if the right of way had at that time actually been established by long-continued adverse use of and public improvements upon it, such right would not be divested by the fact of plaintiff’s applying for and obtaining á license to use it. Tracy v. Atherton, 36 Vt. 503. In finding and holding as legal ground for directing a verdict that defendant never consented to, acquiesced in, or knew .of any public user or improvements upon this alley, the court invaded the province of the jury in deciding issuable facts. It is true that defendant testified that he had lived in Jackson for many years, and had no knowledge of the claimed user or of any facts tending to establish this alley, or that the sewer had been built and one of his stores connected with it until this suit was brought, but he also testified that he visited Manchester about once a year on an average looking after this property, upon which he made repairs and improvements, when necessary, either attending to them personally or directing others to do so. Of an occasion when he rented a store which had been vacant for a time and fixed it up for his tenant, he testified:

“After that when any question of repairs of the approach to this so-called roadway in the rear of my building would come up I would either do it myself or have it done.”

If, as plaintiff’s witnesses testified, this so-called roadway, the approach to which he repaired, was a well-defined, improved, and regularly traveled driveway, such as any one could clearly see was “maintained by somebody,” extending along the block in a direct line conveniently at the rear of the business buildings, not only across his property, but that of others on each side, and eventually leading into one of the streets surrounding the block, the extent of his knowledge and acquiescence was clearly an issue of fact. The village clerk testified that he sent notice of the proposed sewer to defendant by registered mail, which the latter denied receiving. It is also shown that statutory notice of reviewing the special assessment was published in a local paper, which is the only notice required and which in law operated as a sufficient notice to all parties in interest.

Although a proper subject of inquiry in an issue of this nature, whether defendant-had actual knowledge of what was going on in connection with this roadway is not a controlling factor. In Bird v. Stark, 66 Mich. 654, 656 (33 N. W. 754), this court said:

“We do not think that actual knowledge of the adverse holding is required when the circumstances are such that the contiguous holder ought to have known it.”

And in Chabert v. Russell, 109 Mich. 571, 574 (67 N. W. 902), the following instruction to a jury was approved:

“In order to constitute adverse possession, the acts ¡of possession on the land claimed to constitute the adverse possession must be such as, if seen by plaintiff, would clearly apprise him that the party doing the acts claimed the ownership of the property.”

The rule upon this proposition is stated in 14 Cyc. p. 1148, as follows:

“The enjoyment must be of such a character that an ordinary owner of land diligent in the protection of his interests would have, or must be taken to have, a reasonable opportunity of becoming aware of that enjoyment.”

In denying plaintiff’s motion for a new trial the court stated as a controlling reason “because the shape itself indicates to me that the property owners never supposed the public were taking that, or it was becoming a public way and that the village itself never supposed that,” in that connection stating, in substance, that it appeared to the court in its ramifications more like an intestinal thoroughfare “inside of an abdomen * * * than it did like a roadway or alley.” It, however, impressed defendant’s counsel as “The Path the Calf Made,” under which title an elucidating poem of several stanzas is quoted in his brief, supplemented by a quotation from the prophet Isaiah touching those who make crooked paths and what will befall whosoever goeth therein. As these are the only authorities cited in counsel’s brief and reply brief, they have been considered with care. We are also advised how it appeared to counsel for plaintiff, but how it impressed the jurymen who sat in the case to decide the material issues of fact is not disclosed.

According to plaintiff’s evidence and the plat found in this record, the alley runs in a straight line lengthwise of the block for approximately half its length, crossing at right angles the property of defendant and other owners on either side. The sewer, which runs in a direct line east to the river, follows that portion of the alley running straight east and west. But in any aspect of the case the controlling question is the public use which has been made of this alley, rather than its shape. In Campau v. City of Detroit, supra, where it was contended, as here, that the “crookedness of the traveled track,” with other facts shown, overcame as a matter of law any presumption of dedication that might otherwise arise from uninterrupted use, the case was submitted to a jury, and an adverse verdict to such contention sustained. The extent to which any shown irregularities in its course militated against plaintiff’s contention that it was commonly recognized, traveled, used, and improved, according to surroundings, population, public convenience, and business necessities, in the same manner and to the same extent as if originally laid out by statute, was only an element in the case for the jury to consider in deciding the ultimate issue of fact.

