author: Steere, J.

text:
    OLSON v. WILLIAMS.
    1. Appeal and Error — Law op Case — Demurrer to Bill — Res • Judicata.
    Questions raised by demurrer to complainant’s bill relative to tbe adequacy of tbe remedy at law and tbe sufficiency of the averments of tbe bill wbicb were determined on a former appeal will not be determined upon a second appeal, being foreclosed by tbe first decision. Tbe issue upon tbe second appeal was necessarily whether or not tbe averments of the bill were sustained by tbe evidence.
    2. Stipulations — Dismissal op Action — Ejectment.
    A stipulation of dismissal filed in an action of ejectment purporting to be signed by tbe attorney for the plaintiff wbicb was not in fact executed by himself or bis attorney of record although tbe legal counsel who executed tbe dismissal of tbe case was attorney for tbe plaintiff in several matters relating to bis title to tbe land, must be held not to have bound tbe plaintiff therein.
    3.. Taxation — Laches—Equity—Bill to Quiet Title.
    Where complainant brought suit to quiet title and to enjoin proceedings at law in ejectment and where a previous action had been commenced about 1904 and had not been brought to a termination, and where the averments of complainant’s bill represented that he had been harassed by numerous suits and actions in relation to the land, and that he was the purchaser under the general tax law of a tax homestead interest in the property in 1897, taking a certificate at that time and entering into possession of the real property, later making a second application and securing a certificate of homestead entry in 1903, defendant making an unsuccessful contest against him before .the land commissioner, that he moved upon the land with his family and lived- there for five years, and where the complainant averred and produced evidence to sustain his claim that defendant had permitted the land to be returned for taxes during a long period of years and had instituted proceedings against complainant without offering to pay the delinquent taxes, held, that the defendant was guilty of such laches as would sustain the bill of complaint on the ground that the defendant had abandoned his rights and had misled complainant into the belief that he had abandoned them even if the statute of limitations had .not run against the claim.
    Appeal from Alpena; Emerick, J.
    Submitted January 23, 1914.
    (Docket No. 53.)
    Decided April 6, 1915.
    Bill by Gilbert Olson against Charles B. Williams to restrain an action of ejectment and to- quiet title. From a decree for complainant, defendant appeals
    Affirmed.

      I. S. Canfield, for complainant.

      D. W. Glosser, for defendant.
   Steere, J.

The bill of complaint was filed in this case to quiet title to 80 acres of land in Alpena county and, as part of the relief asked, to enjoin further proceedings in a pending action in ejectment for possession of the same, begun against complainant by defendant, in March, 1904. The grounds urged for equitable relief are that defendant has, during a period of years, harassed and embarrassed complainant, casting doubt upon his title and right to this land by various unsuccessful suits and proceedings without merit, now proposes to interpose in the ejectment case technicalities against which complainant does, not have a complete and adequate remedy at law, and that prior laches of defendant and his grantor raise an equitable estoppel against him at this late date. A demurrer interposed by defendant to this bill of complaint was overruled by the circuit court of Alpena county, in chancery, and an appeal to this court was affirmed. The opinion upon that issue is reported in 172 Mich. 316 (137 N. W. 687), where said bill is set out in full. Defendant was thereafter permitted to plead over, and the case was heard in the trial court upon pleadings and proofs, resulting in a decree favorable to complainant, and defendant has again removed the proceedings here by appeal.

At the time each of the parties to this litigation became interested in the 80 acres in dispute, it was wild, stripped land, of doubtful worth, but a subsequent demand for limestone of the quality found upon it enhanced its marketable value. Defendant claims title under patent from the United States through mesne conveyances, while complainant holds and claims title to it under a State homestead deed purporting to have been issued to him after five years’ settlement and improvement, pursuant to the provisions of section 131, General Tax Law of 1893, p. 407, and subsequent amendments. This land adjoins a farm owned by complainant for many years. It is rocky and rolling, underlaid with a solid limestone formation which outcrops in many places, and has upon it little productive soil, except in ravines, where the earth is deeper and good clover or other grasses will grow. Its chief, if not only, value for farming is as pasture, which complainant claims first led him to become interested in it, and for which he has mostly used it; its paramount value for lime rock being a matter of more recent discovery. Timber of some value grew upon it at one time, but it was lumbered at an early day, and had been burned over as far back as 1871. The land was sold by the United States government, in 1869, to a man named Leasley who, in 1871, deeded it to a business man of Alpena named Henry Beebe, who came to regard it of such scant value that he neglected to pay the taxes upon it for a series of years, and finally, in 1900, sold it to defendant for $15.

Prior to the last-mentioned conveyance, complainant learned that it was delinquent for taxes and had become what is known as State homestead land, having been declared by the auditor general and commissioner of the State land office, after due examination, worthless and abandoned. He then took steps to secure title to it by a State homestead entry, first making application therefor in 1897, when lie received a certificate, took possession, and erected a small building, making some other slight improvements; but he did not establish his residence upon it, and his entry was canceled because he had not complied with the law in filing proof of settlement. He thereafter made a second application, receiving a second certificate of homestead entry in February, 1903, moved upon the land with his wife and younger children in April, 1903, and filed proof of settlement as required by law. For five years thereafter he lived with his wife and others of his family upon the land, and maintained a residence held, after contest by Williams, sufficient to entitle him to a State deed therefor. On the 14th of March, 1904, Williams filed a bill to quiet his title to said lands, in the circuit court for Alpena county, in chancery, against Olson, the auditor general, and commissioner of the State land office, praying that previous sales of said lands for taxes be set aside and canceled; that the deed from the auditor general to the State be annulled; that all deeds issued by the commissioner of the State land office be declared void, and the cloud upon complainant’s (Williams’) title by reason thereof be removed, and Olson’s State homestead entry be canceled, at the same time commencing a suit in ejectment to dispossess Olson of said premises. Appearance was duly entered in those cases for defendants by the attorney general’s department, which assumed the defense as required in such cases by section 131 of the general tax law, and pleadings were perfected. As a result of negotiations conducted between the attorney general’s department and the supposed counsel of defendant, details of which are not disclosed in this record, a stipulation in writing was entered into, on April 3, 1908, signed by Henry K. Gustin as attorney for plaintiff (Williams) and John E. Bird, attorney general, by Charles W. Gill, assistant attorney general, for defendants, discontinuing said ejectment case without costs. Gustin is shown to have represented Williams in tax litigation relative to this same land at certain hearings in the Alpena circuit court, but was not the attorney of record in either Williams’ chancery suit to quiet title or in the ejectment case in relation to which he stipulated, and therefore it was not dismissed upon the records of said court. Defendant Williams also filed petitions in the original proceedings of the auditor general for the sale of the lands in question for the years 1890, 1891, 1892, and 1893, asking the circuit court to open the decrees for those years and set aside the sales, in order that he might file objections and be heard thereon. On the hearing of those matters Gustin declared in open court that he was attorney for Williams. Counsel of record in both the ejectment case now sought to be restrained, and Williams’ suit to quiet title, begun at the same time, stated to the trial court at the hearing of the instant case that said suit of Williams to quiet title was dismissed by consent in open court when the petitions of which Gustin had charge for Williams were heard. Williams’ petitions to set aside the tax decrees were dismissed,- after hearing, by the circuit court, and thereafter he instituted proceedings to appeal from the decree of dismissal, but, the proceedings not being perfected, the appeal was finally dismissed by this court, on June 15, 1910. When complainant sought to make final proof of his homestead entry of these lands, defendant Williams filed objections and unsuccessfully contested the same before the commissioner of the State land office, Gustin acting as his attorney.

Defendant’s counsel in his brief devotes considerable space to argument of substantially the same questions which were before this court on the demurrer to complainant’s bill, urging under the proofs, which follow the bill, that complainant has an adequate remedy at law. On the former hearing it was determined that a case for equitable relief was stated in the bill, and therefore, if the allegations therein were sustained, a decree as asked should be granted. All such legal objections to jurisdiction of the chancery court as were squarely before this court on the demurrer are now foreclosed by that decision, and the issue at this time must necessarily be whether the allegations of the bill are sustained by the evidence.

At the hearing no testimony was introduced on the part of defendant. An examination of complainant’s testimony satisfies us that he has sustained by competent proof the material allegations in his bill. His proof was positive as to five years’ residence upon the land, and he introduced in evidence his homestead deed from the State, issued after his right thereto was contested by defendant, giving him title to the same. As a strict matter of law, the stipulation for dismissal of the ejectment case, signed by Gustin and the attorney general, cannot be regarded as binding upon defendant, because it was not signed by himself or his attorney of record. But it is shown by testimony introduced on the hearing of this suit that Gustin did represent defendant as attorney in certain of his litigation to defeat complainant’s title, and while he was doing so the former suit to quiet title, with the same solicitor of record, was dismissed by consent in open court.

