text:
    PEOPLE v. KARSTE.
    1. Criminal Law — Information—Examination.
    An information need not be wholly based upon the complaint or warrant, but it may charge the offense disclosed at the preliminary examination.
    2. Same — Misappropriation of Money by Agent.
    A broker who, having received a check and written instructions to buy stock, did not buy, but deposited the check in a bank to his account, and spent the money, was rightly convicted under 3 Comp. Laws, § 11572.
    3. Same — Agents—Brokers.
    The word “agents,” used in said statute, includes “brokers.”

      4. Debtor and Creditor — Principal and Agent — Question for Jury.
    Where a broker received a check in a letter, with instructions to use it in the purchase of certain stock, and replied that it had been placed to the credit of the principal, who subsequently canceled the order and directed the purchase of other stock, the question as to whether the relation of debtor and creditor existed between them was one of fact for the jury.
    5. Misappropriation of Funds — Evidence—Finding of Jury.
    On October 13th, respondent received by mail a check for §350, with instructions to buy certain stock. He deposited the check in a bank to his credit, and on November 14th received instructions to cancel the first order and buy other stock. At times between October 13th and November 14th his bank account amounted to less than §350. Held, that as the bank account on November 16th was §932.16, and on that date the respondent wrote that he had entered the order to buy the other stock mentioned, the jury were justified in finding that he had the funds in his hands on November 14th.

      Exceptions before judgment from Gogebic; Steere, J., presiding.
    Submitted November 30, 1903.
    (Docket No. 217.)
    Decided March 23, 1903.
    Otto E. Karste was convicted of misappropriating money placed in his hands for investmént.
    Affirmed.

      Charles E. Miller, for appellant.

      Horace M. Oren, Attorney General, and Samuel S. Cooper, Prosecuting Attorney {Allan E. Bees, of counsel), for the people. ,
   Montgomery, J.

The respondent was convicted under an information based on section 115?3 of the Compiled Laws. On the trial the evidence showed the following facts: Cecil S. Wray, in October and November, 1900, resided at Iron Belt, Wis., about nine miles from the city of Ironwood, and on the 13th of October he wrote a letter to the respondent as follows':

“Mr. O. E. Karste,
“Ironwood, Mich.
Dear Sir: I'inclose you my mother’s check for $350, and desire you to please buy for her four, shares National Biscuit preferred stock at 87 or better. When the stock is bought, kindly have certificate made to my mother, Mrs. Eliza Wray, and oblige,
“ Yours very truly.”

Inclosed in such letter was a check upon the Savings & Trust Company, Cleveland, Ohio, payable to O. E. Karste or bearer, for $350, on deposit, and the number 9,187, which check was signed “Mrs. Eliza Wray.” The testimony showed that this money was Mrs. Eliza Wray’s money, and that Cecil S. Wray received from Karste a reply to his letter of October 13th, which is as follows:

“Ironwood, Mich., October 1900.
“O. S. Wray, Esq.,
“Iron Belt, Wis.
Dear Sir: I have your favor of the 13th inst., inclosing check for $350, which amount I have placed to your credit. I have entered an open order to buy four shares of National Biscuit preferred at 87, and issue certificate to Mrs. Eliza Wray, of Iron Belt, Wis. Thanks.
“Yours truly.”

Aside from these letters, there was no communication between Cecil S. Wray and Karste previous to November 13th; but Wray was in Ironwood once or twice during that time, and asked Karste if he had been able to procure the stock for his mother. Wray merely asked him if he had the stock, and he would say “No,” and they would probably converse upon something else for a minute or two. The next communication between the parties was a telegram dated November 13th, and sent from Edinburgh, Ind., which telegram was as follows:

“Edinburgh, Ind., November 13, 1900.
“ O. E. Karste,
‘ Ironwood, Mich.:
“Cancel Biscuit order, and buy four shares American Steel & Wire preferred at 85 or better.
“C. S. Wray.”

Wray also wrote Karste on the 14th of November as follows:

“325 Eighteenth St., Louisville, Ky.,
“November 14, 1900.
“Mr. O. E. Karste,
“Ironwood, Mich.
" Dear Sir: I wired you tonight as follows: Cancel Biscuit order, and buy four shares American Steel & Wire preferred at 85 or better.’ When you have purchased stock, please have certificate made to Mrs. Eliza Wray, and mail to me at above address. Also cancel my. C. & H. order, and mail check to balance account. It is too high for me.
“Yours truly.”

Wray received from Karste, in reply to this telegram and letter, a letter as follows:

“Ironwood, Mich., November 16, 1900.
“C. S. Wray, Esq.,
“Louisville, Ky.
Dear Sir: I am in receipt of your wire of the 13th and. your letter of the 14th, instructing me to cancel your order to buy four shares of Biscuit preferred and also the Cal. & Hec., and. in its place to buy four shares of American Steel & Wire preferred at 85 or better. I have entered an open order at this price. The market opened at 85 yesterday morning, which was the lowest for the day, and you are aware that to buy an odd lot like this it would have to sell at about 84£ .before your order could be executed at 85. On execution of the order I will, as directed, issue the certificate to Mrs. Eliza Wray, together with statement and check for balance. You will please write and give me your mother’s address, that is, her home, which is always necessary, to give when certificates are issued. On receipt of your wire yesterday I wrote you to Edinburgh, Ind., thinking it would reach you there. Do I understand that you want a check for the $100 now, regardless of the execution on the other ?
“Yours truly.”

In response to this last letter Wray wrote the respondent that he need not send check until final settlement was made, or until after respondent had purchased the American Steel & Wire Company stock. This letter was written November 20th, but before that day respondent had left Ironwood and gone to New York; and the next information that Wray received was a letter from respondent’s attorney, stating that he had failed, and proposing a settlement by note.

The case was put to the jury under two counts of the information, each of which counted upon a conversion of the $350 in violation of the instructions given in the telegram of November 13th, and confirmed by the letter of November 14th. A motion was made to quash the information on the ground that the offense embodied in the information was not set out in the complaint and warrant under which respondent was arrested. It has been frequently held by this court that the information need not be wholly based upon the facts stated in the complaint or warrant, but that the prosecutor has a right to describe the offense as it is disclosed by the facts appearing upon the preliminary examination. Brown v. People, 39 Mich. 37; People v. Pichette, 111 Mich. 461 (69 N. W. 739).

It is next urged that the relations of the respondent to the complaining witness were not such as to make him subject to prosecution under the statute in question. So far as we are advised, 'the statute has never received judicial construction in this State, nor has a similar statute been construed in any other State of the Union. The statute nearest analogous to the statute in question is the English statute (24 & 25 Vict, chap, 96, § 75), which provides that:

“Whosoever, having been intrusted, * * * as a banker, merchant, broker, attorney, or other agent, with any money or security for the payment of money, with any direction in writing to apply, pay, or deliver such money or security, or any part thereof, respectively, or the proceeds, or any part of the proceeds, of such security, for any purpose or'to any person specified in such direction, shall, in violation of good faith, and contrary to the terms of such direction, in any wise convert to his own use or benefit, or the use or benefit of any person other than the person by whom he shall have been so intrusted, such money, security, or proceeds, or any part thereof respectively, * * * shall be guilty of a misdemeanor.”

Under this statute, it was held that where a stockbroker, who had received an order to buy stock, together with a check for “cover and commission,”did not buy, but paid the check into his bank, and spent the money, he was rightly convicted. Reg. v. Cronmire, 54 L. T. (N. S.) 580. See, also, Reg. v. Christian, L. R. 2 C. C. 94. The language of our statute differs, it is true, from the English statute, in that it does not name brokers. But it does employ the word “ agents,” which is comprehensive enough to include brokers, and we think the purpose is similar to that of the English statute. This is not a statute to punish embezzlement, but to protect persons who place in charge of another funds for control or investment, accompanied by specific instructions, and, we think, is broad enough to cover the relation of principal and broker, unless there should be something in the relations of the parties, or in their dealings, which indicates a purpose to create the relation of debtor and creditor. Whether this was the purpose in the present case was, in our view, at most, a question of fact for the jury, and this question was fairly submitted to the jury by the trial judge.

Respondent’s counsel earnestly insists that by reason of respondent’s letter to Wray, stating that he had placed the 1350 to Wray’s credit, the inference must be drawn that it was the purpose to create the relation of debtor and creditor. We do not so construe this statement. It would be a very proper proceeding, if the money were to be treated as the money of the prosecutor, for the respondent to have kept some account of it, and to have entered a credit upon his books. It is in the nature of a special deposit or trust, and the fact that a memorandum of it, or a credit for the amount of the deposit, was entered upon the respondent’s books, did not change the character of the deposit.

It is next contended that the evidence shows that there could not have been a misappropriation of this money at any time after the 13th of November and before the 3d of December, the date when the demand was made. The argument appears to be this: That as the respondent’s bank account shows that this money was deposited in October in his bank account, and that at times between that date and November 13th his bank account amounted to less than $350, it cannot be inferred that this money was on hand at the time of the commission of November 13th and 14th. The answer to this contention may be found in the fact that on the 16th of November respondent replied to the letter and telegram, stating that he had entered an open order at the price stated, and we think the jury would be justified in treating this as an admission that he still had the funds in his hands with which to carry out the instruction. It also appears that on this date he had in the bank, subject to his check, $932.16. If he had drawn this money out at any time, but replaced it, and had it on hand at the time the instructions were received, the violation of his instructions, under the circumstances necessary to constitute the offense, would make him equally guilty.

The questions discussed dispose of the meritorious contentions in the case. We are constrained to hold that there is no error to the prejudice of the respondent, and, while a different result might have been reached by the jury, we are not able to say that there is not sufficient testimony to support the finding in all respects.

