source: Caselaw Access Project

author: Moore, C. J.

license: Public Domain

text:
    THE STERN CO. v. FRIEDMAN.
    Statutes — Constitutional Law — Equity Jurisdiction.
    Where it- is clear that a bill was drawn asking for a declaration of rights under Act No. 150, Pub. Acts 1919, and a case for equity jurisdiction is not made out, the decree entered by the court below cannot be sustained, on appeal, by the Supreme Court, said act having been declared unconstitutional in the case of Anway v. Railway Co., ante, 592.

    Appeal from Kent; Perkins (Willis B.), J.
    Submitted June 11, 1920.
    (Docket No. 67.)
    Decided September 30, 1920.
    Bill by The Stern Company against Morris Fried-, man, surviving partner of M. Friedman & Comnany, and Alexander W. Hompe under Act No. 150, Pub. Acts 1919, for a declaration of rights in certain leases. From a decree for plaintiff, defendant Friedman appeals.
    Reversed, and bill dismissed without prejudice.

      Jewell & Smith, for plaintiff.

      Travis, Merrick, Warner & Johnson, for defendant Friedman.
   Moore, C. J.

On January 16, 1915, Alexander W. Hompe leased to Morris Friedman and Joseph Roth, co-partners doing business under the firm name of M. Friedman & Company, certain premises in the city of Grand Rapids, situated at 116 Monroe avenue, including an extension of said building fronting on Ottawa avenue, and known as No. 123 Ottawa avenue N. W. This lease was for a term of five years from and after January 1, 1915. The following provision signed by Mr. Iiompe was indorsed on the foot of the lease:

“I hereby agree to renew thisi lease for a further period of five years from the expiration hereof upon the same terms and conditions herein contained, except that the rent which shall be determined by arbitration at least six months before the expiration hereof shall not be less than five thousand dollars per year, plus taxes, assessments and insurance. This option shall expire July 1, 1919.”

Under date of June 10,1916, the plaintiff took a sublease from Messrs. Friedman and Roth covering the above described premises, except the ground floor and basement of the store known as 123 Ottawa avenue N. W., for a period of three years and six months from and after July 1, 1916, which sub-lease contained the following provision:

“It is further agreed that said second party may at its option renew and extend this lease for a further period of five years from the expiration hereof at a rental to be agreed, upon between the parties hereto or determined by arbitration, but which shall not be less than $5,000 per annum, written notice of its intention to exercise such option to be given not later than January 1, 1919, and upon such notice being given, said first parties shall forthwith exercise their option with the owner of said premises for such renewal and extension and proceed to carry into effect for the benefit of said second party all rights and privileges of renewal to which they are entitled under their lease from the owner of said premises, and in determining the rental for such additional period the amount received as rent for the remaining portion of the premises described in the lease between said first parties and the owner, or the fair %>ro rata rental value thereof, shall be taken into consideration and due allowance therefor to said second party.”

Late in December, 1918, The Stern Company sent by mail to defendant Friedman (said Joseph Roth having died on or about November 12, 1918) a notice as follows:

“To Morris Friedman and Joseph. Roth, Co-partners, trading as M. Friedman & Company.
“Sirs: You will please take notice that The Stem Company, lessee of the four-story brick building situated at No. 116 Monroe avenue, Grand Rapids, Michigan, and including the portion of said building fronting on Ottawa avenue known as 123 Ottawa avenue N. W., with the exception of the ground floor and basement on Ottawa avenue formerly occupied by Charles A. Kelley and leased by the Anheuser-Busch Brewing Association of St. Louis, Missouri, under lease from you dated June 9, 1916, hereby gives notice under the terms of said lease of its intentions to exercise the option in said lease contained and hereby exercises its option to renew and extend said lease for a further period of five (5) years from the expiration thereof, at a rental to be agreed upon as in said lease provided.
“Dated December, 1918.
“The Stern Company,
“By Herman Stern, President.”

After receipt of this notice it does not appear that plaintiff and Friedman took any action with reference to renewing the lease, or agreeing upon the amount of the rental or with reference to arbitration, except that early in the year 1919 Mr. Friedman’s attorneys advised the attorneys for the plaintiff that in their judgment the provisions in these leases with reference to renewals thereof were invalid and unenforceable because the minds of the parties had not met upon the amount of rental to be paid or the method whereby the same should be determined by arbitration.

The petition in this case was filed under Act No. 150 of the Public Acts of 1919, asking for a declaration of the rights of the parties to these leases.

Defendant interposed defenses as follows:

1. That the minds of the parties had not met upon the amount of the rental to be paid for the extended period.

2. That the method whereby the amount of rental was to be determined by arbitration had not been agreed upon.

3. That the notice given by The Stern Company was not a sufficient or proper election to renew the lease in the manner provided for in the clause with respect to such renewal, the provision in the lease being that the renewal was to be “at a rental to be agreed upon between the parties hereto, or determined by arbitration,” whereas plaintiff in its notice attempted to renew “at a rental to be agreed upon.”

4. That the' original lease with Mr. Hompe was not subject to renewal at the election of Mr. Friedman, because the original lease was with Friedman and Roth, and Mr. Roth had died, consequently Mr. Hompe could not be compelled to renew with Mr. Friedman alone.

On September 24, 1919, plaintiff filed this bill in chancery, designated as a bill for declaration of rights, making Messrs. Friedman and Hompe defendants in the bill. The case was heard in open court, oral testimony was taken, on the objection of the defendant, as to the agreement about arbitration made as is alleged in a conversation before the lease was drawn. The objection was that the testimony was not competent under the pleadings, was within the statute of frauds, and that it was merged in the writing which was drawn later.

At the conclusion of the hearing a decree was entered, reading in part:

“The method of determining the rent as provided in the lease having been abandoned by the defendant Friedman, plaintiff is authorized to proceed in this case or elsewhere in this court to have the rental value of the premises covered by its lease and the rental value of the remainder of the premises covered in the lease from defendant Hompe to defendant Friedman determined, and upon such determination plaintiff has the right to require defendant Friedman to put it into possession for the renewal term under the conditions of the lease, or to proceed against the defendant Friedman and recover from Mm such damages as he may have sustained by reason of the failure of defendant Friedman to seasonably perform said agreement for renewal.
“No right now exists in either the plaintiff or the defendant Friedman against the defendant Hompe to compel an extension by him of the lease to defendant Friedman.”

The case is brought here by appeal.

When the case reached here the court of its own motion raised the question of the constitutionality of Act No. 150 of the Public Acts of 1919, and invited briefs in relation thereto. A brief has been filed upon that subject by the appellee, but the appellant contents itself by saying:

“The bill in this case was filed under the statute heretofore referred to for a declaration of rights. The plaintiff can obtain no relief in this action under any practice existing independent of that act and therefore this suit must stand or fall so far as jurisdiction is concerned upon the validity of that act, the constitutionality of which we understand is now pending in this court in a former case. We therefore do; not discuss that question but leave the same to the decision of the court.
“If the act is held unconstitutional then of course this bill will be dismissed. In any event we submit that the renewal contract was incomplete, invalid and unenforceable.”

The constitutionality of the act received the full consideration of this court in the case of Anway v. Railway Co., ante, 592, in which an opinion was handed down at this term of court. We refer to the opinions in that case where it was held that the act was unconstitutional and as' to that phase of the case it is controlling here. The prayer for relief in the bill or petition filed to commence this proceeding reads:

“Wherefore, the plaintiff prays that this court make a binding declaration of the rights of the various parties in and under said written leases, option agreements, notices, etc., and especially of the rights of this plaintiff thereunder.”

When the question of the constitutionality of the act -was raised in this court counsel for plaintiff asked for leave to amend the original bill or petition by inserting a prayer for general relief, claiming that, if this was done, the decree could be sustained, even though Act No. 150, Public Acts of 1919, was held to be unconstitutional. Opposing counsel make no objection to the motion, but we have already indicated what their contention is if Act No. 150 is held to be invalid.

In the brief of the appellant it is said:

“This is a sort of moot case instituted under Act No. 150 of the laws of 1919, to determine what the technical rights of the parties were under these instruments, no damage by reason of the alleged breach thereof being alleged or claimed, and no relief sought which could be granted in this case, except a mere declaration of rights. This bill was filed while the plaintiff was still in possession under the original lease, and before the time had arrived when it would be entitled to possession under the extension. As a matter of fact The Stern Company has suffered no damage, and has been in continuous possession of the property since the original lease expired, having, as we understand it, leased the premises direct from the owner, Mr. Hompe, at the minimum rental provided for in his lease.”

