author: Moore, C. J. Per Curiam.

text:
    YOUNG v. REEVES & CO.
    1. Cancellation of Intruments — Equity — Mortgages — Demurrer — Fraud.
    Averments of a bill of complaint that defendant by fraud and deceit induced complainant to execute a mortgage upon his Michigan farm, with notes collateral thereto, and a chattel mortgage, also to agree to transfer to defendant a threshing engine in exchange for a steam plow outfit, to be delivered to complainant at his property in Alberta, Canada; that defendant failed to deliver to complainant the steam plow that the parties had agreed upon but attempted to substitute therefor an old machine then in Alberta, .which had been tried and rejected, and was valueless, and not according to the agreement of the parties; and that defendant refused to surrender the notes and mortgage of complainant and was threatening to take from him the engine which he had agreed to transfer in part consideration of the sale, etc., stated sufficient ground for canceilation in equity, on demurrer to the bill.
    2. Same — Foreign Corporations — Parties.
    Defendant, who appeared and demanded a copy of the bill of complaint, subjected itself to the jurisdiction of the Michigan courts, although it was a foreign corporation having only a branch, office in the State, and although it claimed the subject of the suit was situated in Alberta, Canada.
    ON MOTION FOR REHEARING.
    Process — Waiver of Defects.
    By appearing generally in a suit and demanding a copy of the bill, defendant waived any objections to service of process on its alleged agent.
    Appeal from Van Burén; Des Voignes, J.
    Submitted June 17°, 1912.
    (Docket No. 105.)
    Decided October 7, 1912.
    Rehearing denied February 18, 1913.
    Bill by William H. Young and another against Reeves & Company, a foreign corporation, for the cancellation of certain notes and mortgages. From an order overruling a demurrer to complainant’s bill, defendant appeals.
    Affirmed.

      Thomas J. Cavanaugh, for complainants.

      Titus, Van Horn & Titus, for defendant.
   Moore, C. J.

The complainant filed a bill stating, in substance, as follows:

“ Humbly complaining, your orator, William H. Young, respectfully represents unto the court that he is a resident of the township of Hamilton, county of Van Burén, and State of Michigan, and of the age of 21 years and upwards; that on or about the 23d day of February, A. D. 1909, he was approached by one H. D. Bullen, a salesman representing Reeves & Co., a corporation organized, existing, and doing business at Columbus, in the State of Indiana, with a branch office doing business by permission of law and by license at the city of Lansing and State of Michigan.
“ The complainant is a resident of Van Burén county, Mich., and was residing therein on the 23d day of February, 1909. He owned a tract of land in Alberta, Canada, consisting of 320 acres. He also had a contract to break 420 acres. Reeves & Co. were manufacturers and makers of steam plows. On the day aforesaid an arrangement was made, whereby the complainant contracted to purchase of Reeves & Co., and Reeves & Co. to deliver to the complainant at Strathmore, Canada, a steam plow outfit, with all the appurtenances and appliances thereunto belonging. The consideration which complainant agreed to pay therefor was the turning over of a certain engine which was then in complainant’s possession at his farm in Van Burén county, Mich., and $4,650. A contract was made, and complainant gave his six promissory notes in the sum of $775 each. And to secure the payment of these notes he gave a mortgage on lands then owned by him in Van Burén county. This mortgage was given on the 24th day of February, 1909, recorded in Liber 87 of Mortgages, at page 51.
“ The bill charges that, although the complainant went to Strathmore in good faith, for the purpose of taking possession of the outfit, and for the purpose of complying with the terms of the contract, yet the said Reeves & Co. did not and would not deliver to him the engine, plow and other equipment described in the contract, nor any other engine of like kind, quality, and perfection, but did have at said point, in its possession, an outfit which was then in litigation, which it had before that time sold to another, and which upon trial had been rejected, and which was entirely valueless, worthless, and of no use; that it was then the intention of Reeves & Co., when said contract was made with him, to put onto him this worthless machine; that it had no intention at said time of delivering to him an engine and plow and other equipment, such as was described in the contract; that it then knew that it did not own the outfit, and that said outfit was in litigation commenced by it, and that in such litigation it claimed and alleged that the title to the outfit which it attempted to deliver to complainant was in another, and that the title thereto was uncertain and undetermined; and that its conduct surrounding the attempted delivery of this outfit was a pretext, for the purpose of delaying the delivery of the goods described in the contract.”

It is further averred:

“That said Reeves & Co. wrongfully, fraudulently, and deceitfully procured the making of said contract, procured said notes and said mortgage, and thereafter wrongfully, fraudulently, and deceitfully, and without any just cause, failed and neglected to deliver the engine, plow, and other equipment which were the consideration for the making of said notes, and wrongfully, fraudulently, and deceitfully insisted, as a condition precedent to such delivery, that a chattel mortgage be given upon said outfit, and that said contract is now absolutely void and the notes and mortgage without consideration. That said contract, notes, and mortgage were secured from him and from said Shepard, without any consideration whatever, by false and fraudulent representations as to the value of the article described in the contract, by false and fraudulent representations as to its fitness for the purpose sold,- as to its durability and quality. That after said papers were secured Reeves & Co. refused to deliver the property contracted for, and, in order to further cheat, wrong, and defraud complainant, tried to turn out a worthless, tried, and rejected outfit, to which it had no title, and which was then in litigation in Canada, and refused, upon request, to surrender the contract, cancel the notes, and discharge the mortgage. That it was threatening to take from the possession of the complainant a certain engine which he then had, and which he agreed to turn over as a part of the consideration for the breaking outfit, and, in order to further wrong, injure, and defraud and cheat the complainant, he feared that it would sell, transfer, and assign said promissory notes and mortgage to an innocent purchaser.”

The following relief is prayed:

“ (a) That a certain contract, dated February 23, 1909, may be canceled, set aside, and held for naught, and the defendant directed to surrender and deliver the same to the complainant.
“ (6) That the notes described in the bill of complaint be delivered up, and that the mortgage recorded in Liber 87, p. 51, may be canceled, set aside, and held for naught.
“(c) That the defendant, its agents, etc., be enjoined from selling, assigning, transferring, and pledging the notes, or from selling, assigning, transferring, or pledging the mortgage.
“(d) That the defendant, its agents, etc., be enjoined from moving, attempting to move, taking, or attempting to take, possession of a certain threshing machine engine which was then in possession of the complainant, William H. Young.
“(e) And that the complainants be awarded such other relief as should be agreeable to the facts.”

The defendant, Reeves & Co., appeared and demurred to the bill of complaint, setting forth four different grounds of demurrer. An order was entered, overruling the demurrer and giving the defendant time to answer the bill of complaint.

The record shows that the subpoena in this case was served upon the duly authorized agent of defendant company at Lansing, Mich. See Act No. 3, Pub. Acts 1909.

The claim of defendants, as stated in the brief, is:

* ‘ (a) That complainants have a full, complete and adequate remedy at law.
“(6) That complainants’ cause of action, if any, arose at Strathmore, Alberta, Canada; that, defendants being a foreign corporation, the courts of this State have no jurisdiction of the parties or of the subject-matter involved in this suit.”

It goes without saying that by interposing the demurrer defendants admit the averments of the bill of complaint to be true. A reading of the bill of complaint will make an extended argument unnecessary. A reference to the following will show that the lower court was justified in overruling the demurrer: John Hancock Mutual Life Ins. Co. v. Dick, 114 Mich. 337 (73 N. W. 179, 43 L. R. A. 566); Fred Macey Co. v. Macey, 143 Mich. 138 (106 N. W. 722, 5 L. R. A. [N. S. ] 1036), and the many cases cited therein; Roberts v. Sholes, 144 Mich. 215 (107 N. W. 904); Kimmerle v. Gas Co., 159 Mich. 34 (133 N. W. 565).

The decree is affirmed, with costs. Defendant is allowed 30 days in which to answer.

Steere, McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.

ON MOTION FOR REHEARING.

Per Curiam.

An opinion was handed down in this case, which appears ante, 363 (137 N. W. 701). A motion is made for a hearing for the following reasons (we quote from the brief of counsel): '

It is stated in the opinion filed in this cause by this . court:
“ ‘ The record shows that the subpoena in this case was served upon the duly authorized agent of defendant company at Lansing, Michigan. See Act No. 3, Public Acts 1909.’
“ It appears from the record in said cause that the bill of complaint was filed May 19, 1909; that May 19, 1909, a subpoena was issued in said cause; that service was made June 7, 1909; that Act No. 3, Public Acts 1909, was not in force or effect at the time of the filing of said bill of complaint or at the time the service was made.”

A reference to the original record shows that after the subpoena was served a general appearance was entered in the case, and a demand was made for á copy of the complainant’s bill of complaint.

