author: Hooker, J.

text:
    Benjamin. F. Simons v. David Burnham.

      Libel — Words actionable per se — Innuendo—Inducement—Justiji-iQ2 cation — Evidence—Error without prejudice — Damages.
    1. Where, in an action for libel, the alleged libelous words, standing alone, are unambiguous, they must be construed in their ordinary sense, in the light of such allegations of the circumstances surrounding the transaction as the declaration sets forth.
    3. A statement that a merchant has conveyed $10,000 worth of real estate to his wife for $5,000; that his other real estate is heavily mortgaged; and that he is heavily indebted to banks, upon which indebtedness he is paying a high rate of interest, giving the rates, — if it has no significance further than a personal one, is not libelous per se.

    3. Such a statement, sent to firms from whom the merchant is in the habit of purchasing goods on credit, would necessarily cause a loss of credit, and, if false, is actionable per se.

    4. The sense or meaning of such a statement, if true, is not changed into a charge of fraud by the facts that the person therein referred to is a merchant, in the habit of dealing upon credit with the firms to whom the statement is sent; that the person sending the statement intended to injure the credit of said merchant with said firms; and that he accomplished his purpose.
    5. The question whether an intimation that a merchant is in failing circumstances or unworthy of credit is contained in the words, “In time of peace, prepare for war,” used in connection with a true statement, sent to firms from whom the merchant is in the habit of purchasing goods on credit, that said merchant has conveyed certain real estate to a woman bearing the same surname for $5,000, is for the jury.
    6. Where the defendant in a libel suit is entitled to an instruction that the alleged libelous words, as set forth in some of the counts of the declaration, are not susceptible of the construction alleged in the innuendo, but fails to ask that such instruction be given, except by a request which applies equally to all of the counts, and does not assign error upon language in the general charge upon the subject which made it possible for the jury to find the defendant guilty upon all of the counts, and his counsel fails to make the point in his brief that the court erred in using such language, a general verdict of guilty, which is sustainable under the good counts, will not .be set aside.
    7. A letter sent by the defendant to one of the firms to whom the alleged libelous statement had been sent, dated-about the time of the sending of the same, informing said firm that the firm of which the defendant was a member would withhold their patronage from any house ór firm, etc., which might thereafter accept less than the full amount of their claim from any customer in the city where the plaintiff and defendant resided, except it should be from an assignee or a court of equity, and for liquidation, is admissible as tending to indicate malice, and show a motive for injuring the credit of the plaintiff.
    8. Evidence offered by the defendant to show' that the conveyance to plaintiff’s wife was without consideration was excluded, the court holding that the truth of the alleged libel was not admissible, even in mitigation of damages, unless pleaded, and that, not being pleaded to the extent of a complete denial of the charge if interpreted in accordance with the innuendo, the plea was inadequate in case of such interpretation, and would not justify the admission of the proposed evidence. No effort was made to show that the alleged fact sought to be established by the rejected evidence was known to the defendant before sending the statement, nor was the court informed that it was so known. And it is held that such fact would be immaterial unless known to the defendant, and that, as the Court cannot say from the record that the evidence was material, familiar rules require that the judgment should not be reversed for its exclusion, though it might have been admissible had a proper foundation for it been laid.
    9. The testimony of the plaintiff that he never heard of any report that he was heavily indebted at three or four banks at rates of interest of from 8 to 10 per cent, was offered to negative the statement that it was so reported. And it is held that there was nothing in the testimony tending to show that the plaintiff would have been likely to hear such report, if made; that the testimony was negative, and should not have been admitted; that the law presumed the charge false, and the burden was upon the defendant to show the truth of the statement as made; and that, as the record fails to show that the plaintiff was reported as stated, the testimony of the plaintiff was harmless, and its admission error without prejudice
    10. Counsel for the defendant contended that the only damages recoverable were special, and that tbe same had been neither alleged nor proved; but the court allowed the jury to bring in general damages, upon the theory that the words were actionable per se. And it is held that no error was committed in so doing.
    Error to Ingham. (Person, J.)
    Argued June 29, 1894.’
    Decided September 25, 1894.
    Case for libel. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Thomas E. BarTcworth and Arthur D. Prosser, for appellant.

      Smith, Lee & Day, for plaintiff.
   Hooker, J.

The parties to this action are rival merchants in the city of Lansing. It is alleged by the plaintiff that in October, 1889, the defendant sent-to various firms in other cities, with whom the plaintiff had business relations, clippings from a Lansing paper, showing real-estate transfers, including between ink lines, placed there by himself, the following: “ Benjamin F. Simons to Adeline A. Simons, lots 1, 2, and 8, block 150, Lansing, $5,000.” This clipping was attached to a half sheet of paper, on which was written the following, viz. (after the above quotation from the clipping, the words, “his wife,” and: “The real estate transferred and-marked in slip is estimated to be worth at least $10,000; other real estate heavily mortgaged; reported to be heavily indebted to three or four banks, for borrowed money, at a high rate of interest, say 8 to 10 per cent, per annum, and payable every 60 days.” In one instance it is claimed that to a clipping of the kind mentioned, inclosed by ink lines as aforesaid, the following pencil- writing was appended, viz.: “In time of peace, prepare for war.”

The declaration contained several counts charging that communications similar to that first above described were sent to different persons, and one count upon the last-described writing; each Count containing by way of inducement the statement that the plaintiff was a merchant, dependent for his living upon such business; that he had always conducted himself with fairness and punctuality towards his creditors, and until then had never been suspected of bankruptcy, insolvency, or any fraudulent intention, and had always been, and then was, in good circumstances, credit, and esteem; knowing which, the defendant, with the intention of injuring the plaintiff in his good business name and credit, and in his business, and to cause him to be reputed as worthy of no credit, and to injure him and his' said credit with the several persons to whom said communications were sent, published the writings counted upon. By way of innuendo, each count alleged the following, in substance, viz.: “Thereby the said defendant, by the said clipping and writing, letter partly printed and partly written, as aforesaid, meaning and intending to charge and cause the said [person to whom the same was sent] to understand, believe, and be informed that the said plaintiff was fraudulently conveying his property to his wife, .and was insolvent, and in failing circumstances, and unreliable, and • unworthy of credit.” The counts respectively allege special damage, by stating that the creditors of .plaintiff and others, and especially those to whom the communications were sent (naming them), have refused to have further dealings with the plaintiff, or to give him further credit, and that he has, by reason thereof,, been prevented from obtaining credit, and from replenishing his stock and maintaining his trade, which has suffered therefrom, to his loss of profits, and injury.

It is contended by the defendant’s counsel that the words declared upon are not actionable per se; that they were declared upon without any inducement which would make the innuendo applicable, and that the natural meaning of the words must therefore govern as to the sense in which they were published; but that, even if it were competent for the jury to ascribe a meaning different from the natural meaning of the words, it was unnecessary for a plea of justification to be broader than the charge in the declaration.

The words in the several counts, standing alone, are unambiguous, and must therefore be construed in their ordinary sense, in the light of such allegations of the circumstances surrounding the transaction as the declaration sets forth. Most of this language admits of but one meaning when .so construed. It is that this plaintiff has conveyed $10,000 worth of real estate to his wife for $5,000; his other real estate is mortgaged; and that he is heavily indebted to banks, upon which indebtedness he is paying a high rate of interest mentioned. If this has no significance further than a personal one, it is not libelous per se. If, however, it can be said to apply to the business of the plaintiff, it may be.