For the foregoing reasons the judgment is reversed, with costs, and a new trial granted.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, and Brooke, JJ., concurred. Person, J., did not sit.


author: Steere, J.

text:
    HEINZE v. HEINZE.
    1. Landlord and Tenant — Life Estates — Grantor as Lessee— Consent of Grantor — Validity of Lease.
    Where a son executed a life lease to his mother of land willed to him by his father, after his father’s death, with the condition that she should not sublet without his consent, it cannot be contended that a lease back to him required his consent in writing.
    2. Same — Validity of Lease — Right to Possession.
    Where, previous to the execution of the life lease, the son had possession, but was not living upon the premises, if he recognized his mother’s rights under it, his possession thereafter would emanate f-rom her and be subordinate to her rights to the same extent as though they had gone through the idle ceremony of some physical delivery and redelivery of possession.
    3. Same — Life Lease — Right of Possession.
    The trial court was not in error in charging the jury that the mother, under the life lease, which was duly executed, had a right to the possession and. use of the premises.
    4. Same — Attornment—Instructions—Question of Pact — Burden of Peoof.
    The court also correctly instructed the jury that whether she asserted this right, and had an understanding or contract with the son whereby he recognized her right and agreed to attorn to her as a tenant, was a question of fact; and that unless there was an agreement by which he rented of her, he was not liable, in an action for the rent by the executor of her estate; the burden of proof being upon plaintiff.
    5. Same — Weight of Evidence — Trial—Question for Jury — Miscarriage of Justice.
    Where the evidence, which was in irreconcilable conflict, was sufficient to present an issue of fact for the jury as to whether defendant recognized his tenancy and agreed to pay rent, the question being one peculiarly within the province of the .jury, the judgment for plaintiff is not so against the great weight of evidence as to require reversal; nor can it be said that it affirmatively appears there has been a miscarriage of justice.

      Error to Clinton; Searl, J.
    Submitted October 9, 1916.
    (Docket No. 89.)
    Decided March 30, 1917.
    Assumpsit by William Heinze, executor’ of the estate of Margaret Heinze, deceased, against Ernest J. Heinze on certain promissory notes and for the recovery of rent due said estate. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      George P. Stone and William M. Smith, for appellant.

      A. L. Chandler and E. F. Wilson, for appellee.
   Steere, J.

The parties to this action are brothers. Plaintiff, as administrator of their mother’s estate, sued to recover from defendant an alleged indebtedness to said estate on certain promissory notes, for the value of some household goods claimed to belong to the estate and for the rent of certain real estate' during several years, with interest, the items claimed due and owing the estate by defendant, according to plaintiff’s bill of particulars filed under a declaration upon the common counts in assumpsit, aggregating $4,176.22.

The case was tried by a jury in the circuit court of Clinton county. As the issues developed under the testimony introduced, certain items in plaintiff’s bill of particulars were withdrawn by his counsel, and the court finally withdrew from consideration of the jury all questions except whether there was any rent owing on a 40 acres concededly rented by defendant from his mother, and as to a claimed agreement to pay rent for the use of a certain other 40 of an 80 acres on which she had a life lease, and its rental value. The jury rendered a yerdict in favor of plaintiff “for $2 per acre per year for the back 40 of the 80-acre tract for six years, making a total of $480.”

A motion was made requesting that this verdict be set aside on various grounds, amongst which it was urged and claimed that the same was contrary to the undisputed testimony, against the great weight of evidence, and a verdict should have been directed for defendant. In a written opinion upon this motion the trial court reached the conclusion that defendant’s contentions were “partly right and partly wrong,” and that there was evidence in the case raising an issue for the jury as to whether there was a contract, understanding, or arrangement between defendant and his mother that he should pay rent for the land, but, after a careful review of the testimony, determined there was no evidence showing an “understanding that defendant was to pay rent back as far as six years” before her death, held that the evidence would not warrant a verdict for more than half the amount awarded, and entered an order nisi granting a new trial unless plaintiff remitted accordingly, in which case the motion should stand denied. Thereupon plaintiff elected to file such remittitur, and judgment was entered on the verdict in his favor for $240.