The application for a rehearing is denied.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    HIBBLER v. DETROIT UNITED RAILWAY.
    1. Highways and Streets — Negligence —Street Railways — Snow and Ice — Use oe Snowplow.
    In traveling along a highway upon which ran an electric interurban road, that in time of deep snow cast it into the traveled portion of the road so as to render the highway difficult of use and so as to make it necessary to drive, in several places, along the track, plaintiff was not guilty of contributory negligence for driving upon and along the tracks, exercising at the same time due vigilance and caution..
    2. Street Railways — Negligence.
    It is the duty of employés of an interurban railway operating its cars along the traveled highway to have due regard for known conditions where the highway is so obstructed with the snow that the public have been obliged to drive on the tracks, and to take reasonable precautions to avoid accidents which the conditions render more probable.
    3. Same — Highways and Streets.
    Where evidence tended to show that, in places, the snow had drifted next to the fence and was very deep, that it had been thrown at such points on the road by defendant’s snowplow, making a pile from three to four feet high, and in some places a sleigh could not travel on the beaten road, that the snow lay in chunks and uneven, and the public in numerous places had to drive on the tracks, presented an issue for the jury as to defendant’s negligence in contributing to the impassable condition of the highway.
    4. Same.
    And while it was not unlawful for defendant to shovel snow from its tracks within reasonable limits and accumulate it on adjacent portions of the road, defendant was bound to have due regard to the rights of the traveling public, and not. render other portions of the highway impassable.
    5. Same — Speed of Car — Negligence in Stopping.
    Evidence that the motorman first saw plaintiff and his team on the track 600 feet away, that he was running from 40 to 45 miles an hour and kept the power on until he reached the foot of the hill from which he first caught sight of plaintiff, that he then reversed the power, applied the brakes and blew the whistle, that under normal conditions he could stop the car at that rate of speed in about 400 feet, if he used the reverse, and that the car struck the rig with great force, killing two animals which were behind the wagon, and running several rods, shoving the dead animals ahead of it, raised an issue as to the motorman’s negligence.
    6. Same — Trespass.
    Plaintiff could rely on the motorman’s performing his duty to keep sufficient watch of the track to have his car under reasonable control; and he was not a trespasser.
    7. Same — Care Required.
    Persons passing along the tracks under such circumstances are required to exercise only that degree of care which a reasonably prudent person would exercise under like conditions.
    Error to Oakland; Smith, J.
    Submitted June 12,1912.
    (Docket No. 61.)
    Decided October 7, 1912.
    Case by Philip Hibbler against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      James H. Lynch,ion appellant.

      Andrew L. Moore, for appellee.
   Steere, J.

This is an action brought by plaintiff to recover damages for personal injuries sustained on the evening of December 31, 1910, through being struck by one of defendant’s interurban cars, while he was driving a team of mules, drawinga wagon, along the highway between the cities of Detroit and Pontiac. The case was tried before a jury in the circuit court of Oakland county, resulting in a judgment on verdict for plaintiff, in the sum of $1,500, and defendant has removed the proceedings to this court for review on a writ of error, claiming that a verdict should have been directed in its favor.

Defendant owns and operates a double-track, electric railway system, running along said highway, connecting the two cities, and passing through the two villages of Birmingham and Royal Oak. This highway, known in its early history as the “ Saginaw Pike,” is conceded to be approximately 60 feet in width between the fences. Most of the way outside the two terminal cities, and including the place of the accident in question, defendant’s tracks are laid along the easterly side of the highway, occupying 32 feet, and leaving 28 feet of the original 60 feet for general public travel. Between Pontiac and Birmingham the ties are laid practically on a level with the roadway, the rails resting on the ties and projecting 4£ inches above. On the morning of December 31, 1910, the plaintiff, a farm laborer, was sent, by a Mr. Simpson, his employer, to Detroit, with instructions to bring back to Pontiac a team of mules, a wagon, and two horses, recently purchased by Mr. Simpson. Plaintiff left Detroit on his return shortly after noon, driving the mules hitched to the wagon, and leading the horses tied behind. The wagon was a heavy one, with tires If inches in width. It was winter weather, and there was considerable snow on the ground, which had drifted some in certain places. The testimony is not harmonious as to the exact depth of snow, or extent of its drifting. Plaintiff appears to have progressed rather slowly, and is shown to have arrived at Birmingham, which is seven miles from Pontiac, after nightfall. He stopped there to get warm, it being a cold night, and while there drank a glass of beer. Resuming his journey, he had more or less trouble driving on the usually traveled portion of the highway. His mules were sharp shod, and with their small feet did not travel easily in the snow. In places he found it necessary, or at least easier, to drive along the railway track, from which the snow had mostly been removed. It is the claim of plaintiff that at certain points on the route the snow had been thrown on the side by defendant’s snowplow in such quantity and in such manner as to render the usually traveled way difficult and practically impassable. When within about a mile of Pontiac, at what plaintiff claims was a bad portion of the road, which compelled him to drive along the railway track, a south-bound car, running at the rate of 40 miles an hour, came in sight over a hill in front of him. As soon as he saw it, he at once started to turn off the track, but owing to a steep bank of deep snow at the side, in which one of his mules got fast, he could not do so iñ time, and the car caught him. Three of the animals were killed, and plaintiff was seriously injured. His right leg was broken, his shoulder and neck sprained, and his face and head were cut with glass and bruised by his striking the vestibule of the car. He was under the care of a physician and confined in the hospital for about a month, experiencing much suffering. No issue is raised as to the nature, manner of receiving, or extent of his injuries, or the size of the verdict, provided it were shown any legal liability on the part4 of defendant existed.

The declaration alleges, and plaintiff claims to have shown, two grounds of recovery: First, that defendant carelessly and negligently deposited from its tracks upon the traveled way large quantities of snow, piled up in such manner as to render it unsafe and unfit for travel; second, that defendant’s motorman ran his car in a careless and reckless manner, regardless of the rights and safety of plaintiff, although, had he been attentive and vigilant, he could have seen plaintiff and stopped his car in time to avoid the collision, or, at least, to have greatly reduced its force and effect. Defendant’s request for a directed verdict and subsequent motion for a new trial were denied; the issues there raised being comprehended within these two assignments of error:

“That the court erred in submitting the cause to the jury, for the reason that, under the evidence in said cause, the plaintiff was himself guilty of contributory negligence,” and “that the court erred in submitting the said cause to the jury, for the reason that under the proofs in said cause the said defendant was not guilty of any negligence which contributed to the bringing about of the injuries of which plaintiff complains.”

It appears that during the winter, and prior to the accident, considerable snow had fallen, accompanied at times with some drifting. Defendant, as occasion required, used a snowplow to clear its tracks. The plow proper was a V-shaped projection in front of the car, in addition to which there were attached to the sides of the car wings, made of oak planks, about 15 feet in length, to push the snow still farther back and away from the tracks. These wings were so attached to the car that they could be swung at. different angles and set at various pitches, as desired. The snow plowed from the westerly track going to either side accumulated partly on the traveled way and partly on the space between the two tracks, called by the railroad men the “devil strip,” for reasons not given, but which can be imagined in times of deep snow. Defendant’s testimony shows that it plowed the snow from the entire system on December 26th, and went over the road with the snowplow practically each day thereafter until the accident; the plow being run between Pontiac and Birmingham on that day.. There is much testimony tending to show that the 28 feet of roadway beside the tracks was in bad condition, heavy with snow and difficult to travel at that time, and that the action of defendant in throwing the snow from its tracks upon it contributed largely to that condition.

If the portion of the highway to the west of the tracks was rendered impassable, or unsafe for travel in places by reason of defendant thus throwing the snow from its tracks upon it, a person having occasion to travel along that public highway would have a right to drive upon the tracks, where necessary to effect a passage, exercising, of course, reasonable caution, vigilance, and care.

It was also the duty of defendant’s employés in operating its cars along a traveled highway, to have due regard for known conditions, and take reasonable precautions to avoid accidents which such conditions rendered more probable.

Numerous witnesses testified as to the deep snow and bad condition of the road, and the necessity of driving onto the tracks in places to effect a passage. There was testimony that the snow in places had drifted next to the fence and was very deep; that at such places it had been thrown up by the plow onto the road next to the track from three to four feet high; that in some places a sleigh would slue so it could not be kept up on the traveled way; that the snow was thrown up by the snowplow in chunks and bunches, and was not level; that, where the accident happened, there was so much snow, and the road so bad that other rigs had also been obliged to drive along the railway tracks; that on the night of the accident an automobile, attempting to go from Detroit to Pontiac, encountered conditions near the place of accident, which compelled the driver to abandon the trip and leave his car there for the time being. The evidence produced by plaintiff along these lines was abundant to present an issue for the jury as to defendant’s negligence in causing, or contributing to, a condition of the highway which rendered it necessary for those traveling it to go upon defendant’s tracks at different places in order to get through.