The attention of counsel for the plaintm has been called to this statement. They reply that the case is not a moot one and say in part:

“It appears that at the time the building was sublet. •to The Stern Company by defendant Friedman the .'latter especially reserved and excepted the ground floor and basement on Ottawa ave., then occupied by •Chas. A. Kelley, who was engaged in the saloon business. The rental at that time was very profitable to Mr. Friedman, but through the unexpected change in events, the exodus of the saloon on May 1, 1918, deprived defendant Friedman of a very profitable tenant and that portion of the property was vacant for some time, and as a matter of fact, defendant Friedman made unsuccessful efforts to rent that portion of the building at $50 a month. The Stern Company sublet the property with the exception of the reservation referred to for a comparatively short period of three years and six months, relying upon the understanding and agreement as expressed in the contract with defendant Friedman, that the latter would exercise his option and make a renewal to the plaintiff for a further period of five years. The Stern Company in the planning and developing of its business made calculations therefor only as to that portion of the building covered by its lease, and planned its business with the understanding that a renewal would be made for the extended period of five years. Upon the failure of defendant Friedman to comply with the terms of his agreement and secure the renewal or extension the plaintiff, The Stern Company, was compelled to protect itself by making a lease directly with Mr. Hompe, a copy of which we are enclosing herewith.
“It will be seen from this l^ase that The Stem Company has been obliged to take the entire building, including the portion which it did not want and had made no plans to use, and which Mr. Friedman had found to be unprofitable to carry after the loss of his tenant Mr. Kelley. It will also be seen from this lease that The Stem Company in addition to the payment of the minimum rental of $5,000 a year, as provided for in the Friedman lease, has also been obliged to assume the payment of all the taxes on the building, and also the cost of keeping up the insurance. The taxes are paid twice a year in this city, in July and December. We are enclosing herewith duplicate of the receipt for the July taxes, showing that the amount of the July instalment of taxes alone amounts to $1,567.73. The December taxes will also have to be paid, and also the cost of keeping up the insurance. These are all substantial elements of damage claimed on behalf of the plaintiff in addition to other damages claimed to have been suffered by them by reason of the failure of the defendant to comply with the terms of his agreement.”

The petition or bill of complaint is very short. It commences “Bill of Declaration of Rights.”

We have already quoted from the decree which we are asked to affirm. It is worthy of notice that the decree does not make a final disposition of the case. The rental value of the premises is nowhere averred in the bill of complaint, no proof was made in relation thereto. Counsel in the briefs speak of the valuable improvements that plaintiff has made relying upon an extension of its lease. The bill is silent in relation to improvements and the record does not disclose that any testimony was taken upon that subject. The bill nowhere avers that the plaintiff is without a complete and adequate remedy at law, and the record does not. show that to be a fact. It is clear that the pleader in drawing the bill or petition had in mind only that he was asking for a declaration of rights under Act No. 150, and had no thought of preparing what we ordinarily understand as, a bill in chancery, the averments of which would authorize a decree in equity.

When Act No. 150 of the Public Acts of 1919 is held, to be invalid we think it follows that this proceeding must fail.

The decree is reversed and the petition or bill of ■complaint is dismissed, but without prejudice to pursue any other remedy open to the appellee, and without costs to either party.

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

Sharpe, J. In view of the disposition of the case of Anway v. Railway Co., ante, 592, handed down herewith, I concur in the result.

Clark, J., concurred with Sharpe, J.


author: Brooke, J.

text:
    GARDNER v. RUSSELL.
    1. Trial — Negligence—Contributory Negligence — Automobiles—.
    Instructions — Repetition.
    In an action for personal injuries, caused by a collision between plaintiff’s motorcycle and defendant’s automobile at a street' intersection, the repetition by the trial judge of the fact that plaintiff could only recover if he established by a preponderance of the evidence the fact that he himself was free from contributory negligence, and that defendant was guilty of negligence, held, not prejudicial to plaintiff, since it was a correct statement of the law.
    2. Same — Damages—Instructions.
    The use by the trial judge of the language, “If you arrive at the point when damages are assessed,” where the facts were in dispute, held, not objectionable as giving the jury to understand that it was very questionable if they would ever arrive at that point.
    3. Same — Preponderance oe Evidence — Instructions.
    The use by the trial judge of the language, “Now, a preponderance of evidence does not mean number of witnesses. It means that evidence, which taken in connection with your experience as honest and experienced and intelligent men, convinces you of its truthfulness,” taken
    . with the charge as a whole, held, not reversible error.
    4. Same — Automobiles—City Ordinance — Instructions.
    Where the city ordinance governing the use of the streets by vehicles was introduced in evidence, the trial court might with propriety have called the attention of the jury to said ordinance, yet where it was a question of fact as to whether plaintiff or defendant reached the street intersection first, the general instruction that “All men must conform to the law of the road,” held, sufficient.
    5. Same — Instructions—Charge as Whole.
    While the charge of the court that “Negligence is the lack of conduct that is thoughtful and lawful,” standing alone, might be open to criticism, yet when taken in connection with what was further said on the same subject, held, not reversible error.
    On liability for collision of automobile with bicyclist, see note in 28 L. R. A. (N. S.) 944.

      Error to Ingham; Collingwood (Charles B.), J.
    Submitted June 10, 1920.
    (Docket No. 41.)
    Decided September 30, 1920.
    Case by John H. Gardner against Isaac W. Russell for personal injuries. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Frank L. Dodge and D. G. F. Warner, for appellant.

      Brown &, Kelley, for appellee.
    This is a suit for damages for an alleged negligent injury to the plaintiff. While the evidence on some material points is in sharp conflict, it appears that on the 15th of October, 1918, plaintiff, then employed as a police officer by the Olds Motor Works in the city of Lansing, was riding to his work on a motorcycle, accompanied by one Frank Eno, another officer employed by the same company, who occupied the rear seat They were proceeding south on Pine street (a much-traveled north-and-south highway) and as they arrived at the intersection of Washtenaw street, plaintiff noticed defendant’s automobile approaching from the east. There is a difference of opinion between the parties as to which reached the crossing first, neither apparently preceding the other by any considerable time.
    It is defendant’s claim that he was driving about 12 miles an hour and that he first thought that he could pass in front of the motorcycle. The next instant, however, he saw that this was impossible, and, in an effort to avoid a collision, swerved his car to the left and went a short distance down Pine street. Plaintiff testified (and he is corroborated by Frank Eno) that in making the turn, defendant’s right front fender struck his motorcycle. Defendant denies he had any knowledge of any collision between the automobile and the lighter vehicle, stating that he was not aware that anything unusual had occurred until he heard the motorcycle fall behind him. He claims further that from the time he commenced to change the course of his car until he brought it to a stop, plaintiff’s machine was in his rear, and consequently that it would have been impossible for the front fender to have struck the motorcycle.
    The evidence is in conflict as to the relative speed of the machines. Defendant testified that he first saw the motorcycle when it was about 185 feet from the crossing and that it was then traveling between 15 and 20 miles an hour, and that he did not again look for it until he was at the crossing, when he saw his danger. Plaintiff and Eno estimate the speed at considerably less (not more than 10 miles per hour) and the former describes in detail the precautions he took, although he admits that he did not see the automobile until he was just about to enter the intersection and that “there is no reason why I could not have seen him if I had looked before that time.”
    Plaintiff introduced in evidence an ordinance of the city of Lansing, the material parts of which are as follows:
    “Section 7. All vehicles (other than motor vehicles) shall be driven or operated at a rate of speed not to exceed six miles per hour; and all automobiles, motorcycles and motor vehicles shall be driven or operated at a speed not to exceed 10 miles per hour within the fire limits, or within any city park, and fifteen miles outside the fire limits, except as herein otherwise limited or restricted.
    “Section 12. At all street intersections except where there is a traffic officer the right-hand vehicle will have the right of way.” * * *
    At the conclusion of the testimony, plaintiff presented the following requests to charge, all of which were refused by the trial judge;

      **1. The use of the streets and thoroughfares in this city are governed by the laws, of the State and the ordinances of the city of Lansing that relate to the use of the highway, and it is made the duty of travelers in each instance to so use his right of passage over the streets and highways as. not to injure another having a like right and one is responsible for an injury caused to the other, when he could have avoided it by the exercise of reasonable care on his part.