The conviction is affirmed, and the court below directed to proceed to judgment.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, C. J.

license: Public Domain

text:
    DUNN v. DUNN.
    1. Sale — Offer—Acceptance.
    An offer to sell lands at a certain price, and send the deeds to a bank: on being informed that the price has been deposited, is not accepted by a letter directing the vendor to send the deeds, unaccompanied by evidence of the deposit required.
    2. Same — Waiver of Terms — New Offer.
    An owner of lands, who had proposed to sell, and send the deeds to a bank on being informed that the price had been deposited, did not waive the deposit by sending deeds to the bank with instructions to deliver on receipt of the price within four or five days, but thereby made a new proposal.
    3. Same — Withdrawal of Offer.
    An offer to sell lands if the price is paid within five days cannot be accepted by tendering the price after the five days, and after notice of the withdrawal of the offer.
    Appeal from Alpena; Emerick, J.
    Submitted December 2, 1902.
    (Docket No. 41.)
    Decided March 23, 1903.
    Bill by Lyman H. Dunn and Thomas T. Allen against Robert W. Dunn and George McNichol for the specific performance of a land contract. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Main J. Oonnine (William H. Simpson, of counsel), for complainants.

      Henry K. Gustin (Charles JR. Henry, of counsel), for defendants.
   Hooker, C. J.

Robert W. Dunn, a resident of Chicago, was owner of the original title to a large tract of land in Michigan, which he had purchased from grantors who reserved certain kinds of timber thereon. The complainant Allen claims to have contracted for the purchase of upwards of 22,000 acres of this land for an agreed price of $40?, the deed to be made to complainant Lyman H. Dunn, and the complainants filed the bill in this cause to compel a specific performance of said contract. The learned circuit judge dismissed the bill upon two grounds: (1) That the negotiations amounted to no more than an offer, and that the same was withdrawn before acceptance; (2) that the contract, if made, was.unconscionable, and should not be enforced.

The important legal question relates to the alleged contract. The negotiations were by letter, and, without discussing the correspondence in detail, it may be said that no agreement was reached prior to August 17, 1899, when Robert W. Dunn wrote to Allen that out of the 564 forties only 157 had been homesteaded, and that he would accept $1 per forty for those not homesteaded, and that, if Alleii would agree to this, he (Dunn) would send deeds to the bank, on being informed by the bank that Allen had deposited $40? for him. A few days later Allen wrote Dunn as follows:

‘ ‘Your favor of 19th at hand. You can send the deeds. Make them out to Lyman H. Dunn, * * * and send to the bank.”

On August 25, 1899, Dunn wrote:

“Messrs. T. T. Allen & Co.,
“Au Sable, Mich.
Gentlemen: Your favor of Aug. 20th at hand. As you have already a list of the lands included in deed, this day sent to the bank, it, of course will not be necessary for you to take any considerable time before remitting. I inclose herewith copy of instructions to bank. I am holding off a deal in this land here in Chicago because of my agreement with you, but shall not consider myself bound longer than the time stated in the inclosed instructions. Please remit promptly.
“ Yours truly,
“Robt. W. Dunn.”

Inclosed in this letter was a copy of a letter sent the bank, as follows:

“August 23, 1899.
“ Gowanlock & Dodds, Bankers,
‘ ‘ Oscoda, Mich.
Gentlemen: Herewith we inclose deed of the several tracts of land in Alcona Co., which please deliver to T. T. Allen upon remittance to me four hundred and seven dollars ($40?). I do not care to have you hold this longer than four to five days, and, if not taken up before that time, kindly return to mq.
“Thanking you for your favor, I am,
“Yours truly.”

The deed referred to in this letter was sent to the bank, and on August 26th it was handed to Allen, to look over and compare the descriptions with a list that he had, with a request to attend to them, and send the money, as they were in a hurry. On Tuesday, the 29th of August, the cashier requested Allen to bring over the deed, because there was a mistake in it, and Allen did so, and delivered it to him. He afterwards refused to deliver it to Allen, saying that he had been instructed not to do so, which was true.

Did the request to send on the deed constitute an acceptance of an offer? We think not. It did not comply with the terms of the offer, because it was not accompanied by the evidence of the deposit required. It is true that the deed was sent in compliance with the request, but it is not clear that this was intended as a waiver of the deposit. The bank was authorized to deliver on payment, and within a limited time, not mentioned in the correspondence. This was a new offer, and it was communicated to Allen through a copy of the instructions. It cannot be said that Allen bound himself to accept this deed or take the land. He received the deed for comparison, and acceptance or rejection. Subsequently the deed was returned at the banker’s request, and the court has found that this occurred, and that Allen was informed that it was ordered to be returned, before it was accepted. He did not accept the offer until he tendered his check. According to the testimony of the cashier, he received back the deed on August 29th, and the check was dated August 31st. The cashier was instructed, in the first place, not to hold the offer open more than four or five days; and, if his testimony is true, Allen was informed of his instructions not to deliver the deed before the 31st. The alleged tender was not made until after the expiration of four days, and the direction to the bank was not to hold longer than four or five days, as Allen knew. There is a conflict in the testimony regarding the time the tender was made, but we agree with the conclusion reached by the circuit judge.

The decree is affirmed, with costs of this court.

The other Justices concurred.


text:
    BROWN v. KENNEDY.
    1. Drains — Changes in Application — Evidence.
    Evidence, in a suit by a drain commissioner to recover the costs of a drain proceeding that had been dismissed, considered, and held insufficient to justify the jury in finding that interlineations in the application were made after it had been received by the commissioner.
    3. Same — Action for Costs.
    Where changes were made in the description of a drain after the application had been signed by the petitioners and before it was received by the commissioner, the fact that the commissioner acted upon it in good faith did not give him aright to recover his costs against the petitioners, under 2 Comp. Laws, § 4319.
    3. Same — Evidence.
    It is within the discretion of the trial judge to require a drain commissioner to explain alterations in a drain application before admitting it in evidence, in an action by him to recover his costs against the petitioners.
    4. Same — Presumptions.
    Any possible presumption that the alterations in a drain petition were made before the paper was signed was in this case eliminated by the testimony of the applicants that they signed before the changes were made, and the testimony of the surveyor that he made the alterations before any one signed the paper.
    5. Same — Bill of Costs.
    The bill of costs in a drain proceeding that has been dismissed is admissible in a suit by the commissioner to recover the costs.
    6. Same — Estoppel.
    In an action by a drain commissioner to recover his costs against the petitioners, where it is claimed that alterations were made in the petition after it was signed, evidence is admissible to show that the defendants concealed or failed to assert the alterations, as such evidence tends to show an estoppel.

      7. Same — Opinions.
    The opinion of a surveyor that a drain application was a regular and fair appearing paper is inadmissible.
    Error to Saginaw; Snow, J.
    Submitted December 2, 1902.

    (Docket No. 128.)
    Decided March 23, 1903.

      Assumpsit by Alonzo M. Brown, drain commissioner of Saginaw county, against Martin Kennedy and others, to recover the costs and expenses incurred under an application for a drain. From a judgment for defendants, plaintiff brings error.
    Reversed.

      F. E. Emerick (James H. Davitt, of counsel), for appellant.

      Crane & Crane, for appellees.
   Hooker, C. J.

The plaintiff, a drain commissioner of Saginaw county, laid out, and lei contracts for the construction of, a drain. A bill was thereupon filed to restrain further action, and this resulted in a decree granting a perpetual injunction as prayed in the bill, upon the ground that a sufficient outlet was not provided. No appeal was taken, and the commissioner finally dismissed the proceedings, and began this action to recover the costs and expenses incurred from the applicants for the drain, in accordance with the provisions of 2 Comp. Laws, § 4319, which are as follows: •

“Such applicants shall be jointly and severally liable for all costs and expenses in case the county drain commissioner, upon examination, or upon examination and survey, shall determine that the same is unnecessary or impracticable, or in case the proceedings shall be dismissed for other cause. If the persons signing such application shall refuse to pay such costs and expenses, the county drain commissioner shall bring suit in a court of competent jurisdiction, and collect such costs and expenses, with costs of suits.”

The defendants filed a plea of the general issue, and a denial upon oath that they signed the application upon which the drain proceedings were based. Upon the trial the signatures were proven to be genuine by several of the defendants, but they also stated that the description of the drain applied for had been altered in a material respect after such signatures were written, „ and without their knowledge or assent. The testimony shows that one Martin Kennedy brought the application to each of the signers, who signed it at his request. It was afterwards delivered to the plaintiff, but he was unable to state whether he received it by mail or otherwise. He was quite positive that no alteration was afterwards made, although he admitted that the surveyor may have had an opportunity to make the alteration when he surveyed the •route, which was after the application was filed. The learned circuit judge instructed the jury that they must find for the plaintiff, unless they should find that the alteration was made after he received the application, in which case he could not recover. They returned a verdict for the defendants, and plaintiff has appealed. '

The first point discussed by the plaintiff is the proposition that he received the application as a public officer, and acted upon it in good faith, and that he is entitled to recover his expenses and costs, although the application was changed before he received it. The verdict, when considered in the light of the charge, shows that the jury must have found that the application was'not changed before it was presented to him, but afterwards; and therefore this question is eliminated, unless we should say that there is no evidence that justifies such a finding. The evidence upon the subject consists of the testimony of the defendants, who testified that they signed before the alterations were made, but none of them were able to say that they were not made before the paper was presented to the plaintiff. The plaintiff testified that he did not change it, or know who did, and that, while Scholtz, the surveyor, might have taken the paper, for aught that he knew, he had no knowledge of his doing so; and Scholtz testified that he took a copy of it on the occasion of his survey. Scholtz also testified that he made the alterations himself, at the request of one Dr. Hillyer, before any of the signatures were appended to the paper. Neither Hill-yer nor Martin Kennedy was called, though it is claimed that they were within reach. The plaintiff testified that he filed the application May 3d, and acted upon it May 15th, and that the interlineations were in the paper then, and that he copied them. We find no tangible testimony that the interlineations were made after the paper was filed. All of the testimony was as consistent with the theory that it occurred before as after the filing, and the jury should not have been allowed to find that the alteration was made after the paper was received by the plaintiff.