It was not unlawful in itself for defendant to shovel snow from its tracks, and within reasonable limits, for a reasonable time, accumulate it on adjacent portions of the road, but such disposition of snow must be made with due reference to the rights of travel on the highway. The defendant would not have the right to go to the extent of rendering other portions of the highway impassable in order that its tracks might be made passable for cars. Wallace v. Railway Co., 58 Mich. 231 (24 N. W. 870).

“ It certainly cannot be laid down as an unvarying rule applicable to every community and to every street or road, that the company may not cast the snow on the highway at the sides of the track. This would be unreasonable. Nor on the other hand can it be said that it may do so without regard, in the manner of disposing of it, to the effect which that accumulation will have on public travel. Any disposition that it makes of the snow must be made with due regard to the rights of travel upon the highway, and so as not to interfere needlessly, in a practical sense, with the safety and convenience of persons lawfully using the street in an ordinary way.” Stanton v. Traction Co., 11 Pa. Super. Ct. 180.

The testimony in this case clearly presents an issue of fact as to defendant’s negligence in that particular.

The rise in the road towards Pontiac from the place of the accident, called “Hadsell’s Hill,” prevented the motorman and plaintiff from sooner seeing each other, as both testified. 'It is undisputed that when the car had gotten over this hill and down to the bottom, so the headlight shone squarely along the track, the motorman had an unobstructed view of plaintiff, where he was in trouble on the track ahead, for 600 feet. He testified that he was running 40 miles an hour when he reached the hill, and possibly 45 miles when he reached the foot, as he kept the power on; that when he saw the rig on the track he threw off the power, pulled the reverse, and blew the whistle; that the reverse took, but he went to the point of accident as quick as he could snap his finger. On cross-examination, being asked his judgment of the distance in which he could stop the car by using the air brake when running 40 miles an hour, he testifies:

“ Under normal conditions it might take it 500 feet with the air brake; now, if you wish to use the reverse, you might stop it in 100 feet less, you might stop it if you wish to use the reverse.”

The evidence shows that with 600 feet in which to stop after the motorman saw, or could have seen, the rig in trouble, on the track ahead of him, he struck it with such force as to kill three of the animals, two of which were behind the wagon, and that the car ran on beyond the place of the collision several rods, shoving the dead animals ahead of it.

The negligence of the motorman in the management of the car was put in issue by such evidence, and became a question of fact for the jury.

“ It was the duty of the motorneer to have the car under such control as to admit of its being stopped after he became able to discover objects on the track, and before a collision with such objects should occur, and it was his duty to give timely warning.
“If the motorneer had performed his plain legal duty, he would have been able, after discovering plaintiff’s position, to have stopped his car and avoided a collision.” Ablard v. Railway, 139 Mich. 248 (102 N. W. 741).

See, also, Quirk v. Railway, 130 Mich. 654 (90 N. W. 673), and cases there cited. In the latter case two boys were on the track; one drawing the other in a cart to which he had attached himself with some kind of a harness. In turning the cart from the track, it became caught on the rail in some way. The boy in the cart jumped out and escaped, but plaintiff could not free himself from the harness in time. The car struck the cart, and threw him in such a manner that his arm got on the rail, and was cut off. It was held that both negligence of defendant and contributory negligence of the plaintiff were for the jury.

Defendant’s chief contention is that plaintiff was guilty of contributory negligence in driving along the tracks, and failure to keep proper watch for an approaching car. As to plaintiff keeping a proper watch for an approaching car, his testimony is positive that he did. A denial of the truth of his statement can go no further than to raise a question of fact. He testifies:

“I was driving north on the track. I was looking ahead of me, expecting a car. * * * I didn’t see any until just as it came up by Hadsell’s. * * * The car when I first saw it was just breaking over the hill up in front of Hadsell’s. When I saw the car coming, I tried to get up into the road. * * * I tried to pull up into the road, and the snow was deep, and I got one of my mules fast, and I couldn’t get up and the car struck me.”

This was a public highway 60 feet wide. Though defendant’s double tracks occupied and made less safe 32 feet of this width, it was nevertheless all a highway open to public travel. Defendant having, by franchise, authority to lay its tracks and operate its lines on the highway, its cars and ordinary conveyances had equal rights there. One traveling with an ordinary vehicle on a street or road traversed by electric cars has a right to drive over or along the tracks on which such cars run whenever the customary or necessary use of the way permits or requires him to do so, and plaintiff was not in this case per se guilty of negligence in driving on the track; nor was he necessarily and as a matter of law guilty of negligence in failing to leave the track in time to avoid collision when a car came along, provided he was keeping watch, promptly proceeded to leave the track as soon as the car came in sight, tried his best to do so, and would have done so in time but for the fact that the condition of the snow thrown up by the defendant resulted in his mule getting fast, thus unexpectedly delaying him. Manor v. Railway Co., 118 Mich. 1 (76 N. W. 139); Rouse v. Railway, 128 Mich. 149 (87 N W. 68). This is not a case of a person suddenly appearing on the track at a crossing, in an attempt to cross over ahead of a car, or unexpectedly turning upon the track while passing along the street. Plaintiff was upon the track, and trying to get off, from the time the car came in sight. According to his testimony, he was watching for the car, and promptly attempted to leave the track when it appeared. He had driven on and off the track twice before, only going along it when the condition of the road made it necessary. Others had done the same, and for the same reason. The accumulation of snow in the highway and general conditions existing there were presumably known to defendant’s employés in charge of the operation of the road. It was the duty of the motorman also to exercise care and vigilance, and control his car according to known conditions and dangers. Plaintiff had a right to assume that he would do so. Their duties were mutual — one to exercise ordinary prudence to avoid receiving injury, and the other to avoid inflicting it.

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

The cars being confined to the tracks, heavier to handle and unable to turn aside, it is the duty of the ordinary vehicle or foot passenger to vacate the track when cars approach and allow them to pass, but, as emergencies arise, each must seek to avoid collision and guard against resultant injury to himself or others.

The element of trespass, however, is absent, and persons crossing, or passing along, the tracks are only required to exercise that degree of care which a reasonably careful, prudent, and cautious person would ordinarily exercise under like conditions. ■ Plaintiff had a right to assume that the operator of the car would exercise like vigilance and care, would have his car under reasonable control, and, when an obstruction in,the shape of a vehicle appeared on the track ahead, that he could and would, in an emergency, stop or check his car to avoid a collision. The track was straight between them. Plaintiff was upon it and in sight for a distance of at least 600 feet after the car reached the bottom of the hill. The. motorman testified that, even going at the excessive rate of 40 miles an hour, he could, under normal conditions stop the car, by using the reverse, in 400 feet.

“ It was a question of fact for the jury to determine whether the plaintiff, under the circumstances, should have been out of the way when the car reached that point, or whether the accident occurred wholly by reason of the negligence of the driver of the car. He could have stopped his car, and avoided the injury. If he saw the plaintiff could not get out of the way in time to avoid a collision it was his duty to stop the car. Laethem, v. Railway Co., 100 Mich. 297 (58 N. W. 996).

We think the questions of negligence and contributory negligence were properly submitted to the jury under proper instructions.

The judgment is affirmed.

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


author: McAlvay, J.

text:
    KLOCK v. BROWN.
    Contracts — Illegality — Gaming — Betting—Principal and Agent.
    Plaintiff couid recover back money placed in defendant’s bands to bet upon an approaching election, where defendant did not carry out the illegal purpose but appropriated the money to his own use. s
    Error to Wayne; Donovan, J.
    Submitted June 17, 1912.
    (Docket No. 123.)
    Decided October 7, 1912.
    Assumpsit in justice’s court by Benjamin E. Klock against Morrie Brown for money had and received. Defendant appealed to the circuit court from a judgment rendered against him. Judgment for defendant, upon a directed verdict. Plaintiff brings error.
    Reversed.

      Jonas B. Houck, for appellant.

      Percy W. Grose, for appellee.
   McAlvay, J.

In this case plaintiff sued defendant in justice’s court for Detroit in an action in assumpsit, and on all the common counts, to recover the sum of $500. A recovery was had, and defendant appealed to the circuit court.. The result of the trial in that court was a directed verdict in favor of defendant. Upon a writ of error the case is brought before this court for review.

The facts of the case are that plaintiff gave defendant $500, with instructions to make a bet of the same with a man named Hayes upon a certain candidate for office at the next coming election; that defendant took the money and claimed soon after that he had bet $200 of it, and still retained the balance; that later, when asked for the balance, defendant stated that he had given it to another man to bet for him, and later defendant stated, or plaintiff ascertained, that he had not bet any of the money, and defendant upon demand promised to return the $200, and also promised to make good the $800 he had given the other man. Later plaintiff demanded the whole amount from the defendant, and, not getting it, instituted this suit.