Ernest Heinze, Sr., an elderly man, died in June, 1907, leaving a widow, ■ Margaret Heinze, and seven children, two of whom are plaintiff and defendant. At the time of his death he owned an 80-acre farm in Clinton county- upon which he resided and an 80 acres in section 25, Elba township, Gratiot county. He also owned jointly with his wife, as tenants by entirety, an 80 acres in section 26 of the same township, th.6 two 80’s separated only by an intervening highway. He left a will which, so far as material here, gave the 80-acre homestead in Clinton county to a then unmarried son named Gustave, who was living at home with his parents, subject to- a life estate to his widow, Margaret, and the 80 acres which he owned in section 25, Elba township, to his son Ernest, the defendant, who was. married, and over two years, previous to his. father’s death had been given possession and use of this. 80 with the understanding it was, or would be, his. There was a small house upon this property, but he resided with his. wife in a house across the highway located on the 80 acres in section 26 which his father and mother owned together, and which by right of survivorship became hers absolutely when her husband died. He continued to occupy this dwelling until 1910, when he moved into a house which he had built upon the land which his father had left him.

After the father died an unsigned, but fully prepared, life lease of the 80 acres in section 25 was found amongst his. papers, running from defendant Ernest J. Heinze to his mother, Margaret Heinze. The expressed consideration was $1, and by its provisions the grantor obligated himself to pay the taxes upon the leased premises. When her husband’s will was presented to the probate court Margaret Heinze also sent this life lease for defendant to sign, which he did before his father’s estate was finally settled and distributed; the executed lease being returned to his mother and kept by her until she died, in. December, 1914.

There was evidence as to buildings upon, and defendant’s use of and plans for making his home upon, the front 40 of the 80 acres, from which the court found it to be a homestead, and, the grantor’s wife not having joined in the life lease, the jury was instructed that only the back 40 could be taken into consideration in passing upon the issues submitted to them.

During the remainder of his mother’s life defendant had possession of and farmed the 80 acres left to him, paying the taxes thereon, and during much of the time also rented of his mother 40 acres of her land across the highway, where he continued to live until 1910, when he moved into a house which he had built upon his own land.

Following her husband’s death Mrs. Heinze remained on their old homestead for two or three years with her son Gustave, until he married, after which she lived at different places for varying periods with certain of her married children, and for a time upon her own place on section 26. It is indicated that her migrations were the result of dissatisfaction with environments where she happened to be staying at the time, or of disagreements and unfriendly feeling between her children by which she was influenced to leave one home and go to another. She apparently was in the full possession of her faculties, and in a way looked after her limited business affairs, keeping, or attempting to keep, some record of them in a little book, in which she made entries from time to time. This was admitted in evidence, excluding self-serving comments bearing on her legal rights.

The theory and claim of plaintiff is. that defendant signed the life lease to his mother understandingly while his father’s estate was in process of settlement, and she could elect to take under the will or statute; that he knew his. father’s intentions and purpose in preparing the lease, and in pursuance of such purpose, it was understood and agreed between him and his mother that he should retain possession of the land which his father intended him to have subject to that burden and attorn to her as tenant during the few remaining years of her life; that his denial of liability is an afterthought arising from family dissensions and anger over her going to reside with certain of her children with whom he was at enmity.

It is contended by him and in his behalf that he simply signed the life lease as a matter of form because his mother desired it to satisfy her other children; that there was never any agreement or intention he should pay her rent, but, on the contrary, it was stated by her and fully understood between them that he should not; that the lease, which provided the lessee should keep the premises, in repair and not sublet the same without the consent of the lessor, contained important obligations on her part, and, as. she did not take possession of the premises or sign the lease, it did not become a binding or enforceable instrument between the parties.