      “2. Under the ordinances of the city of Lansing at the particular intersection in question, Pine street, which runs north and south, is one of the main thoroughfares in said city and a vehicle has the right of way under the ordinance that has been introduced in evidence over vehicles using Washtenaw street, so that in this instance it was incumbent upon the defendant in tliis. case to observe this requirement and to approach said intersection with a due regard for any vehicle that might be approaching at the time in question on Pine street.
    “3. The testimony of the defendant Mr. Russell in this case shows that he saw the plaintiff and the motorcycle coming at a distance of 185 feet north of the intersection and that it was coming at a high rate of speed. I charge you that if he did see the motorcycle at 185 feet north of the intersection coming at a high rate of speed, it was his duty to have the approach of the motorcycle in mind and give such attention to it, at least in his approaching said intersection and crossing it, to enable him to exercise the necessary care and precaution on his part to avoid a collision or an accident, between defendant’s automobile and plaintiff’s motorcycle. •
    “4. If you find from the evidence that the defendant was aware as he approached said intersection that the plaintiff’s motorcycle was coming at a point 185 feet north of this intersection at a high rate of speed or a speed of twenty or thirty miles per hour that it then became the duty of the defendant in approaching and crossing said intersection to do so with the care and precaution that would be naturally and reasonably required under the circumstances.
    “5. I charge you that the defendant’s evidence shows that when he was approaching said intersection at the time of the accident he observed the plaintiff’s motorcycle 185 feet north of said intersection and that he did not observe it or notice it further until he heard the noise and saw it afterward as it was on the pavement after the accident. I charge you that you have no right to assume from the evidence that the motorcycle continued up to the intersection at the same rate of speed that defendant claims it was going when he saw it at a distance of 185 feet to the north of the intersection.
    “6. I charge you that under the evidence in this case that the plaintiff had a right to expect from the defendant reasonable care on his part in approaching said intersection to enable the plaintiff to determine his own means of crossing said intersection and that this right is reciprocal and cannot be disregarded. The rate of speed of an automobile or motorcycle must at all times be reasonable and proper with a due regard to existing conditions at the time and place as in this instance for the lives and safety in the use of the intersection in question and unless you find that the defendant did exercise such reasonable care at the time in question in approaching and crossing said intersection he would be guilty of negligence and the plaintiff would be entitled to recover damages in this action providing he himself was free from negligence contributing thereto.”
    The charge of the court was brief, and is here quoted in its entirety:
    “1. The Court: Gentlemen of the jury: In this case John H. Gardner brings suit against Isaac W. Russell for damages arising out of an accident in which he alleges that, while he himself was entirely free from negligence, John H. Gardner was free from negligence, Isaac W. Russell negligently caused the accident.

      “2. In this case as in every case the burden of proof rests on the plaintiff and the plaintiff must convince you by the evidence and by a preponderance thereof of the.truth of his claim. Now remember what the claim of the plaintiff is — that while he himself was free from any negligence that the defendant negligently caused the accident.
    “3. You have seen the witnesses and you have heard their testimony. That is your province. If John H. Gardner does not convince you by the evidence and by a preponderance thereof of the truth of his claim, your verdict must be not guilty, and that would end the case.
    “4. Now preponderance of evidence does not mean number of witnesses. It means that evidence, which, taken in connection with your experience as honest and experienced and intelligent men, convinces you of its truthfulness.
    “5. Automobiles, auto cycles, and bicycles and horses and wagons and pedestrians all have certain rights in the streets. The right of no one vehicle is superior to that of another, but all men must conform to the law of the road.
    “6. If you find that Isaac W. Russell conducted his car in an orderly and lawful manner, without negligence and with due attention to all of the matters that were before him at the time, then he would not be negligent; because negligence is the lack of conduct that is thoughtful and lawful. Unless John H. Gardner, the plaintiff, conducted himself in a manner free from all negligence, he could not recover. You understand, gentlemen, that not every action, even though serious damage may be caused, can form the basis of a recovery of damages. Accidents may happen in which no one is to blame and the loss falls where it does fall. The law requires from each person that degree of care and prudence which an ordinarily prudent man would exercise. It does not require anything more. It does not require a special degree of intelligence, or of care. 'It is the care which an ordinarily prudent man will use under all the circumstances of the case; what that care is which an ordinarily prudent person should use is for you to determine under the circumstances of the case and the evidence as it comes before you.

      ‘7. It is not the province of the court to discuss the testimony; that is for you. It is not the province of the court to tell you what the court thinks in regard to the testimony of any one person. You take the case as it comes to you with the evidence that comes to you from the witness stand and. then you determine whether under all the circumstances of tne case whether the plaintiff has proved his claim. Remembering all of the time that his claim is that the defendant was negligent while he himself was free from any negligence which contributed to the accident. In this case there is no doubt but that Mr. Gardner was injured. It is alleged and admitted that John H. Gardner was riding his motorcycle, when he had ah. accident; that the motorcycle fell upon his left leg and broke it and bruised him. The question for you to determine is as I have told you under the circumstances of the case and under the law, as I have given it to you, Is Isaac W. Russell responsible in damages for that accident?
    “8. Now, gentlemen, if under the evidence and by a preponderance thereof, you cannot find that Isaac. W. Russell was guilty as charged, your verdict will be not guilty, and that will end the case. But if, under' the evidence of this case, you find that Isaac W. Russell, was negligent and that John H. Gardner was free from, all negligence, which contributed toward that accident, then your verdict should be guilty and under those circumstances you would proceed to assess the damages. And in assessing the damages, you should give such damages as the plaintiff is under the circumstanees_ of the case entitled to; his expenses in the case, his. doctor’s bill, his bill for medicine and liniment, the amount of his wages, which he has lost during this time and for his pain and suffering. Now wages and medical bills can, be estimated from the evidence that comes to you. But pain and suffering is something that is intangible. You will have to determine that from your experience as men — not to penalize any one. If you find that defendant guilty as charged, you cannot assess damages against him with the thought: ‘Now that will cure him of his carelessness.’ You have no right to do that. You can only estimate as reasonable and intelligent men what that pain and suffering has been worth in dollars and cents. It is an inadequate and a difficult matter to arrive at an exact estimate, but that is a part of your duty.
    “9. Then, gentlemen, you will have to determine whether Mr. Gardner is entitled to-'any future benefits for any damage, which may accrue to him in the future, for pain and suffering or for loss of wages in the future, if you so find. There is no testimony in this case, as I understand it, which would allow you to find that Mr. Gardner is permanently injured, but there is téstimony, from which you would find that Mr. Gardner may suffer during a period of years, both from pain and suffering and from the loss of his earning capacity, and it would be your duty if under the circumstances you find a verdict of guilty, it would be your duty to estimate what those future damages would be. And in estimating that, you must remember that those damages do not accrue until Mr. Gardner has lived that period and if you estimate it for years you would have to estimate the number of years that, that damage would accrue to him and then you will understand that if you assess those damages, that you would assess them in a lump sum, and that money in hand today is worth more than money due a year or two years from now. So you will have to estimate in that case the present worth or whatever future damages you may assess and you will remember that the present worth is found by dividing amount of damage which you find to be due by one plus the interest at 5% for that time, taking as a basis, the present worth of $1 due one year from now is found by dividing one dollar by $1.05 and for two years by $1.10. That gives you the amount which placed at interest, it gives you the sum, which placed at interest would amount to the damages which you assess at the end of the period for which you have assessed it.
    “10. Now, gentlemen, in this case a question was asked to which I think there was no answer given and no answer should have been given, because the question should not have been asked. It related to whether Mr. Russell carried insurance. Now, gentlemen, to be very blunt and very brief with you, that is none of your business. Mr. Russell, if damages are assessed, is supposed to pay those damages himself and the introduction of the thought that possibly some one else would pay those damages for Mr. Russell was improper and I want you to free your minds from any such imputation. And in assessing damages, if you arrive at the point when damages are assessed, eliminate from your mind any thought that any other, person, firm or corporation will pay this money except Isaac W. Russell.
    “11. Now, gentlemen, with just one thought in mind, I am going to leave the matter with you — that you cannot find defendant guilty until plaintiff has- by the evidence and a preponderance thereof proved the truth of his claim, that is — Mr. Gardner’s claim is that Mr. Russell was negligent and that he, Mr._ Gardner, was free from all negligence, which contributed toward the accident. You have got to find both of those factors before you can find defendant guilty, and if you cannot find defendant guilty your verdict would be not guilty, and if you can find that to be true then you go to the question of assessing damages under the law as I have given it to you.”
    The jury found for the defendant. The case is before this court on 14 assignments of error, all of which are based upon the failure of the court to charge as requested and upon the charge as given.
   Brooke, J.