The declaration, by way of indncément, states that plaintiff was in the habit of purchasing goods, with which to maintain his stock, of certain firms, naming them; that defendant, with the intention and for the purpose of injuring plaintiff’s credit with said firms, and preventing his purchase of goods from them upon credit, made certain statements concerning his indebtedness, and incumbrances upon his property, and the transfer of property to his wife upon an ostensible consideration of one-half its value. The innuendo charges defendant with meaning that plaintiff was fraudulently disposing of his property, was in failing circumstances, and unworthy of credit. Counsel for defendant assert that this language is not libelous per se, and it is possible that, standing alone, it might not be, as in that case it might have to be construed as written concerning the person merely; and there is nothing in the act of conveying property to a wife, with or without consideration, or in securing creditors, or borrowing money at a lawful rate of interest, that can be said to be reprehensible or disgraceful, or that necessarily tends to beget ridicule or contempt in the sense essential to a libel. But the declaration charges this publication in connection with other facts, which, if true, authorize the conclusion that it was made in connection with the business of the plaintiff. It has been held that it is not actionable to say of traders that they have executed a chattel mortgage. Newbold v. Bradstreet, 57 Md. 38. But those familiar with mercantile affairs, or the litigation which they beget, understand that the filing of mortgages, the conveyance of property to relatives, and carrying of large lines of credit at banks invariably provoke distrust and caution, and usually cause a loss of credit, and legal proceedings to collect accounts. So well understood is this that we feel justified in holding that a false statement of the kind set up in this declaration would necessarily cause a loss of credit, and therefore would be actionable per se when applied to one alleged to be a trader, in the habit of purchasing upon credit. A case very similar to this is Newell v. How, 31 Minn. 235, where the defendant reported of the plaintiff, to his correspondent, as follows:

“His assets, consisting of merchandise, show cases, tools, book-accounts, as per his own guess, is about $1,800. His indebtedness is, as far as I know, about the same amount. He may owe more. I speak of what I know. $1,300 is to merchants like you, and $500 a demand note. If any one of his creditors should crowd him, the demand would be pushed. We would advise a caution on your part in selling, and a prompt payment of matured indebtedness.”

This was held libelous per se, within the rule that in those callings in which, ordinarily, credit is essential to their successful prosecution, language which imputes to one in any such calling a want of credit or responsibility is actionable per se. Read v. Hudson, 1 Ld. Raym. 610; Davis v. Lewis, 7 Term R. 17; Dobson v. Thornistone, 3 Mod. 112; Chapman v. Lamphire, 3 Id. 155; Sewall v. Catlin, 3 Wend. 291; Ostrom v. Calkins, 5 Id. 263; Mott v. Comstock, 7 Cow. 654; Lewis v. Hawley, 2 Day, 495; Whittington v. Gladwin, 5 Barn. & C. 180; Southam v. Allen, T. Raym. 231; Phillips v. Hoefer, 1 Penn. St. 62.

But this is not the end of the question in this case. Plaintiff ascribed á certain meaning to the words used, beyond their ordinary import, which he sets forth in the innuendo, i. e., substantially a design to defeat or defraud his creditors by conveying property to his wife, etc., and that he was unworthy of credit, and in failing circumstances. The words used are not in themselves ambiguous, and, unless they are to be taken in some other than their ordinary sense, they cannot legitimately be construed to express the meaning alleged in the innuendo. To ascertain this, we must examine the facts alleged in the declaration, and see if these words, read in the light of such facts, are susceptible of the construction claimed. These circumstances have been detailed as describing plaintiff’s business and the fact of his dealing upon credit with the persons to whom the information was sent, to injure which, and to cause the repute and credit, of plaintiff and his said business to be injured and degraded, the writing was published. The declaration also alleges that it had the intended effect. We can understand how words may be used and understood in a different, and even opposite, sense from what they naturally and ordinarily import, as where used ironically, or in the nature of slang, or as a quotation having a well understood significance, or where they are used in cipher; but in all such cases it is necessary that the declaration should allege facts which, if proved, will enable a court to say that these words, interpreted in the light of them, may reasonably be held to bear the construction claimed, leaving to the jury the truth or falsity of the allegations upon which the alleged meaning depends, as well as the question of the meaning. It is not enough for the pleader to allege that the language meant a certain thing. The innuendo cannot enlarge the language complained of, except as it is supported by the inducement. It must be the circumstances surrounding the case, not the intention of the defendant, that modifies the language. A declaration that complained that a defendant had said of the plaintiff (a woman) that she was chaste, followed by an innuendo to the effect that he thereby meant that she was unchaste, would not warrant a court in leaving it to the jury to say what was meant. But if, by way of inducement, it was alleged that the parties were enemies, and that in a conversation in which the defendant was speaking in a derogatory manner of the plaintiff (giving his statements) he had said in an ironical manner and tone that she was chaste, following it with the innuendo, it would be competent for the court to leave the question to the jury whether the language used would not be so meant and understood, — i. e., whether that would not be the common and ordinary understanding of the language when used in that way and under such circumstances. The innuendo would not, in such case, enlarge the words, or alter the sense in which they were used, except by reference to the inducement, which would support it, and which would be susceptible of proof and contradiction by evidence. An issue can never be raised upon the truth of an innuendo. Fry v. Bennett, 5 Sandf. 54; Com. v. Snelling, 15 Pick. 335; Taylor v. Kneeland, 1 Doug. 67.

So we return to the question, do the words, read in the light of the alleged circumstances under which they were published, sustain the innuendo? For the purpose of this discussion we must assume the statements of the writing to be true as to the literal meaning of the words, — i. e., that the plaintiff did make the conveyance, and was indebted and mortgaged, as therein stated. These things being true, can it be said that the sense or meaning of the statement is changed into a charge of fraud by the facts that the plaintiff was a merchant, who was in the habit of dealing upon credit with the persons to whom the writings were sent, that the defendant intended to injure his credit with such persons, and that it had that effect? To be consistent with what has been said ,of the ■effect of the acts alleged in the writing upon the mind of the average creditor, we must concede that the inference from such acts would probably be that the debtor was to a greater or less extent embarrassed, and perhaps that he was placing his property in the hands of his wife with fraudulent design, though the latter, at least, is not a necessary inference. There is nothing better settled in this State than the proposition that the truth of the publication is a complete defense to the action of libel. Here, then, the defendant has simply told the truth without comment of any kind. Shall we say that, because of the inferences which naturally follow, the meaning of the language should be extended to include the inferences? If so, it logically follows that the truth of the publication is not a complete defense in cases where inferences naturally follow the statement of certain facts. Would the character of the publication depend upon the expectation by defendant that the inference would be drawn? And would the failure of the person addressed to draw the inference relieve the defendant from liability? We get into deep water when we depart from the rule that actions for slander and1 libel do not lie upon inferences (Townsh. Sland. & L. § 133), though we must recognize a distinction between inferences which are the natural result of implications contained in the language of the publication — which may, in a sense, render it ambiguous, and justify a construction at variance with the strict meaning of the words as ordinarily used — and inferences drawn only from the facts themselves. In the former case the action may lie, — not because of the inference, but by reason of the implication; in the latter it will not. Applying this rule to the case before .us, we feel constrained to say that these words are not susceptible of the construction alleged in the innuendo.

From what has been said, the third count should be excepted. In that count the charge consisted of the real-estate transfer, followed by the words, “In time of peace, prepare for war.” The statement of the paper was true as to the transfer. If the writing was libelous, it must be by reason of the use of the words, “In time of peace, prepare for war.” The natural meaning of this will depend largely on the circumstances under which the words were written, and, unless we can say that they do not contain an intimation that the plaintiff was in failing circumstances or unworthy of credit, it was proper to leave this question to the jury. Ewing v. Ainger, 96 Mich. 587. It is patent that the marking and sending of the real-estate transfer ta plaintiffs creditor may have been, and probably was, intended to apprise such creditor of the fact that his debtor had conveyed the property. The advice, in connection with it, may reasonably be thought to imply that the creditor had better look after his interests in that direction while it was yet a time when he might secure them; that delay in that particular case might be dangerous. If the jury so found, the words were actionable per se. If they could not so find, they were not actionable, being fully justified by the proof of the truth of .the conveyance.

From what has been said, it is plain that the jury might have been directed that some of the counts did not contain language that could be construed in accordance with the innuendo. Such instruction was not asked,, except as the request applied equally to the other count.. Error might have been assigned upon the language of the' charge upon this subject, inasmuch as the court expressed! a different view to the jury from that contained herein, rendering it possible that they found defendant guilty upon all of the counts. But we find no assignment of error upon this language, nor is the point made in the brief of counsel that it was error. Inasmuch as there is one count which will sustain the verdict, we cannot reverse the cause upon the ground that the jury were allowed to find a verdict upon a declaration containing three bad ones.