The trial judge, in instructing a verdict for defendant, went upon the theory that plaintiff was seeking to recover money which had been bet upon an election, and that, under the statute and the decisions of this court, no recovery could be had, and held that this was an election gambling contract. Upon such holding error is assigned. By reason of the instructed verdict, the facts in the case presented by the plaintiff will be considered in the light most favorable to him. As we construe these facts presented, this was not a betting upon an election. In fact, it was not a betting contract. Plaintiff had placed his money in the hands of an agent for the purpose of betting, which purpose was never carried out. So far as plaintiff’s case shows, no part of this money was bet upon this election, but it was appropriated by this defendant who was his agent, and upon that state of facts, if established before a jury, the plaintiff was entitled to recover. The instant case is easily distinguishable from the cases relied upon by the circuit judge, as those were all cases where bets upon election had been actually made. They are therefore not controlling in this case.

The judgment of the circuit court is reversed, and a new trial ordered.

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


author: Ostrander, J.

text:
    BEIDLER v. CITY BANK OF BATTLE CREEK.
    1. Quieting Title — Adequate Remedy at Law.
    Against a defendant in possession of real property, a bill to quiet title cannot be maintained.
    3. Trusts — Statutes—Validity.
    No trust results from the conveyance of land to another than the person paying the consideration at the instance and for the convenience of the latter.
    3. Same — Equity—Innocent Purchaser.
    In equity the title of an innocent purchaser from the apparent owner of the record title is as indefeasible as it is at law.
    4. Same — Laches—Foreclosure of Mortgages.
    Where complainant instituted suit six years after he became of age, to enforce a trust in lands held by his uncle, and paid for by his father, who died when complainant was 12 years of age, and where 11 years had elapsed since the uncle had executed mortgages upbn the premises, and where the mortgagee over seven years before commencement of suit had foreclosed and bid in the premises which complainant was informed prior to his father’s death belonged to the father, laches barred him from maintaining suit to quiet title in himself and to redeem from the mortgage.
    Appeal from Calhoun; Hopkins, J.
    Submitted June 19,1912.
    (Docket No. 31.)
    Decided October 7, 1912.
    Bill by Senator R. Beidler against the City Bank of Battle Creek and others to quiet title to certain lands and for the cancellation of several conveyances, and to enforce a trust. From a decree for defendants, complainant appeals.
    Affirmed.

      W. S. Powers (Steward & Jacobs, of counsel), for complainant.

      George W. Mechem, for defendants.
   Ostrander, J.

The land involved in this controversy is a part of the N. E. ¿ of section 14, in the township of Battle Creek, Calhoun county, Mich. The quarter section is fractional, with an irregular boundary along Goguac Lake, and it was originally owned by Joseph L. Foster, and was conveyed by him to Jacob H. Beidler June 30, 1887, by three separate conveyances, in three parcels, and the deeds were recorded. Each of said parcels was separately mortgaged by said Beidler to Foster at the time of the purchase to secure a portion of the purchase money. Jacob H. Beidler executed a plat of Park Beidler August 20, 1887, the land being divided into blocks and lots, and the plat and the dedication thereof was duly recorded. Some of the property was sold and was conveyed by Jacob H. Beidler. Jacob H. Beidler and his wife, April 26,1892, executed a mortgage upon a portion of the property to one Delevan P. Smiley to secure the sum of $1,000. In the same year, on August 24th, the same parties mortgaged a part of the land to the City Bank of Battle Creek for $1,100. On the same day they gave a deed to the said bank as security for money borrowed. The Smiley mortgage was foreclosed May 2, 1895, the property bid in for $793.66, and was afterwards conveyed by the purchaser to the City Bank of Battle Creek for $600. The City Bank foreclosed its mortgage, and the deed given as security January 11, 1895, in a suit in chancery. The bank sold the property to the defendants Brown, Wilson, and Carr, with other property, in one parcel and for one consideration; their arrangement being evidenced by a land contract.

The complainant in this suit is a son and the only heir of Henry M. Beidler, a brother of Jacob H. Beidler. Henry M. Beidler died December 8, 1888. The original bill of complaint in this cause was filed July 27, 1903, and an amended bill December 27, 1904. Complainant was 28 years old when the original bill was filed. It is his contention that at the time of his death his father was the owner of the premises in controversy, and in this suit he seeks to recover them, subject to such equities and accountings and upon payment of such sums of money as in equity he ought to pay. As to the facts, his claim is that his father was the real purchaser of the property, but that the deed was taken in the name of his uncle, Jacob H. Beidler, for convenience; his mother at that time being a lunatic. His father, by himself and his agent, was in actual possession of the property after the purchase, and such conveyances as were made of portions of it were made at the direction of his father; that his uncle, Jacob H. Beidler, March 27, 1888, executed two deeds, and on November 17th of the same year executed a third deed, by which three deeds he reconveyed all of the property to his father, to whom the deeds were delivered, and who had them in his possession, unrecorded, in December of that year, when he was shot and killed upon the streets of Texarkana, in Texas; that his uncle, Jacob H. Beidler, secured possession of such deeds, fraudulently concealed from complainant and his guardian the fact that said deeds were in existence, did not record them or deliver them for record until an attorney in the employ of complainant, or of his guardian, charged him with unfair dealing With respect to the property, when he admitted the existence of the deeds and delivered them. This was in July, 1903. Prior to that time, and in July, 1902, in recognition of complainant’s right to the land, he had deeded the property to complainant, reserving, however, a portion of it for his wife, Rebecca. At the time his uncle so conveyed to him — that is to say, in 1902 — complainant did not know tha,t his uncle had ever reconveyed the land to his father. In July, 1902, his attorney informed the officers, or at least the cashier, of the City Bank of Battle Creek, that he was satisfied that all of the property was held in trust by Jacob H. Beidler, who had acted badly with respect to complainant, that complainant was desirous of getting the property back and stood ready to pay the bank the amount of money that it had expended, with costs and accumulated interest. At that time the bank owned the property, but no arrangement was made, and in 1903 complainant and his attorney again called at the bank, and were informed that the bank did not care to make any arrangement along the lines that had been indicated.

The City Bank of Battle Creek, Martin E. Brown, John D. Wilson, and William Carr are made defendants in the bill, and the relief prayed for is that the mortgages, contracts, and conveyances made by Jacob H. Beidler and his wife, except the deeds to Henry M. Beidler, that all deeds and conveyances made in the foreclosure proceedings, and all made subsequent to the mortgages and growing out of the mortgages and the foreclosure proceedings, be set aside as a cloud upon title and be delivered up to be canceled, but, if any of said mortgages be found to be valid and subsisting liens, then an accounting be had; that the defendants set forth a list and description of every deed, mortgage, contract, book account, letters, papers, and writing relating to the matter, produce such as are in their possession, and account for those out of their possession, set forth an account of all money received by them, or any of them, in respect to any of said conveyances or for rent or profit accruing from the lands or any part of them, with a list of the lots, blocks, or parcels that have been sold or disposed of and at what price or prices and to whom, together with what yearly rent or rents the mortgaged premises have or might have been let for since they have been in possession, and whether they have not, or without their wilful neglect or fraud might not have, received the whole of the rents and profits of said mortgaged premises; that an account be taken of what is now due and owing to the defendants for the principal sum and interest, the rents and profits of the premises or which might have been received for them; and that, if anything is found to be due to the defendants (which complainant offers to pay), defendants be directed to surrender and deliver up possession upon such payment.

Defendants filed a joint answer, and the cause, being at issue, came on to be heard upon the pleadings and upon proofs taken in open court, and a decree was made dismissing the hill of complaint. The learned trial judge filed a written opinion, and if, as he did,'we disregard various objections which were made to the competency and character of the testimony offered on the part of complainant, and consider the case stated for complainant as substantially the case made out by the proofs, we can add little, if anything, to the reasoning he indulged, and must agree with his conclusions.

When the cause came on to be tried, Joseph L. Foster, Henry M. Beidler, Jacob H. Beidler, Delevan P. Smiley, to whom the Smiley mortgage was given, three of the officers of the City Bank, who had charge of its affairs when the loans were made to Jacob H. Beidler, and George Nichols, the attorney who did Jacob H. Beidler’s business for some time, were all dead. It is exceedingly doubtful whether complainant has by competent testimony maintained his first and vital proposition of fact, which is that his father purchased the land which was conveyed to his uncle, Jacob H. Beidler. Passing this, it is apparent that complainant claims to have, and has, the senior recorded legal title to the land, that defendants are in possession, and that complainant is out of possession. Under such conditions, a bill filed merely to quiet title cannot be maintained.