In support of the claim of laches, charged in complainant’s bill against defendant and his grantor, it is shown that Beebe, the grantor, had resided in Alpena, about four miles distant from the lands, since 1871, when he acquired his title, and was engaged in business there; that defendant Williams, also a resident, was familiar with the property and acquired his title with knowledge of existing conditions, had been in frequent communication with complainant, and at one time advised him what steps he should take to establish a residence upon it; that the lands had been delinquent for years and deeded to the State by the auditor general as abandoned lands, in 1896, four years before defendant received his quitclaim deed from Beebe; that in attempting to homestead the 80 acres complainant, as early as 1897, had taken possession and exercised acts of dominion over the property, continuing to do so openly and notoriously, residing thereon after his second entry; that prior to the time complainant sought to locate the land as a homestead it was unoccupied, wild, and abandoned, delinquent for taxes for many years, and at the time defendant instituted proceedings against complainant and the State to recover the same, no offer or attempt had been made by him or his predecessor to pay those delinquent taxes, which had been returned to the State year after year. The omission to do what one is by law required to do to protect his rights, and which justifies a fair presumption that he has abandoned the same, under circumstances which misled or prejudiced an adverse party, may in equity operate as laches which bar the assertion of such right later under changed conditions, even though the statute of limitations has not run. The elements of laches in this case bear close analogy to those disclosed in Owens v. Auditor General, 147 Mich. 683 (111 N. W. 354), and Beuthien v. Dillon, 160 Mich. 396 (125 N. W. 363).

We conclude that the history of this tax litigation, as disclosed by the record, establishes a case entitling complainant to equitable relief in harmony with the allegations and prayer of his bill, and the decree granted by the learned chancellor should not be disturbed.

The decree is affirmed, with costs to complainant.

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


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    MANISTEE NAVIGATION CO. v. FILER.
    1. Evidence — Stocks and Stockholders — Breach oe Contract-Corporations — Financial Condition.
    Evidence offered upon the trial of an action for breach of contract to purchase and pay for a quantity of sunken logs, which plaintiff agreed to raise and deliver, tending to show that the stock of plaintiff corporation had not been paid for and that its financial condition was weak, had no tendency to prove any material issue in such proceeding and was properly excluded.
    2. Contracts — Construction—Logs and Logging — Interest.
    Where the plaintiff undertook to raise and deliver to defendant deadheads and sunken logs in a certain stream under an arrangement to be paid on the 10th of each month for all logs delivered during the preceding month less sums advanced, interest was recoverable upon the amounts so due and ascertainable from the date fixed in the contract for each installment.
    3. Same — Logs and Logging — Scale — “Fair and Equitable Scale.”
    Under the provisions of a logging contract providing that an advance of a stated portion of the contract price should be made each month, and that payment for the logs delivered during the preceding 30 days should be made on the 10th of each month, less any advances received, and providing that the scale was to be made according to Doyle’s rule; and that in the absence of the scalers of the Manistee Boom Company, scalers which were mutually agreeable to the parties were to be selected and each party to pay one-half of the expense, and that such scalers should make a fair and equitable scale under Doyle’s rule as to logs delivered, the provisions of the contract that said scalers were to make in all cases a fair and equitable scale according to said rule, and that all logs delivered were to be scaled by employees of the Manistee Boom Company, did not indicate that a different scale was to be employed as to logs at the mill from that applying to logs up the river.

      4. Same — Construction op Contract.
    Where it was customary in the community in which the contract was made to employ a scale known as a merchantable scale, which frequently scaled a less amount of timber than the log contained, and the parties got together and agreed upon a supplemental contract authorizing a more liberal scale than that which had been employed, because the plaintiff had made numerous complaints as to the totals credited to it under the merchantable scale used, the trial court did not commit reversible error in leaving to the jury the question what a fair and equitable scale under Doyle’s rule meant.
    5. Same — Quantum Meruit — Damages—Amount Recoverable— Breach op Contract.
    Where the evidence tended to show that plaintiff had breached the contract which was in existence between the parties, providing for monthly payments in order to enable plaintiff to carry on its business, and the provisions of the contract were apportionable, plaintiff was not limited in the amount of recovery to a quantum, meruit but was entitled as damages to the amounts provided for in the contract for such portion of the agreement as had been performed.
    6. Same — Independent Covenants — Sales, Divisibility.
    The question whether a contract is divisible depends to a considerable extent upon what the parties intended as expressed in their agreement: when the price is expressly apportioned or an apportionment may be implied by law to each item intended to be performed, the contract will be held to be severable.
    7. Same — Recoupment — Setting Oee Advances — Damages — Breach op Contract.
    The provisions of a contract being apportionable, the plaintiff was entitled to sue for the amount which was due at the time when defendant failed to make the payment agreed upon, the defendant being entitled to offset or recoup the amount of advance in excess of the contract provisions under such notice of general issue, set-off and recoupment and to recover for such breaches by plaintiff as were pleaded and proved.
    Error to Manistee; Withey, J.
    Submitted Novem ber 12, 1914.
    (Docket No. 65.)
    Decided April 6, 1915.
    Rehearing denied July 23, 1915.
    Assumpsit by Manistee Navigation . Company against E. Golden Filer and others for breach of a special contract; Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Watts S. Humphrey and Humphrey, Grant & Humphrey (P. T. Glassmire, of counsel), for appellants.

      Thomas Smurthwaite and Max E. Neal, for appellee.
   Moore, J.

This suit is on a written contract between the plaintiff company and various lumbermen in Manistee and vicinity who had been lumbering on the Manistee river for a number of years. The purposes of the plaintiff company and certain portions of the contract which is the subject matter of this litigation are stated in the opinion of this court in the case of Manistee Navigation Co. v. Sands Salt & Lumber Co., 174 Mich. 1 (140 N. W. 565), which case was reversed and sent back for a new trial.

The plaintiff company, on the 23d day of June, 1905, entered into a contract with the defendant company and the other named log owners, who had been driving logs on the Manistee river for a great many years, for the purpose of raising, driving, and delivering the sunken and deadhead logs in the Manistee river to the mills of the various log owners for a price agreed upon between them, as appears in the contract. The plaintiff built and equipped two scows with hoisting machinery in 1905, and began its work of lifting the logs under the contract that fall. During- the season of 1906 four more scows were built, and in the season of 1907 two more scows were put in operation, making in all eight. In 1908 two were burned by the forest fires which prevailed that year, and they were not rebuilt. So in 1909 six scows were operated.

The logs lifted in 1905, which were sufficiently dried out for that purpose, were driven down the river and delivered in the summer of 1906, and after 1905 logs were lifted and a drive was made each year, including 1909, when the plaintiff, in the fall of that year, ceased its operations, owing, as it claims, to the continued failure and refusal of the defendant and the other parties to the contract to pay it the balance of the contract price for logs delivered that year and prior years.

A verdict was had in the instant case for the plaintiff in the sum of $1,219.54, judgment being had thereon, and the case is brought here by writ of error. The questions raised by the 73 assignments of error have been conveniently grouped by counsel for appellants as follows:

(1) The court erred in refusing to allow the defendant to prove that the plaintiff company had never received a dollar from its stockholders, to whom its certificates of stock were issued without consideration, and that said company was without financial standing, as bearing upon the question of the plaintiff’s right to maintain its suit upon this executory contract on the -claimed breach of contract by defendant for its failure to pay the bill against it of December 2, 1909, found in the record at pages 62 and 63.
(2) The court erred in the admission of evidence and in permitting the jury to render a verdict for plaintiff for interest charged against the defendant on claimed balances, which included damages, and without any previous demand having been made therefor.'
(3) The court erred in permitting evidence to be introduced, over defendant’s objection, as to the meaning of the words “fair and equitable scale according to Doyle’s rule,” as contained in said contract, and in submitting said question to the jury to be determined by them as a question of fact.
(4) The court erred in receiving evidence and in allowing the jury to render a verdict in excess of the amount shown by the boom company’s scale and the inspection agreed upon under the contract, without showing any fraud or gross mistake in such agreed scale or inspection.
(5) The court erred in its ruling that the defendant’s failure to pay the bill of December 2, 1909, constituted a breach of .the contract sued upon,_ when the undisputed evidence shows that both plaintiff and defendant then knew that, through plaintiff’s fraudulent conduct, said bill was largely in excess of the amount due (if anything was due) from plaintiff to defendant.
(6) That, the evidence being undisputed that the plaintiff was guilty of frequent and continuous breaches of this executory contract, the court erred in permitting the plaintiff to sue and recover under the express terms of the contract, for the money claimed to be due thereon from the defendant to the plaintiff.
(7) That the court erred in permitting the plaintiff to abandon this executory contract in 1909 (which by its terms was not to be completed until September 1, 1913), and to sue and recover on said contract the contract price for said work after the contract had been breached and abandoned by the plaintiff.
(8) The court erred in rulings regarding evidence, and should have directed a verdict in favor of the defendant, for the reason that no evidence was introduced in the case showing or tending to show the value to the defendant of the services claimed to have been performed by the plaintiff under the contract, or the value of the benefit the defendant had received therefrom, and that there was no basis for a verdict of the jury in favor of the plaintiff and as against the defendant, as it was undisputed that the contract had not been fully performed and completed by the plaintiff, but that it was in default.