Counsel for plaintiff offered in evidence a letter sent by defendant to one of the firms to whom the alleged libelous letter was sent. It is dated about the time that the publications were made, and was offered to show malice. It reads as follows:

“Lansing, Mich., October 17, 1889.
“Messrs. Hilton, Hughes & Denning,
“New York.
“Dear Sirs: We feel justified in stating our position regarding the settlement of insolvent accounts in our line of traded viz., we will withhold our patronage from any house or firm, importer, jobber, or manufacturer who may hereafter accept less than the full amount of their claim from any customer in Lansing, except it be from an assignee or a court of equity, and for liquidation.
“ Eespectfully yours,
“Burnham & Co.”

This was admissible under the rule that other publications may be shown to indicate malice. It tended to show a motive for injuring plaintiff’s credit. Fowler v. Gilbert, 38 Mich. 292.

Several questions arise upon evidence offered in mitigation of damages. The plea was the general issue, accompanied by a notice that the several statements of fact were true. It did not go to the extent of justifying them in the sense of the innuendo; hence attempts to prove that the conveyance to the wife was without consideration by examination of the plaintiff were excluded, the court holding, in conformity to some of the authorities, that the truth is not admissible, even in mitigation of damages, unless pleaded, and that, not being pleaded to the extent of a complete denial of the charge if interpreted in accordance with the innuendo, the plea was inadequate in case of such interpretation, and would not justify the admission of the proof. In the case of Huson v. Dale, 19 Mich. 17, the late Mr. Justice Christiancy discussed this question, and, with the concurrence of the full bench, settled the law for this State, holding that anything tending to show •an honest belief in the substance of the publication when made was admissible for the purpose of disproving malice and to mitigate damages, though it tended to prove the .truth of the charge It would, however, be immaterial unless known to the defendant, as it could not have influenced his belief unless he knew of the fact. The same may be said of the questions pertaining to the value of the Williamston property, the effect of freighting business upon Lake Michigan, and overdue drafts at the bank. No .effort appears to have been made to show that any of these matters came to the knowledge of the defendant before the publication, nor was the court informed that such was the fact. The court might have supposed that they were offered upon the theory that the actual condition of the plaintiff might have been such as to render the damage less serious than it would have been had he not actuallv been in embarrassed circumstances. Had he been informed that such evidence would show a reason for such belief by the defendant, he might properly have asked for proof that defendant knew these facts at the time of the publication, before admitting the .evidence offered. The following colloquy fails to indicate that this evidence was offered •or rejected upon the understanding that it would justify ■or excuse defendant for a belief existing at the time of the publication:

“ Q. What consideration did Mrs.' Simons pay for the transfer of those lots? (Objected to as incompetent.)
“ The Court: I will, hear you on that, Mr. Kilbourne.
“Mr. Cahill: It seems to me that it is always competent to show, the deed being in evidence, the consideration ■of it. The amount stated in the deed, of course, is not conclusive upon anybody, not even the parties; certainly it is not conclusive on third parties. That is the ground.
“The Court: I will sustain the objection.
“ Mr. Cahill: I don’t understand. I understand the point made against it.
“ The Court: The point made against it was that your notice is not notice of full justification. Furthermore, the notice was a notice that you would show that such deed was made. There isn’t any notice nor claim that it was made fraudulently in your notice.
“Mr. Cahill: Then I understand the ruling of the ■court is upon the idea that the notice does not state that we will prove that the consideration was fraudulent in 'the deed?
“ The Court: You don’t make any claim of that out.side, as I understand it. Furthermore, you claim to justify in the sense attributed in the innuendo, to the words, •of course. I don’t see what use you could make of it if you had it in evidence, — what you are aiming at. I can’t see what use you would make of the evidence if you had it under your notice.
“ Mr. Cahill: We claim that we are entitled to just the ■exact facts in regard to the execution of that deed, and that we are not bound, under the declaration and pleadings in this case, to state in our notice and assume the burden of proving that this was a fraudulent deed. We don’t know whether it was or'not, but we think we are •entitled to learn from £his plaintiff what the fact was. Now, I think the position your honor has taken would be perhaps correct if we were attempting to show as a part of our defense, and by other witnesses than the plaintiff, that there was no consideration for this deed, and that it was fraudulent. But when the plaintiff himself, whose general character, at least, is at stake, when he brings an action for libel, and is on the stand as a witness, and testifies that he made a deed to his wife for certain property, that we are entitled to ask him, as bearing upon the good faith upon which he seeks to recover damages in this suit, to state whether that deed was given in fact for such consideration as upon its face it purports to; and, if it goes no further to aid the defendant, it certainly mitigates the charge that can be made against him, and must mitigate the damages that can he recovered against him. (Objection sustained. Exception by Mr. Cahill.)”

Counsel did not say to the court that it was for such purpose, or that defendant had such knowledge, and he seems to have conceded that the ruling of the court would have been right had the question arisen upon an offer of proof by way of defense, but he claimed that it was wrong, inasmuch as the question arose upon cross-examination of the plaintiff. It is but fair to counsel to add that he does not claim here that defendant knew or understood that the facts sought to be elicited by these questions existed. So far as we have been able to learn, the record is silent upon the subject. As we cannot say from the record that this evidence was material, familiar rules require that the judgment should not be reversed for its exclusion, though it might have been admissible had a proper foundation for it been laid.

Error is assigned upon the admission of the testimony of the plaintiff that he never heard it reported that he was heavily indebted to three or four hanks at rates of interest from 8 to 10 per cent. This was offered to negative the statement that it was so reported. There was nothing in the testimony tending to show that the plaintiff would have been likely to hear such reports, if any were made. Perhaps he would have been less likely to hear them than most citizens of the place. The testimony was negative, and should not have been admitted. It did not furnish a presumption that such reports were not made, which was one of the issues in the case. But the law presumed the charge false, and the burden was upon the defendant to show the truth of the statement as made. Edwards v. Chandler, 14 Mich. 476. Our attention is not called to evidence which showed that the plaintiff was reported to be indebted to three or four banks at rates of interest from 8 to 10 per cent. Nor have we been able to find such. It appears that he paid 8 per cent, at one or more banks. Defendant’s testimony on the subject is as follows:

“I heard that he was heavily indebted at the banks by several. One was Mr. Merrifield, and W. A. Parsons, my bookkeeper. Well, I can’t call to mind any one else now. I think that Mr. Parsons told me that Mr. Simons had about $8,000 or $10,000 in notes at the banks. He is the one that was bookkeeper for Mr. Simons about a year ago. Mr. Merrifield said he was a heavy borrower. I should not think that a man like Vanderbilt, owing $10,000, would be heavily indebted; no, sir. Yes, I remember I asked Mr. Bradley, and he told me that Mr. Simons had a note there for $1,000. Well, I think I gathered from Mr. Bradley that Mr. Simons was a heavy borrower at the other banks. I understood the term heavy borrower.’ I did not inquire at any other banks.”

It stood, therefore, upon the presumption that the statement was false, and the testimony of the plaintiff was harmless.

But one question remains, and that relates to the subject of damages. Counsel for the defendant argue that the only damages recoverable were specialj which' they assert to have been neither alleged nor proved. The court allowed the jury to bring in general damages, upon the theory that the words were actionable per se. We think no error was committed in so doing.

It is claimed further that the court permitted the jury to “ find any sum which, in their judgment, would compensate him for the natural or probable consequences of the defamatory words, including injury to the feelings of the plaintiff, and practically left it open to the jury to give such éxemplary damages as their prejudices might incline them to.” Keference to the charge shows that he instructed the jury as follows, viz.:

“ ‘ If the jury reach the question of damages, they are instructed that such damage can be given only by way of compensation to the plaintiff for injuries actually suffered by reason of the false publication made against him. The jury cannot lawfully give damages by way of punishing the defendant.-’
“■And that is true. Damages are not given in this State in civil actions on the theory of punishment, but they are given on the theory of compensation. When a matter is libelous upon its face, as the lawyers have expressed it here before you, and as they commonly speak of it, ‘per se,’ — when that is the situation, — the law presumes there was damage. General damages are those which the law will presume to be natural or probable consequences of the defamatory words. They arise by inference of law, and need not be proved by the evidence. Even where no evidence is offered as to damages, the jury are not in duty bound to give nominal damages only; they may read the libel, and give such damages as will compensate the plaintiff for such defamation. That I understand to be the rule of law. Inasmuch as the law says that publication charging a man with insolvency must naturally affect his credit, therefore it must naturally cause him some damages, and the law implies and infers what the damages would be; that is, that there would be damage. Under such circumstances the jury must take into consideration the entire case as shown before them relating to the matter, and determine from their good judgment as to these general damages what would recompense the plaintiff for the natural consequences of the libel proven before them under the circumstances. That is the way the jury get at it. Not fanciful damages, not wild damages nor speculative damages, nor damages by way of revenge or punishment or anything of that kind, but the jury should determine soberly and calmly what would be the compensation for the natural effect of the language used if it is libelous.
“Injuries to feelings of parties caused by the wrong (and injuries to feelings may be caused by a good many wrongs) that become actual damages, and the jury have a right, in .a case where the publication is libelous on its face, in talcing into consideration the general damages, which means such damages as generally, ordinarity, naturally Sow from the cause shown in evidence, — the jury, I say, in taking into consideration such general damages, may also take into consideration whether the general, natural tendency would be an injury to the feelings in this case, and if they find that the natural consequences of any libel or slander proven before them — that is, that the general consequences — would be an injury to the feelings, they may take that into .consideration, and allow such damages for it as in their judgment, under the circumstances, would be compensatory, not fanciful, damages, nor wild nor reckless damages.
“Outside of these matters, there are certain things which come up in cases which at times tend to increase the damages or tend to diminish the damages. Now, for instance, if an act is done which causes an injury, and it is done, we will say, negligently, but not with any actual intent to harm a man, the party who commits the act will not be liable. So a libel may be published without any intention to harm a man, and yet it would be a libel, because a libel is judged by its natural consequences. That is what makes the thing libel. If it was done without any actual ill will, any actual malevolence, the damages would not be as much as if it was done through a mean motive, an actual hatred, personal ill will, deliberate intent to maliciously injure, another man. So the question of 'malice may always be taken into consideration in determining the amount of damages which should be awarded.
“ On the other hand, some things may be taken into consideration in mitigating damages. If a party who published a libel actually in good faith, doing what he thought was right under the circumstances, acting honestly, —and a libel might be published in that way, — the jury should take that good faith into consideration in mitigating, lessening, or diminishing the damages that would be awarded, and in some case they might consider that such good faith should go far enough to reduce the damages to a mere nominal sum. Evidence of both kinds has been offered in this case. The plaintiff has offered evidence in the case in the shape of other publications, in the character of this publication, has urged the matters to you, claiming that they show an actual malevolence, ill will, hatred, and desire to do a personal injury to the party libeled on the part of the defendant. If that is true, you have a right to take it into consideration in fixing the damages, if you get to damages, which you will award against him. On the other hand, the defendant has offered evidence here tending to show that he had no ill will; that it was not from hatred; that it was done in good faith, as he supposed his rights were. If it is true, you are to take that into consideration in mitigating and lessening damages; all this, of course, being important, if you should come to the question of damages, — a matter upon which I have no opinion.”

We think this in accord with the law of this State.

The judgment of the circuit court will be affirmed.

McGrath, C. J., Long and Montgomery, JJ., concurred. Grant, J., did not sit.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    James Hoban v. James F. Cable.

      Deed — Record—Evidence—Description of premises — Adverse possession — Ejectment—Pleading—Amendment of declaration.

    1. The record of a deed purporting to have been executed and acknowledged in another state, and to have had attached thereto the certificate of the clerk of .the proper county, under his hand and the seal of said county, certifying to the official character of the acknowledging officer, the genuineness of his signature, and the execution and acknowledgment of the instrument according to the laws of said state, but which record fails to show that any seal was attached to said certificate, is inadmissible in evidence; citing Pope v. Cutler, 34 Mich. 150.

      2. Where a plaintiff in ejectment establishes a prima facie title through conveyances from parties claiming under a deed executed by the apparent owner of the land, who had been in possession for many years, and the title thus established is disputed in no way unless the defendant has acquired a title by adverse possession, the erroneous admission in evidence of the record of a deed purporting to have been executed to said apparent owner is error without prejudice.
    3. A deed by which the grantor intended to convey the northerly 60 feet of a lot fronting on “Market street,” so called, and having a depth of 158.96 feet north-westerly from said street, described the 60 feet as “ beginning on Market street, between the lot hereby intended to be conveyed” and a lot northerly therefrom; thence north, 62 degrees and 15 minutes west, 158. 96 feet; thence south, 31 degrees west, 60 feet; thence south, 62 degrees and 15 minutes west, 158.96 feet, to Market street; thence along said street north, 27 degrees and 55 minutes east, to the place of beginning. And it is held that by excluding the course of the third boundary line as given, and extending said line in the most direct course to Market street, a line is secured not only answering to the other terms of the description, but one which, with its extension, incloses something, which is, by the terms of the deed, “ a lot intended to be conveyed,” and which, to answer the terms of the portion of the description relating to the starting point, must lie next to the adjoining lot referred to; that, to make this clearer, the deed states that from the terminus of said third boundary line the boundary shall extend along Market street to the place of beginning; that the intent of the grantor is clear, and the deed is not a nullity for want of a sufficient description.
    4. A defendant in ejectment interposed the defense of adverse possession. In order to meet this, the plaintiff was allowed to prove by the grandfather of certain minor heirs who inherited the land, and through whom plaintiff claimed title, that the defendant’s possession of the land was under an agreement made by him with the witness, who assumed to act for the minors, that defendant might occupy said land in consideration of his paying the taxes thereon. The testimony was objected to for want of proof of the authority of the grandfather to act for the minors. And it is held that, if the defendant in fact entered into the possession of the land under the agreement testified to, he did not enter in hostility to the minor heirs, and that for the purpose of establishing such fact the testimony was admissible.
    5. Where, in his original declaration, a plaintiff in ejectment claims title to the entire premises described therein, and on the trial the proofs disclose that as to a portion of the land he owns only an undivided interest, it is not error to permit an amendment of the declaration in conformity with said proofs.

    Error to Mackinac. (Pailthorp, J.)
    Argued June 26, 1894.
    Decided September 27, 1894.
    Ejectment. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Marie Norris, for appellant.

      Charles R. Brown & Son, for plaintiff.

       CLAIM TO LAND BY PLAINTIFF IN EJECTMENT.
      For cases involving the questions of the averment by a plaintiff in ejectment of the extent of his claim to the land, and the amendment of the declaration in that regard, see:

        Averment of Extent of Claim.

        Goodall v. Henkel, 60 Mich. 382, holding that a declaration in ejectment which fails to aver the nature and extent of plaintiff’s claim to the land in dispute, as provided by How. Stat. § 7797, is fatally defective; and, while the objection should be raised by demurrer, the error is such as to demand an affirmance of a judgment rendered in favor of the defendant on other grounds.

        Amendment of Declaration.

      1. Bringhurst v. Railroad Co., 78 Mich. 570, holding that where a plaintiff in ejectment establishes his title to only an undivided one-half of the land described and claimed in his declaration, and the defendant is in peaceable possession, and is not an intruder, judgment should be rendered accordingly, and the declaration may be amended to correspond with the right established at the trial.
      2. Ludeman v. Hirth, 96 Mich. 17, holding that it is error to refuse to allow a plaintiff in ejectment to amend his declaration, after issue is joined on the merits, by setting forth the estate which he claims in the land.

   Montgomery, J.

This is an action of ejectment. The trial was had before a jury, and a verdict rendered for the plaintiff. The defendant brings error. The assignments of error are numerous, but have been carefully grouped by the appellant’s counsel, so that the questions may be dealt with under a few heads. The diagram on the following page will furnish an aid to an understanding of the points involved.

The record contains the substance of all the testimony, from which it appears that plaintiff derived title from the heirs of Laurie McLeod, to whom a conveyance was made by Eliza R. McLeod in 1862, Eliza R. McLeod being then in possession, and the apparent owner. The defendant claims title by adverse possession, and also claims that by a subsequent conveyance to him by Eliza R. McLeod of lot No. 293 the title passed to him, and in this connection contends that the deed to Laurie McLeod contained no sufficient description of any property, and that the record of the deed was, therefore, no notice to him of any right in Laurie McLeod.