(after stating the facts). The first objection urged against the charge as given is that the learned trial judge unduly emphasized by repetition the fact that plaintiff could only recover if he established by a preponderance of the evidence the fact that he himself was free from contributory negligence and that the accident was caused through the negligence of the defendant. While this statement is (perhaps needlessly) reiterated in the charge, it is a correct statement of the law and we do not think its repetition was prejudicial to plaintiff.

It is next asserted that the use of the language, “If you arrive at the point when damages are assessed,” gave the jury to understand that it was very questionable if they would ever arrive at that point. The language used is very commonly employed in charges where, as in the case at bar, the facts are in dispute, and is not subject to just criticism.

It is next asserted that the use of the following language constitutes reversible error:

“Now, a preponderance of evidence does not mean number of witnesses. It means that evidence, which taken in connection with your experience as honest and experienced and intelligent men, convinces you of its truthfulness.”

To this the court later added:

“It is not the province of the court to discuss the testimony; that is, for you. It is not the province of the court to tell you what the court thinks in regard to the testimony of any one person. You take the case as it comes to you with the evidence that comes to you from the witness stand and then you determine whether under all the circumstances of the case whether the plaintiff has proved his claim.”

We think, taken as a whole, the charge of the court upon this point is within the line of our own authorities. See Strand v. Railway Co., 67 Mich. 380; Dupuis v. Traction Co., 146 Mich. 151. Here the court did not instruct the jury that the number of witnesses had nothing to do with the preponderance of evidence. He simply stated that preponderance of evidence did not mean “number of witnesses.” ,

It is next urged that the court erred in charging the jury that—

“Automobiles, autocycles, and bicycles and horses and wagons and pedestrians all have certain rights in the streets. ■ The right of no one vehicle is superior to that of another, but all men must conform to the law of the road.”

The city ordinance touching the rights of the parties had been introduced and read in evidence and the jury were by this instruction advised that it was the duty of the parties to conform to that law. While the court might, with propriety, have called the attention of the jury to the ordinance, the obligation and duty of the defendant thereunder would depend entirely upon whether defendant reached the intersection before the plaintiff, as claimed by him, or after the plaintiff, as claimed by the plaintiff; and, therefore, the general instruction that "all men must conform to the law of the road” would seem to be sufficient.

It is urged that the court erred in charging the jury that—

"Negligence is the lack of conduct that is thoughtful and lawful.”

Standing alone, this definition of negligence would be open to criticism, but in the same connection the court charged:

“The law requires from each person that degree of care and prudence which ordinarily a prudent man would exercise.”

And again:

"And what that care is which an ordinarily prudent person should use is for you to determine under the circumstances of the case and the evidence as it comes before you.”

The disputed questions of fact were few and the witnesses but three. We are of the opinion that, taken in its entirety, the charge fairly presented the disputed questions to the jury.

The judgment is affirmed.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    WHITE v. WADHAMS.
    1. Gontemft — Evidence—Sufficiency.
    In proceedings charging defendants, a brother and two sisters, with contempt of court and with conspiring to defraud plaintiff out of the amount found to be due him in a partnership accounting case, on deposit in a bank, the conclusion of the court below that defendants were guilty of contempt, held, warranted as to the brother and the sister who made her home with him, but not warranted as to the other sister, there being no evidence that she had any notice of the existence of the injunction violated.
    2. Damages — Costs in Former Case — Statutes.
    Where plaintiff’s position in a former proceeding in this case was held untenable by this court (204 Mich. 381) the court below was in error in allowing plaintiff damages therefor under 3 Comp. Laws 1915, § 12288.
    3. Same.
    Although a supplemental bill was improvidently filed, leave of this court not having been first obtained, where the court ultimately permitted the filing of the bill, the cost of preparing same, also service of subpoenas and the transcription of testimony was properly allowed.
    4. Same. ^
    Costs allowed to defendants by this court in the former suit could not be recovered by plaintiff in this suit.
    5. Same — Liability of Defendants — Notice.
    Defendants’ contention that the two sisters, defendants, should not be held liable for the original balance due on the accounting, held, well founded as to the one who had no knowledge of the injunction and received no beneficial use of the fund; but untenable as to the other who had full knowledge of the facts.
    6. Constitutional Law — Jail Sentence.
    Defendants being guilty of a gross contempt of court, their contention that the jail sentence provided in the decree in case of default in payment is prohibited by section 20, Art. 2, Constitution of Michigan is not sustained by the authorities.

      Appeal from Kent; Brown (William B.), J.
    Submitted June 9, 1920.
    (Docket No. 25.)
    Decided September 30, 1920.
    Supplemental bill by Marl S. White against Frederick N. Wadhams and others to enforce a decree entered on a bill for a partnership accounting, and to adjudge defendants in contempt of court. From a decree for plaintiif, defendants appeal.
    Modified, and affirmed.

      Elvin Swarthout, for plaintiff.

      Arthur Brown (E. R. Sunderland, of counsel), foi defendants.
    This case is now in this court for the third time. On its first two appearances, it will be found reported, 204 Mich. 381, and 206 Mich. 608. After the filing of the later opinion, plaintiif paid the costs as directed and an order was granted nunc pro tunc permitting the filing of the supplemental bill. The bill was answered by all the defendants and they were represented by counsel at the hearing in open court thereafter. It will be remembered that the supplemental bill charged the three defendants with having committed contempt of court and with conspiring to defraud plaintiif out of the amount found to be due him in the partnership accounting case. After full hearing upon the merits, the learned circuit j'udge filed a written opinion and entered a decree, which follows:
    “This cause having come on to be heard upon the supplemental bill of complaint herein, filed pursuant to an order of the Supreme Court, and the several answers of the defendants above named; and upon proofs taken in open court; and after hearing Messrs. Swarthout and Master, attorneys for _ plaintiff, and Mr. Arthur Brown, attorney for the said defendants; and the court being fully advised in the premises, upon consideration thereof, the court doth find:

      “I.
    “That the said defendant Frederick N. Wadhams. after the injunction issued on the filing of the original bill of complaint had been duly and personally served, on him, and while said cause was pending in this court, sold and disposed of certain of the assets of the partnership mentioned in said bill; and also used and applied certain of the moneys and other property of said ■ partnership to his own use; and also contrived to draw from the Hastings City Bank the funds therein deposited in his own name on December 11, 1916, belonging to said partnership — contrary to the terms of said injunction and in disregard thereof, and in contempt of this court and its process.
    “II.
    “That at the time of the filing of said bill and the. service of said injunction, the said deposit in said Hastings City Bank of partnei'ship funds consisted of the sum of $950, and was evidenced by said bank’s certificate of deposit, running to the order of said F. N. Wadhams, dated December 18, 1916.
    “The court finds that said certificate was not indorsed over by said Frederick N. Wadhams to his sister, Ida E. Wadhams, for value, a day or two prior to the service of the injunction, as they claim. Ida E. Wadhams had made her home with her said brother, Frederick N. Wadhams, ever since their mother died; she was his housekeeper long before the said partnership was formed, and was such during the period of said partnership, and so continued down to the date of the hearing on this supplemental bill. During these many years they lived along together, except that the Whites lived in the same house with them on the farm for a few months during the summer the partnership was in operation. Ida E. Wadhams was entirely familiar with the negotiations leading up to the partnership, she lived in and through it at the farm and knew all about the difficulties which had arisen between Wadhams and White and that caused the sales of the partnership assets, and the breaking up of the partnership. That said Ida E. Wadhams knew that said certificate represented the avails of the said partnership; and that there was trouble between her brother and plaintiff over its division; and that plaintiff had an interest in it, the same being the balance due him as his part in said pártnership after payment of the debts; and that she knew of the filing of the said bill of complaint and the issuance of the injunction to and the service of it on Frederick N. Wadhams herein, and the purport of these proceedings. That she and her brother kept said certificate in their home from the date of the service of said injunction, December 23, 1916, for nearly a year, while this suit was waiting its course on the calendar, and that during all of that time it was subject to the control of said Frederick N. Wadhams, and that they did not dispose of it in any way until December 3, 1917, the very day on which said hearing was begun on the original bill, when she cashed it at the State and German-American Savings Bank of Ann Arbor, and directed that $700 of the fund be placed in that bank’s certificate of deposit, running to the order of said defendant Clara E. Straith. Clara E. Straith is. the sister of said Frederick N. Wadhams and Ida E. Wadhams. They were not owing her. She took the new certificate without parting with or paying any consideration for it. This was enough to put her on her guard, especially since she knew they had no great amount of money. At said Ida E. Wadhams’ request said Clara E. Straith, four days later, indorsed said $700 certificate and turned it over to her son, said defendant Fred W. Straith, who, at the request of said Ida E. Wadhams, indorsed and cashed it at a bank at Ypsilanti (he having paid no consideration for it), and turned the avails over to said Ida E. Wadhams. That the entire of said fund of $950 was used up by said Frederick N. Wad-hams and Ida E. Wadhams in paying the household and family expenses of said Frederick N. Wadhams. Frederick N. Wadhams and Ida E. Wadhams retained possession of this certificate (which drew only 2%), for a year, hoping and expecting that this suit would not be brought to a hearing, but when they found it was going to a decision, they suddenly cashed it and disposed of the fund without banking it.
    “HI.
    “That said Clara E. Straith knew that the fund represented by said certificate was a trust fund of, and property belonging to said partnership; and also that said Frederick N. Wadhams was in attendance at this court at the hearing of this cause at the time Ida E. Wadhams cashed said certificate at the Ann. Arbor-bank; and that this case was still undisposed of; and the court finds that all of the defendants to the supplemental bill were in collusion in this matter with the purpose of defrauding plaintiff out of his interest in the partnership fund, and knew it was a partnership fund.
    “IV.
    “That the transfer of the certificate of deposit from said Frederick N. Wadhams to his sister, Ida E. Wad-hams, was not a transfer thereof in due course and for value; that she was never a good-faith holder thereof; that she knowingly took it for the purpose of helping her brother prevent White from getting his share of the partnership fund out of it; and that the transfer of it to her only made her his agent, and she received and handled it thereafter as his agent, and not as the owner.
    “V.
    “That said Clara, E. Straith and Fred W. Straith. never had any pecuniary interest in any of said $950 fund; nor in said $700 certificate issued in her name; that neither of them was a good-faith holder of said $700 certificate or the fund represented by it; that they handled it for the purpose of assisting said Frederick N. Wadhams in holding the entire amount thereof and to prevent plaintiff from getting his share of said partnership fund out of it; and that they held, handled and cashed it, and disposed of its avails only as, said Frederick N. Wadhams’ agents, and not as owners. That the whole transaction was a family machination for the advantage of Fred N. Wadhams and to prevent White from getting his interest out of the fund, and the fraud thereof and the violation of said injunction thereby were fully understood by and between them.
    “VI.
    “That the injunction was directed at a specific trust fund; that said $950 deposit was the subject of the instant litigation and known by all these defendants to be such and to be the avails and the only remaining avails of said partnership, and a trust fund; and that the cashing of said $950 certificate at Ann Arbor on the very day of the hearing was begun herein in Grand Rapids on the original bill, and the cashing of said $700 certificate during the same week and before said hearing was concluded, and the subsequent spending of said fund for the personal expenses and obligations of said Frederick N. Wadhams, was a disposition, dissipation and destruction of the subject matter of this suit pending the proceedings, with intent to withdraw it from the jurisdiction of the court, and thus to render futile any order or decree herein concerning'it, and was and is a contempt of this court in violation of said injunction; and was in disrespect of the court and its proceeds [process], and tended to obstruct the administration of justice, and to bring this court into disrepute, and to render any decree by this, court in the premises uncollectible, since all of said defendants were and are financially irresponsible and all knew that said Frederick N. Wadhams and the other defendants were financially irresponsible. That because of the foregoing plaintiff’s rights have been impaired, impeded and prejudiced and he has suffered loss and injury by such misconduct.
    “VII.
    “That the actions and doings of said defendants in the premises have caused the plaintiff much additional and unnecessary expense in his attempts to collect his share of said partnership trust fund. That he has been forced to expend in cash and has incurred obligations for counsel fees and other expenses, directly due to the said machinations of the defendants and their acts and conduct in the premises, and not due to plaintiff’s fault, amounting to the sum of $300, which sum the court finds to be the actual loss and injury suffered by the plaintiff; and that sum the court orders, and directs the said defendants to pay to plaintiff to indemnify him for such loss and damage pursuant to section 12288, 3 Comp. Laws 1915. This sum is hereby decreed to be paid plaintiff forthwith, in addition to the amount of the original decree herein, to-wit, $567.24, and the interest allowed by said decree, to-wit, $48.76; and the costs taxed, against defendant Frederick N. Wadhams on the original decree, to-wit, $43, together with an attorney fee on this instant proceeding of $30, making a total of $989 due on this decree; no other costs, up to this point, to be taxed.

      “Decree.
    . “It is therefore ordered, adjudged and decreed that there is due from the defendants to the plaintiff the said sum of $989.
    “And it is further ordered, adjudged and decreed that the said defendants pay to the plaintiff, or to his attorneys, within 30 days of the service of a certified copy of this decree on them or any of them so served, the said sum of nine hundred and eighty-nine dollars ($989), and that in case of default in such payment that body execution or other proper process issue against said defendants Frederick N. Wadhams, Ida E. Wadhams and Clara E. Straith, and that they or any of them so served be committed to the common jail of the county of Kent, until such payment is made, together with the costs and expenses of such commitment; or until the further order of the court.”
   Brooke, J.

(after stating the facts). It is first urged on behalf of the defendants that the decree is erroneous in holding these defendants guilty of contempt. After a careful reading of the record, we are satisfied that the conclusion reached by the trial judge as to the defendants Frederick N. Wadhams and Ida E. Wadhams, his sister, is fully warranted. Both of these defendants knew that the fund deposited in the Hastings City Bank, which was represented by the certificate of deposit for $950, constituted the partnership assets in which plaintiff was interested with the defendant Frederick N. Wadhams.

It is strenuously insisted on behalf of defendant Frederick N. Wadhams that he should not be held guilty of contempt because the testimony tends to show (contrary to the finding of the trial court) that the certificate of deposit, which was taken in his individual name, was by him transferred to his sister, defendant Ida, some few days prior to the service of the injunction and that the injunction therefore could not enjoin him from doing what he had already done, in transferring the partnership assets to his sister.

As to the defendant Ida E. Wadhams, it is claimed that she got possession of the certificate through a bona fide purchase from her brother prior to the service of the injunction, and, therefore, that she could not thereafter be; charged with breach of the injunction in converting the same to her own use. This, we think, is a view of the situation entirely too narrow. At the time of the service of the injunction upon the bank and upon the defendant Frederick N. Wadhams the money was in the bank and the bank’s indebtedness on the deposit was represented by the certificate. Personal service of the injunction was made upon defendant Frederick N. and defendant Ida knew of such service and undoubtedly knew that the injunction was directed to the conservation of this specific fund. Defendant Frederick testified as follows:

“Q. And she, of course, knew that this suit had been started?
“A. Yes.
“Q. Knew that we had got out an injunction, served it on you?
“A. Yes, sir.
“Q. She was there when the injunction was served, wasn’t she?
“A. I think so.
“Q. You read it over to'her, didn’t you?
“A. No, sir.
“Q. Did she read it?
A. No, I think not.
“Q. But she knew that an injunction had been served on you?
“A. I think she did.
“Q. And that it related to this money that you deposited in the Hastings City Bank, didn’t she?
“A. The injunction?
“Q. Yes, of course.
“A. Yes; I think so.
“Q. She took it and had it after she knew that this injunction applied to that property?
“A. Yes, sir.”

It is, we think, quite clear that these two defendants, brother and sister, deliberately violated the spirit and letter of the injunction and, in so doing, were guilty of a flagrant contempt of court.

As to the defendant Clara E. Straith a different situation is presented. When the $950 certificate of deposit was cashed by Ida E. Wadhams, she requested a new certificate of deposit for $700, to be made out in the name of her sister, Clara. This was done and Clara retained possession of it for a few days, when she indorsed it, caused it to be cashed, and the cash ■turned over to defendant Ida. The record is barren of testimony tending to show that Clara even knew of the existence of the injunction, and at all events, there is no claim that she ever received the beneficial use of a penny of the fund. She was its custodian for but a few days, when it found its way back into the hands of defendant Ida. Under these circumstances, we think the court was in error in holding Clara to be guilty of a contempt respecting the order of which she is not shown to have had any knowledge.