I. This very question was raised in the case of Manistee Navigation Co. v. Salt & Lumber Co., supra, on proper assignments of error, but this court did not discuss it in the opinion therein filed. We did not then consider, nor do we now, that the refusal of the court to allow inquiry into the financial condition of the plaintiff company was error, for the reason that it was not material or prejudicial to the defendant’s rights.

II. With reference to the question of interest raised under this heading, it appears that the contract provides in terms as follows:

“On the 10th day of each month payment to be made for all logs delivered to the respective mills of the said parties of the second part during the preceding month, less any amount that may be due said second parties by reason of the advance money above mentioned.”

It thus appears that the contract itself expressly . fixes the time when the delivery charges shall be paid, which debt becomes due on the 10th of each month for the deliveries made during the preceding month. Under the terms of the contract, the plaintiff company was entitled to the payment of the money when due, and the general rule of law is that when there is a contract to pay money at a certain time, and the money is not paid when due, interest is recoverable on the amount in default from the date when it should have been paid. 22 Cyc. p. 1539.

Ill and IV. The contract also provides as follows:

“It is further mutually understood and agreed that all logs scaled under this contract shall be scaled by scalers mutually agreeable to the parties hereto; said scalers to make in all cases a fair and equitable scale, and according to ‘Doyle’s rule,’ and all logs delivered to said second parties’ mills are to be scaled by the scalers employed by the Manistee Boom Company; it being understood and agreed that, in the absence of said boom company scalers, then the same are to be sealed by scalers mutually agreed upon between the parties hereto, all logs scaled at the mills to be done without expense to said first party. The scalers employed to scale the logs, when taken out of the waters, flats, or bayous of said stream and its tributaries, are to be paid one-half by each of the parties hereto; said first party to board said scalers .without cost or charge to said second parties.”

It is the contention of defendant’s counsel that “said scalers” referred to in this clause of the contract were the scalers that were to make the up-river scale, as the other scalers were agreed upon by the parties in -the contract itself and were to be the boom company’s- scalers, and that therefore the fair and equitable scale provided for referred only to the up-river scale. We do not agree with this construction of the contract, but think it is very clear and evident from the language that it was the intent of the parties that the fair and equitable scale under Doyle’s rule was to apply to all logs scaled under this contract, and that the said scalers were to make, in all cases, a fair and equitable scale under Doyle’s rule. If it had been the intention of the parties to have limited the fair and equitable scale to the up-river logs upon which the advances were to be made, they could have easily expressed that intention in the clause itself. No other scale is mentioned in the contract but a fair and equitable scale under Doyle’s rule, and in our opinion it would do violence to the language of the contract to construe it to mean that a different scale than a ¿air and equitable one was to apply to the logs delivered.

It is the contention of the defendant that a merchantable scale should be held to apply to the logs delivered, as it was the customary one in use in that vicinity at .the time of the making of the contract. The difference between these two scales is commented upon by this court in the case of Manistee Navigation Co. v. Salt & Lumber Co., supra, where considerable testimony was received as to these two methods of scaling logs. The trial court, in determining to leave to the jury the question as to what the words “fair and equitable scale under ‘Doyle’s rule’ ” meant in the contract here under consideration, gave his reasons as follows:

“Touching the question of the words ‘fair and equitable’ and ‘by Doyle’s rule,’ as contained in the contract, in view of the testimony on the record, the undisputed fact that, when complaint was made of the log scale, the parties got together and made a supplemental contract which gave the plaintiff a larger scale than they had been getting, and particularly in regard to the testimony, and in view of the fact that the ‘merchantable scale’ was the recognized scale in this locality — that it is conceded to have given less than the actual contents of the logs in many cases; the testimony of some witnesses that the plaintiff objected all the time to having the logs scaled ‘merchantable,’ and the further testimony, such as it is, that an understanding between all the log owners, including the defendant in this case, was had before and at the time of the execution of the contract, and as to what the words ‘fair and equitable’ and ‘by Doyle’s rule’ should mean, and the dispute on that question, I will leave that to the jury to say what these words mean in this contract.”

In view of the record thus, made, we are of the opinion that it was not error for the judge to leave this question to the jury.

V. In the Sands Case, supra, the so-called several breaches of the contract by the plaintiff were the same as in the case at bar. A statement or demand of December 2, 1909, similar to the one in this case, was in evidence in that case, different only in the amounts therein stated; and it is clear from a reading of the opinion that this court recognized the right of the plaintiff to sue the defendant on this contract under the same circumstances, and also recognized and affirmed the right of the defendant to set off and recoup his damages, if any, for the plaintiff’s alleged breaches of the contract. So far as the statement or bill of December 2, 1909, is concerned, it contained only the balance of the contract price due for the delivery of logs the defendants had received, and no contention can be successfully made that the statement contained any illegal or wrongful charges.

VI, VII, and VIII. In the consideration of the points made by counsel for appellant under these headings, the construction of the contract given by this court in the Sands Case, supra, must be borne in mind. It is contended that no action should be permitted on the contract because of the alleged breaches thereof by the plaintiff, and authorities are cited which hold that, where a party fails to comply substantially with an agreement, he cannot sue upon it, but that under the present doctrine he may recover upon the quantum meruit, based on such benefits as may have accrued to the other party by part performance. To sustain this contention, the early case of Allen v. McKibbin, 5 Mich. 449, 454, is cited and commented upon, in which this court, speaking through Mr. Justice Campbell, said:

“Where a party fails to comply substantially with an agreement, unless it is apportionable, the rule is well settled that he cannot sue upon the agreement or recover upon it at all. And under the strict common-law rule he was remediless. But the doctrine has now grown up, based upon equitable principles, that where anything has been done from which the other party has received substantial benefit, and which he has appropriated, a recovery may be had upon a quantum meruit, based on that benefit. And the basis of this recovery is not the original contract, but a new implied agreement, deducible from the delivery and acceptance of some valuable service or thing.”

It will be noted that this opinion limits the doctrine therein announced to contracts which are not apportionable. It is necessary, therefore, to determine whether the contract here involved can be said to be an entire and unapportionable agreement. Beach, on the Modern Law of Contracts, says:

“A familiar and well-settled principle of the common-law is that an entire contract cannot be apportioned. The good sense and reasonableness of the particular case must always guide and govern courts in determining whether a contract is divisible or entire. The question depends, to some extent, upon the intention of the parties, and this must be discovered in each case by considering the language employed and the subject-matter of the contract. No precise rule can be laid down for the solution of the question. When the price is expressly apportioned by the contract, or the apportionment may be implied by law to each item to be performed, the contract will generally be held to be severable.” Section 731.

According to 2 Elliott on Contracts, § 1543, the authorities generally hold that the question whether a contract is entire or several depends largely upon the intention of the parties.

In our opinion, there can be no doubt as to the severability of this contract. It provides, in terms, that:

“On the 10th of each month payment (is) to be made for all logs delivered to the respective mills of said parties of the second part during the preceding month, less any amount that may be due said second parties by reason of the advance money above mentioned.”

We are of the opinion that, as the logs were delivered, so much of the contract was performed, and on the 10th of the month a certain amount became due and payable to the plaintiffs. It is quite apparent from the contract itself, and from this record, that this provision in the contract was placed therein so that the plaintiff company might receive the necessary funds to carry on its operations as the work progressed, and it is the plaintiff’s claim that the failure of the defendants to pay the amount claimed to be due would and did result in serious embarrassment to it in the prosecution of the work.

It is true that there was a misunderstanding between the parties as to the construction of the contract in regard to the advances which were made on the up-river scale, but this question was definitely determined against the contention of the defendant by this court in the Sands Case, supra; it being held that the millmen could deduct only the advances from the contract price due on the logs delivered. And this construction must be said to bind the parties from the inception of the contract. This disagreement as to the construction of the contract led to negotiations between the parties, and resulted in an advance in 1908 by the log owners to the plaintiff of $15,000, without prejudice to the claims of either of the parties. (This is discussed at some length in the Sands Case.) But in 1909, upon the failure on the part of the defendants to pay the amount claimed to be due for logs delivered, the plaintiffs refused to proceed further under the contract until such amounts claimed to be due were paid, which immediately resulted in the litigation and the construction of the contract by this court in the Sands Case.