1. In the course of the trial the plaintiff introduced a purported record of a deed from one Charles C. Grove and wife to Eliza McLeod. The record of this deed was objected to on the ground that, although the deed purported to have'been executed in New York, there was no seal attached to the certificate of the clerk of the court. The objection was a valid one, under the decision of this Court in Pope v. Culler, 34 Mich. 150. But the error was not prejudicial. If the deeds in plaintiff’s chain of title contained a sufficient description, he showed conveyances from one in possession for many years, and this was sufficient to establish a prima facie title, which is disputed in no way unless the defendant has acquired a title by adverse possession. Gamble v. Horr, 40 Mich. 561; Bennett v. Horr, 47 Id. 221; VanDenBrooks v. Correon, 48 Id. 283; Covert v. Morrison, 49 Id. 133; Cook v. Bertram, 86 Id. 356.

2. As the deed to Laurie McLeod was first recorded, and as defendant claims it in fact read when executed, the description of the land was as follows:

“Beginning on Market street, between the lot hereby intended to be conveyed and a lot confirmed by the government of the United States to Ambrose R. Davenport; thence north, 62 degrees 15 minutes west, 158.96 feet; thence south, 31 degrees west, 60 feet; thence south, 62 degrees 15 minutes west, 158.96 feet, to Market street; thence along said street north, 27 degrees 55 minutes east, to the place of beginning.”

' Was this a sufficient description, or must the deed be treated as a nullity? The starting point is definite. The first line, to point b, is also certain, as is the line between points b and c. But, if the direction of the next line is followed as given in the instrument, the terminus is at e, and the line named in the succeeding portion of the description would end at f. But the course given after reaching point c is not the only means of identification adopted. That line is described as terminating at Market street. If we exclude the words indicative of the direction <Jf the line, and carry the line in the most direct course to Market street, we have not only a line answering to the other terms of the deed, but one which, with its extension, incloses something, which is, by the terms of the deed, “a lot intended to be conveyed,” and which, to answer the terms of the portion of the description relating to the starting point, must lie next to “ a lot confirmed by the government of the United States to Ambrose R. Davenport.” To make this clearer, the deed contains the statement that from the terminus of the third line named in the description the boundary shall extend along Market street to the place of beginning. We think the intent of the grantor is clear, and that the deed is not a nullity for want of a sufficient description. See Anderson v. Baugh man, 7 Mich. 69; Cooper v. Bigly, 13 Id. 463; Dwight v. Tyler, 49 Id. 614.

A number of defendant's points depend upon this, and it becomes unnecessary to treat in detail some of his assignments of error. The deed being valid to convey the land, the record was notice to subsequent purchasers.

3. One of the conveyances under which plaintiff claims contained a description as follows:

“A lot 60 feet wide on Market street and 128.90 feet deep, being the north end of lot 293 in the village of Mackinac.”

This is claimed to be insufficient, but we think there is no mistaking the land intended to be conveyed.

4. As above stated, the defendant interposed the defense of adverse possession. In order to meet this, plaintiff was allowed to prove by one Ronald McLeod, in whose family one of the minor heirs of Laurie McLeod lived, that the defendant occupied the premises under an agreement made by him with said Ronald McLeod as an assumed representative of the minors, to the effect that defendant might occupy the land in question in consideration of his paying the taxes thereon. Complaint is made of this on the ground that Ronald McLeod was not shown to have had authority to act for the minors. But we think this fact immaterial. If the defendant in fact entered into the possession of the lands under such an arrangement as is claimed, he did not enter in hostility to the minor heirs, and for this purpose the testimony was admissible.

In the same connection it is urged that the agreement in question only covered the fenced portion of the premises, which was something less than the whole, another portion being used for a driveway. But while it is true that certain portions of the testimony might bear this construction, we think there is no mistaking the tenor of the agreement, or that it related to the land deeded to Laurie McLeod. The defendant’s denial did not relate to the question of quantity, but was absolute. His claim was that he had no notice of the conveyance to Laurie McLeod and occupied the whole of the land in question in hostility to plaintiff’s grantors, while plaintiff’s theory was that he had notice of this adverse right, and occupied in subordination to their title. The two theories were fairly submitted to the jury.

5. The court permitted an amendment of the declaration on the trial, narrowing the plaintiff’s claim. This could not have prejudiced the defendant, and was proper. Bringhurst v. Railroad Co., 78 Mich. 570, 572.

We think no error to the prejudice of defendant was committed.

The judgment will be affirmed, with costs, and the case remanded.

McGrath, C. J., Grant and Hooker, JJ., concurred. Long, J., did not sit.

       In the original declaration, plaintiff claimed title in fee to the entire premises described in the deed to Laurie McLeod. This description covered the northerly 60 feet of lot 293 (see diagram). The proof disclosed that the plaintiff was entitled to the entire of the easterly 128.90 feet of the description, and to an undivided two-thirds interest in the remainder, and an amendment of the declaration so as to conform to the proofs in this regard was allowed.


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    Alexander Zagelmeyer v. The Cincinnati, Saginaw & Mackinaw Railroad Company.

      Railroad' companies — Failure to purchase ticket — Penalty—Maximum rate of fare — Eviction of passenger— Damages.

    1. There is no valid objection to a railroad company’s charging an increased sum for passage where fares are collected on the train, provided that the sum collected does not exceed the statutory rate; but the company cannot impose, as a penalty for not purchasing a ticket before entering the car, such a sum that the fare collected on the train, including such additional amount, shall exceed the maximum allowed by law.

      2. A railway passenger who either produces a ticket which, as between the conductor and himself, entitles him to passage, or stands ready to pay the fare legally demandable, can recover substantial damages for being evicted from the car on his refusal to pay an unauthorized demand.
    3. 3 How Stat. § 3333, subd. 9, which authorizes railroad companies to regulate the time and manner in which passengers and property shall be transported, and the tolls and compensation to be paid therefor, but provides that such compensation for transporting any passenger and his or her ordinary baggage, not exceeding a given weight, shall not exceed two, two and one-half, or three cents per mile, according to the gross earnings per mile of each road, will not permit a charge for á fraction of a mile, unless it is so large a fraction as to make the charge of one cent or more not in excess of the rate per mile fixed by the statute.
    Error to Bay. (Cobb, J.)
    Argued June 26, 1894.
    Decided September 27, 1894.
    Case. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Shepard & Lyon, for appellant.

      Simonson, Gillett & Goiirtright, for plaintiff.

       As to validity of extra charge for passenger fare when paid upon train, see note to Phettiplace v. Railway Co., 30 L. R. A. 483.

   Montgomery, J.

This action is brought to recover damages for being forcibly ejected from defendant’s ear, while riding as a passenger.

The defendant had adopted a regulation requiring conductors to make an additional collection of 10 cents on all fares paid by passengers taking defendant’s trains from regular ticket stations. A notice had been posted in defendant’s cars, which read:

Passengers will save 10 cents on each fare by purchasing tickets before entering the cars.”

Plaintiff, without buying a ticket, boarded a ear on defendant’s train at North Saginaw, bound for Salzburg, as he testifies, or West Bay City, according to the testimony of the conductor. When the conductor asked him for his fare, plaintiff tendered him a 50-cent piece, and said he would pay him the legal and lawful rate, but would not pay an extra 10 cents because he-had not purchased a ticket. The conductor thereupon forcibly expelled him from the train. Plaintiff recovered judgment of $500, and defendant brings error.

1. Defendant contends that the requirement of passengers that they pay an additional sum of 10 cents for failure to purchase tickets where there are stations is a reasonable regulation, within the power of the company to make. Numerous cases have been cited by defendant’s counsel in which it has been held that such a regulation, requiring the payment of a small sum in- addition to the usual fare in case of failure to purchase a ticket, is a reasonable regulation, which the company has the right to make. Swan v. Railroad Co., 132 Mass. 116; Du Laurans v. Railway Co., 15 Minn. 49; Reese v. Railroad Co., 131 Penn. St. 422. Indeed, there can be little doubt as to the power of the railroad company to make such a discrimination between its passengers when acting under the common law, nor do we see any valid objection to a railroad company's charging an increased sum for passage where fares are collected on the train, provided that the sum collected does not exceed the statutory rate. But it is held, and we think properly, that the company cannot impose, as a penalty for not purchasing a ticket, such a sum that the fare collected on the train, including such additional amount, shall exceed the maximum allowed by law. Railroad Co. v. Skillman, 39 Ohio St. 444; Chase v. Railroad Co., 26 N. Y. 523.