It is next claimed that that portion of the decree awarding to plaintiff the sum of $800 “under 3 Comp. Laws 1915, § 12288, which sum the court finds to be the actual loss and injury suffered by the plaintiff” is erroneous. The testimony upon which the court made this award is that of Mr. Swarthout, plaintiff’s attorney, and is made up of several items. The first is the sum of $480 for services in prosecuting the claim originally and in an effort to prevent the State Savings Bank from collecting upon the certificate of deposit, which it bought from Ida E. Wadhams. The position of the plaintiff in that controversy was held by this court to be untenable (204 Mich. 381), and we can see no propriety in compelling defendants to pay plaintiff’s attorney compensation for his misdirected efforts.

The next item is $165 for 11 days’- labor in the preparation of the supplemental bill. It is urged by counsel for defendant that this sum likewise should be denied plaintiff because the Supreme Court held (in 206 Michigan) that the amended bill was improvidently filed, leave of this court not having been first obtained. Inasmuch, however, as this court ultimately permitted the filing of the bill, we are of the opinion that this sum may properly'be allowed.

For service of subpoenas on the supplemental bill and the transcription of certain testimony, $9.70. This, it seems to us, is a proper expense.

For costs taxed against plaintiff in the Supreme Court, $108.55, and in the circuit court, $41.50. These costs were allowed to defendants by this court and clearly should not now be repaid to plaintiff by defendants.

The allowance under this head by the circuit, judge is reduced from $300 to $174.70.

It is said that defendants Clara E. Straith and Ida E. Wadhams should not be held liable for the original balance due on the accounting. As to defendant Clara E. Straith, we believe this claim is well founded, because, as heretofore pointed out, she received the beneficial use of no part of the fund and is not shown to have had any knowledge of the injunction. The contrary is true of defendant Ida E. Wad-hams. She had full knowledge of the injunction and its purport and nearly a year after its service, cashed the certificate of deposit representing the trust fund .and converted the money to the use of herself and defendant Frederick N. Wadhams.

It is urged that the jail sentence provided in the •decree is erroneous and is prohibited by the Constitution, article 2, § 20. The cases of City of Eaton Rapids v. Horner, 126 Mich. 52, and Mast v. Washtenaw Circuit Judge, 154 Mich. 485, are cited and relied upon in this connection. We are of the opinion that the case at bar is controlled by Chapel v. Hull, 60 Mich. 167, and Carnahan v. Carnahan, 143 Mich. 390 (8 Ann. Cas. 53). Here, as there, the injunction was directed at a specific fund, the partnership funds then on deposit in the Hastings City Bank. The defendants, in flagrant disobedience of the injunction, converted this specific fund to their use and, under the authorities cited, are guilty of a gross contempt.

As modified by this opinion, the decree of the lower court will be affirmed against the defendants Frederick N. Wadhams and Ida E. Wadhams, with costs. The bill will be dismissed as to defendant Clara E. Straith and she will recover her costs against the plaintiff.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird and Sharpe, JJ., concurred.


text:
    BUTLER v. FOLEY.
    1. Contracts — Acceptance — Counter Proposition — Principal, and. Agent — Telegraphs and Telephones.
    Where defendant answered plaintiff’s telegraphic offer to-purchase certain stock by a counter proposition, defendant made the telegraph company his agent in transmitting said message, and if any error occurred, in its transmission his remedy would be against the telegraph company.
    2. Same — Acceptance—Precatory Words — Effect.
    Where plaintiff accepted without qualification defendant’s offer, the added words “Please ship stock today. Draft attaohed,” are simply precatory, and do not affect the binding character of the contract.
    3. Same — Uniform Sales Act — Estoppel.
    Although defendant might have insisted upon payment at the place of sale, under the uniform sales act (3 Comp. Laws 1915, § 11832 et seq.), where he rested his alleged right to refuse delivery solely on the ground that the telegraph company failed to correctly transmit his offer, he is now estopped from asserting his rights under said act.
    Error to Wayne; Codd (George P.), J.
    Submitted June 8, 1920.
    (Docket No. 4.)
    Decided September 30, 1920.
    Assumpsit by A. E. Butler, doing business as A. E. Butler & Co., against J. William Foley for breach of a contract for the sale of certain corporate stock. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Guy A. Miller, for appellant.

      Millis, Griffin, Seely & Streeter (George B. Murphy, of counsel), for appellee.
   Brooke, J.

This is an action for damages arising out of an alleged breach of contract to deliver certain stock. The contract is based upon three telegrams, as follows:

(Exhibit B.)
“Western Union Telegram, Chicago, 111.
“September 19th, 1916.
“Received 3 P. M.
“J. William Foley,
“Wyandotte, Mich.
“We bid hundred fifty-two firm immediate acceptance fifty By-Products. Wire confirmation.
“A. E. Butler & Co.
“Charge Acc’t.
“JAB
“1 P. M
(Exhibit C.)
“Western Union Telegram, Chicago, 111.
“1916, Sept. 20, P. M.
"12:33
“a249H 12 Coll
“Sibley, Mich., 1020A
“A. E. Butler & Co.,
“La Salle St., Chicago, 111.
“Your bid one five two bi-products accepted on forty-four shares.
“J. W. Foley.”
(Exhibit D.)
“Western Union Telegram, Chicago, 111.
“September 20th, 1916.
“J. William Foley,
“Sibley, Mich.
“We confirm purchase forty-four By-Products hundred fifty-two. Please ship stock today. Draft attached.
“A. E. Butler & Co.
“Charge account.
“12:55
“JAB”

Defendant failed to deliver the stock mentioned in the last two telegrams and plaintiff, having made sale' of the stock, was obliged to purchase the same in the open market at a cost of $792 in excess of the price mentioned in the contract. A jury trial resulted in a verdict in plaintiff’s favor for $885.89.1 A motion was thereafter made by defendant for judgment notwithstanding the verdict, which was denied. ,

Defendant now presents the case in this court for review on 22 assignments of error. The first 10 assignments are directed to the alleged errors in the admission or exclusion of testimony. Respecting these several assignments, it is sufficient to say that we find therein no reversible error.

The following 10 are directed to the refusal of the court to give defendant’s requests, and to direct a verdiet for the defendant. The requests proffered by defendant follow:

“First: I charge you that this is a contract, if there ever was a meeting of the minds of the parties at all, which was consummated by an acceptance in Michigan; that the uncontradicted evidence shows that the defendant never authorized the sending of the message received by plaintiff; and that plaintiff therefore cannot recover.
“Second: Under the evidence in this case, the real correspondence between the parties, which was intended by them to be the basis of any contract, is contained, not in the telegrams of September 19th and 20th, but in the letters of September 19th and 22d.
“Third: The intention of the parties governs as to making a contract, and as to the particular part of the correspondence, whether by letter or by wire, which should govern. If you find that it was the intention of the parties that the letters should govern, then I charge you that mo contract has been shown, and your verdict must be for the defendant.
“Fourth: I charge you that the object, and the only object, of the confirming letters of September 19th and September 22d was to guard against mistakes in the telegrams of the 19th and 22d; the letters and telegrams must all be construed together as a part of the correspondence; and so construing them, no contract is shown to have been made and your verdict must be for the defendant.
“Fifth: The wording of the message of the 20th from plaintiff to defendant, as follows: ‘We confirm purchase forty-four By-products,’ is consistent with the theory that defendant’s telegram of the 20th to plaintiff was an absolute acceptance, and not a rejection of the proposal of the 19th and a new offer, and is not consistent with the theory that defendant’s telegram of the 20th was a rejection and a new offer. Such being the case, the contract, if any, was consummated in Michigan and is subject to the laws of Michigan.
“Sixth: The telegraph company was the agent of plaintiff and plaintiff must therefore stand the loss due to its mistakes.
“Seventh: The undisputed evidence in this ease is that the only telegram Foley ever authorized contained the word ‘subject.’ I therefore charge you that he is not bound by the error of the telegraph company in transmitting his message without that word, and your verdict must be for the defendant.
“Eighth: The time for delivery of this stock is fixed by the correspondence as September 21st or 22d. (Telegram of September 22.) If a contract was entered into, then the measure of damages was the difference between the purchase price and the market value of the stock at the date of delivery. (Uniform Sales_ Act, § 67.) The undisputed evidence in this case is that the market value of the stock was 152 on the 20th of September, and there is no evidence beyond market reports of a bid and asked price in a paper published on September 23d, but of the date of whose quotations there is no evidence as to any market price on September 21st and 22d. As to the question of damages, I charge you:
“a. That the maximum recovery cannot be greater than the difference between $152 per share and the market price on September 21st or 22d, which was the time of delivery fixed by the parties, if there was any contract at.all.
“b. That there is no competent evidence at all as to the market price on those days.
“e. That therefore, if you find for plaintiff, your verdict can be for only six cents.
“Ninth: I charge you that on plaintiff’s own theory of this case, no contract was entered into. Defendant’s telegram of September 20th is relied upon as an offer to plaintiff. Plaintiff’s telegram of September 20th is relied upon as an acceptance. It contains added terms to those of the offer as to time and method of delivery and place of payment. It is therefore not an unconditional acceptance and no contract resulted therefrom.”