As we have concluded that the contract is an apportionable one, in our opinion it follows that the plaintiff had a right to bring suit for the amount claimed to be due in 1909 for logs delivered; and the defendants, having pleaded the general issue and having given notice of set-off and recoupment, had the right to show that they had overpaid the plaintiff for logs raised and skidded, and set off the excess against the amount due the plaintiff, and also to show breaches of the contract by the plaintiff and recover their damages, if any there were. These questions were questions of fact, and were submitted to the jury with proper instructions.

Being satisfied that the case was tried without prejudicial error, we affirm the judgment of the court below.

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


author: Bird, J.

text:
    SMITH v. CHASE & BAKER PIANO MANUFACTURING CO.
    Frauds, Statute of — Quantum Meruit — Common Counts — Contract not to be Performed Within a Year.
    The statute of frauds precludes recovery upon a contract to perform services for a term of three years at a stated salary which was not in writing, hut the plaintiff was entitled to bring an action upon the quantum, meruit for services actually performed: no implied agreement would sustain a judgment for services to be performed at a subsequent time, the contract being absolutely void under such statute.
    Error to Oakland; Smith, J.
    Submitted April 17, 1914.
    (Docket No. 56.)
    Decided April 6, 1915.
    Assumpsit by Joseph C. Smith, as administrator of the estate of John L. Smith, deceased, against the Chase & Baker Piano Manufacturing Company for services performed. Judgment for plaintiff, on a directed verdict, for an insufficient amount, and he brings error.
    Affirmed.

      Fred A. Baker, for appellant.

      F. H. & G. L. Canfield, for appellee.
   Bird, J.

Plaintiff’s intestate made an oral agreement with defendant to become superintendent and manager of its Holly plant, from the 1st day of February, 1910, for a term of not less than three years, at an annual salary of $5,000, to be paid in monthly installments. He worked under this oral agreement until the middle of May, 1912, and received his pay therefor to May 1, 1912. Soon after July 1, 1912, he commenced this suit and recovered his monthly salary for the months of May and June. On writ of error to this court, the case was reversed for the reason that the plaintiff declared and relied upon an express contract, and therefore could not recover on an implied one. Inasmuch as his recovery for the month of June was on an implied contract, the verdict was set aside. 175 Mich. 371 (141 N. W. 563). Upon the return of the case to the trial court, the record was amended by substituting the administrator for the intestate as plaintiff, and by adding the following paragraph to the declaration:

“And the plaintiff expressly avers that heretofore, to wit, on the 1st day of February, 1912, the said defendant agreed to employ the plaintiff for the whole of year ending February 1, 1913, at the annual salary of $5,000, payable in monthly installments, and the plaintiff agreed to serve the defendant for the whole of said year, to wit, at Holly, in said county of Oakland.”

A retrial was then had, and the same testimony that was given upon the first trial was introduced and read in evidence. Plaintiff’s counsel then insisted that, by reason of the amendment, he had the right to recover on an implied contract for services for the month of June. It was conceded by defendant’s counsel that the plaintiff was entitled to recover services for the month of May, the services having been rendered. The sole evidence relied upon to support the implied contract was the void contract, and the inference to be drawn from the fact that defendant permitted plaintiff to enter upon a third year and paid him for the months of February, March, and April. The trial court, being of the impression that no different case was made from the first one, directed a verdict for the plaintiff for one month’s salary for the month of May.

Passing over the question of the propriety of the amendment, we are of the opinion that there was no competent proof to sustain the case on the theory of implied contract. If one makes a contract for services which is void under the statute, he can recover at the contract price for the services actually rendered. Fuller v. Rice, 52 Mich. 435 (18 N. W. 204); Smith v. Manufacturing Co., 175 Mich. 371 (141 N. W. 563). Or, if he has rendered services in reliance upon a void contract, he may recover the value of the services actually rendered, under the common counts. Fuller v. Rice, supra; Moore v. Nason, 48 Mich. 300 (12 N. W. 162). But we know of no rule of law which would permit an implied contract to pay for services which have not. been actually rendered to be built up out of a void contract.

We think the view taken by the trial court was the proper one, and the judgment will be affirmed.

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


author: MOORE, J.

text:
    C. H. LITTLE CO. v. L. P. HAZEN CO. DODGE v. MASSACHUSETTS BONDING & INSURANCE CO.
    1. Mechanic’s Liens — Pleading—Actions—Principal and Surety —Bond.
    Under the provisions' of the mechanic’s lien statute, 3 Comp. Laws, §10719 (5 How. Stat. [2d Ed.] § 13775), as amended hy Act No. 394, Puh. Acts 1913, the surety upon a contractor’s bond given to protect the owner against liens may be made a party to the suit and the court is •required to determine the rights of all parties up to the entry of the decre'e; the statute was intended to and does apply to proceedings which were commenced before the act was passed. Since the amendment affects only the remedy, not the established rights of the parties, it may be held to relate to a cause in which the order on demurrer had been entered before the act took effect.
    2. Constitutional Law — Title oe Act — Mechanic’s Liens.
    Act No. 394, Pub. Acts 1913, is not unconstitutional on the ground that the title is insufficient or embraces more than one object. Constitution, Art. Y, § 21.
    3. Same.
    The objection that the amendatory act fails to indicate by the title that a new remedy is provided for the owner of property who has been given a surety bond and for the benefit of others in interest cannot be sustained: the amendment was germane to the general subject of the original act.
    4. Mechanic’s Liens — Equity — Liens — Statutes — Damages— Surety Bond.
    In a suit to foreclose a mechanic’s lien under the said provisions of Act No. 394, Pub. Acts 1913, where the contractor had given a surety bond to protect the owner against mechanic’s liens and the owner was made one of the parties defendant to the bill or was brought in by cross-bill, a cross-complainant who prays for relief against the surety on the bond is entitled to have his equities adjusted by the decree requiring the payment of damages for such liens or claims as may have been filed against the property contrary to the provisions of the bond and to recover as additional damages such loss or injury as they might be able to show had arisen because of the principal’s failure to complete the building pursuant to the contract: all the rights of the parties can and should be adjusted in one proceeding under the statute.
    5. Same — Equity—Adequate Remedy at Law — Demubbeb.
    The existence of an adequate remedy at law as to defendant, who filed a cross-bill in a suit to foreclose a mechanic’s lien, seeking to have made parties to the proceeding the surety in the bond, which was given by the contractor to the owner, was not ground for sustaining a demurrer to the pleading.
    Appeal from Wayne; Codd, J.
    Submitted November 19, 1914.
    (Docket No. 23.)
    Decided April 6, 1915.
    Bill by C. H. Little Co. against L. P. Hazen Co., John F. Dodge, Horace E. Dodge and others to foreclose a mechanic’s lien. Defendants Dodge filed a cross-bill making the Massachusetts Bonding & Insurance Company a party and asking for affirmative relief against such surety. From a decree on demurrer to the cross-bill sustaining the demurrer to the relief asked, defendants and cross-complainants Dodge appeal.
    Reversed.

      McGregor & Bloomer (William S. Sayres, Jr., of counsel), for appellants Dodge.

      George F. & Peter J. Monaghan, for appellees.
   MOORE, J.

This is an appeal from an order sustaining the demurrer filed by the Massachusetts Bonding & Insurance Company to the cross-bill of John F. Dodge and Horace E. Dodge.

On March 15, 1910, John F. Dodge and Horace E. Dodge, copartners as Dodge Bros., entered into a contract with the L. P. Hazen Company, by the terms of which the L. P. Hazen Company was to construct a building for them for upwards of $80,000. To secure the performance of this contract a bond was given in the sum of $42,000, executed by the L. P. Hazen Company, as principal, and the Massachusetts Bonding & Insurance Company, as surety. The bond contained, among other provisions, the following:

“That we, the L. P. Hazen Company and the Massachusetts Bonding & Insurance Company, of Boston, of the city of Cincinnati, county of Hamilton,' State of Ohio, are held and firmly bound unto Dodge Bros., Detroit, Mich., of said county and State, as well as to all persons who may become entitled to liens under the contract hereinbefore mentioned, in the sum of forty-two thousand dollars, lawful money of the United States of America, to be paid to the said Dodge Bros, and to said parties who may be entitled to liens, their executors, administrators, or assigns,” etc.
“This bond is made for the use and benefit of all persons who may become entitled to liens under the said contract, according to the provisions of law in such case made and provided, and may be sued upon by them as if executed to them in proper person.”

The L. P. Hazen Company failed to carry out the contract.

The C. H. Little Company, complainant, brought suit against the L. P. Hazen Company, as contractors, and John F. Dodge and Horace E. Dodge, as owners, for the foreclosure of a mechanics’ lien for material furnished in the construction of the building aforementioned.