2. But it is contended that inasmuch as the plaintiff might have paid his fare, and avoided being expelled from the car, he is entitled to recover no substantial damages. We are cited to various Michigan cases as sustaining this doctrine. But all the cases cited are cases in which the plaintiff had no ticket which, as between himself and the conductor, entitled him to ride upon the car in question, and in which there was no tender of the legal fare made. We think the case of Hufford v. Railroad Co., 53 Mich, 121, 64 Id. 631, fully recognizes the right of the plaintiff to recover substantial damages for being evicted from the car when he either produces a ticket, or stands ready to pay the legal fare. See, also, 19 Amer. & Eng. Enc. Law, 910, and cases cited.

It is suggested that there was testimony tending to show that plaintiff gave his destination as West Bay City, which is a small fraction over 13 miles, the distance being 13.05 miles, and that 40 cents was not in excess of the amount authorized by statute. The language of the statute is, “Such compensation for transporting any passenger * * shall not exceed the following prices,” which is fixed by subsequent provision of the section at 3 cents a mile where the earnings of the road do not amount to $2,000 per mile. This language would apparently not permit a charge for a fraction of a mile, unless it was so large a fraction as to make the charge of 1 cent or more not in excess of 3 cents per mile. The statute formerly provided that the price of tickets might, for convenience in making change, be fixed at that multiple of 5 which was nearest the exact amount of fare. But the present statute (Act No. 202, Laws of 1889) contains no such provision.

The judgment will be affirmed, with costs.

McGrath, 0. J., Grant and Hooker, JJ., concurred. Long, J., did not sit.

       The conductor demanded a fare of 40 cents; while the distance to be traveled was 13.05 miles as claimed by defendant, and 11.53 miles as claimed by plaintiff.

        Frederick v. Railroad Co., 37 Mich. 342; Hufford v. Railroad Co., 53 Id. 118; Heffron v. Railway Co., 92 Id. 406; Mahoney v. Railway Co., 93 Id. 612; Van Dusan v. Railway Co., 97 Id. 439.


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    The Davis & Rankin Building & Manufacturing Company v. L. C. Murray et al.

      Contract — Stock subscription — Joint or several obligation — Mechanic’s lien — Subrogation.
    1. Complainant contracted with a number of persons to erect for them a butter and cheese factory. The price was to be $3,950, one-half payable when the factory should be completed, and one-half in three months after that date. The contractees agreed to make such payments, and as soon as the contract price should be subscribed, or in a reasonable time thereafter, to incorporate under the general laws of the State. The aggregate amount of stock was to be not less than $3,950, divided into shares of $100 each, to be issued to the subscribers in proportion to their paid-up interest in the contract. It was further agreed that each stockholder should be liable only for the amount subscribed by him. The stock was all subscribed, the factory completed, and stock issued to the subscribers who had paid for the same, to the amount of $3,000. Complainant filed a bill against the corporation and the various subscribers to enforce a mechanic’s lien upon the factory for the remaining $950. And it is held that the undertaking of the subscribers was several, and not joint, and that they are liable thereon only up to the amount- of their several subscriptions.
    2. The complainant would be entitled in equity, under such circumstances, to be subrogated to the rights of the non-paying subscribers to the stock to the amount remaining unpaid of the contract price.
    Appeal from Ottawa. (Padgham, J.)
    Argued June 26, 1894.
    Decided September 27, 1894.
    Bill to enforce a mechanic’s lien. Complainant appeals.
    Decree affirmed.
    The facts are stated in the opinion.

      Flbridge F. Bacon (Farr & Soule, of counsel), for complainant.

      Walter I. Lillie, for defendants.
   Montgomery, J.

This is a bill filed against the Nunica Creamery Company and the various subscribers to its stock to enforce a mechanic’s lien.

The complainant entered into a contract with,the numerous subscribers in the vicinity of Nunica, by which the Davis & Bankin Building & Manufacturing Company, party of the first part, agreed with the subscribers, parties of the second part, to build a ■ combined butter and cheese factory at'or near Nunica, according to certain defined specifications. The contract contained further provisions as follows:

“ The party of the second part hereby agrees to select and furnish suitable and reasonable level lands for said building
“The Davis & Rankin Building & Manufacturing Company agrees to erect said butter and cheese factory as set forth by the above specifications for $3,950, payable when factory is completed, as follows': One-half when factory is completed; balance, one-half, in three months after factory is completed, with good notes. We, the subscribers hereto, agree to pay the above amount for said butter and cheese factory when completed; said buildings to be completed within 60 days or thereabout after the above amount ($3,950) is subscribed. Any portion of the amount subscribed not paid according to contract shall bear a legal rate of interest after due. As soon as the above amount ($3,950) is subscribed, or in a reasonable time thereafter, the said subscribers agree to incorporate under the laws of the State, as therein provided, fixing the aggregate amount of stock at not less than, the amount subscribed, to be divided into shares of $100 each, said share or shares, as above stated, to be issued to the subscribers hereto in proportion to their paid-up interest herein; and it is herein agreed that each stockholder shall he liable only for the amount subscribed by him. All money that shall be paid in or collected upon this contract in excess of the contract price of the plant shall belong to the party of the second part.”

The contract was signed by the complainant and by the individual subscribers to the stock. The building was completed, and stock issued to those who had paid, to the amount of $3,000; but the remaining $950 of the purchase price remained unpaid.

The question presented is whether the complainant is entitled to a lien for this sum upon the property, or whether it is bound to look to the individual subscribers.

In Davis v. Belford, 70 Mich. 120, this Court, in construing a somewhat similar contract, held the undertaking of the subscribers to be several, and not joint. We think ^he intent is even clearer in the present case. It is provided that there shall be an incorporation under the laws of the State, and stock issued to the amount paid, and it is in terms agreed that each stockholder shall be liable only to the amount subscribed by him. Certainly, without doing violence to the language of the contract, it cannot be said that there was an intention that the individual subscribers should make themselves liable beyond the amount of their several stock subscriptions. It is somewhat ambiguous as to how the balance of the money shall be paid, but from the provision, which it was thought necessary to insert, that the money collected upon the contract in excess of the contract price should belong to the parties of the second part, it is a fair inference that it was intended that the collections should be made by the first party. Nor do we discover any intent to bind the corporation to be thereafter formed to the payment of the several sums. To do so would be to bind the individual interest in the corporation of each subscriber, and indirectly require a payment by him of an amount in excess of that which it is expressly stipulated shall be the total payment required of him. So far as the contract is in this respect ambiguous or uncertain, the dealings of the parties have placed a practical construction upon the contract in accordance with these views.

Without doubt, the complainant is entitled, in equity, to be subrogated to the rights of the non-paying subscribers to the stock to the amount remaining unpaid of the contract price; but this is not the remedy which it here' asks.

The decree of the court below will be affirmed, with costs.

McGrath, C. J., Grant and Hooker, JJ., concurred. Long, J., did not sit.


author: Long, J.

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    The McKinnon Manufacturing Company v. The Alpena Fish Company, Limited.

      Sale — Delay—Recoupment—Implied warranty.

    1. In a suit brought by a contractor to recover the balance of the contract price due for an engine manufactured for the defendant for use on one of its fishing tugs, the defendant sought to recoup damages for the failure of the plaintiff'to complete the engine within the time agreed upon in the contract, and introduced testimony tending' to sustain its claim. The plaintiff’s testimony tended to show that the defendant agreed to bring the tug from the yard where it was being built to plaintiff’s dock in two weeks after the making of the contract, so that the engine could be placed in the tug, but that it was not so brought until more than three weeks had elapsed, and that plaintiff’s work was thereby delayed. And it is held that the plaintiff had a right to have the jury pass upon the question of said alleged delay, and that, if they found that it was caused by the failure to bring the tug to plaintiff’s dock within the time agreed upon, for such time the plaintiff was not to be charged with the delay, or damages in consequence of it.
    2. Plaintiff further contended that the delay in completing the tug, if any, was occasioned by the bhilder of the tug, in not having his work done in time, and by another party, who did not complete the putting up of the smokestack in time. And it is held that the plaintiff could be held liable for its delay only, and not for the delay of the builder or the party who had contracted to put up the smokestack.
    8. After the engine had been used for a time, the shaft was broken, and the defendant claimed to recoup damages for the expense of putting in a new shaft. Upon examination, the shaft put in by plaintiff was found to have one or more flaws in the material from which it was made. And it is held that the request of the plaintiff for an instruction that the plaintiff, in the absence of a warranty of the engine, could not be held responsible for the breaking of the shaft if the break was due to interior seams or defects, not known to the plaintiff, and which could not have been discovered by an examination of the shaft, should have been given.