The evidence is clear that some erasures and alterations were made, and it was a question of fact whether they were made before or after defendants signed the paper. If before, they were liable for the costs and expenses. If, however, they were made afterwards, it is not so certain that they were liable. On this record it appears that Martin Kennedy was the man who circulated the petition, and these defendants signed at his request. There is nothing to indicate that they did more. We do not discover that he was clothed with any authority to alter the same, or present any petition other than that signed by them, or that he was in any sense their agent, further than to present the petition as signed; and we are convinced that the fact that plaintiff acted in good faith does not give a right of action against defendants, who signed no such application as that acted upon. On the other hand, there may be circumstances which show an acquiescence in an alteration made after the application was signed, and which would justify the jury in finding an estoppel against the defendants, justifying a verdict against them.

Several questions of minor importance are raised. The first relates to the requirement of the judge that plaintiff explain the erasures and interlineations in the writing before allowing it to be received in evidence. Evidently he considered the paper suspicious upon its face. It was within his discretion to require this proof in such case. Munroe v. Eastman, 31 Mich. 285; Sirrine v. Briggs, Id. 445. It is urged that the legal presumption that the alteration was made before the paper was signed was ignored. In view of the testimony, we are of the opinion that any possible presumption was practically eliminated, and that plaintiff was not injured by the course taken.

We think the bill of costs may have been admissible as part of the drain proceedings, and understand that it was admitted.

It was also competent to show that defendants concealed or failed to assert the alteration, if circumstances arose making it their duty to do so. Such evidence would have tended to show an estoppel.

It was not competent to take Mr. Scholtz’s opinion as to whether this paper was a regular and fair appearing paper.

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

The other Justices concurred.


author: Hooker, C. J. Grant, J.

text:
    WILSON v. MUSKEGON, GRAND RAPIDS & INDIANA RAILROAD CO.

    1. Title to Lands — Estoppel.
    Interests in land cannot rest on estoppel alone.
    2. Railroads — Land Contracts — Possession.
    A land contract by the terras of which the vendor agreed to convey a strip of land to a railroad company for a right of ' way when it should have definitely settled upon and located its line and determined upon the construction of the road, but giving no right of possession, even when construed in the light of the statute (2 Corap. Laws, § 6234), does not give the railroad company a right of possession that will constitute a defense to an action of ejectment, though the road has been constructed and possession maintained for a time. Grant, J., dissenting.
    Error to Muskegon; Bussell, J.
    Submitted December 5, 1902.
    (Docket No. 154.)
    Decided March 23, 1903.
    Ejectment by Lucie S. Wilson against the Muskegon, Grand Bapids & Indiana Bailroad Company and the Grand Bapids & Indiana Bailway Company. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      T. J. 0 ’Brien and James H. Campbell, for appellants.

      William Carpenter, for appellee.

       Rehearing denied May 29, 1903.

   Hooker, C. J.

There are two questions raised by the briefs of counsel: (1) Whether the plaintiff proved a prima facie title to the premises in dispute; and (2) whether the statute under, which the defendant’s railroad was located justifies us in holding that it acquired a legal estate or right of possession under an executory contract for the sale of land.

Bach party claims title from Dennis Smith, plaintiff by deed, and defendant under a writing which reads as follows:

“In consideration of the sum of one dollar to me in hand paid, and of other valuable considerations to me moving, I hereby agree to convey, free of any incumbrance, to the Muskegon, Grand Rapids & Indiana Railroad Company, its successors and assigns, a strip of land thirty (30) feet in width over and across the following described premises, to wit: The northeast quarter of the northeast quarter of section thii’ty-one (31) in the township of Muskegon, county of Muskegon, State of Michigan. The said railroad being one to be constructed from a point on or near the lake shore in the city of Muskegon, Muskegon county, Michigan, to the city of Grand Rapids, in the same State. And I further promise and agree to make such conveyance on request of said railroad company at any time when it shall have definitely settled upon and located its line between the points above named, and determined upon the construction of the road: Provided, however, that such time shall be within one year from the date hereof. This agreement for right of way shall not inure or be assigned or transferred to any other railroad company now entering the city of Muskegon with its railroad.
“In witness whereof, I have hereunto set my hand and seal this 25th day of February, 1886.
“Dennis Smith.
“ In presence of “N. L. Keating,
“Lizzie J. Cavanaugh.
“ State of Michigan, County of Muskegon,
ss‘
“On this 25th day of February, 1886, before me, a notary public in and for said county, personally came Dennis Smith, who acknowledged that he executed the above instrument as his free act and deed.
“ L. N. Keating,
“Notary Public,
“Muskegon Co., Mich.”

Were this a contract between natural persons, it would be held to convey nothing. It would give an equitable interest, and it might be held to give (by implication) a license to survey and determine a line for the projected railroad. It would not be said to transmit a right of title or possession that would avail as a defense in an action of ejectment. Presumably this railroad company with which the contract was made was organized under the general law, and had. all of the rights which the statute gives to any railroad. It was authorized to acquire a right of way, and to take voluntary grants and donations of real estate and other property. It is urged that this contract, made for the purposes of railroads, when construed in the light of the statute (2 Comp. Laws, § 6234), gives a right of possession in the railroad company making it, especially where the road has been constructed and possession maintained for a time by such company. We may eliminate the latter portion of the proposition, because if the contract did not, of itself, when considered in the light of the statute, confer this right, there would be nothing left for it to rest upon but an estoppel in pais, and it has been repeatedly held that interests in land cannot rest on estoppel alone. The statute of frauds forbids.

I am not satisfied that the legislature contemplated any such construction. It is true that railroad corporations acquired the right to take and hold property by virtue of the statute, but there is nothing to indicate that they were to acquire it in any other way than any other citizen could do, except it should become necessary to condemn it by virtue of the power of eminent domain. It was apparently not necessary to do this in the present case. The railroad company was able to acquire the land by contract of purchase, and did so. What was the contract? Nothing but a plain everyday land contract, which gave it a right to a deed when it performed the contact on its part. No right of possession was given by the terms of the writing. It is only by inference that we can say that it gave a right to enter for the purpose of survey. It could acquire title to land by grant or lease, or it could acquire it by judicial procedure.

What remedies the defendant has in equity is not a question for our consideration. If there is a valid executory contract, presumably it can be specifically enforced. If there is none, and none can be secured, it may be that it will be necessary to resort to condemnation proceedings, as in the case of Minneapolis, etc., R. Co. v. Marble, 112 Mich. 12 (70 N. W. 319), where it was said:

“It may be a matter of hardship to the railroad company, after all these years of occupancy, and after expending large sums of money in improvements, to be compelled to take condemnation proceedings; but we are unable to agree with its counsel that it acquired title by this parol arrangement, or that it can hold land by dedication.”

It occurs to the writer to say that it would take but a slight extension of the construction of this statute asked for in this case to make it applicable to the state of facts in that case, for it is as easy to say that this statute .abrogates the rule that contracts for the sale of land must be in writing, as that a right of possession goes with a written contract that does not mention it, and, under existing rules, does not include it. Harrett v. Kinney, 44 Mich. 457 (7 N. W. 63); Moran v. Moran, 106 Mich. 13 (63 N. W. 989, 58 Am. St. Rep. 462). If adopted, such construction must be a matter of first impression, for no analogous case is cited. The case of Greenwood v. School District, 126 Mich. 81 (85 N. W. 241), was an injunction bill to restrain the erection of a schoolhouse, and it was dismissed because the district had been in possession under a contract which, though oral, was so far performed that it was inequitable to permit the complainant to repudiate it. It is not, in my opinion, an authority upon which the defendant’s contention in this case can be safely sustained.

I think the judgment should be affirmed.

Moore, Carpenter, and Montgomery, JJ., concurred with'Hooker, C. J.

Grant, J.

{dissenting). This is an action of ejectment. Both parties claim title from the same grantor, one Dennis Smith. Plaintiff claims by regular chain of title by deed from Mr. Smith. The defendant claims a right of way 30 feet wide across the land by written contract with Smith. The case was tried by the court without a jury, and written findings filed, and judgment entered for the plaintiff. The contract under which defendant claims its right of way was executed February 25, 1886, and reads as follows:

“ In consideration of the sum of one dollar to me in hand paid, and of other valuable considerations to me moving, I hereby agree to convey, free of any incumbrance, to the Muskegon, Grand Rapids & Indiana Railroad Company, its successors and assigns, a strip of land thirty (30) feet in width over and across the following described premises, to wit: The northeast quarter of the northeast quarter of section thirty-one (31) in the township of Muskegon, county of Muskegon, State of Michigan. The said railroad being one to be constructed from a point on or near the lake shore in the city of Muskegon, Muskegon county, Michigan, to the city of Grand Rapids, in the same State. And I further promise and agree to make such conveyance on request of said railroad company at any time when it shall have definitely settled upon and located its line between the points above named, and determined upon the construction of the road: Provided, however, that such time shall be within one year from the date hereof. This agreement for right of way shall not inure or be assigned or transferred to any other railroad company now entering the city of Muskegon with its railroad. ”

This contract was recorded June 18, 1886. The railroad company therein named made a map of its line and route through the county of Muskegon, and located,' according to said map, the line as running across the southerly part of said land. .This map was, on July 13,1886, filed in the office of the register of deeds. Before December 31, 1886, the company had entered' upon the said land, and constructed its roadbed and railroad from the city of Grand Rapids to the city of Muskegon, upon and across said land, at the same time building fences on each side of its track. It commenced running trains regularly from Grand Rapids to Muskegon early in the month of December, 1886. Said railroad has been maintained and operated continuously from that time to the present by the company named in said contract and its lessee, the defendant the Grand Rapids & Indiana Railway Company, and they have been in the exclusive and continuous possession thereof since. There has been no change in its roadbed during all this time. Smith was a resident of Muskegon, and resided there until his death, in 1892, and his heirs have since resided there.