Upwards of a dozen subcontractors and material-men were made defendants. They filed cross-bills asking relief similar to that asked by the C. H. Little Company. Dodge & Dodge answered the original bill and all the cross-bills, and also filed a cross-bill making the Massachusetts Bonding & Insurance Company, the surety on the bond, a defendant.

The original complainant and all cross-complainants signed a stipulation consenting that Dodge & Dodge might file the cross-bill against the L. P. Hazen Company and Massachusetts Bonding & Insurance Company. An order of court was also obtained to that effect, and no question is raised by any of the complainants or cross-complainants as to the filing of the cross-bill against the Massachusetts Bonding & Insurance Company. No one but Dodge & Dodge is asking relief against the Massachusetts Bonding & Insurance Company.

By this cross-bill Dodge & Dodge sought to have their rights against the Massachusetts Bonding & Insurance Company, as surety on the bond, determined in the one suit, and to have the Massachusetts Bonding & Insurance Company decreed to pay such liens as might be held to be valid claims against their property, and to pay them such damages as they had sustained through the failure of the L. P. Hazen Company to complete the building according to the contract. The Massachusetts Bonding & Insurance Company demurred to the cross-bill making it a party, for the following reasons:

(1) Because a court of equity has no jurisdiction to try and determine the matters set forth in the said cross-bill of complaint.

(2) Because the matters set forth in said cross-bill of complaint are without equity, and do not show sufficient to warrant the interposition of a court of equity.

(3) Because Dodge & Dodge have a full, complete, and adequate remedy at law.

The learned circuit judge sustained the demurrer. It is from this decree which was rendered January 28, 1913, that the appeal is taken.

Section 10, mechanic’s lien law of the State of Michigan, as amended by the legislature for the year 1913, reads as follows:

“Sec. 10. Proceedings to enforce such lien shall be by bill in chancery, under oath, and notice of lis pendens filed for record in the office of the register of deeds, shall have the effect to continue such lien pending such proceedings. And in such proceedings, the complainant shall make all persons having rights in said property affected or to be affected by such liens so filed in the office of the register of deeds, and all persons holding like liens so filed, and those having filed notice of intention to claim a lien, parties to such action. And all persons holding like liens or having filed notice of intention to claim a lien, or any other persons having rights in said property, may make themselves parties thereto on motion to the court and notice to complainant, and may file their intervening or cross-bills or answers claiming the benefit of cross-bills and notices of lis pendens therein. And whenever the principal contractor or any subcontractor shall have given to the owner, or other person or persons having rights in said property, any bond or surety or guaranty of any kind to protect such owner or other person or persons having rights in said property, against the liens provided for by this act, then the complainant or the owner or other person or persons having rights in said property, may make the surety or sureties in such bond or guaranty, parties to such action by such original bill or by cross-bills or answers claiming the benefit of a cross-bill, and the court shall thereupon settle and determine the rights and liabilities of all the parties in the matter, and make such decree as may be required to determine and enforce the rights and liabilities of the various parties including such surety or sureties. Intervening or cross-bills shall be on oath, and all bills sworn to shall be evidence of the matters therein charged, unless denied by answer under oath. Amendments may be made to any bill or cross-bill at any time before final order, and if it shall appear that any party has had insufficient notice of any such proceedings, such further notice shall be given as the court shall think just.” Section 10, Act No. 179, Pub. Acts 1891, being section 10719, 3 Comp. Laws, as amended by Act No. 394, Pub. Acts 1913, pp. 751, 752.

The amendment made to section 10 by the legislature of 1913 is shown by italics, and, though it became operative after the demurrer was sustained, the position of the solicitors for appellant is that, as the statute affects purely the method of applying the remedy to the rights of the parties, and not the rights themselves, and, even though passed subsequent to the commencement of the suit, and subsequent to the order sustaining the demurrer, it is fully applicable to all pending cases, including the case at bar, and this court is bound by it in passing upon the question, citing First National Bank of Ovid v. Steel, 136 Mich. 588 (99 N. W. 786); Daniels v. Railway, 163 Mich. 468 (128 N. W. 797); Judd v. Judd, 125 Mich. 228 (84 N. W. 134); State Savings Bank v. Matthews, 123 Mich. 56 (81 N. W. 918); Hufford v. Railroad Co., 64 Mich. 631 (31 N. W. 544, 8 Am. St. Rep. 859); Hanes v. Wadey, 73 Mich. 178 (41 N. W. 222, 2 L. R. A. 498); Beebe v. Birkett, 108 Mich. 234 (65 N. W. 970).

The solicitors for the appellee cite in opposition to this contention 2 Sutherland on Statutory Construction (2d Ed.), § 674, and Bedier v. Fuller, 116 Mich. 126 (74 N. W. 506).

A reading of the averments of the cross-bill and of the provisions of the bond shows that, if the averments of the cross-bill are true, the bonding company is liable to the lienors. The one side claims this liability may be established in the present proceeding. The 4 other claims it must be established in the law side of the court. This indicates a question of remedy, rather than one of liability, and, according to the great weight of the authorities cited, brings the case within the statute as amended.

Counsel, however, insist that the amendment of section 10 contained in Act No. 394, Pub. Acts 1913, is void because unconstitutional, in that its object is not expressed in its title, and because its object is twofold.

Article 5, § 21, of the Michigan Constitution reads:

“No law shall embrace more than one object, which shall be expressed in its title.”

It is also claimed the amendment violates section 13 of article 2 of the Constitution, which reads:

“The right of trial by jury shall remain, but shall be deemed to be waived in all civil cases unless demanded by one of the parties in such manner as shall be prescribed by law.”

The contention of counsel is that:

“The original act and the amendatory act merely provided for the establishing', protecting, and enforcing by lien the rights of mechanics and materialmen. The admendatory act does not give any hint in the title that it provides a new remedy for the owner of property who is possessed of a surety bond. The title to the original act and the amendatory act gives no hint that from henceforth mechanics are to enforce their claims through bonds, rather than by lien on the property” — counsel citing People v. Mahaney, 13 Mich. 494; Brooks v. Hydorn, 76 Mich. 273 (42 N. W. 1122); Vernor v. Secretary of State, 179 Mich. 157 (146 N. W. 338), and other cases.

The title of Act No. 179 of the Public Acts of 1891 is as follows:

■ “An act to establish, protect and enforce by lien the rights of mechanics and other persons furnishing labor or materials for the building, altering, improving, repairing, erecting or ornamenting of buildings, machinery, wharves and all other structures; and to repeal all acts contravening the provisions of this act.”

The title of Act No. 394, Public Acts of 1913, reads:

“An act to amend section ten of Act No. 179 of the Public Acts of 1891, approved July 1, 1891, being compiler’s section 10719 of the Compiled Laws of 1897, entitled ‘An act to establish, protect and enforce by lien the rights of mechanics and other persons furnishing labor or materials for the building, altering, improving, repairing, erecting or ornamenting of buildings, machinery, wharves and all other structures; and to repeal all acts contravening the provisions of this act.’ ”

We think, when the opinion of Justice Cooley in People v. Mahaney, 13 Mich. 481, is read in its entirety, it tends to show the sufficiency of the title to the amended act. We quote from the opinion:

‘‘There was no design by this clause to embarrass legislation by making laws unnecessarily restrictive in their scope and operation, and thus multiplying their number; but the framers of the Constitution meant to put an end to legislation of the vicious character referred to, which was little less than a fraud upon the public, and to require that in every case the proposed measure should stand upon its own merits, and that the legislature should be fairly satisfied of its design when required to pass upon it. * * * But this purpose is fully accomplished when the law has but one general object, which is fairly indicated by its title. To require that every end and means necessary to the accomplishment of this general object should be provided for by a separate act relating to that alone would not only be senseless, but would actually render legislation impossible. The police government of a city could not be organized without a distinct act for each specific duty to be devolved upon it, and these could not be passed until a multitude of other statutes had taken the same duties from other officers before performing them. And these several statutes, fragmentary as they must necessarily be, would often fail of the intended effect, from the inherent difficulty of expressing the legislative will when restricted to such narrow bounds.”