The last two assignments of error refer to the charge as given.

Defendant’s entire contention as shown by the correspondence was based upon his claim that Exhibit C (his telegram of September 20, 1916) should have contained the word “subject,” making the message read as follows:

“Your bid one hundred fifty-two By-Products accepted on forty-four shares, subject.”

Defendant offered in evidence his office copy of the telegram (which contained the word “subject”) which was excluded, the court saying,

“I ruled that the telegram, Exhibit C here, cannot be varied; that cannot be varied by testimony of Mr. Foley and any claimed copy of something in his files.”

It is undisputed that Exhibit C was received by plaintiff without the word “subject” and the evidence of the sending operator is to the effect that the message was transmitted by him exactly as received. But whether the message was erroneously or correctly sent is, as between the parties to this action, in our opinion, unimportant, for reasons hereinafter stated.

It is the contention of the defendant that the plaintiff, having chosen the telegraph company as. a means of communication, and having asked an answer by telegraph, constituted that company its agent and that, therefore, any error in transmission of defendant’s reply (Exhibit C) should be chargeable to plaintiff. We are of the opinion that the authorities are clear that “the offerer takes the risk as to the effectiveness of communication if the acceptance is made in the manner either expressly or impliedly indicated by him.” 13 Corpus Juris, p. 301', § 117, and cases cited. See, also, Jones on Telegraph and Telephone Companies, p. 944; Trevor v. Wood, 36 N. Y. 307; Magie v. Herman, 50 Minn. 424 (52 N. W. 909); Wilson v. Railroad Co., 31 Minn. 483 (18 N. W. 291); Durkee v. Railroad Co., 29 Vt. 127.

The difficulty with defendant’s contention is that Exhibit C does not constitute an acceptance of plaintiff’s offer, Exhibit B. It was, in fact, a counter-proposition, and, as such, under the authorities, it operated as a rejection of the original offer. 1 Mechem on Sales, § 229; 1 Elliott on Contracts, § 41; 9 Cyc., p. 290; Johnson v. Surety Co., 187 Mich. 467. By refusing to accept plaintiff’s proposition for the sale of 50 shares and making the counter-offer to sell 44 shares, defendant became the offerer and, under the authorities above cited, constituted the telegraph company his agent; and, therefore, if any error occurred in the transmission of the message, his- remedy would be against the telegraph company and hot against the plaintiff.

It is claimed by defendant that plaintiff’s Exhibit D is not an unqualified acceptance of defendant’s offer (Exhibit C) by reason of the addition of the words “Please . ship stock today. Draft attached.” With this contention we are unable to agree. The offer contained in Exhibit C was accepted without qualification in Exhibit D and the added words are simply precatory and do not affect the binding character of the contract. 13 C. J., p. 283, § 86; Marshall v. Jamison, 42 U. C. Q. B. 115; 1 Elliott on Contracts, § 39; Purrington v. Grimm, 83 Vt. 466 (76 Atl. 158).

It is further defendant’s contention that it was plaintiff’s duty to pay for the stock and take delivery at Sibley, Michigan; and that not having performed this duty, he is in default and cannot recover. It is doubtless true, as contended by defendant, that he would have had a right to insist on payment at the place of sale under the provisions of Act No. 100, Pub. Acts 1913, § 42 (3 Comp. Laws 1915, § 11873). But defendant made no such suggestion to plaintiff at the time the controversy arose. The correspondence clearly demonstrates that he rested his alleged right to refuse delivery solely upon the ground that the telegraph company had erroneously failed to include the word “subject” in his offer.

Error is alleged upon the admission of certain exhibits purporting to show market .quotations at the time the contract was breached. This evidence was merely cumulative, and whether admissible or not, is, therefore, without prejudice.

We find no reversible error in the record, and the judgment is affirmed.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    MARSH v. BURNHAM.
    1. Trial — Automobiijss—Statutes—Motor-Vehicle Law — Duty to Render Aid — Conduct of Counsel.
    In an action for personal injuries caused by a collision between plaintiff’s and defendant’s automobiles on a public: highway, comments by plaintiff’s attorney, in his opening, statement, on defendant’s failure to stop and give rea-sonable assistance to plaintiff, in contravention of 1 Comp-Laws 1915, § 4816, held, not reversible error.
    2. Adpeal and Error — Cross-Examination—Discretion of Court.
    The extent to which cross-examination should be permitted is addressed primarily to the sound discretion of the trial judge, and reversal is warranted only where there is a clear abuse of discretion, where it is apparent that offending counsel acted in bad faith, or where the alleged misconduct is reflected in the verdict.
    3. Same.
    Although counsel acted with more zeal than discretion in prosecuting cross-examination as to private family affairs
    On turning on wrong side of road to avoid approaching vehicle which is itself on wrong side, as contributory negligence on part of plaintiff, or negligence on the part of defendant, see note in 7 B. R. C. 705. of defendant after ruling by tbe court excluding same, held, no reversible error shown.
    4. Same — Evidence—Cross-Examination.
    Admission of an answer to the question: “Aré you as sure of that as you are of anything else that happened that day?” held, not reversible error, although such method of cross-examination is not to be commended.
    5. Trial — Demonstration in Court — Appeal and_ Error.
    Where during cross-examination of one of the defendant’s witnesses a demonstration of laughter and applause occurred in the court room, and the offenders were reprimanded by the court but not punished, defendant’s contention that the course adopted by the trial judge was unnecessary and improper, and that plaintiff’s attorney had no right to comment on it in his argument, held, without merit, in view of the fact that the court admonished the jury to pay no attention to the incident.
    6. Negligence — Violation op Statute.
    The violation of a statute constitutes negligence per se.

    7. Trial — Motor-Vehicle Law — Law op the Road — Instructions.
    In view of 1 Comp. Laws 1915, § 4592, requiring drivers of vehicles to seasonably drive to the right of the middle of the traveled part of the road’, the court was not in error in instructing the jury that “Under the circumstances of this case, one who violates the law of the road by driving an automobile on the wrong side assumes the risk of such experiment; and if injury is caused thereby to another, then the person driving on the wrong side of the road, having assumed the risk of such experiment, is guilty of negligence, and it would make no difference whether he was driving fast or slow,” the question as to whether the collision occurred on the left-hand side or the right-hand side of the road being in dispute, appellant claiming to be on the right-hand side and offering no excuse for being on the left; distinguishing Winckowski v. Dodge, 183 Mich. 303.
    8. Same — Prima Facie Negligence — Instructions.
    It would have been idle for the court to have instructed the jury, as insisted by defendant, that for defendant to drive upon the wrong side of the road was prima fade
      negligence only, where defendant at all times denied that his car was on the deft side of the road; such charge would have injected into' the case a theory unsupported by any evidence. '
    9. Same — Charge as Wíiole.

      Held, that the charge properly states the law as applicable to the facts in thq case, and is therefore subject to no just criticism. (■ . .
    10. Negligence^ — Contributory Negligence — Question eor Jury.
    Where the road at the place of the accident was covered by a smoke screen through which it was impossible to see, the question as to whether, under the circumstances, plaintiff was guilty of contributory negligence in entering the screen, held, for the determination of the jury.
    Error to Hillsdale; Chester (Guy M.), J.
    Submitted June 15, 1920.
    (Docket No. 15.)
    Decided September 30, 1920.
    Case by Fay Marsh against Augustus S. Burnham for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      C. A. Shepard and W. D. Grommon, for appellant.