■ Plaintiff concedes that, under the agreement, the defendants are entitled to a right of way across the land. Her counsel says it is a question only of location. She claims that another location was agreed upon alongside the present one. In fact, her counsel asserts that four feet of the present right of way is a part of the right of way as plaintiff claims it was established by agreement between Mr. Smith and the officers of the company. The record contains no evidence to sustain plaintiff’s claim of any such location, except the map filed July 13th. Her counsel says:

“It [the Muskegon, Grand Rapids & Indiana Railroad Company] has a right of way immediately adjoining the premises in dispute, and occupied in part by it, to which it is lawfully entitled, and which came to it through the plaintiff’s grantor.”

And, again:

“The map itself was offered in evidence, but no other testimony was given tending to show the exact location of the proposed line of the railroad. It can be determined from that map only by applying the rule on the scale on which the map is drawn. That scale is so small that it is impossible to come to a correct conclusion by the use of the rule.”

Her counsel further claims that the defendants have only an equitable title, which is no defense to an action of ejectment, and can be enforced only in a court of equity.

Counsel for the defendants contend that the present right of way was located under the agreement; that it was acquiesced in by Mr. Smith and his heirs for over 14 years, and that the defendant Grand Rapids & Indiana Railway Company has the legal possession thereof.

The location of the right of way under the contract was a floating one, to become fixed only when the conditions of the agreement were complied with. By its terms the defendant the Muskegon, Grand Rapids & Indiana Railroad Company was given the right to enter upon the land to make surveys and to select the right of way. It entered, selected it, and inclosed it by fences. All these things were done with the acquiescence of Mr. Smith, and the use and occupancy by the railroad company acquiesced in by him and his heirs since, till the commencement of this suit. If it be conceded that the right of way now in use is not on the exact line indicated upon the map, this is not a case where the exact line of the map must control. The parties located the line elsewhere, and its location and use were and have been since acquiesced in. This case is not within Wood v. Railroad Company, 90 Mich. 334 (51 N. W. 263), where the plaintiff contracted to convey to the railroad company a right of way through his lands “on the route lately surveyed by said company.” The land in that case had been surveyed and staked out. It was held to be an important fact that the words in the contract, referring to a future survey, were stricken out. When the company selected an entirely different route, the plaintiff immediately protested, and moved seasonably to enforce his rights. In the present case there was no dispute, and the right of way was laid out substantially along the line indicated upon the map. The company was acting under the agreement in locating and constructing its roadbed, and Mr. Smith knew it. There is no evidence that he was injured, or that the company was not acting in good faith. The location of the right of way, under such circumstances, was a full compliance with the agreement.

The court was in error in holding that the defendant Muskegon, Grand Rapids & Indiana Railroad Company is not entitled to the possession of it's right of way. A railroad corporation can obtain its right of way only in the two methods provided by the statute: (1) By agreement with the land owners; and, (2) that failing, by condemnation proceedings. It cannot commence the latter without exhausting the former. Only when terms cannot be made with the owner can it proceed to condemn. When it has obtained the right of way by agreement, it is, in the absence of provisions to the contrary, entitled to the right of possession as effectually as though it obtained that right by condemnation proceedings. When condemned, the right of possession becomes absolute upon payment of the sum awarded for such right of way. The only prerequisite to its title and to possession is to pay the compensation awarded. When this is done tbe land is acquired, and, under the statute, for public use. When the right of way is obtained by agreement with the owner, and the agreement is silent as to possession, the company is entitled to possession upon fulfilling the terms of the agreement. No deed was necessary to establish the legal rights of the company. The agreement, compliance therewith, the location and cobstruction of its roadbed, and its use by the company as required by law, establish the legal right of possession in the company. Its possession is no other or different in character than it would have been if Mr. Smith had made the deed as agreed upon. So long as the railroad company carries on its business as required by law, so long it is entitled to possession, with or without a deed.

‘ ‘ Where the statute * * * gives the right to agree upon compensation,' then the matter of damages may be settled by oral agreement, and the title will vest by virtue of che statute, the same as if the damages were ascertained and deposited pursuant thereto. Or the owner may waive prepayment simply, and thereupon the title will vest, subject to the lien for just compensation to be afterwards adjusted and paid.” 2 Lewis, Em. Dom. § 298.
“A release of damages has the same effect as the assessment and payment of damages under the statute.” Id. § 294.

I think that the case of Greenwood v. School District, 126 Mich. 81 (85 N. W. 241), is conclusive of this case. There a parol agreement to give an acre of land for a schoolhouse site, not definitely located by the agreement, was held valid, after the school district authorities had selected the land, fenced it, built a schoolhouse, and occupied it for many years. What there rested in parol is here established by a written agreement. The selection, inclosing, and use of the land fully establish the defendant’s right to possession, and, as long as it uses the land for the purposes of a right of way, that possession is legal. See, also, Smith v. Hamilton, 20 Mich. 433, 439 (4 Am. Rep. 398).

Judgment should be reversed, and judgment entered in this court for defendants for a' strip of land 30 feet wide, the center line of which is the center line of the railroad track of the Muskegon, Grand Rapids & Indiana Railroad, as the same is constructed upon and across the lands described in the declaration. Defendants should recover the costs of both courts.


author: Per Curiam.

text:
    OWEN v. MORELAND.
    Plats — Dedication oe Streets — Authority oe Commissioner oe Publio Works.
    The commissioner of public works of Detroit cannot compel the owner of land, desiring to plat it, to dedicate and include in the plat the land that, according to the general plan of the city, would be within the limits of its streets when extended.

      Certiorari to Wayne; Donovan, J.
    Submitted January 6, 1903.
    (Calendar No. 19,710.)
    Decided March 23, 1903.

      Mandamus by La Fayette Owen and others to compel De Witt H. Moreland, commissioner of public works of the city of Detroit, to approve a plat of certain lands. From an order denying the writ, relators bring certiorari.

    Reversed.

      Walker & Spalding, for relators.
    P. J. M. Hally and. A. B. Hall (Timothy E. Tarsney, of counsel), for respondent.
   Per Curiam.

Relators, owning property on both sides of Kercheval avenue in the'city of Detroit, between Yan Dyke and Maxwell avenues, asked respondent to approve their plat of the same. According to the plan of the city, Parker avenue, when opened, will pass through relators’ subdivision, and a strip of land owned by relators, lying immediately east of the proposed plat, is within the limits of another unopened street. Relators did not dedicate to the public, nor did they plat, the land lying within the limits of these proposed streets. Said land is marked on their plat, “Notincluded in plat.” Respondent refused to approve relators’ plat, because they did not dedicate the above-described land to the public. Relators applied to the circuit court for the county of Wayne for a mandamus to compel respondent to approve their plat. Their application was denied, and the matter is before us for review.

The law governing this matter is contained in the charter of the city of Detroit, and may be found in the opinion in Van Husan v. Heames, 91 Mich. 519 (52 N. W. 18). In that case it was held that a landowner might plat from the line of one street to the line of another, without dedicating to the public the property owned by him within the lines of the streets. In the case of Serviss v. Board of Public Works, 115 Mich. 63 (72 N. W. 1117), this court held that a landowner could not plat the property within the limits of a proposed street. The relators contend that their case is governed by Van Husan v. Heames. Respondent contends that it is governed by Serviss v. Board of Public Works. We think it is clearly governed by the former case, which holds that a landowner may plat to the limit of a proposed street without being compelled to dedicate the land within those limits. It is a mistake to suppose that the commissioner of public works is under an obligation so to use his power of approval as to compel owners to dedicate, for the purpose of a proposed street, land which they do not plat. It is not surprising that the legislature has indicated no intent to impose such an obligation, while the value of the property dedicated is not taken into consideration when the dedicating owner is assessed for opening the proposed street through the land of his neighbor.

The order of the court below will be reversed, and a mandamus granted.


author: Montgomery, J.

text:
    BALE v. MICHIGAN TONTINE INVESTMENT CO.
    Corporations — Fraudulent Contract — Equity Jurisdiction.
    This case is substantially like Edwards v. Michigan Tontine Investment Co., ante, 1. The fact that complainant, after ascertaining the fraudulent conduct of defendants, refused to continue payments upon his contract, does not justify a different result.
    Appeal from Ionia; Stone (George P.), J., presiding.
    Submitted January 6, 1903.
    (Docket No. 1.)
    Decided March 23, 1903.
    Bill by John J. Bale against the Michigan Tontine Investment Company and others for an accounting and the appointment of a receiver. From an order overruling a demurrer to the bill, defendants appeal.
    Affirmed.

      N. O. Griswold and O. L. & C. B. Barden, for complainant.

      A. A. Ellis, B. A. Hawley, and Morse & Locke, for defendants.
   Montgomery, J.

This case is before us on demurrer to the bill of complaint. In only one respect does it differ in any substantial way from the case of Edwards v. Michigan Tontine Investment Co., ante, 1 (92 N. W. 491), in which case we held that the bill stated a case for equity jurisdiction. The particular in which the present case differs from that is that the present bill avers that the complainant, after ascertaining the fraudulent conduct of the defendants, and that their contract was ultra vires, 'refused to continue payments upon his contract. This averment does not justify a different result. If the charges in the bill are maintained, the complainant ought to be placed in statu quo.