In this connection we call attention to the opinion in Barnard v. McLeod, 114 Mich. 73 (72 N. W. 24), because it construes the mechanic’s lien law and deals with the contention that the amendment then before the court took away from the contractor a common-law right, of which purpose the title gave no notice. In Pratt Food Co. v. Bird, 148 Mich. 631, 634 (112 N. W. 701, 118 Am. St. Rep. 601), Justice Montgomery, speaking for the court, said:

“Is the law constitutional? It is claimed that the law is unconstitutional, in that it violates section 20 of article 4 of the Constitution, which provides that no law shall embrace more than one object, which shall be expressed in its title. It is established by our decisions that, if what is introduced by way of an amendment to an act might have been incorporated in the act under its original title, there is no violation of this section. * * * The question is, therefore, whethei'’, under the original title, a provision fixing a standard of pure food, and providing means to prevent deception in the sale of such food, is within the title of an act to provide for the appointment of a dairy and food commissioner, and to define his powers and duties and fix his compensation. We think the title is within our previous decisions sufficient. It is obvious to one reading this title that there must have been imposed upon the commissioner certain powers and duties to make his department of any value to the State, and, furthermore, that these powers and duties must have relation to something. It is equally obvious that the relation of these powers and duties must be to the subject which is brought within the department that is created, viz., the dairy and food department. The title is very similar to that which esablished the insurance bureau. In Connecticut Mut. Life Ins. Co. v. State Treasurer, 31 Mich. 6, it was held that a title which read ‘An act to establish an insurance bureau’ was sufficiently broad to cover any pertinent regulations respecting the bureau’s course of action towards those engaged in insurance, and any appropriate provisions for prescribing the duty due from the insurance companies to the State in the matter of taxation, without violating the constitutional provision.”

See, also, Westgate v. Adrian Township, 161 Mich. 333 (126 N. W. 422).

We think the amendment was germane to the subject which was receiving the attention of the legislators.

Another position of counsel is stated as follows:

“We submit that, whenever an equity court is operating under a special power given to it, it does not then have the additional power to draw into the case remaining portions of the controversy, not within the confines of that special grant of power. * * * The lien law is in derogation of the common law, and all rights, under it are statutory, and cannot be extended beyond the provisions of the statute. It is to be seen from these considerations that the right of lien is purely statutory, and we urge that as a necessary consequence the jurisdiction of chancery in matters of lien is necessarily limited by the provisions of the statute. This court has so held” — citing Sterner v. Haas, 108 Mich. 488 (66 N. W. 348).

In Koch v. Sumner, 145 Mich. 358 (108 N. W. 725, 116 Am. St. Rep. 302, 9 Am. & Eng. Ann. Cas. 225), a construction of the mechanic’s lien law was involved. The owner of the property not only disputed the right of the contractor to a lien, but sought to recover damages for failure to perform the contract. The same claim was made there as here, and Sterner v. Haas, supra, was cited. It was held the owner might recover damages; the opinion reading as follows:

“A reading of the opinion wilj show, however, that it did not go off upon that point, but upon the general proposition that it is the duty of a court of equity which has properly acquired jurisdiction of the subject-matter and of the parties to do final and complete justice in relation thereto. This is. no new doctrine in this State. It was. announced as long ago as Whipple v. Farrar, 3 Mich. 436 [64 Am. Dec. 99]. See, also, Miller v. Stepper, 32 Mich. 194; Wallace v. Wallace, 63 Mich. 326 [29 N. W. 841]; Drayton v. Chandler, 93 Mich. 383 [53 N. W. 558]; In re Axtell’s Petition, 95 Mich. 244 [54 N. W. 889]; George v. Light Co., 105 Mich. 1 [62 N. W. 985]; McLean v. McLean, 109 Mich. 258 [67 N. W. 118]. In Convis v. Insurance Co., 127 Mich. 616 [86 N. W. 994], the doctrine was restated by Justice Grant as follows:
“ ‘When, a court of equity has jurisdiction for one purpose, it may retain jurisdiction to settle all disputes relating to the same subject-matter between tbe parties to tbe suit.’ ”

The case of Webster & Co. v. Hotel Co., 151 Wis. 1 (138 N. W. 102), was a proceeding under a mechanic’s lien law. The court had before it the parties to the original contract, subcontractors, material-men, and surety companies who had signed bonds for the various contractors. The surety companies demurred for various reasons, one of which was that the proceeding was in equity for the foreclosure of mechanics’ liens; while the cause of action alleged against them was an action at law. In the opinion disposing of the case there is a discussion which we think is germane to the case before us. We quote:

“It is strenuously asserted in behalf of all the demurrers that several alleged causes of action have been improperly united and that the complaint and cross-complaints do not state facts sufficient to constitute a cause of action. The joinder of different causes of action for relief in favor of a party to a lien suit, or in favor of different persons who are proper parties to the action, is justified and proper, as we have heretofore seen, if the relief sought involves, or in some manner affects, ‘the contract, transaction or property which is the subject-matter of the action.’ The grounds upon which the subcontractors, the hotel company, the principal contractors, and their bondsmen are found to be proper parties to this action for foreclosure of liens on the hotel property show that the relief they seek to enforce involves rights related and germane to the matter of enforcing the liens against the hotel property and securing payment of the amounts due under the construction contracts, and involves the determination of the ultimate liabilities of the parties between themselves, on each side of the controversy, pertaining to the transaction of the construction of the hotel. Jurisdiction of the parties in the suit for these purposes carries with it the right to unite in the complaint or cross-complaints the different grounds or causes of action for relief, to enable the court to ‘determine the ultimate rights of the parties on each side, as between themselves, either on cross-complaint or equivalent pleadings or otherwise, and may grant to the defendant any affirmative relief to which he may be entitled.’ Section 2883, Stats. 1898. The scope of this power is declaratory of the broad, equitable powers courts may employ in joining parties and subjects in one suit, to determine their ultimate rights within its jurisdiction. This power is of peculiar applicability to lien foreclosure suits under the statutory provisions heretofore referred to and considered. The appellants claim and insist, however, that the causes of action alleged by the lienors against the principal contractors and their bondsmen for relief on the bonds, and by the hotel company against the Kirkman Construction Company and its surety for relief under the construction contract and the bond, are actions at law which cannot be litigated in this equity suit. A portion of the relief demanded by the hotel company is that, if the principal contractor default in paying what is due subcontractors for material and labor, then that the surety be required to pay such claims to save the hotel company harmless from liens against its property. This the surety contracted to do, and under this obligation the hotel company may enforce this primary liability of the surety to pay the debts of its principal. This right is within the equitable principle governing this duty between the surety and the hotel company, which, in turn, is liable to these lienors as a surety of the surety company, that the surety company bear the obligation which is about to be cast on the hotel company, which principle was applied in the case of Dobie v. Fidelity & C. Co., 95 Wis. 540 (70 N. W. 482), and approved in Monsen v. Noyes, 105 Wis. 565 (81 N. W. 860), [60 Am. St. Rep. 135]. The trial court held that the hotel company’s claim for breach of contract by the Kirkman Construction Company was not related to the primary right sought to be enforced in this lien action. Failure of the construction company to furnish the material and do the work required of it has, it is alleged, resulted in damages to the hotel company and in liens against its property. The rights and liabilities arising from the construction and surety contracts, the hotel property, the question of the hotel company’s claim for unpaid lien deb,ts, and its claims for damages for breach of the construction'contract, which claims the company may retain and offset against any claim of the principal contractor or affirmatively enforce against the surety if the principal defaults in paying them, connect these inquiries sufficiently with the subject of the litigation to empower a court of equity to adjust and settle them between the parties to this action. The trial and determination of these issues in this action are incidental to the enforcement of the rights of the lien claimants against the hotel property, which the owners have a right to protect by asking that all the liabilities of the parties be adjusted, and that no more be allowed to lien claimants than they are upon investigation entitled to, and that the principal contractor and his surety be compelled to pay such debts and save the hotel property harmless. The bond is involved in the suit and the relief therein as to lienors, and as to the hotel company for default in construction, and this sufficiently connects the hotel company’s claim for damages for breach of the construction contract with the subject of the action to authorize the court to retain it in order to have a complete and final determination of the rights and liabilities of all the parties in any manner interested in these contracts and the property. We are persuaded that this holding is within the principle of the decision in the following cases, which hold that a court may ‘lay hold ©f a subject-matter, however large, made up of a single primary right, and all rights germane thereto, however numerous, or several such subject matters under certain circumstances, bring all parties directly interested before the court, with all parties necessary to be there for their due protection, and settle the entire controversy by a single decree’: Harrigan v. Gilchrist, 121 Wis. 127 (99 N. W. 909); Gager v. Marsden, 101 Wis. 598 (77 N. W. 922); Carpenter v. Christianson, 120 Wis. 558 (98 N. W. 517); Herman v. Felthousen, 114 Wis. 423 (90 N. W. 432); Adkins v. Loucks, 107 Wis. 587 (83 N. W. 934); Level Land Co. v. Sivyer, 112 Wis. 442 (88 N. W. 317); Zinc Carbonate Co. v. Bank, 103 Wis. 125 (79 N. W. 229, 74 Am. St. Rep. 845); St. Croix Timber Co. v. Joseph, 142 Wis. 55 (124 N. W. 1049). The claim that this course deprives the demurrants of the right to have these issues tried by a jury is not sustained.”