Complainant’s theory that the bill seeks the recovery of a trust fund is not sustained. If his father purchased the property, taking the deeds in the name of his uncle, no trust resulted. His theory that the. alleged trust was executed when Jacob ' H. Beidler executed the deeds to complainant’s father, and that thereafter his uncle held the apparent, recorded, legal title, and the said deeds in trust for his father and his father’s heir, cannot avail him for several reasons. None of the defendants participated in the alleged fraud. It is clear that Smiley and the bank were innocent purchasers, and, being such, their titles are as indefeasible in equity as in law.

But, assuming that equitable interference with the title was otherwise warranted, complainant has been guilty of laches. He testified that from the time he was a small boy he was his father’s constant companion up to the time of his death, and that from what his father told him, and from what he had heard him say to his uncle and others, he knew that the deeds were made in his uncle’s name that he might not be hindered in making titles when sales were made. He was more than 12 years old when his father died, was continually asking his uncle with respect to his father’s property, had heard rumors respecting this particular property, visited the property about the year 1900, talked with a man whom it is claimed his father left in possession of the property, and he then claimed to own it. This alleged agent of his father wrote to him about the time he became of age, telling him the facts now relied upon, but it was not until late in 1903 that his bill of complaint was filed, and still later amended so as to include a claim under the deeds alleged to have been delivered by his uncle to his father in his lifetime. At that time eleven years had elapsed since the giving of the mortgages to Smiley and the bank. They had been foreclosed for seven years, and it was six years after complainant attained his majority. The testimony supports the inference that in the meantime the property had greatly appreciated in value, and had become somewhat popular as a summer resort. A street railway had been built to it. The defendant bank had purchased other property for the purpose of reaching the lake and for the purpose of connecting the two separated pieces of property which it acquired by foreclosure. For the reasons stated, the bill cannot be maintained as one to redeem.

The decree is affirmed, with costs to the appellees.

Moore, C. J., and Steers, McAlvay, Brooke, Stone, and Bird, JJ., concurred.


text:
    LUBBERS v. TOWNSHIP OF MANLIUS.
    1. Highways and Streets — Instructions to Jury — Townships.
    In an action for damages to plaintiff’s horse, wagon, and merchandise, resulting from their slipping down an embankment in icy weather, because of alleged negligent construction of the highway, the court did not err in charging the jury that if the road was so narrow at the point of the accident as to render barriers necessary to make it safe, defendant township was negligent in failing to erect barriers, if it had notice of the defect, that if the want of barriers was the proximate cause of the injury defendant would be liable, that if the ice which.covered the road and not the want of barriers was'the proximate cause of the injury plaintiff could not recover; such charge correctly distinguished between a defect in the highway and a condition caused by the natural accumulation of ice and snow, and it was not inconsistent.
    2. Same.
    Instructions that the township was not liable for injuries caused by slipping on ice that gathered from natural causes, that if the icy condition of the highway was the proximate cause of the accident the verdict must be for defendant, that if at the place where the horses and wagon slipped over the embankment the road was narrow and required a barrier in order to make it reasonably safe, and the accident would not have happened even if the horses and vehicle had slipped if the highway had been in a reasonably safe condition for travel, correctly stated* the applicable rules of law and were sufficiently favorable to defendant.

    3. Same — Negligence—Contributory Negligence.
    Nor did the court err in refusing defendant’s request that the undisputed evidence showed plaintiff was supervisor of the defendant township up to three years before the trial, and if the highway was not in a reasonably safe condition and had been in the same condition for upwards of four years before the accident, the condition being known to plaintiff who did not notify the highway commissioner or other officers of the fact, and made no effort to have the highway made safe, he ■was guilty of contributory negligence.

      4. Same — Notice.
    Knowledge or familiarity with the condition of the highway would not preclude a recovery if the person so using the highway used what knowledge he had and exercised reasonable diligence in view of the known and existing conditions.
    Error to Ottawa; Padgham, J.
    Submitted June 19, 1912.
    (Docket No. 48.)
    Decided October 7, 1912.
    Case by John Lubbers against the township af Manlius for injuries to property resulting from defective construction of a highway. Judgment for plaintiff. Defendant brings error.
    Affirmed;

      Diekema, Kollen & Ten Cate, for appellant.

      Charles B. Wilkes, for appellee.

         The general question of the liability of townships for defects in highways is reviewed in a note in 13 L. R. A. (N. S.) 1219.

   Ostrander, J.

A highway running north and south in the township of Manlius was for some distance built along or upon the side of a hill, and in a curve of the highway, from the east to the west, the road was cut into the hill, the inside, or hillside, of the road being from 13-|-to 18 inches higher than the outside or declivity side. The road was steep, the land embraced in the public right of passage two rods wide and the roadbed in places, or in one place, and that the place of the accident, was but 16 feet in width. A son of plaintiff on January 11, 1911, traveled this highway with two horses and a sleigh containing merchandise. The road was slippery with ice, and the driver put a chain on each of the rear runners of the sleigh, led the horses to ascertain whether the chains would keep the sleigh from running onto the horses, and, finding that they would, mounted the sleigh and proceeded down the hill. At a point in the curve of the road, at the narrowest point above mentioned, the sleigh ran or slipped over the edge of the road, carrying the horses, killing one of them, and the merchandise was consumed by fire from a lamp carried in the sleigh to heat it. In a suit against the township for his damages, the owner of the vehicle alleged, among other things, that defendant was negligent in not placing barriers along the road and in allowing it to remain of insufficient width for safety with a slope from east to west without barriers. Testimony was offered tending to prove the facts which have been stated, and the jury answered specially the following four questions:

“Was the injury to the plaintiff’s property caused by the failure of the defendant to keep its highway on the hill in question in a reasonably safe condition for public travel? A. Yes.”
“Was a barrier necessary at this place to make the road reasonably safe for public travel ? A. Yes.”
“Was the proximate cause of the accident the icy condition of the hill ? A. No.”
“ Was plaintiff’s driver negligent in lighting a stove in his peddle wagon before descending the hill ? A. No.”

A general verdict for plaintiff was returned. The assignments of .error which are argued in the brief for appellant present in various forms the contention that the court, in the instructions to the jury, did not discriminate between the icy covering of the highway and the general condition of the highway as the proximate cause of the injury. The court charged the jury, as requested by plaintiff, that:

“ It is the claim of the plaintiff that on January 11th last he lost a horse and merchandise and other property by reason of a defect in the public highway in the township of Manlius, and that his loss was due to negligence on the part of the township in failing to maintain the highway at that place in a condition reasonably safe for public travel.
“ The evidence shows that this accident occurred while the son of the plaintiff was driving down a hill where it is claimed the traveled way was narrow and where the road made a bend around a hill, and plaintiff claims that, sowing.to the narrowness of the road at that point and the way the road was constructed, it was the duty of the defendant to have erected some barrier to prevent a team from going over the bank, and that it was negligence on the part of the defendant township in not erecting such barrier, and that this condition had existed so long that the township officers either had actual or constructive notice of this unsafe condition of the highway at this point.
“ I charge you, if you find by a preponderance of the evidence in this case that this roadway down this hill at and near the place where the accident occurred was so narrow that it required barriers to make it reasonably safe, then I charge you that it became the duty of the township to erect such barriers on the east side of the highway at the place in question, and, failing to do this, it would be negligence on the part of the township; and, if as a result of this negligence after the township had actual or constructive notice of the fact that this place was in an unsafe condition for public travel, Mr. Lubbers’ team and sleigh and contents went over the bank and Mr. Lubbers sustained loss therefrom, and there was no fault or negligence on his part, contributory to the injury, then the defendant township would be liable for damage in this case.”

It is said that these instructions are inconsistent with requests prepared by defendant and given by the court as follows:

“ By statute law in this State the duty is imposed upon townships to keep their highways in repair, and if you find that the road in question when the injury to the plaintiff occurred was so narrow as to require barriers or railings to make it reasonably safe and fit for public travel, and that the defendant failed or neglected to cause such barriers or railing to be constructed and maintained at the place in question, and that plaintiff, without fault on his part, suffered injury on account of such neglect or failure, then defendant, if it had proper notice of such defect, would be liable to plaintiff in damages, provided such neglect or failure of the defendant was the proximate cause of the plaintiff’s injury.”
“I have charged you that if you find that it was the duty of the defendant to provide barriers along the east side of the roadbed in question where the injury occurred, and that if you further find that the plaintiff suffered damages on account of the neglect of the defendant to provide such barriers, that then the defendant would be liable to plaintiff for such damages, provided such neglect was the proximate cause of the accident. In other words, you must not only find that it was the duty of the defendant to provide barriers, but in addition to this, you must also find that such neglect was the proximate cause of the accident. In other words, if you find that the slippery ice which covered the hillside and not the want of barriers was the proximate cause of the accident, then the defendant is not liable.” .