The order overruling the demurrer will be affirmed, with costs, and the case remanded for further proceedings.

The other Justices concurred.


author: Grant, J. Moore, J.

text:
    CONSTANTINE v. KALAMAZOO BEET SUGAR CO.
    1. Corporations — Officers — Authority — Indemnity — Sugar Beets.
    Where lessees of land have agreed to raise and deliver to a beet sugar factory a crop of sugar beets, and, after partially raising the crop, it becomes doubtful whether the venture will prove a success, the secretary and manager of the factory has authority to make a contract with the lessor, who is also a mortgagee of the crop, that, if he will furnish the money to complete the raising of the beets, the company will guarantee the parties against loss.
    2. Contracts — Estoppel.
    The lessees of land agreed with a beet sugar company to raise and deliver to the company 40 acres of beets at an agreed price. The season becoming unfavorable, the mortgagee of the crop refused to furnish money to complete the raising of the beets unless the company would give the parties the same indemnity it had given R.; and, upon being assured of such indemnity, he made further expenditures. Held, that the - company could not deny that a contract was made.
    Grant, J., dissenting.
    Error to Kalamazoo; Adams, J.
    Submitted January 9, 1903.
    (Docket No. 18.)
    Decided March 23, 1903.

      Assumpsit by Sidney M. Constantine against the Kalamazoo Beet Sugar Company upon a contract of indemnity. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      N. H. Stewart and Sheridan F. Masters, for appellant.

      Howard & Howard, for appellee.
    The defendant owns and operates a beet sugar factory. May 1, 1899, two parties (Keys and Constantine) made a contract with the defendant by which they agreed to grow 40 acres of sugar beets, and sell the proceeds thereof at given prices to the defendant. The part of the. contract material to this case reads as follows: .
    “ When this contract shall be signed, and a copy thereof be delivered to each party, no agent of said second party has any authority to change or alter the terms and conditions thereof.”
    October 26, 1899, this contract was assigned to plaintiff in the following written instrument:
    “For value received we hereby sell, assign, transfer, and set over to S. M. Constantine (mortgagee of crop) all our right, title, and interest in and to the within contract, together with all subsequent agreements made with the company in reference to thd subject-matter contained therein.”
    Plaintiff owned the land on which Keys and Constantine agreed to raise the beets. He leased the land to them, and agreed to advance them money required for the purpose of putting in and cultivating the crop, and in the lease it was agreed that it “ shall be a lien on said crops for the rent and any money or labor advanced, with interest on all except rent at seven per cent, per annum.” The rental of the lease was $260, to be paid as the beets were delivered and paid for. August 17, 1899, plaintiff, in order to further secure him for rent and moneys advanced to Keys and Constantine, took a chattel mortgage from them for $675 upon the sugar beet crop.
    The season was an unfavorable one, and when it became quite evident that there would be a loss to Keys and Constantine, and also to plaintiff, he, in July, interviewed Mrs Henry, the agent for the defendant, claiming that he represented both Keys and Constantine and himself, and that he made a parol agreement changing the contract, by which the defendant, through Mr. Henry, its agent, guaranteed plaintiff, as well as Keys and Constantine, from all loss. The language relied upon by the plaintiff to establish this contract reads as follows:
    “ Q. Mr. Constantine, at any time after this contract was made, did you hear any rumor in regard to sonie parties having a different contract from what Keys and Constantine had with the beet sugar company ? .

      “A. I did. I went to Kalanfazoo, and saw Mr. Henry, the secretary of the company, in the company’s office in the city of Kalamazoo. The conversation I had that first time with Mr. Henry was along in July, about the time the drought was visiting our beets down in that part of the country; and, after hearing this rumor about a guaranty of contract with other growers, I went down there to see Mr. Henry at Kalamazoo. I had met Mr. Henry before, and, after talking with him about the condition of the beets and the drought, I stated to him that I understood it was rumored that parties in Three Rivers had a guaranty against all loss on raising beets; that is, that they had a different contract from what we had; that I understood the contracts were all the same. He replied that they were all the same, and he says: ‘Mr. Constantine, that is a mistake. Nobody has any different guaranty from you or Mr. Keys and Mr. Constantine. We are not doing business that way.’ And he turned around to the desk to pull out to show me the other contracts with the other parties (I think I mentioned Dr. Sidmore and Mr. Reitz), and he'said, ‘We are not doing business that way, and I can show you; ’ and he turned around to his desk (we were sitting alone in his office on South Burdick street), and he says, ‘I will show you, sir, nobody else has any different contract from yourself.’ I said: ‘Mr. Henry, your word is good. You don’t have to show me. If you say so, it is all right. I want to understand that we are on the same footing as anybody else. You know I am furnishing money— I so informed you before. I am furnishing money, and have been, to put in these beets, and the prospects are not favorable, and I want to know we stand bn the same footing as everybody else in regard to the raising beets; ’ and he says, ‘You do.’ I then returned to Three Rivers. I told him that I was furnishing money in the early part of July; that I had a lien on the crop. I met him here, introduced myself to him, and I told him for whom I was acting when I went to see him there in July, — for Louis Constantine and Ezra N. Keys and myself, as mortgagee. He simply said at that time that I had the same contract, —assured me, — and I returned home.
    “After that I had a further talk with Mr. Henry, the secretary of the company. I came back to Kalamazoo; met Mr. Henry. I spoke about the crop; the prospects were poor; worms appearing in the crop about that time; and that I understood Mr. Reitz had a guaranty against loss, and he had assured me different; that we stood just the same as anybody else; and he was surprised that I would doubt his word. He went on to state that we could take a great many contracts anywhere if we could guarantee the loss, but we don’t; we weren’t doing business in that way; we were doing business on business principles. I said I supposed so, but I wanted it understood then and there that I was to stand just as well as William Reitz, or anybody else, in regard to any loss; that I had put up the money, the boys had worked hard, and we were going to stop right there. Mr. Henry then said to me: ‘You do stand just as well; Mr. Reitz or no one else has got any guaranty.’ I then said: ‘All right, Mr. Henry. With that understanding — that we are to stand just as well as Mr. William Reitz, or anybody else, against all loss — I will go on and harvest this crop; have the boys do it, and deliver it to market.’ He said: ‘Yep, sir; it is all right. You shall have the same protection that Mr. Reitz or anybody else.’ With that agreement, I went out and went home.
    “At that time I told him I appeared for Ezra N. Keys and Louis F. Constantine and myself. He knew what my connection was with it. In that conversation I told him we were going to stop right there; that the crop looked bad; that we would have to go to additional expense if the worms attacked us as they had other fields; I didn’t propose to put any more money into it; I was going to stop right there. I did put more money into it after that talk. I talked to him about the treatment in case the worms should come and bother us very much, and went back home, and he wanted the boys to go ahead and buy implements and paris green, and work the crop the best we could to save it.
    “ Q. You may state whether or not you would have gone on and furnished any more money on that crop, except under this arrangement, unless Mr. Henry had made this arrangement with you.

      “A. I would not; no, sir.
    “I furnished the money from the beginning for this crop. The boys had no money at all. I went on and furnished the money, and got ready to treat the worms and take care of the crop. Next went on and harvested the crop up to— Sent three car loads of sugar beets. Then we stopped. We didn’t think it would pay to harvest the balance just at that time. Prior to that time, of course, this contract was assigned over to me. I went up to Kalamazoo after shipping three car loads, and saw Mr. Henry, the secretary of the company, and I said to him - ‘ I don’t believe it will pay to harvest the balance of the beets, 16 acres there, or 20 (we called it about 16, the balance) ; that the worms are bothering us very bad again on that piece in particular;’ and he said: ‘ Mr. Constantine, if you don’t think it will pay freight and expenses, why don’t harvest them, — 16 acres.’ Of course, I didn’t. Of course, I said we were all ready to go ahead, and would harvest them if he desired to have me; but the opinion was of those on farms there that it would not pay, I told him. I told him about the matter, and left it to him to •say whether we should go on and harvest them. He said ‘No;’ not to harvest them if I didn’t think it would pay.”
    The original contract made by the company with Mr. Reitz contained an indemnity clause against loss. The ■crop was a failure. Plaintiff’s suit is based upon this guaranty, and he recovered verdict and judgment for $1,318.74.
   Grant, J.

(after stating the factsj dissenting). It is due to the defendant to say that the version relied upon by the plaintiff is contradicted by Mr. Henry, its agent. But the question must be determined by the case made by plaintiff’s testimony as above given. Under his -version of it, two contracts were made, — one with Keys ■and Constantine, the other with plaintiff. Plaintiff says he represented Keys and Constantine, and was acting for them as well as for himself, in this interview with defendant’s agent.