The more recent case of Yawkey-Crowley Lumber Co. v. De Longe, 157 Wis. 390 (147 N. W. 334), is to the same effect. In the instant case we have before us the owner, the original contractor, the subcontractors, the materialmen, and the bonding company which gave a bond, not only to the owner, but “to all persons who may become entitled to liens under the contract.” Is there any valid legal or equitable reason why the respective rights of the parties should not be settled in one proceeding? We think the answer should be in the negative.

The decree of the lower court is reversed, the demurrer is overruled, and the defendant is given the usual time in which to answer, with costs to cross-complainants.

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


text:
    PASKVAN v. ALLOUEZ MINING CO.
    1. Trial — Continuance — Amendment — Stipulations—Personal Injury Action.
    On the trial of an action for the unlawful killing of an infant, where plaintiff asked for leave to amend the declaration so as to show that the accident occurred at a point five hundred feet north, instead of five hundred feet south, of a designated point, and it was permitted by the court and the amendment ordered to take effect as of the date that the same was proposed, and the case continued over the term upon the understanding that plaintiff should file an amended declaration and that it should be treated as amended from the date of the request, where the case was brought on by agreement for trial at a subsequent term, and defendant’s attorney asked for further adjournment upon the ground that the amendment had been made immediately before the call of the case for trial, no error was committed in refusing to grant a further continuance for the reason set up, the defendant claiming to have been unable to prepare for trial upon the amended pleading.
    2. Master and Servant — Mines and Mining — Minors—Labor Law —Employment of Infant — Dangerous Occupation — Evidence.
    In an action for the death of an infant of 16 years of age, employed in defendant’s mine, evidence considered and held, to present an issue of fact as to the negligence of the parents and beneficiaries under the statute in consenting to and approving of the kind of work in which the infant was engaged. (Act No. 289, Pub. Acts 1909; 2 How. Stat. [2d Ed.] § 4009 et seq.).

    3. Same — Trial—Contributory Negligence — Parent and Child— Death.
    In an action under the death act, a request to charge, offered by the defendant, based upon the theory that the parents, who were beneficiaries under the statute, participated in the violation of the statute, and were therefore chargeable with negligence contributing to decedent’s death, asking the court to instruct the jury that plaintiff could not recover for the benefit of the father and mother for any violation of the statute if they had consented to such employment, no limitation being included in the request in relation to the knowledge of the parents of the danger of the work in which he was engaged, was properly refused; the consent must be given understandingly, or it is no defense.
    4. Same — Death—Contribution—Pecuniary Interest.
    There was no error on the trial of such action in permitting the father to testify as to the amount of wages he was able to earn; that his eyesight was defective; that his wife was unable to work and the entire family in poor health; that he had several children, one of whom was blind; the testimony tended to present a question to the jury under the statute as to the pecuniary loss sustained by the beneficiaries; the objection that the testimony tended to appeal to the sympathy of the jurors was not tenable.
    Error to Keweenaw; Cooper, J., presiding.
    Submitted November 16, 1914.
    (Docket No. 50.)
    Decided April 6, 1915.
    Case by Barbara Paskvan, as . administratrix of the estate of Nick Paskvan, deceased, against the Allouez Mining Company for the unlawful killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Allen F. Bees {Bees, Bobinson & Petermann, of counsel), for appellant.

      Le Gendre & Driscoll, for appellee.
   Moore, J.

This action was brought for the death of a boy 16 years of age, who was found dead lying on the track in the tenth level north of shaft No. 1 in defendant’s mine. This level was a permanent one, having a car track, and was used as a passageway for those who worked in the mine. No one saw the accident. When the boy was found there were large rocks lying on him. He was lying on his back bn the car track. On the trial it was conceded the boy was working for defendant as a drill boy, and that he was instantly killed. From a judgment in favor of the plaintiff the case is brought here by writ of error.

Defendant is seeking to have the judgment reversed for errors of two classes:

(1) Errors in proceedings preceding the trial.

(2) Errors during the trial.

1. The proceedings before trial which are claimed to be erroneous are substantially as follows: After the jury was called in May, 1912, counsel for plaintiff asked to amend the declaration by adding a third count, and proceeded to state in detail the contents of the proposed count. It recited the contents of the first count, and stated that the things therein done were contrary to the provisions of Act No. 285, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §4009 et seq.), and that the boy, when killed, was engaged in duties which may be, and are, considered dangerous to the lives and limbs of male persons under the age of 18 years. The oral statement was explicit and definite as to what it was desired the third count should contain, and covers more than two pages of the printed record.

The defendant objected to the amendment as stating a new cause of action, and that it was a surprise to defendant, leaving it with no opportunity to prepare its defense. The judge indicated his purpose to allow the amendment and to grant a continuance to defendant.

We now quote from the record:

“Mr. Driscoll: We also ask leave to amend—
“Mr. Robinson: They may amend by consent to change the place of the accident about 500 feet to the north instead of 500 feet to the south.
“Mr. Driscoll: If a continuance is taken on the ground of the amendment, we may be permitted to serve the amended declaration on defendant, adding the third and fourth counts, striking out the other counts which allege he is a man.
“The Court: I think that is a good suggestion.
“Mr. Driscoll: May it be considered that the amendment is made as of today?
“The Court: Yes; then you may file an amended declaration and the amendment is allowed as of today.
“Mr. Petermann: And the case goes over the term. “The above-entitled cause was, by consent of counsel on both sides, placed on the calendar for the May term of the Houghton county circuit court, but, before being reached, was continued over the term on the request of counsel for the plaintiff, and with the consent of counsel for the defendant. At the opening day of the August term of the circuit court for the county of Keweenaw, Hon. Patrick H. O’Brien, circuit judge, presiding, when the above-entitled cause was called for trial, the counsel for the defendant moved that the case be continued over the term on the ground that the plaintiff’s amended and substituted declaration was not filed and served until August 24th, and that the defendant had no opportunity to plead to the amended and substituted declaration.
“As the cause could not be tried before Hon. Patrick H. O’Brien, circuit judge, a ruling, on the motion of defendant’s counsel, was deferred until Wednesday, August 28, 1912.”

The motion was then overruled. This is said to be reversible error.

The proposed amendment, as already appears, was stated in detail and became a matter of record. It was because of it that defendant was granted a continuance for the May term, and it was expressly agreed in open court that the amendment should be allowed as of May 23, 1912. We think the contention of defendant that the court erred in not granting a continuance over the August term is untenable.

2. Was there error during the trial? The case was submitted to the jury upon two counts. The first one was upon the common-law liability under the death act for negligence, and the third count for liability under the statute.

At the close of the case for the plaintiff, and again at the close of all the testimony, counsel moved the court to direct a verdict for the defendant upon the third count for the following reasons:

“The testimony shows conclusively that the boy was under the age of 18 years and employed as a drill boy, but also shows that the boy was so employed with the consent and approval of the parents, and the parents accepted from the boy his wages during the time he worked as a drill boy when he was under the age of 18 years, and on that point our proposition is that their acquiescence and approval of his employment was a participation by them in the violation of the statute, and it was just the same as if they had been guilty of contributory negligence; it is a participation by them in the violation of the statute, and will be governed by the same rules of law as if the parents were guilty of contributory negligence, which was a part of the negligence which caused the injuries to the child.”

The court declined to direct the verdict as requested. This is said to be error.

Defendant preferred a request reading as follows:

“If you find from the testimony in the case that the employment of the boy under the age of 18 years was consented to, and acquiesced in by his father and mother, then I charge you that the plaintiff cannot recover for any violation of the statute mentioned in the third count of plaintiff’s declaration, as any such recovery on this action is for the benefit of the father and mother, and they are not permitted to consent to the employment of the boy while under the age prohibited by the statute, and to accept the benefits of such employment caused by a violation of the statute, and recover damages from the defendant company because the statute was violated. They have participated in the violation of the statute, and are therefore barred from any recovery in this action, if you find that they consented to the employment of the boy by the company while'he was under the age of 18 years, and received his wages while the statute was being violated.”

This request was not given.

The claim of counsel cannot be more concisely stated than to quote from the brief:

“Upon this branch of the case we make two claims: (1) The trial judge should have directed a verdict for the defendant upon the third count upon the undisputed facts; or (2) in any event, he should have left the question to the jury to say whether the parents of the intestate consented to, and acquiesced in, a violation of the statute, and if they did so, then the parents should not benefit by its violation.
“In suits brought under the death act for the killing of a child, the contributory negligence of the parents is imputed to the child to such an extent as to bar a recovery by them. * * *
“In this case the pecuniary injury resulting from the intestate’s death is to the father and mother, and they would be entitled to any damages recovered in the action. The leading authority_ sustaining the above proposition is Feldman v. Railway, 162 Mich. 486 (127 N. W. 687).”