We perceive no inconsistency. It is evident that the court appreciated and had in mind the distinction between a defect in a highway and a condition created by the natural accumulation of ice and snow upon a highway not defective. This distinction was observed in what the court said upon the subject of the proximate cause of the injury.

In its entirety the charge is rather favorable to defendant, for the court also said:

“A township is not liable for injuries on its highways caused by slipping on the ice that may have gathered there from natural sources; and, if you find that the icy condition of this highway on January 11th was the proximate cause of this accident, then your verdict must be no cause for action.
“By proximate cause I mean that cause which immediately precedes and produces the effect. It is that cause which sets another cause or causes in operation; the dominant cause. * * * It appears from the evidence in the case that on the day in question the roads in the township and the hill were icy. The plaintiff claims that he used due care in going down the hill, that his horses were sharp shod, that a chain was placed in front of the back runners of the sleigh to hold them back, and that before descending the hill the driver examined the rig, and found that apparently there was no danger in going down as he did. It is not claimed by the plaintiff in this case that the township was liable because the roads were icy, or because the horses or sleigh of the plaintiff slipped upon the ice; and in this case if you find there was no fault on the part of the plaintiff, and that this injury was the combined result of an accident, namely, the slipping on the ice, and the insufficiency of the road — that is, that the road at the time and place where the accident occurred was not in a reasonably safe condition for public travel— and that the accident would not have occurred but for this defect in the highway, then the plaintiff would be entitled to a verdict at your hands.
“ Again, I charge you that, if the cause of the accident to the plaintiff’s property was the slippingupon the ice either by the horses or of the sleigh, and there was no other cause for the accident, then the defendant township would not be responsible for that alone. But if you also find that at this place where the accident occurred the road was narrow and required a barrier in order to make it reasonably safe, and that the accident would not have happened, even though the horses or sleigh had slipped, if the highway had been in a reasonably safe condition for public travel, and if you find that the injury would not have been sustained but for the negligence on the part of the township to keep the highway in a reasonably safe condition for public travel, then I charge you the plaintiff would be entitled to recover a verdict at your hands.”

And again, as requested by defendant:

“A township is liable for injuries resulting from its negligence, but is not liable for injuries which its negligence did not prevent. Therefore I charge you in this case that, if you find that the ice was the proximate cause of the accident, then, although barriers might have prevented damages to the plaintiff, still the plaintiff cannot recover on account of neglect to provide them, for the township cannot be held liable for injuries which its negligence did not prevent.”

In a recent case (Stanton v. Township of Webster, 170 Mich. 428 [136 N. W. 421]) the subject is considered and applicable decisions cited, and we are satisfied that the court submitted to the jury'the proper questions, with proper instructions. Warn v. City of Flint, 140 Mich. 573 (104 N. W. 37).

Defendant requested the following instruction:

“ I charge you that the undisputed evidence in this case shows that the plaintiff was supervisor, and, as such, the chief executive officer of defendant township up to three years ago; and if you find that the highway on which this accident occurred was not in a reasonably safe condition for public travel, and had been in practically the same condition for more than four years prior to the accident, and that plaintiff while supervisor of said township knew this condition, and did not notify its highway commissioner or the overseer of highways of that district of this fact, and made no efforts to have said highway put in a safe condition, then I charge you that the plaintiff is guilty of contributory negligence and he cannot recover in this action.”

And the request was refused. It is said in argument:

“The record shows that plaintiff had held the offices of treasurer, highway commissioner, and supervisor of the defendant township, and the testimony further shows that the highway at the time of the accident, barring the ice, was in the same condition it had been for at least eight or nine years previous. How could the plaintiff consistently claim that the officers of the township were negligent in not doing what never had occurred to him to do as an officer, although he had been perfectly familiar with the situation for so many years.”

Plaintiff was not in charge of the vehicle upon the occasion in question. And, if he had been in charge, the peremptory instruction asked for should not have been given. The testimony did not disclose such a condition of the highway that injury was to be. necessarily apprehended. McTiver v. Township of Grant, 131 Mich. 456 (91 N. W. 736). The jury was instructed upon this subject as follows:

“It appears from the evidence in this case on the part of the plaintiff that his son had frequently traveled over the highway in question, and was familiar with the general condition of the highway on this hill. Now, I charge you that that fact does not necessarily forbid or preclude a recovery on the part of the plaintiff; but it did impose upon his son the obligation to use what knowledge he had and to act upon that knowledge in passing over this highway, and it placed upon him the duty to exercise that degree of care and prudence in view of the condition of the highway that an ordinarily careful and prudent man would have exercised in view of all the circumstances which surrounded the plaintiff’s son at the time of the alleged accident.”

This we regard as the applicable rule in a case like the one at bar.

We do not notice errors not argued in the brief, and no reversible error is pointed out.

The judgment is affirmed.

Moore, O. J., and Steere, McAlvay, Brooke, Stone, and Bird, JJ., concurred.


author: Moore, C. J.

text:
    MILLS v. WILLIAM DRUEKE CO.
    1. Vendor and Purchaser — Redemption—Land Contracts.
    In proceedings to redeem property purchased on a land contract which the vendor had declared forfeited and had foreclosed by summary proceedings, the judgment therein remaining in force, not appealed from, it was not a sufficient ground for equitable relief that the notice to quit served by the defendant vendor was defective.
    2. Sa1me — Laches—Equity.
    Where complainant bought property on contract of a brewing company, to be occupied by a saloon business, which he so conducted as to be forced out of business by the municipality changing the boundaries of the district for saloons, and made default in the installments due on the contract, his interest in which he had assigned to a third party as security for a loan, after which the vendor brewing company foreclosed its rights, obtained judgment of ouster in summary proceedings and proceeded to carry out the contract with the assignee of the interest of complainant who acquiesced in the judgment, took no appeal and not until a year thereafter filed his bill to redeem, and where he made no tender of any sum due under the contract, he was not entitled to equitable relief.
    Appeal from Mason; Withey, J.
    Submitted June 21, 1912.
    (Docket No. 82.)
    Decided October 7, 1912.

      Bill by William H. Mills against the William Drueke Company and the Fred Miller Brewing Company for the redemption of certain property purchased under a land contract. From a decree for complainant, defendants appeal.
    Reversed.

      George E. Nichols and Charles A. Watt, for complainant.

      J. T. Preston ( W. W. Taylor, of counsel), for defendants.
   Moore, C. J.

This is an appeal from a decree rendered by the circuit court for the county of Mason, in chancery. The proofs were taken in open court.

The litigation grows out of a land contract which was given by the Fred Miller Brewing Company to Mr. and Mrs. Wiley in February, 1907. The latter part of that month complainant acquired a half interest of the interest of the Wileys in the contract. In March of the same year he acquired all their interest. To enable him to do this, he borrowed money from the William Drueke Company. To secure them, he assigned, in March, 1907, his interest in the Miller contract, and also gave them a chattel mortgage. Later Mr. Mills failed to make his payments and the Fred Miller Brewing Company commenced proceedings to get possession of the property, which proceedings resulted in a judgment in their favor November 15, 1909. The agent of the complainant delivered the keys to the building. The William Drueke Company then made the payments due on the contract, and a conveyance, according to its terms, was made to them in August, 1910.

On the 3d of December, 1910, this proceeding was commenced ; the complainant claiming a conspiracy on the part of defendants to defraud him, and that he had a right to redeem from the land contract. The trial judge rendered a decree in his favor. In said decree it is provided as follows:

“ (1) That the complainant or his assigns are entitled to redeem said premises within 90 days from the date of this decree by paying said William Drueke Company the sum of $4,860.90, upon which sum there shall be credited the rent of said premises at $105 a month for 17£ months, together with the interest thereon at the rate of 5 per cent, upon said sums as collected from month to month, and complainant or his assigns shall also be entitled to all of the rents collected by said William Drueke Company or said Henry Huber since May 1, 1911, at the sum for which said building is now rented, or shall be rented, during said period; the said William Drueke Company being entitled to interest at 6 per cent, upon the balance due on the 1st day of May, 1911, under the terms and conditions of this decree.
“ (2) Upon payment of the amount due said William Drueke Company, and at any time within 90 days from the date of this. decree, said William Drueke Company and Henry Huber shall execute and deliver to complainant or his assigns a deed of said premises, free and clear of all liens of every kind and character, except the mortgage so given to said Fred Miller Brewing Company of $5,000, which mortgage said complainant shall assume and agree to pay, and shall give a bond in the sum of $2,000, to be approved by the register of this court, indemnifying said William Drueke Company and Henry Huber from any loss or damage by reason of any deficiency upon said mortgage, and subject to any leases of said building made prior to the hearing of said cause.”

From this decree the defendants have appealed. It is the claim of complainant that the real estate is worth $11,000, while the defendants claim it is not worth nearly so much.