Defendant sent agents through the country in the vicinity of its factory to obtain contracts. In all, about 1800 were made. All the contracts but three contained the provision absolutely prohibiting its agents from changing ■or altering the terms and conditions thereof after- they were executed and a copy delivered to each party. Under plaintiff’s theory, it would be impossible to make a binding contract of this character. There is not one word of ■evidence in this case tending to show any authority conferred by the board of directors upon Mr. Henry, their agent, to make such changes. On the contrary, there is ■uncontradicted evidence in the contract itself that no such authority was conferred upon him. It would also follow that any of the agents who took any of these contracts had the power to change them. The very purpose of such provisions is to remove all doubt as to the agent’s authority. Plaintiff knew of this provision when he claims to have made the parol change. He is a lawyer. It was incumbent upon him to ascertain whether Mr. Henry had such authority, especially in the face of the express provision,, known to him, that he did not possess it. It was incumbent upon plaintiff to prove the authority. There is no opportunity to apply the doctrine of apparent authority. Authority on the part of an agent to make a contract does not imply the authority on the part of the same agent to change it after he has reported and delivered it to his principal. Even Mr. Henry’s statement to the plaintiff that he had authority would be no evidence of such authority. Mechem, Agency, §§ 706, 716; Dobson v. More, 62 Ill. App. 435; Boynton v. Gaslight Co., 124 Mass. 197; Davis v. Railroad Co., 131 Mass. 258 (41 Am. Rep. 221); Simmons Hardware Co. v. Grocer Co., 64 Mo. App. 677; Stoystown, etc., Road Co. v. Craver, 45 Pa. St. 386; Humboldt Mining Co. v. American Manfg. Co., 10 C. C. A. 415, 62 Fed. 356. The offer to show by Mr. Henry that he had no such authority was erroneously excluded by the court.

It is, however, urged that the defendant has had the benefit of this contract, and is therefore estopped to deny the authority of its agent. The complete reply to this is that there is no evidence that the defendant’s directors had any knowledge whatever of this change. They had before them the written contract alone of Keys and Constantine, and had the right to act upon that contract as the measure of their rights and obligations. They had no notice that Keys and Constantine were acting under a subsequent parol agreement, and could not be estopped or bound by any such arrangement until they had knowledge of it. The learned counsel for plaintiff seek to bring the case within cases upon insurance policies, like that of Beebe v. Insurance Co., 93 Mich. 514 (53 N. W. 818, 18 L. R. A. 481, 32 Am. St. Rep. 519). That case did not involve a change in the policy, but a waiver of conditions at the time the policy was given.

The contract to indemnify the plaintiff from all loss, by reason of advances he already had made and should thereafter make to Keys and Constantine is an unusual one. It is not within the power of the most general agent of a corporation to make. Such extraordinary power must be proven to have heen expressly conferred or its exercise ratified by the principal. As already stated, the defendant had its 1800 contracts-in its possession, fully determining the rights of all the parties thereto, and on which it was prepared to carry on its business. It is now urged that its agent had the authority to guarantee to indemnify from loss parties who would furnish money to the beet growers to carry out their contracts. There is serious doubt whether the board of directors would have the power to make such contracts. See Lucas v. Transfer Co., 70 Iowa, 541 (30 N. W. 771, 59 Am. Rep. 449); Filon v. Brewing Co., 15 N. Y. Supp. 57; Davis v. Railroad Co., supra. The fact that three of the original contracts contained a provision guaranteeing against loss is no evidence of authority on the part of the agent to make this contract with the plaintiff. There is nothing in the record from which it can be implied that such authority was conferred upon Mr. Henry, or its exercise by him ratified.

Other questions are raised, but this disposal of the case renders it unnecessary to determine them.

Judgment should be reversed, and new trial ordered.

Moore, J.

I do not agree with the conclusion reached by Mr. Justice Grant. The growth of sugar beets and the manufacture of beet sugar are comparatively new industries in this State. It is a matter of common knowledge that a beet sugar factory is an expensive plant, and depends upon a crop of sugar beets grown in its vicinity for its successful operation. It is also a matter of common knowledge that the market for a crop of sugar beets depends upon the proximity of a beet sugar factory, and that farmers would not think of growing a crop, as they do ordinary crops, without knowing where it is to be marketed, and approximately at what price. It is also a matter of common knowledge that contracts are made for the crop before it is planted, and, to insure a crop in some locations, the corporation itself frequently grows the crop. It follows naturally that, unless the farmer could feel a reasonable degree of assurance that his crop would be profitable, he would not engage in growing it. What is more natural than that the assurance should come from the corporation owning the plant which is to convert the crop into sugar ? I cannot believe it is the exercise of an extraordinary power for the manager of one of these institutions, who, it is fair to presume, has special knowledge of the quantity and quality of the beets which .may be ordinarily grown upon a given acreage, to say to a farmer who never has grown beets that the crop is a profitable one, and the company will gurantee him against loss if he will undertake to grow a crop, and to bind the company by such an agreement, when acted upon. It is difficult to see how the business could go on at all unless the manager and secretary are clothed with power to make such reasonable contracts as will result in the growth of the necessary crop to supply the ordinary needs of the plant. In Whitaker v. Kilroy, 70 Mich. 635 (38 N. W. 606), it is said:

‘ ‘ Mr. Brandon is shown by the testimony for plaintiff to have been the superintendent to do the general work and to keep the books. He is also described as superintendent and manager, and is testified. to have made the contract with Mr. Kilroy on which the charges were all based. It also appeared that Kilroy’s name nowhere appeared on the company’s books as owing it anything. We think that persons dealing with such a corporation for work have a right to get their information from the person whom the corporation has put in charge,- and cannot be required to go elsewhere, and that contracts so made are valid contracts, when relating to the ordinary concerns of such business. And if persons are not sustained in contracting with such superintendents, they can never be safe. They have no means of knowledge except inquiry somewhere, and the person put by the corporation in open charge of the business must have power, as to. third persons, to represent it.”

See, also, Ceeder v. Lumber Co., 86 Mich. 541 (49 N. W. 575, 24 Am. St. Rep. 134); Hirschmann v. Railroad, Co., 97 Mich. 384 (56 N. W. 842).

The question of the measure of damages, presented by counsel, has been considered by the court. We think the trial judge properly charged the jury in relation thereto.

A more troublesome question is whether the minds of Mr. Constantine and Mr. Henry met, so as to constitute, in law, a contract. When this conversation was had (and, for the purposes of the case, it must be assumed that Mr. Constantine’s version is the correct one), Mr. Constantine knew the company had guaranteed Mr. Reitz against loss, and Mr. Henry also knew it; and the .plaintiff refused to go any further with the business unless the parties were indemnified to the extent that Mr. Reitz was, and, upon the assurance of being so indemnified, the further expenditures were made by the plaintiff. We do not think the company can be heard to say, under these circumstances, that no contract was made.

The judgment should be affirmed.

Hooker, C. J., Montgomery and Carpenter, JJ., concurred with Moore, J.


author: Moore, J.

text:
    O’NEIL v. NEWMAN.
    1. Appeal — Assignments oe Error — Generality.
    An assignment of error that “the court erred in admitting improper evidence to go to the jury on the part of the plaintiff ” does not comply with the rules, and will not be considered.
    2. Pleading — Evidence—Variance—Dogs.
    In an action for killing “a certain beagle hound dog,” a motion to take the case from the jury because the evidence showed the dog to be part fox and part beagle hound was properly denied, where the defendant did not object to the testimony, and admitted by his counsel that he killed the dog.
    3. Sufficiency of Evidence — Question for Jury.
    Where, in an action for killing a dog, defendant claimed the • dog was a trespasser and chasing his sheep, and one of plaintiff’s witnesses testified that he saw defendant kill the dog, and that there were no sheep in the inolosure, but they were in an adjoining inolosure, feeding, the case was properly submitted to the jury.
    Error to Charlevoix; Mayne, J.
    Submitted January-13, 1903.
    (Docket No. 32.)
    Decided March 23, 1903.
    Case by Thomas O’Neil against Austin C. Newman for killing plaintiff’s dog. Prom a judgment for plaintiff* defendant brings error.
    Affirmed.

      Ira G. Mosher, for appellant.

      Fitch & Fitch, for appellee.
   Moore, J.

This suit was commenced in justice’s court. Plaintiff sued and obtained judgment for the value of a dog killed by defendant. It was appealed to the circuit court by defendant, where a jury gave the plaintiff a verdict of $12. The defendant has brought the case here by writ of error.

Many of the assignments of error are- of as general a character as the following: ‘ ‘ The court erred in admitting improper evidence to go to the jury on the part of the plaintiff. ” These assignments of error do not comply with the rules, and will not further be referred to. See Cir. Ct. Rule 47; Sup. Ct. Rule 11; Tupper v. Kilduff, 26 Mich. 394; Wheeler & Wilson Manfg. Co. v. Walker, 41 Mich. 239 (1 N. W. 1035); Alberts v. Village of Vernon, 96 Mich. 549 (55 N. W. 1022); Hecock v. Van Dusen, 96 Mich. 573 (55 N. W. 1024); Jackson Bridge & Iron Co. v. Insurance Co., 122 Mich. 433 (81 N. W. 265); Pichler v. De Hate, 125 Mich. 247 (84 N. W. 138); Thompson v. Street-Railway Co., 125 Mich. 249 (84 N. W. 132).

It is assigned as error that the judge refused to take the case from the jury on account of a variance between the declaration and the proofs. In the declaration the dog which was killed was described as “a certain beagle hound dog.” Defendant pleaded the general issue, and gave notice by way of defense that plaintiff’s dog was trespassing on defendant’s premises, and was chasing and worrying the sheep and lambs of defendant. There was a trial in justice’s court upon the merits. Upon the trial in the circuit court plaintiff testified that he was the owner of a beagle hound fox dog, part fox and part beagle. No objection was made to the admission of this testimony. Later a witness produced on the part of the plaintiff, who knew his dog, was giving testimony relating to the way in which defendant killed it, when counsel for defendant stated, “We admit killing the dog.” After the proofs were closed on the part of the plaintiff, defendant moved the court to take the case from the jury, because the proofs show the dog which was killed was a cross between the beagle and common hound, while the declaration is for the killing of a beagle hound dog. This motion was overruled. There is nothing in the record to show that a dog such as the proof discloses this one was would not properly be described when designated as a beagle hound dog. As already stated, the testimony of plaintiff was allowed to come in without objection, and the defendant admitted in open court the killing of the dog described by plaintiff. He was not misled by the pleadings or surprised by the proofs. We do not think the court erred in overruling the motion.