Other cases were cited which may be found in the brief. Continuing, counsel say:

“We submit there can be no difference in law in a suit brought under the- death act whether the real beneficiaries in the result of the case are barred from recovery because they have been guilty of contributory negligence themselves, as in the Feldman Case, or because they have actively participated in the wrongful act by permitting their minor son to be employed in violation of the statute and in receiving from him while so employed any wages he may have earned. In other words, the parents permitted and encouraged their minor son to work underground as a drill boy, and during such time received his wages. After he is killed they should not be permitted to say to the company: ‘Our son was working for you in violation of Act No. 285 of 1909 with our full knowledge and consent, and we received his wages while he was working for you in violation of that act, but that is entirely your fault and nothing for which we are to blame in any way.”

In view of the claim of counsel, it is important to see what testimony there is upon which to base the motion or to grant the request to charge, which we have quoted. We quote all of the testimony upon that subject. It was given by the father of the deceased upon his cross-examination:

“I never worked in the mine myself underground; I was six months lander. The duties of a lander are they get the rock from the shaft house or rock house, and push in and clean the rock out. How Nick happened to start to work at the Allouez mine, he get a job and want to work; he went and got the job himself ; he was carry water on surface about two months at the Allouez; he work ' about a month in Ahmeek as drill boy before he came to the Allouez; I knew he was working underground, and my wife knew it; I don’t know what a drill boy exactly got to do; • I know they pick the drills and change the tools for the miners; I knew he had to go underground to do that; I never objected to Nick working underground.”

It will be observed that the witness had not worked underground, and there is nothing to show he knew how the work was conducted there. It also appears that the knowledge of himself and wife was limited to the statement that the deceased as a drill boy had to be underground.

The third count of the declaration related to a violation of the terms of the statute. Working underground is not in terms forbidden by the statute. The language used as applicable to the instant case is:

“No male under the age of eighteen years shall be allowed to clean machinery while in motion, nor employed * * * in- any other employment which may be considered dangerous to their lives and limbs.”

Contributory negligence is usually a question for the jury. The court is here asked, by the motion to direct a verdict, to find it established as a matter of law. We do not think the testimony of Mr. Paskvan would justify such a course.

We are then confronted with the query whether the court, in view of the testimony of Mr. Paskvan, erred in refusing to give the request to charge which we have quoted. It will be observed that nothing is said in the request about the parents having knowledge that their minor son was employed in an employment “which may be considered dangerous to lives and limbs,” and that, having such knowledge, they consented thereto.

We do not find it necessary upon this record to say whether, in actions relying upon a breach of the statute, which was passed to safeguard the persons and lives of minors, the consent of the beneficiary under the death act would constitute contributory negligence which could be urged as a complete defense by the employer who violated the statute. We are clear, however, that the consent must be given understanding^ and with knowledge that the work entered upon may be dangerous to lives and limbs. We think it equally clear the request to charge was no't comprehensive enough in any view of the case to make a refusal to give it reversible error.

Mr. Paskvan in his direct examination was allowed to testify as to the wages he earned; that he had a sore eye; “my wife can’t work very good; she got poor legs; the whole family is sickly;” the number of boys he had; and that one of them was blind in one eye. It is said this testimony tended to prejudice the jury and enlist unduly their sympathy in favor of the parents. No authority is cited in support of the contention that its admission was error.

In Mulhall v. Fallon, 176 Mass. 266 (57 N. E. 386, 54 L. R. A. 934, 79 Am. St. Rep. 309), it is said:

“In answer to the question to what extent, if at all, she was dependent upon her son for support, she answered that she was almost entirely dependent upon him for the last two years. This question was objected to, but was admissible. The extent to which particulars may be summed up in a general expression is a matter involving more or less discretion, and cannot be disposed of by the suggestion that the general expression involves the conclusion which the jury is to draw, or that it is law rather than fact. Poole v. Dean, 152 Mass. 589, 591 [26 N. E. 406]; Wind- ram v. French, 151 Mass. 547, 550, 551 [24 N. E. 914, 8 L. R. A. 750]. The question to what extent she was dependent upon her son called for details of fact in a perfectly proper way. Whether the answer showed a sufficient dependence to satisfy the statute remained for the jury to answer under the instructions of the' court. Even more plainly admissible were interrogatories whether the son contributed to her support, and, if so, how much. The plaintiff also testified that she ‘had to turn around and go three miles to earn [her] support;’ that she had a boy that was hard set to earn from 8d. to Is. a day, and another boy an invalid. How far these statements should outweigh the others was for the jury. See Houlihan v. Railroad, 164 Mass. 555, 557 [42 N. E. 108]; Daly v. Steel & Iron Co., 155 Mass. 1, 5 [29 N. E. 507]; American Legion of Honor v. Perry, 140 Mass. 580, 590 [5 N. E. 634]. Partial dependence for the necessaries of life would be enough, as it is made in terms by the English statute. 60 & 61 Viet. c. 37, § 7, cl. 2; McCarthy v. Order of Protection, 153 Mass. 314, 318 [26 N. E. 866, 11 L. R. A. 144, 25 Am. St. Rep. 637]; Simmons v. White Bros. (1899), 1 Q. B. 1005; Atlanta & Charlotte, etc., Railway v. Gravitt, 93 Ga. 369, 372 [20 S. E. 550, 26 L. R. A. 553, 44 Am. St. Rep. 145].”

In Cincinnati, etc., R. Co. v. Altemeier, 60 Ohio St. 10 (53 N. E. 300), the court said:

“In the case of parents it may be shown that they were in circumstances and health requiring that the deceased child should aid them by his services, not only during minority, but thereafter. In such cases the financial circumstances and health of the parents are very important, because a parent in poor circumstances would likely be compelled to depend largely upon his minor children for support, while a rich parent would receive no financial aid from his minor children, and, on the contrary, would find them a financial burden upon his hands. A rich parent whose child is a continual financial expense to him, and who has no reason to expect financial aid from such child, sustains little, if any, pecuniary injury from its death beyond the funeral expenses; while a poor parent, and especially if in bad health, might reasonably expect substantial aid from his child, not only during its minority, but for years thereafter.

“Any fact which tends to show the amount of the pecuniary loss to the beneficiaries is competent evidence, whether it tends to increase or diminish the damages.

“The foregoing views are fully sustained by the following authorities, and cases therein cited: Potter v. Railroad Co., 21 Wis. 372 [94 Am. Dec. 548]; Potter v. Railroad Co., 22 Wis. 615; Johnson v. Railroad Co., 64 Wis. 425 [25 N. W. 223]; Thoresen v. Railroad Co. [94 Wis. 129], 68 N. W. 548; Lockwood v. Railroad Co., 98 N. Y. 523; [Bridgen v. Osmun], 92 Hun (N. Y.), 580 [36 N. Y. Supp. 1025]; [Pressman v. Mooney, 5 App. Div. (N. Y.) 121], 39 N. Y. Supp. 44; [Lustig v. Railroad, 65 Hun (N. Y.), 547], 20 N. Y. Supp. 477; Railroad Co. v. Crudup, 63 Miss. 291; Cooley on Torts (2d Ed.), §§271, 272; Chicago v. Powers, 42 Ill. 169 [89 Am. Dec. 418]; Staal v. Railroad Co., 57 Mich. 239 [23 N. W. 795]; Augusta R. Co. v. Glover [92 Ga. 132], 18 S. E. 406; Railroad Co. v. Leverett, 48 Ark. 333 [3 S. W. 50, 3 Am. St. Rep. 230]; Barley v. Railroad Co., 4 Biss. 430 [Fed. Cas. No. 997]; Railroad Co. v. Lafferty, 57 Fed. 536; Haehl v. Railroad Co. [119 Mo. 325], 24 S. W. 737; Railroad Co. v. Dunden, 37 Kan. 1 [14 Pac. 501]; Opsahl v. Judd, 30 Minn. 126 [14 N. W. 575]; Cook v. Clay St. R. Co., 60 Cal. 604.”

See, also, Ewen v. Railway Co., 38 Wis. 613; Johnson v. Railway Co., 64 Wis. 425 (25 N. W. 223); Thompson v. Johnston Bros. Co., 86 Wis. 576 (57 N. W. 298); Thoresen v. Railway Co., 94 Wis. 129 (68 N. W. 548); Birkett v. Ice Co., 110 N. Y. 504 (18 N. E. 108).

We think the court did not err in admitting the testimony.

The other assignments of error have been considered, but we think it unnecessary to discuss them. Judgment is affirmed.

Brooke, C. J., and McAlvay, Kui-in, Stone, Ostrander, Bird, and Steere, JJ., concurred.