The solicitors for the complainant seem to think that the only issue raised by the appeal is whether the sum of $850 advanced to the complainant by the William Drueke Company should have been included in the sum necessary for complainant to pay to entitle him to redeem. The defendants, however, insist very strenuously that upon the record as made the bill of complaint should have been dismissed. They also insist that if they are wrong in this that a much larger sum than that fixed by the trial judge should be decreed to be due. They insist complainant should be required to pay, in addition to the $5,000 mortgage, the sum of $6,261.25 and the damages sustained by the Drueke Company, amounting to $400, and interest and taxes since May 3,1911.

In order to pass upon the questions involved intelligently, it will be necessary to consider more in detail the facts disclosed by the record. The land contract which was given to the Wileys by the Fred Miller Brewing Company, among others, contained the following provisions:

“ The said parties of the second part further agree and covenant that they will pay all taxes, special or general, which have been assessed on the above-described premises since the first day of January, and also such as may hereafter be assessed thereon, whenever such taxes shall become due and payable by law, until the aforesaid purchase money be fully paid, in the manner above stated, and also to hold the said premises from the date hereof, as the tenant on sufferance of the said party of the first part, subject to be removed as tenant holding over, by process under the statute in such case made and provided, whenever default shall be made in the payment of any of the installments of purchase money or interest above specified, or of any of the covenants and agreements herein contained on the part of the second parties to be performed. * * * And do further covenant and agree that they will at all times from the date hereof, and until the said sum of nine thousand two hundred seventy-one and 35 / 100 dollars, withinterest thereon, is fully paid, keepsaid premises open for a saloon business at all hours allowed by law, and will sell therein the beer, both keg and bottled, manufactured and sold by said Fred Miller Brewing Company, of Milwaukee, Wisconsin, party of the first part, its successors or assigns, and will neither directly or indirectly, nor permit any one else to, storej vend, keep for sale, sell or give away in or upon said premises, any beer other than that so manufactured and sold by the party of the first part, and will pay for all beer sold to them by the first party, its successors, representatives or assigns, on demand.”

In the contract between the complainant and the William Drueke Company, among others, were the following provisions:

“Whereas, it has been agreed between the said first party and the said Clarence D. Wiley and Harriet L. Wiley, that said first party shall and will purchase from said Wileys all of their interest that they both or either of them have in the real estate above mentioned, and also their interest in the pool and billiard, bowling alley and tobacco and confectionery business aforesaid, and that the said Wileys execute and deliver fit and proper conveyance and assignments to transfer the premises and business aforesaid to said first party, so far as their present interest extends; and whereas, said first party is desirous of borrowing from said second party the sum of two thousand dollars, to enable him, the said first party, to carry out said agreement, and which said sum of two thousand dollars hereby agrees to and does loan and advance to said first party, agrees to secure the repayment by assignments of all his interest in said above-mentioned contracts, and to give a chattel mortgage upon all personal property in said premises: Therefore, in consideration of the payments by said second party to said first party of the sum of two thousand dollars, to him in hand paid, the receipt whereof is hereby acknowledged and confessed, the said first party to secure the repayment of the said sum of two thousand dollars in the manner and at the time or times hereinafter specified, does hereby sell, assign, transfer and set over to said second party, its successors or assigns, all of the right, title and interest, which said first, party now has in the premises and personal property above described, and in the several contracts and assignments above mentioned, and all interests or rights that he may now or hereafter acquire by reason of the purchase of the interests of the said Clarence D. Wiley and Harriet L. Wiley or either of them, and which said contracts and assignments or copies thereof are hereto attached.
“And it is also agreed by the said first party, in consideration of the loan of the sum of two thousand dollars as aforesaid, that for the period of five years, from and after the 1st day of May, 1907, said first party shall give all his trade to said second party, and shall and will deal exclusively with it for all goods usually sold by wholesale dealers in wines, liquors, cordials, etc., and will not purchase from any outside or third party any wines or liquors at wholesale.
‘ ‘And the said first party hereby further agrees to repay to said second party the said sum of two thousand dollars in monthly installments of fifty dollars per month in accordance with forty promissory notes collateral hereto and to said chattel mortgage. That in case said sum of two thousand dollars shall have been repaid before the expiration of the five years, during which the said first party agrees to buy from said second party as hereinbefore set forth, then said second party shall have a lien upon the premises and property aforesaid for the balance of said five (5) years to secure it for any profits, which second party may thereafter lose by reason of the fact (if it should so happen), that said first party should purchase wines, liquors, cordials, etc., from some other person, corporation or firm.”

Upon procuring the interest of the Wileys, the complainant managed the saloon referred to in the various contracts. It was not long before he was involved in trouble with the municipal authorities, which resulted in his being arrested and convicted for violation of the liquor law and the passage of an ordinance putting him out of his business. The litigation found its way to this court. The case is reported as Mills v. Common Council of City of Ludington, 158 Mich. 493 (122 N. W. 1082). A reference to the opinion in that case will show that it was the conduct of complainant that led the council to put the saloon of the complainant outside of the district where saloons were allowed, and, of course, making it impossible for complainant to keep a saloon, as provided in the contract. In view of the situation, both of the defendants urged the complainant to sell his interest in the property to some one who could get a license; but he seemed possessed with the idea that he could recover a large sum in the way of damages against the city, and did not sell.

It is his claim, however, that he made an effort to sell, which was abortive because of the action of the brewing company. The most persuasive testimony he has offered in that regard is as follows: He testified:

“I wrote them I had a man that was coming over with me to pay them up what I owed them and pay me, so I could get out of it. I told them I had a man there to come over to buy that. They telegraphed not to come. A letter followed. I received that letter of date January 20,1910. This is the letter:
“‘Milwaukee, 1-20-10.
“ ‘Mr. W. H. Mills, Care of Hermitage Hotel,
• “ ‘Grand Rapids, Mich.
‘ ‘ Dear Sir:
“ ‘Your letter of the 18th reached us this morning and we wired you: “Don’t come. Save expenses. Letter follows.”
‘“You do not seem to fully understand the true situation. We cannot do anything for you, and for that reason we do not want you to spend the money to come to Milwaukee. In order to set you right we shall attempt to explain in a few words the true condition of your property, and would advise you to take this letter and show it to your lawyer or to any other well-meaning sincere friend of yours, and we are satisfied he will give you the same advice that we are giving you here.
“ ‘ The property was originally bought for Mr. Wiley on a land contract. Mr. Wiley later on sold his rights to you, and you later on assigned all your rights in the contract to the Drueke Company. The Drueke Company proceeded against you and have by process of law taken your place in this contract. They have paid us all the money that you were in arrears and are regularly paying us every month what you should have paid us, and when they get through paying, the property will of course be theirs. We cannot refuse their money because you assigned all your rights in the contract to them, and as long as they are willing to pay us what we have coming we must take their money. Therefore, if you know of a prospective buyer, who will pay you a price whereby you can get more than the total amount of our and the Drueke Company’s claims amount to, we would advise that you see the Drueke Company and try to arrange a deal with them. We wish, however, to explain right here, that if you find a purchaser who is acceptable to the Drueke Company and also to us, we shall always insist upon the terms of the contract. In other words, we shall not accept our claim in a lump sum, but we want it paid monthly, and if there is ever a saloon in that place we want our beer sold. We have now given you the true situation and if you are trying to figure out that it is different, then we venture to say that you are certainly mistaken.
“ ‘ Yours very truly,
“ ‘ Fred Miller Brewing Co.,
“ ‘F. Bendel.’ ”

It must be remembered that at this time the complainant had assigned all his interest in the land contract to the William Drueke Company, and'to secure his indebtedness to them had given them a chattel mortgage upon the personal property in the saloon, which they had proceeded to foreclose. The complainant did not act upon the suggestion contained in the letter to go and see the Drueke Company. The record is bare of any evidence that complainant advised the Drueke Company that he had found a purchaser for the property. He never made, any tender of the amount due upon the contract to any one. The nearest approach to it is what we have already quoted. There has been no refusal upon the part of the Fred Miller Brewing Company to carry out the contract, unless what is stated in the letter may be regarded as a refusál. And there is certainly nothing in the record to show any offer to carry out the contract with the William Drueke Company, and no refusal upon their part to perform the contract.