It is. undisputed she took the lease and kept it, and plaintiffs testimony shows that she demanded rent of defendant for the property it covered. If she sublet this, property to her grantor, it could scarcely be claimed essential to such transaction that she procure his consent in writing; and if, as claimed by plaintiff, defendant did recognize her rights under the lease, and in fact agreed to retain possession of the premises as her subtenant, paying her rent therefor, his‘thereafter possession would emanate from her and be subordinate to her rights to the same intent and extent as though they had gone through the idle ceremony of some physical delivery and redelivery of possession. He was not then living upon the property, and up to the time of his father’s death was. apparently but a gratuitous tenant at will. This instrument was executed by defendant in the presence of two witnesses, acknowledged by him before the judge of probate, and duly recorded in the office of the register of deeds.

We think the trial court committed no error in charging the jury that.the mother had a right under this instrument to possession and use of the back 40 described in it, that whether she saw fit to assert that right, and had an understanding or contract with defendant by which he recognized her right and agreed to attorn to her as a tenant for the use of the land was a question of fact, but, if she did not assert her right and saw fit not to put him off or rent it to him, simply permitting him to remain in possession of it —if there never was any agreement by which he rented it of her — plaintiff could not recover, and that the burden of proof rested upon plaintiff to establish a tenancy and agreement to pay rent by a preponderance of the evidence.

This contention, as we view it, is in its essential features primarily one of facts arising out of an irreconcilable conflict in the testimony of the members of this family. Defendant’s most meritorious assignments of error relate to whether there was any, or sufficient, evidence to support the reduced verdict upon the issue as finally submitted to the jury. It is particularly urged that the record is void of proof that defendant recognized a tenancy under the lease. Of the circumstances under which he signed the lease, a brother testified, amongst other things:

“Judge Merrill spoke to Ernest and asked him whether he knew about the lease, and.Ernest said he did, he knew all about it. Judge Merrill asked him to sign it, and he said he would and he signed it. * * * Judge Merrill told him, ‘This lease means rent,’ and now he says to Ernest, ‘Now, go to your mother and fix up some price and pay her.’ * * * He just nodded his head like and didn’t say any more.”

Of a subsequent interview, after dissensions had developed and defendant was residing on his front forty, this witness further testified:

“Mother says to him, T want my rent on that 80 acres you are living on,’ and he says, T won’t pay you a G-- d-n cent as long as you are living with Charley.’ * * * He just came from my place, and then was when he forbid her living there, * * * and says, ‘If you don’t get her out of there, I will send both of you to Ithaca.’ ”

Touching another interview, a sister-in-law of defendant testified in part:

“Ernest asked her, told her that he had a chance to sell this 80-acre farm and asked her to sign off the life lease. * * * She told him she would not do it; she told him she wanted her rent. He told her he didn’t have no money to pay rent. * * *”

A niece who was present testified:

“He said he had a buyer for the 80 acres, * * * and he wanted her to sign off and she told him ‘No,’ she would not sign off until he brought the buyer. Then he asked her to sign off again, and she says, T want my rights.’ He asked her what she meant by rights. She says, ‘My rent.’ * * * And he says, ‘You will get it; I will see that you get it’; but he wanted her to sign off, and she said, ‘No; you bring your buyer, and then I will talk with you.’ * * * He said that he would see that she got her rent; he would see that she got it if she signed off.”

We think these fragmentary excerpts from the testimony contain evidential support of an understanding or agreement that defendant should be holden to his mother for the use of the premises sufficient to make that question an issue for the jury, as the trial court found. Any attempt to review and analyze the conflicting and bitter testimony of the opposing witnesses in all its phases would serve no beneficial purpose. The credibility of those witnesses under the circumstances shown was peculiarly within the province of the jury, and we are not able to say from this, record that the verdict, reduced to the amount for which judgment was entered, is so against the great weight of evidence as. to demand reversal, or to conclude from an examination of the entire record that it affirmatively appears the errors complained of have resulted in a miscarriage of justice.

The judgment is affirmed.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, and Brooke, JJ., concurred. Person, J., did not sit.