It i»3 said there is no evidence to support the finding of the jury. We cannot agree with this claim. Defendant claimed the dog was a trespasser on his premises, and was chasing or worrying his sheep and lambs. At least one of the witnesses for plaintiff, who saw the defendant kill the dog, testified that there were no sheep and lambs in the inclosure where the dog was killed; that they were in an adjoining inclosure, and were feeding. An issue of fact was presented by the testimony, which was properly left to the jury.

Plaintiff claims the appeal is vexatious, and asks for additional costs. We are not satisfied the appeal is vexatious, and decline to give additional costs.

Judgment is affirmed.

The other Justices concurred.


author: Carpenter, J.

text:
    TRACEY v. TOWNSHIP OF SOUTH HAVEN.
    1. Defective Highways — Negligence—Question for Jury.
    Evidence that for the whole spring, and until May 1st, the time of plaintiff's injury, a washout existed in the highway, and that for a period of two years previous, when it had been raining, washouts occurred at or near the same place, warranted the inference that the township had knowledge of the condition of the highway, and j'ustified the submission of the question of its negligence to the j'ury.
    2. Same — Contributory Negligence.
    One driving a horse accustomed to shy at obj'ects in the highway, and paying no attention to the road, but admiring the scenery, is guilty of contributory negligence in driving along a narrow and high embankment into a. washout in plain view.
    Error to Van Burén; Carr, J.
    Submitted January 14, 1903.
    (Docket No. 36.)
    Decided March 23, 1903.
    Case by Addie M. Tracey against the township of South Haven for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Wicksall & Cogshall (Dallas Boudeman, of counsel), fof appellant.

      Thomas J. Cavanaugh, for appellee.
   Carpenter, J.

The action in this case is brought to recover damages on account of injuries received by the plaintiff while she was driving over a public highway in the township of South Haven. Plaintiff’s testimony tended to show the following facts : She is a woman 45 years of age, and by her injuries was permanently disabled. On the morning of May 1, 1899, she, with her husband, started from their home to the place of Mr. Yoorheis, where Mr. Tracey was at work as a carpenter. They were the owners of a horse which had been driven by the family for many years single, and was used as a family horse. On the morning in question the plaintiff’s husband harnessed the horse to the buggy. It was a gentle horse, and had been used a great deal by the plaintiff and her husband and their daughters. Plaintiff and her husband were driving together, and, when they arrived at the place where he was at work, he got out, and she drove on alone in a westerly direction, which leads to the village of South Haven. In doing so she was obliged to pass over the highway where she was injured. This highway extended east and west'through the center of sections 1 and 2 in South Haven township, and where the injury occurred said highway crosses a ravine about 15 rods in width. Said ravine extends north and south, and is crossed by the highway in an easterly and westerly direction. The roadbed crossing said ravine is from 15 to 18 feet high, and from 8 to 12 feet wide at the top. There is a large hill on each side of the ravine, which slopes at an angle of about 45 degrees towards the ravine. On the sides of the roadbed where it crosses the ravine there were originally barriers, but in that part of the highway lying directly outside the village limits these barriers were permitted to decay, rot, and fall over. There existed in this roadbed, where it crosses said ravine, a washout from one to two and a half feet deep, and about two feet in diameter. This washout could be seen four or five rods away by those approaching it from either direction. It had been there during the whole spring, and it continued to grow worse from time to time. In fact, the evidence tended to show that for at least two years previous to the time 'of the accident, when it had been raining in the fall and spring, washouts occurred at or about the place where the plaintiff was injured. While the plaintiff was driving over, upon, and along this roadbed where it crosses the ravine, driving her horse at a walk, her horse became frightened at the washout, and stepped to one side. ,In doing so the bank of the road gave way, and, in endeavoring to regain his foothold, the horse, buggy, and all rolled down the embankment, and the plaintiff received the injuries complained of. Plaintiff recovered before a jury, and defendant appeals.

The defendant insisted on the trial, and insists here, that a verdict should have been directed in its favor, because plaintiff was guilty of contributory negligence’ and because the evidence failed to show any such neglect on the part of the township as would render it liable. We are all agreed that the evidence warranted the inference that the washout had existed so long that the township officers must have known of it before the plaintiff’s injury, and therefore that the question of defendant’s negligence was properly submitted to the jury, under the authority of Thomas v. City of Flint, 123 Mich. 10 (81 N. W. 936, 47 L. R. A. 499).

The serious question in the case, however, is whether or not plaintiff’s own testimony warranted the finding that her negligence did not contribute to her injury. The determination of this question requires a careful examination of that testimony. On direct examination plaintiff testified:

“As I was driving along, admiring the ravine very much, suddenly the horse first kind of shied, stepped one side, and at the same time I noticed the wheel was on the verge of going into this rut. * * * My wheel was far out as I discovered it * * * as the horse shied; and at the same time I discovered that the wheel was on the outside in the washout, and just ready to drop down. * * * At the same time the horse shied I saw the whole thing, and yanked on the lines suddenly. ' At the time he shied he stepped one side, stepped outside of the track, and it caved off, and, when he stepped back to save himself from going down the bank, the buggy got the upper hand of me, and he went down the bank. * * * We were so far to this side that he nearly, I think, stepped in the hole himself. I didn’t notice him, because he was so gentle that it was very seldom that I had to pay any attention to him.”

That the horse was the family horse, and had been driven by plaintiff and her daughters for years.

On cross-examination plaintiff stated that she was driving along, admiring the ravine, its depth, its green groves, and the blossoms on the trees.

“The morning was a very fine one, not cloudy. * * * The first thing I knew about the washout, the horse shied. * * * At this time I was right at the edge of it. * * * When the horse shied, I pulled on the lines. Up to the time that he shied, the lines were loose to a certain extent. We always drive him with a loose line; not overly loose, but yet not with a tight rein. The lines were not lying on the dashboard at the time. ”

She also testified that the horse had shied at ruts or bad places in the road prior to this.

‘ ‘ I don’t know as the horse ever came so near stepping into a hole that I didn’t notice before I got to it, and I was looking out for it; but as it happened this morning, I didn’t see that one. * * * I didn’t happen to be looking down at the road directly. I didn’t think of such a thing.”

That she was looking at the blossoms, and consequently did not notice the hole; that the horse had often shied at paper; -that he had shied at a road machine, at ladies dressed in white, at cars or engines, at logs half covered with snow, at domestic animals in the track, at a gentleman carrying a harness. When he shied ‘ ‘ he was easy to manage, though. If not reined up, he would shy off half the width of the road, probably.”

The law in this State is well settled that, to entitle plain, tiff to recover, the burden rests upon her not only to establish. defendant’s negligence, but to prove that she herself was not guilty of contributory negligence. Drew v. Steamboat Chesapeake, 2 Doug. 33; Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274. The circumstances, as detailed by plaintiff, — this narrow, high embankment, the-horse accustomed to shy, — clearly imposed upon her some degree of care. Her testimony does not warrant the inference that she exercised any care whatever, either in watching the horse or observing the highway. While it is generally a question for the jury, and not for the court, as to what care should be exercised, this court is bound to say that no care is not due or reasonable care. Lake Shore, etc., R. Co. v. Miller, 25 Mich., at page 294. This is not like the cases of Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011, 5 L. R. A. 143, 13 Am. St. Rep. 457); Lowell v. Township of Watertoivn, 58 Mich. 568 (25 N. W. 517); Graves v. City of Battle Creek, 95 Mich. 266 (54 N. W. 757, 19 L. R. A. 641, 35 Am. St. Rep. 561); Sias v. Village of Reed City, 103 Mich. 312 (61 N. W. 502); Grattan v. Village of Williamston, 116 Mich., at page 465 (74 N. W. 668); and Vergin v. City of Saginaw, 125 Mich. 499 (84 N. W. 1075),— where the injured party introduced testimony tending to excuse him for receiving an injury from a known defect in a highway. In this case the defect was not known to' plaintiff, but it was open to her observation, had she paid any heed to her surroundings. It is urged that this court should not declare a rule which requires the driver of a vehicle to keep his eye constantly on the roadbed in front of his horse, or which will prevent his enjoying, to some extent, the beauty of the surrounding scenery. This opinion declares no such rule. It simply recognizes that, under the circumstances of this case, plaintiff was' under an obligation to use some care. Her testimony fails to-show that she used it, and presents no excuse for such failure.

Judgment is reversed, and a new trial granted.

The other Justices concurred.


text:
    CRON v. TOLEDO & MONROE RAILWAY.
    Electric Railways — Injury to Employé — Warning of Danger.
    An electric railway company is not liable for the death of an employe, killed by a contact with the fuse block on a switchboard, where the evidence shows he was warned of the danger.
    Error to Monroe; Lockwood, J.
    Submitted January 15, 1903.
    (Docket No. 46.)
    Decided March 23, 1903.
    Case by Emilie Cron, administratrix of the estate of Adam Cron, deceased, against the Toledo & Monroe Railway, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Willis Baldwin and John O. Zabel, for appellant.

      Charles A. Golden, for appellee.
   Moore, J.

This suit was brought to recover for the death of plaintiff’s decedent. The defendant was constructing a line of electric railway between the cities of Toledo and Monroe and a power house at Monroe. It let a contract to the Toledo & Monroe Construction Company to do this work, and the construction company contracted with the J. G. White Company for the construction of the power house and installing of the machinery therein. The railway was substantially completed, and a part of the machinery had been installed. The road was in operation, using the machinery which had been installed. The J. G. White Company was completing the work at the power house. Mr. Cron was at work, boxing up holes in the floor. He had worked at this 2-)- days, and had nearly finished, when he was killed by reason of his face coming in contact with some part of the fuse block on the back of the switchboard while his hand rested upon an iron beam, thus “grounding ” a strong current of electricity through his body. The negligence charged in the declaration was that the defendant failed to warn the deceased of the latent dangers which he might encounter in doing this work. The court directed a verdict for the defendant. The case is brought here'by writ of error.