It now becomes necessary to retrace our steps. In September, 1909, the payments had not been made according to the terms of the contract, and the following paper was served upon the complainant:

“To William H. Mills:
“Take notice: In pursuance of the terms of a certain land contract between the undersigned Fred Miller Brewing Company, a corporation, as party of the first part, and Clarence D. Wiley and Harriet L. Wiley, as party of the second part, dated February 4, 1907, and which said contract was subsequently assigned to you by the said Wileys, the undersigned Fred Miller Brewing Company hereby declares said contract forfeited and void, for the reason that you have not complied with the terms thereof, having made default in the payment due us under said contract September 1, 1909, and we hereby demand that you deliver to the undersigned the possession of the premises therein described forthwith, which said premises are therein described as follows: The east forty-two (42) feet of the west forty-five (45) feet of lot No. two (2) of block No. thirty-four (34) of the city of Ludington, in Mason county, Michigan, together with the easement of the stairway rights on the property of the I. O. O. F.
“ Dated at Ludington, Michigan, September 3, 1909.
“ Very truly yours,
“The Feed Miller Brewing Company,
“By H. G. Reek, its Attorney.”

It is claimed by complainant that this was not a valid notice, and such was the finding of the circuit judge.

In this connection, it is necessary to state what followed. On the 7th of October, 1909, a complaint was made before a circuit court commissioner that Mr. Mills was holding the premises unlawfully. A summons was issued, returnable the 11th of October, at which time the complainant appeared by his attorney and pleaded not guilty. Upon the request of the attorney for the defendant, and by consent of the attorney for the complainant, the case was adjourned until October 30th. It was then adjourned by stipulation until November 9, 1909, at which time it was adjourned until November 15th at 10 o’clock. On the 15th of November the parties were in court by their counsel, and the case was tried; the defendant introducing no testimony. The circuit court commissioner found there was due the complainant $400, and rendered a judgment of restitution, and for the amount due and for the costs, amounting to $12.20. No appeal was ever taken from this judgment; and on November 22, 1909, the agents of Mr. Mills delivered to the attorney for the Miller Brewing Company the 15 keys which belonged to the Mills building, and the complainant has never since been in possession of any part thereof.

After the Miller Brewing Company obtained the above-mentioned judgment, the William Drueke Company made payments upon the land contract, reducing the amount due thereon to $5,000, and a deed was made to them, and a mortgage was given back for the $5,000, since which time, up to the filing of the bill of complaint, the William Drueke Company was in possession. The bill of complaint was filed December 3, 1910, more than a year after the Miller Brewing Company parted with their interest in the property, except the $5,000 mortgage interest.

To recapitulate the important features of the case, it was the conduct of the complainant that made it impossible for him to carry out the provisions of the contract in relation to the keeping of a saloon in the building, and the purchase of beer and liquors from the defendants. See Mills v. Common Council of City of Ludington, supra. The complainant, when an action was brought against him as a tenant holding over unlawfully, did not, so far as the record shows, defend upon the ground that the notice given by the Fred Miller Brewing Company was insufficient, but pleaded not guilty, and when judgment was rendered against him did not appeal said judgment, but his agents delivered up the keys to the building. At no time before the brewing Company had made a deed to the assignee of Mr. Mills and the holder of the land contract did he call the attention of the brewing company to the fact that he desired to pay up the amount due upon the contract; and when he was referred by the brewing company to the Drueke Company he did not confer with them, and at no time did he indicate to them that he desired to pay up the contract. He has not at any time tendered to any of the parties in interest the amount due upon the contract. He delayed filing the bill of complaint for more than a year after the parties had reason to suppose that he acquiesced in the judgment rendered by the circuit court commissioner.

It is not necessary to decide the questions of whether the agreement to purchase beer of the brewing company and wines and liquors of the Drueke Company are valid agreements; neither of those parties are seeking to enforce the agreement. The contract, such as it is, was voluntarily entered upon by the complainant. He has not upon his part performed any of the essential parts of it. If the principle that one who appeals to a court of equity must do equity is to apply to this case, then the complainant has no standing in this court.

It is not necessary to consider the other questions raised by the solicitors. The decree of the court below is reversed, and the bill of complaint is dismissed, with costs of both courts.

Steers, McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.


author: Kuhn, J.

text:
    MINKKINEN v. QUINCY MINING CO.
    1. New Trial — Appeal and Error — Motions.
    In the absence of statutory authority, a motion for a new trial addresses itself to the sound discretion of the trial court, and the ruling is not the subject of appellate review.
    2. Appeal and Error — New Trial — Denial after Decision on Error.
    After the affirmance of a judgment on writ of error, a subsequent writ does not lie to review the denial of a motion for a new trial under the statute authorizing the review of such determination. 3 Comp. Laws, § 10504
    3. Same — Judgment.
    Such denial is not a final adjudication and is a discretionary order, which before the enactment of the statute could be reviewed only on mandamus.
    4 Same — Statutes.
    The statute does not enlarge the time for suing out a writ of error.
    Error to Houghton; Elannigan, J.
    Submitted October 2, 1912.
    (Calendar No. 25,313.)
    Decided October 7, 1912.

      Case by Nick Minkkinen against the Quincy Mining Company for personal injuries. An order denying defendant’s motion for a new trial is reviewed by defendant, on writ of error. On motion to dismiss.
    Writ dismissed.

      Burritt & Burritt, for the motion.

      Hcmchette & Lawton, contra.

   Kuhn, J.

The plaintiff herein has made a motion to dismiss the writ of error in this cause. Judgment was rendered on June 23, 1910. A writ of error was thereafter issued out of this court, and the judgment was affirmed in the case of Minkkinen v. Quincy Mining Co., 169 Mich. 279 (135 N. W. 449). On the 5th day of June, 1912, the defendant made another motion for a new trial upon grounds, set forth therein, which motion was denied by the trial judge upon the merits. The defendant now seeks to review said decision in denying such motion for a new trial, and, for that purpose, has sued out a writ of error from this court. The sole question presented to us is whether a writ of error will lie to review the determination of the trial judge in denying the motion for a new trial upon the merits after the affirmance of the cause in this court.

At common law a motion for a new trial was addressed to the sound, legal discretion of the trial court, and its decision was not the subject of review, in the absence of a statute.

Section 10492, 3 Comp. Laws (5 How. Stat. [2d-Ed.] § 14107), provides that—

“All writs of error upon any judgment or final determination, rendered in any cause, in any court of law and of record in this State, shall be brought,” etc.

Is the denial of a motion for a new trial upon its merits, made after remittitur is filed with the lower court, a final determination within the meaning of said section ? We think not, and, in a similar case under an Ohio statute, the court says:

“Error lies to the judgment, but not to the decision of the motion; though that decision may be made a ground for the reversal of the judgment. It has long been settled in this ptate that ‘ an order of the court granting or overruling a motion to set aside the verdict of a jury and grant a new trial, is not a final judgment or order, for the reversal of which error can be prosecuted before the final disposition of the case.’ Conord v. Runnels, 23 Ohio St. 601. Such a motion, it is held in that case, is addressed to the sound discretion of the court. If granted, it does not determine the action, but merely compels the parties to retry their case before the same tribunal; and if overruled, it simply permits the determination of the action already reached to stand. It may be said that sustaining the motion has the effect of preventing a judgment in favor of the successful party at the trial, and affects a substantial right of his by subjecting him to the costs and uncertainties of another trial, and it undoubtedly does temporarily prevent final judgment, but not eventually; and the cost and uncertainties of another trial is the result of some error which the court in the exercise of its discretion deems sufficient to warrant it. And so, if the motion be overruled, the unsuccessful party must incur the expense of a proceeding in error, if he is dissatisfied with the result; but neither the overruling nor sustaining of the motion is, within the meaning of the code, such final order as may, itself, be the foundation of a proceeding in error.” Young v. Shallenberger, 53 Ohio St. 291 (41 N. E. 618).

Prior to the statute of 1893, being section 10504, 3 Comp. Laws, the granting or denial of a new trial could only be reviewed by mandamus. Churchill v. Alpena Circuit Judge, 56 Mich. 536 (23 N. W. 211). This statute provides—

“ That in all cases hereafter taken to the Supreme Court on writ of error or appeal, where a motion for a new trial has been previously refused by the trial judge, the party appealing the same may incorporate in the bill of exceptions a record of all proceedings had on said motion for a new trial, including the reasons given by the trial judge in refusing to grant said new trial. Exceptions may be taken and error assigned on the decision of the circuit judge in refusing such motion, and the same shall be reviewed by the Supreme Court.”

This court has held that this section did not apply where the motion was decided and the writ of error issued before the act took effect (Gemberling v. Lazarus, 100 Mich. 324 [58 N. W. 1005]); nor does it enlarge the time provided for suing out a writ of error. Hill v. Hill, 114 Mich. 599 (72 N. W. 597). Clearly, from the language of the statute, the condition precedent upon which the decision of a trial judge refusing a new trial can be reviewed is that a motion for a new trial shall be refused previous to the issuing out of a writ of error or appeal.

The trial judge having exercised his sound, legal discretion in denying the motion for a new trial upon its merits, in the absence of express statutory authority, his action is not subject to review by a writ of error; and the motion is therefore granted, and the writ is dismissed, with costs.

Moore, C. J., and Steere, McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.