      4 Testimony was introduced tending to show that, after the plaintiff had commenced to build a pump in accordance with the contract, the engineer in charge of the tug, and who had been given authority by the defendant to oversee the work, and under whose directions the plaintiff had been directed to work, stated that he did not wish that kind of a pump, and the one in controversy was then made, under the orders and directions of said engineer. And it is held that the jury should have been instructed, as requested by the plaintiff, that, if they found the aforesaid facts, the 4defendant had no right to complain because the pump built differed from the one called for by the contract, and that the shipping of the pump back to the plaintiff would not entitle the defendant to make any claim therefor, if plaintiff declined to receive it.
    Error to Bay. (Maxwell, J.)
    Argued June 27, 1894.
    Decided September 27, 1894.

      Assumpsit. Plaintiff brings error.
    Beversed.
    The facts are stated in the opinion.

      J. L. Stoddard, for appellant.

      T. A. E. é J. O. Weadock, for defendant.
   Long, J.

Plaintiff brought suit to recover the balance due upon the sale of a marine engine, which was built by it for defendant's fishing tug, under a written contract, for $1,000, and one throttle for the same, at $75. Five hundred dollars had been paid on the contract, leaving a balance of $575. Defendant pleaded the general issue, and gave notice of recoupment of damages on account of the .improper construction of the engine in most of its parts, and for delay in not completing it within the time agreed upon. On the trial, plaintiff recovered the sum of $172, and now brings error.

Testimony was offered on the part of defendant tending to show the facts set up in the notice. Plaintiff, upon its part, introduced testimony tending to show that the engine was properly constructed and properly placed in the tug. It was also contended by plaintiff that it was not liable for delay in building and placing the engine in the tug, but that the delay, if any, was occasioned by Davidson, the builder of the tug, in not having his work done within the time, and by Styninger, who did not complete the putting up of the smokestack in time; also, that the engine, while being built under contract, was in fact built and placed under the direction of defendant's engineer.

Upon the question of delay in' completing the contract, the plaintiff requested the court to charge the jury:

“If you find that, when the contract was entered into, the defendant's manager, Mr. Alpern, promised the plaintiff that the tug would be brought over to plaintiff’s dock at a certain time mentioned by him, so that the engine might be erected therein, and that the tug was not brought to plaintiff's dock at the time so specified, and that the plaintiff was thereby delayed in the work of constructing and placing the engine in the tug, and for that reason the engine was not completed until after the time mentioned in the contract, the plaintiff cannot be held liable for damages because of such delay.
“ If Davidson and Styninger, or either of them, were not through with their work on the tug until the engine was ready to run, and they were not delayed in their work by the plaintiff, then the defendant has no ground for claiming damages from the plaintiff because the engine was not completed at the time required by the contract.”

The contract was dated April 16, 1891, and under it the engine was to be completed and put in within five weeks from that date. Plaintiff gave testimony tending to show that the tug was to be brought around from Davidson's yard to plaintiff’s dock in two weeks, so that the engine could be put in, but that it was not brought around there until more than three weeks had elapsed, and that the plaintiff's work was delayed by reason thereof; that, when brought over, it was not .left long enough to place the engine in, but was taken back to Davidson's yard to finish np the work there. Plaintiff’s witness, Mr. McLane, was asked:

“State whether or not you were delayed in the final completion of the engine by the fact that the tug was not brought over in the two weeks mentioned by Alpern.”

He was also asked:

“What effect had the delay in bringing the boat over there, and not leaving it there sufficiently long to enable you to get the engine aboard, upon the final completion of the work, — whether it delayed it or not?”

These questions were ruled out, though not objected to by defendant’s counsel, and yet the court charged the jury upon that point:

“The contract provided that the Alpern people were to take the tug over to the dock, so as to receive the engine aboard the boat. That was done the same day it was launched, and was strictly on time on the part of Mr. Alpern; but when it was there, either by the consent of McKinnon, — it don’t appear whether it was by his consent, or in opposition to his wishes, — it was taken immediately back to Davidson’s, whose .men were also at work putting on the upper works and finishing the tug; and all three of these parties, Mr. Styninger, Mr. McKinnon, and Mr. Davidson, were at work upon that tug at the same time. Now, I think perhaps there is a certain liability, joint as well as several. I think, if the three of them detained the tug 15 days, either one might be charged with it in this suit; but it don’t appear here in evidence whether Styninger was on time in the performance of his work, or whether Davidson was, and it won’t do to charge the whole of it to McKinnon, unless the proof is very satisfactory. There is evidence tending to show that he did not work a sufficient number of men on it for part of the time; but I submit that qirestion wholly to you for your consideration, to fix the length of time and the measure of damages, and determine the amount of loss, if any there was, by not finishing the contract in time.”

The court was in error in not permitting the witness McLane to answer, and in refusing these requests to charge. If it was understood that the tug was to be brought to McKinnon's dock within two weeks from the date of the contract, then it must be‘presumed that the contract was made in view of that time; and, if the defendant's tug was not brought there within that time, certainly the plaintiff could not be charged with the delay during^hat time. The plaintiff had the right to have the jury pass upon that question as one of fact, and, if they found that the delay was caused by the failure to bring the tug to McKinnon's dock within the time agreed upon, they should have been instructed that for such time the plaintiff was not to be charged with the delay, or damages in consequence of it. There was no such thing as a joint liability in the delay. The plaintiff could be held liable for only its delay, and not for the delay of either Davidson or Styninger.

It appears that, after some use, the shaft was broken, and among other damages claimed was the expense of putting in a new one. The - evidence showed that, upon examination, the shaft was found to have one or more flaws in the material from which it was made. It was contended on the trial by the defendant that the plaintiff was liable for this, and the question was submitted to the jury with other claims for defects. The plaintiff asked the court to charge the jury that—

“Plaintiff did not warrant or guarantee the engine, and in no event can the plaintiff be held responsible for the breaking of the shaft if the break was due to interior seams or defects, not. known to the plaintiff, and which could not have been discovered by an examination of the shaft.''

This request should have been given. The vendor who sells an article of his own manufacture is liable for any latent defects not disclosed to the purchaser, arising from the manner in which the article is manufactured; and, if he knowingly uses improper materials, he is liable for that also, but not for any latent defects in tbe material, which he is not shown to have known, and which could not be ascertained by proper examination. Hoe v. Sanborn, 21 N. Y. 552; Bragg v. Morrill, 49 Vt. 45; 2 Suth. Dam. (1st ed.) 409. In Bragg v. Morrill, supra, a shaft was sold by a machinist to be used for a special and known purpose. It was purchased by the machinist, and then turned and prepared for the reception of pulleys. It afterwards broke, because of a defect unknown to both plaintiff and defendant, and the plaintiff sued for damages therefor. The court held the defendant not liable, and said:

“We think the result of the cases on implied warranty is that the vendor of an article for a particular purpose does not impliedly warrant it against latent defects unknown to him, and which have been produced through the unskillfulness of some previous manufacturer or owner, without his knowledge or fault, except in those cases where the sale of the article by him is, in and of itself, legally equivalent to a positive affirmation that the article has certain inherent qualities inconsistent with the claimed defects, as is the case in the sale of provisions for domestic use. On this ground, the defendant is not liable, on an implied warranty 'of the shaft, for the latent defects that caused it to break, and were wholly unknown to him, and were not produced through any fault or unskillfulness on his part, but wholly through the fault or unskillfulness of the manufacturer of the shaft from the raw material.”