Many questions are raised by counsel which we do not deem it necessary to discuss, as the determination of one of them must dispose of the case. The record discloses without contradiction that, before the deceased came to his death, he was warned of the danger, and cautioned as to what he might not do. Mr. Keller, the engineer in charge, testified at great length as to the warnings he had given. Among other things he testified: /

“He was just getting up the lumber. I went over everything again with him,' — the dangerous parts that I considered dangerous for a man that did not know anything about wiring, — because I knew there were only two places in particular that were in any way dangerous at all to a man not familiar with the work. I pointed out these two places, and told him he should not handle these wires at all. If he wanted to remove the wires, he was to come to me and ask if he was to move them. The following day he came into the office, and asked me to go back of the switchboard. I did so. I noticed a wire apparently close to the return circuit from the rail. It was very close to the west one that he had to box. I' said I would remove it so that he could go ahead. I took a piece of board and pried the wire away. He wanted to assist me; he asked to assist. I refused. There was another wire in the way. I removed it with my hands. It was insulated. He went ahead with the work. I cautioned him. I went back of the switchboard every few hours during the day, — perhaps every hour. * * *
Q. Just state what you said to Mr. Cron about the danger back of the A. C. panel.
“A. He was working there on one end. I called his attention to these dangerous places, which I considered dangerous for him to work around, and which is not very dangerous for us familiar with the switchboard, because it is usual with the apparatus back of the board. I called him over from one end of the work and told him. I said, ‘This is hot.’
Q. You mean the wire ?
“A. Yes, sir; I said: ‘ This is warm. There is power going through there. You must not get anywhere near this.’ I could not make it any stronger, — my caution to him. I had already cautioned him.
Q. Tell us, as near as you can, what you said about the caution.
" A. I placed my hand near the wire, and said : ‘This is hot. It is very dangerous. Must be very careful here.’ That is practically what I said. Then I stepped over to the other one. I also cautioned him at that place. I said it was equally as dangerous.
Q. The whole substance of your caution was that there were live wires there; that it was dangerous there,— not to touch it ?
A. Yes, sir.
‘ ‘ Q. That was the substance of the caution you gave him?
“A. Yes, sir.
Q. That is substantially the caution you gave him ?
“A. I cautioned him the day before. I told him that he should not touch the wires anywhere. If there were any wires to move, I would attend to them; if he thought it was too dangerous to work there, I would rather have him stop right there. At the place he was killed I cautioned him again.
Q. Was the caution you gave him the day before substantially to the effect as you have stated, and this caution about the live wire at this place where he was killed is the gist of all the caution you gave him ?
“A. Yes, sir.
Q. You 'may state whether or not you called Mr. Cron’s attention to everything that was dangerous where he was to do his work.
“A. I called his attention to every dangerous point that I thought was dangerous to him. I called his attention to the fact that he should look out and be careful in doing his wmrk. I went from one end of the switchboard to the other, and pointed out every dangerous place.”

Mr. Lewis, chief engineer in charge of the machinery, also testified to having warned Mr. Cron of the danger, to showing him the fuse, block, and to pointing out to him the fuse wire where his head was when he was found dead, and to explaining to him the danger. It is claimed these statements are discredited by other testimony given by the witnesses and by the circumstances surrounding the case. To sustain this claim it is necessary to take isolated questions and answers separated from what preceded and followed them. When these questions and answers are read in connection with the rest of the testimony, they are not inconsistent with it, and do not discredit it. The case is very different from that of Preuschoff v. Brewing Co., ante, 107 (92 N. W. 945), as will be seen by a reference to that case. In this case the testimony of all the witnesses was to the same effect, and was not open to doubt. See Druse v. Wheeler, 26 Mich. 189; Conely v. McDonald, 40 Mich. 150, and the many cases there cited; Lange v. Perley, 47 Mich. 352 (11 N. W. 193); Jakoboski v. Railroad Co., 106 Mich. 440 (64 N. W. 461); Ferris v. Assurance Co., 118 Mich. 485 (76 N. W. 1041).

The judgment is affirmed.

The other Justices concurred.


text:
    CRONIN v. RUSSEL WHEEL & FOUNDRY CO.
    1. Master and Servant — Personal Injury — Assumption of Eisk.
    Where an experienced workman, familiar with the work, while engaged in constructing a hoisting apparatus for unloading coal from a vessel, fell from a platform which he had assisted in building, the danger of working in the place, if any, was as apparent to him as to any one, and the risk, if any, was assumed by him.
    3. Same — Safe Appliances.
    Where an experienced workman, familiar with ropes and their uses, selects, from a pile of ropes at hand, one which breaks and causes him to fall, the master is not liable.
    Error to Wayne; Donovan, J.
    Submitted January 15, 1903.
    (Docket No. 51.)
    Decided March 23, 1903.

      Case by George Cronin against the Russel Wheel & Foundry Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      James H. Pound, for appellant.

      Edwin E. Conely and Orla B. Taylor, for appellee.
   Moore, J.

This is an action brought by the plaintiff against the defendant for damages sustained by him, claimed to be caused by being furnished an unsafe instrument with which to work in a dangerous place. The trial court directed a verdict for defendant. The sole question is whether it should have been submitted to the jury.

The defendant company was engaged in constructing for the Detroit Gas Works an apparatus for hoisting coal out of vessels at the dock and unloading it. The plaintiff had been in the employ of defendant for two months before he was injured. He had worked for it prior to his last employment. He had done work of a like character for a long time. He had, according to his own testimony, assisted in the erection of buildings where structural ironwork was used. He had assisted in hoisting ironwork up and down with blocks and tackle; had helped to put the iron in place; had pulled on the rope running through the tackle-block; had helped to bolt the ironwork together; had done anything that was necessary, from helping lift the various iron pieces from the ground to putting them into their places in the permanent structure. He had occasion, while pursuing his work, to frequently go upon platforms, both permanent and temporary. He had frequently been called upon to use tackle-blocks, pulleys, and ropes. In pursuing his work he was employed in the construction of high buildings like the Majestic Building, the Leonard & Carter Building, the Masonic Temple, and the Union Trust Building.

At the time of the injury to plaintiff, Mr. Burns, who had charge of the plaintiff, and two others, went up to a platform that was 20 or 30 feet from the ground, supported upon timbers 10 or 12 inches square. In doing the work it. became necessary to draw a wire rope or cable, over which the cars which were to convey the coal would pass, so it would be taut. There were upon the platform quite a number of ropes, — the plaintiff testified, six or seven kinds. He selected from the number a rope three-quarters of an inch to an inch in diameter, which, by the direction of Mr. Burns, was passed by the plaintiff around the end of a 2-inch plank, which was 10 to 11 inches wide, and 16 or 18 feet long. Mr. Burns did the same thing at the other end, and the plank was lowered below the platform,'the ends resting upon cross-pieces fastened to the timbers supporting the upper platform, making a temporary platform of the plank, it being held in place by its own weight. The rope used by Mr. Cronin was dropped upon the platform, but was soon handed to him by Mr. Burns, and by his direction was thrown by plaintiff three times around a truss attached to the timbers that supported the platform, and tied with a square knot. Plaintiff then put a hook attached to a tackle-block over two turns of the rope he had attached to the truss. The other hook of the block and tackle was attached near the end of the wire cable which was to be tightened. Mr. Burns and the plaintiff stood upon the plank they had lowered from the platform, and the other two men on the upper platform. When the hooks were attached as described above, all the men pulled upon the rope passing through the tackle-block, pulling the wire cable taut. Mr. Burns, in addition to pulling upon the rope, took up the slack. Finally, in the effort to tighten the wire cable, the rope which was put around the truss by the plaintiff broke, and he was precipitated to the ground, and injured severely.

Was the defendant liable because of the condition of the temporary platform ? There was no evidence it was not the kind of a platform usual for work to be done under Such conditions. The plaintiff was familiar with the kind of work he was to do. He helped to build the platform. If there was any danger in working upon it, the danger was as apparent to him as to any one, and the risk, if any, was assumed by him. Manning v. Railway Co., 105 Mich. 260 (63 N. W. 312); Lamotte v. Boyce, 105 Mich. 545 (63 N. W. 517); Findlay v. Foundry Co., 108 Mich. 286 (66 N. W. 50); Sakol v. Rickel, 113 Mich. 476 (71 N. W. 833); Soderstrom v. Lumber Co., 114 Mich. 83 (72 N. W. 13); Pilucki v. Spring Works, 117 Mich. 111 (75 N. W. 295); Juchatz v. Alkali Co., 120 Mich. 654 (79 N. W. 907); Rohrabacher v. Woodard, 124 Mich. 125 (82 N. W. 797), and the cases there cited.

Is there liability because the rope broke ? The rope was taken out of a pile of ropes immediately at hand, by the plaintiff himself, according to his testimony, and according to all of the testimony in his immediate presence. He knew for what purpose the rope was to be used. He was familiar with ropes and their uses. Under such circumstances it has been repeatedly held the master is not liable. Allen v. Iron Co., 160 Mass. 557 (36 N. E. 581); Maloney v. Rubber Co., 169 Mass. 347 (47 N. E. 1012); Rawley v. Colliau, 90 Mich. 31 (51 N. W. 350); Kehoe v. Allen, 92 Mich. 464 (52 N. W. 740, 31 Am. St. Rep. 608); Thomas v. Railroad Co., 114 Mich. 59 ( 72 N. W. 40).

Judgment is affirmed.

The other Justices concurred.