      Frankhauser & Cornell, for appellee.
    This is an action for, damages growing out of a collision of two automobiles. The accident happened in daylight. Plaintiff was driving his car in a northerly direction toward the city of Hillsdale and defendant was driving in a southerly direction. When plaintiff reached the Country Club grounds, he found that the caretaker there had started a fire along the side of the road and that the resulting smoke constituted a screen through which it was impossible to see. He testifies that he hesitated before entering the smoke screen, but finally drew his car well over to the right-hand side of the road within a few feet of the fence and proceeded at a speed of not to exceed five miles per hour in a northerly direction; that he had gone into the screen approximately a jingle car length when a violent collision occurred between defendant’s car and his own. ;
    As a result of the collision, both cars were badly damaged and plaintiff sustained Very serious injuries. His left knee was so badly injured as to necessitate an operation; it was exceedingly painful and confined him to his house for a considerable length of time. The evidence in the record indicates that he spent (or became liable to pay) $467.90 in the repair of the machine, paying a man to take his place in his store, and in doctors’ and nurses’ bills. He secured a verdict of $500. At the time of the trial — some seven months after the injury — he was still suffering some measurable disability from the accident.
    It was defendant’s contention that in approaching the smoke screen he reduced the speed of his car to six miles an hour and—
    “turned clear to the right of the beaten track as I entered the smoke and the further I got into the smoke, the more dense it was and once in a while the smoke would drift so that I could just discover the road for just an instant and I was holding to the right-hand side of the road down the hill * * * I didn’t see no car or nothing until I got right onto him and as I could see the road, I held to the right all I dared to.”
    At the close of the plaintiff's case, a motion for a directed verdict was made by defendant, based upon the assertion that plaintiff, in entering the smoke, was himself guilty of such contributory negligence as to prevent his recovery. This motion was denied, and the case was submitted to the jury with the result above stated.
   Brooke, J.

(after stating the facts). Defendant now reviews the case in this court under 62 assignments of error, which are argued by counsel under 8 different heads.

Under this subdivision, defendant complains about the opening statement of counsel to the effect that defendant, in contravention of the statute (1 Comp. Laws 1915, § 4816), did not stop and give reasonable assistance to the plaintiff and did not, for several weeks thereafter, visit him or inquire as to his condition. We are of the opinion that no- reversible error is disclosed under this head.

Errors grouped under these heads are based upon the alleged improper cross-examination of defendant by plaintiff’s counsel. In such cross-examination, counsel for plaintiff endeavored to go into the private family affairs of defendant and persisted in asking questions relative thereto after rulings excluding them had been made by the court. This court has very consistently held that a broad latitude should be permitted counsel in cross-examination and that the extent to which it should be permitted is addressed primarily to the sound .discretion of the trial judge. A reversal is warranted only where there is a clear abuse of discretion by the trial court or where it is apparent that in asking the questions objected to or in making offer of proof, the offending counsel has acted in bad faith, or where the alleged misconduct of counsel is reflected in the verdict.

The case was contested with vigor on both sides and it must be- said that counsel for plaintiff proceeded at times with more zeal than discretion; yet, in the light of the result, we cannot say that a. reversal should be granted. Upon this branch of the case, many authorities are cited by counsel for both sides, and for the convenience of the profession they are here appended. People v. Thompson, 122 Mich. 411; Langworthy v. Township of Green, 88 Mich. 207; Turner v. Foundry Co., 97 Mich. 177; Clink v. Gunn, 90 Mich, 135; Kerr v. Manufacturing Co., 155 Mich. 191; People v. Gotshall, 123 Mich. 474; Scripps v. Reilly, 38 Mich. 10; O’Connor v. Madison, 98 Mich. 192; Knickerbocker v. Worthing, 138 Mich. 224, and cases cited therein; Johnston v. Insurance Co., 106 Mich. 96.

Error is assigned on the admission over objection of an answer to the following question:

“Q. Well, you can answer the question; are you as sure of that as you are of anything else that happened that day?”

Counsel for defendant cites in support of his position the case of Rains v. State, 88 Ala. 91 (7 South. 315). The question asked the witness in this case was as to whether “a certain portion of his testimony is as truthful as the balance.” In a later Alabama case, Central of Georgia R. Co. v. Edmondson, 135 Ala. 336 (33 South. 480), the question practically conformed with the one put in the case under consideration, and was held to be competent. We are of the opinion that such a method of cross-examination is not to be commended, but that its allowance by the trial court does not constitute reversible error.

In the course of the cross-examination of one of defendant’s witnesses, plaintiff’s counsel inquired of the witness, in effect, if his testimony was not influenced by some personal trouble between the witness and plaintiff’s counsel, to which the witness replied that it was not. The following then occurred:

“Q. It had nothing to do with it?
“A. I haven’t expressed any desire to love you or kiss you, or anything like that.”

Thereupon a demonstration of laughter and applause occurred in the court room. Several of those offending were called to the bar of the court and ad-' monished that their, conduct constituted contempt, for which, however, they were not punished, but were permitted to retire with the warning. This incident was made the occasion of comment by counsel for plaintiff in his closing remarks to the jury. Counsel for defendant, citing People v. Wolcott, 51 Mich. 612, assert that the course adopted by the trial court was unnecessary and improper and that plaintiff’s attorney had no right to make it the basis for the argument that he did. In his«charge, the court admonished the jury that they were to pay no attention to the incident. We think the point without merit. Devich v. Dick, 177 Mich. 173.

Assignments under this provision are directed, to the charge of the court, and particularly to the following excerpt:

“Under the circumstances of this case, one who violates the law of the road by driving an automobile on the wrong side assumes the risk of such experiment; and if injury is caused thereby to another, then the person driving on the wrong side of the road, having assumed the risk of such experiment, is guilty of negligence, and it would make no difference whether he was driving fast or slow.”

It is urged by appellant that this instruction is in conflict with our holding in Winckowski v. Dodge, 183 Mich. 303, where it was said by Mr. Justice Steere:

“The undisputed evidence that defendants’ car was on the wrong side of the road, passing the vehicle it was meeting on the left, alone raises a presumption of negligence on the part of its driver, and when such negligence is shown to have had a causal relation to the injury inflicted upon the plaintiff, as is the case here, a prima, facie case of actionable negligence is presented. * * * If, as claimed by defendants, there were justifying circumstances tending to show it necessary for the driver to take the left side of the road, the question was of fact for the jury and not of law for the court. If facts were shown warranting the driver in passing to the left, it then became his duty to observe that degree of caution and proceed with care at such reduced speed as was commensurate with the unusual conditions.”

Section 4592, 1 Comp. Laws 1915, requires drivers of vehicles to seasonably drive to the right of the middle of the traveled part of the road. We have frequently held that the violation of a statute constitutes negligence per se. Billings v. Breinig, 45 Mich. 65; Syneszewski v. Schmidt, 153 Mich. 438; Little v. Bousfield & Co., 154 Mich. 369; Van Doorn v. Heap, 160 Mich. 199; Tabinski v. Manufacturing Co., 168 Mich. 392. It is true that in the Winckowski Case it was said that the fact that defendants’ car was on the wrong side of the road (in contravention of the statute) constitutes a prima facie case of actionable negligence only. In that case, however, defendants claimed that there were circumstances tending to show that it was. necessary for them to drive on the wrong side of the road. In the case at bar, defendant made no such claims. He offered no excuse for his failure to keep upon the right or lawful side of the road, but strenuously insisted throughout the case that his machine, in fact, was at all times, on the side of the road where it had a legal right to be.

It will be noted that, in the language complained of, the learned trial judge prefaced .his instruction with the words “under the circumstances of this case.” We are of the opinion that where, as in the case at bar, the sole question in dispute was whether the collision occurred on the left-hand side of the road, as claimed by plaintiff, or upon the right-hand side of the road, as claimed by defendant, the instruction criticized is not erroneous. It seems to us it would have been idle for the court to have instructed the jury that for defendant to drive upon the wrong side of the road was prima facie negligence only, where the defendant at all times denied that his car was on the left side of the road. In other words, such a charge would have injected into the case a theory unsupported by any evidence — a situation entirely different from that considered by this court in the Winckowski Case, supra.

Assignments here relate to the refusal of the court to charge as requested. We have examined the charge with care and believe that it properly states the law as applicable to the facts in the case and is therefore subject to no just criticism.

It is urged by defendant that verdict should have been directed upon the ground that plaintiff was guilty of contributory negligence himself in entering the smoke screen. The trial judge instructed the jury that both parties had a right to enter the screen and use the road, using such additional caution as the circumstances surrounding them rendered necessary and proper. This instruction we think correct. The question of whether plaintiff was negligent in entering the screen under the circumstances and in the manner he did was, in our opinion, for the determination of the jury. In other words, his conduct was not such as to induce all reasonable minds to agree that it was negligent.

The judgment is affirmed.

Steers, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. Moore, C. J., did not sit.