In the present case the* plaintiff’s testimony showed that the plaintiff commenced to build a pump in accordance with the contract, when Smith said that he did not want that kind, and the one in controversy was then made, under his orders and directions. Smith was the engineer of the tug, and was given authority by the defendant to oversee the work, and the plaintiff was directed to work under Smith’s directions. The court was asked to charge the jury:

“If you find that the plaintiff began the construction of the pump mentioned in the contract, and that the completion of such pump' was then abandoned, and another pump built, in accordance with the directions given to the plaintiff by Smith, and that it was the duty of Smith to oversee the work on behalf of the defendant, then the defendant has no right to complain because the pump built differed from the one called for by the contract, and shipping the pump back to the plaintiff would not entitle the defendant to make any claim therefor, if the plaintiff declined to receive it.”

This request should have been given.

For the errors pointed out, the judgment must be reversed, and a new trial ordered.

Grant, Montgomery, and Hooker, JJ., concurred with Long, J. McGrath, G. J., concurred in the result.


author: McGrath, C. J.

text:
    The Grand Rapids Ice & Coal Company v. The South Grand Rapids Ice & Coal Company.

      Riparian rights — Navigable lake.

    1. Unless the contrary appear, a grant of land bounded by a watercourse conveys riparian rights, and the title of the riparian owner extends to the middle line of the lake or stream.
    2. A boundary line may be so described as to preclude the extension of the grant by construction to the center of the stream. When it is said that meanders have no significance as boundaries, what is meant is that they do not preclude such extension of the grant.
    8. The shore proprietor takes by virtue of shore ownership. His interest in the bed of the stream he acquires as appurtenant to the grant, and the extent of that interest depends upon his frontage, and the form, length, and breadth of the body of water upon which he abuts; and the fact that a lake may be of such form as to render the designation in it of the boundaries of the several riparian owners somewhat difficult is not an objection to the application of the rule.
    4 The rule laid down in Clute v. Fisher, 65 Mich. 48, that the owner of a fractional subdivision of land, made so by an inland lake, owns the soil under the water of said lake which would be included within the subdivision if its lines were fully extended, is inconsistent with the rule, repeatedly laid down in this State, that the shore proprietor owns to the thread or center of the stream, and with the rule announced in Clark v. Campan, 19 Mich. 328, and Gas-IAght Co. v. Industrial Works, 28 Id. 182, that side lines are to be governed by the course of the stream, and the submerged land bounded by lines drawn at right angles with the central thread, rather than at right angles with the shore at the point of departure; and, while a correct result was reached in the Clute case, the reasons given are without support.
    Error to Kent. (Grove, J.)
    Submitted on briefs June 8, 1894.
    Decided September 27, 1894.
    Case. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      Taggart, Wolcott & Ganson, for appellant.

      J. W. Ghamplin, for defendant.
   McGrath, C. J.

This is a controversy over the right to cut ice in Reed’s lake, plaintiff insisting upon ownership of the bed of the lake within the lines of the fractional subdivisions extended, and defendant insisting upon a division of the center line proportionate to the shore line, so as to give to each riparian owner an equitable share. The diagram on next page will best explain the situation-.

• By the meanders, the south shore line is 177.65 chains, and the north shore line is 117 chains. The center line of the lake is about 488 rods. The circuit judge finds that the plaintiff’s lessors took all of the upland on the N. i of section 34, under a government conveyance which described tbe land taken as “the north-east fraction of section 34, * * * containing one hundred and nine acres and ninety-hundredths of an acre, according to the official plat of the survey of said lands returned to the General Land-office by the Surveyor General." It is further found:

“That what is now known and called ‘Reed’s Lake’ is a body of water lying in five different sections, and by the United States government survey was meandered, and the lands adjoining platted by the United States, and sold as fractions; * * * that the lake has an outlet which extends to Grand river, and is called ‘Cold Brook;’ that its greatest length of clear water, according to the United States plat, is 440 rods. On the east and west quarter line, if extended through the lake, it is 360 rods. If the quarter line north and south were extended through, the distance across the lake would'be 192 rods. The distance across the water on the west section line of section 34 is 226 rods. The greatest width across the lake is 220 rods, and the least width is 96 rods. The waters of the lake cover over 370 acres of land. It is a pleasure resort, having four steamboats, drawing from two to four feet of water, and for carrying passengers during the summer months, and numerous smaller craft.
“ The defendants are riparian owners of a piece of land situated on the south fraction of section 34, commencing at the section line between sections 33 and 34, extending eastwardly, and having a frontage on the margin of the lake of 313 feet, being a part of the south-west fractional quarter of section 34, town 7 north, of range 11 west, as described in the original purchase from the government in the same ■ chain of title. They also had a verbal lease from the owners of the land, at the time of the cutting of the ice, lying next westerly from said section line, having a margin on the lake of 22 rods, and of the right to take ice in front thereof, so far as the same belonged to said riparian owners.
“ The defendant, during the early part of the year 1893, entered upon the ice in front of the lands so leased and so owned by it, and cut and removed the ice in front of said lands, and between the shore and the middle of the lake, between lines which would be formed by running them at right angles from the center line of said lake to the shore line, so that defendant would have the same proportionate share of the center line of the waters of the lake as they have of the whole shore line on the south side of said lake.”

Plaintiff relies upon Clute v. Fisher, 65 Mich. 48. The following diagram will illustrate the situation in that case:

Clute owned the southern portion of the S. E..£ of 14, and the northern part of the’ N E. £ of 23. . The meander-lines wete almost wholly, and the water lines were wholly, within the subdivisions owned by Clute. The ice was cut at the point A. Defendant was not the owner of the N. W. £ of 24,'nor of that portion of 23 adjoining Clute’s land. - No claim was made that an apportionment would give the right to cut the ice to some one other than Clute, but the sole contentipn was that the title to the bed of all the lands within the meandered lines was in the State. It was that question that the Court was dealing with. _Mr. Justice Morse in that case says:.

ifIt has been held in this State that the soil under the water of the inland lakes in this State does not belong to the general government or to the State. * * * It has also been repeatedly decided in this State that private ownership of lands bounded on navigable fresh water is not restricted to the meander line. * * * We have also held, in accordance with the decisions of the Supreme Court of the United States, that the land described as the fraction of any subdivision — as, for instance, the southeast fractional quarter — cannot be extended beyond the lines of the said south-east quarter as they would run if extended,” — citing Wilson v. Hoffman, 54 Mich. 246; Keyser v. Sutherland, 59 Id. 455; Brown’s Lessee v. Clements, 3 How. 665; Palmer v. Dodd, 64 Mich. 474.

In Wilson v. Hoffman, supra, 117.48 acres of the S. i of section 28 lay south of Black river.' Plaintiff brought ejectment to recover seven acres lying on the extreme west point, and within the lines of the S. W. i if the lines had been extended, The description in the patent to plaintiff’s grantor was: ' .

“ The south-east fractional quarter of fractional section 28, * * * containing 117 and 48-100 acres, according to the official plat of the survey of the said' lands returned to the General Land-office by the Surveyor General.”

The map was not introduced. The Court held that all subdivisional lines of a section must be straight lines running from the proper corner in one exterior line to its corresponding corner in the opposite boundary’ of the section, and that the patent and deed thereunder, through which plaintiff claimed, did not embrace within their description the lands in controversy, since no part thereof was within the S. E. -J of the section. The case came up again, and is reported in 70 Mich. 552, and the Court there say:

“In grant'ing patents for lands, it is usual for the government to add, immediately after the statement of the number of acres which the tract contains, if it be fractional, these words: ‘According to the official plat of the survey of said lands returned to the General Land-office by the Surveyor General/ Such languagé, when used, constitutes a part of the description of the premises conveyed, and limits the purchaser to the tract as marked upon the plat of the Surveyor General. This was so held in Gazzam v. Lessee of Phillips, 20 How. 372, which overruled the same case in 3 How. 650, under the title of Brown’s Lessee v. Clements. This was the language used in the patent to Tingley.”

The record then showed that the premises described in the declaration were embraced in what the government denominated the S. E. fractional £ of 28.

“It might, perhaps, have been more accurate,” say the Court, “to describe it as that portion of section 28 lying south of Black river; but as the fraction contained less than 160 acres, and the law required it to be sold entire, the description contained in the patent, in connection with the official plat, was sufficient, and is quite a customary method of description in the General Land-office.”

In Keyser v. Sutherland, 59 Mich. 455, a dispute arose respecting a strip of land on the west line of section 29, in the S. W. £ of the N. W. £ of that section, which extended around the west and south sides of the S. W. £ of the section.' Defendant claimed title under a conveyance from the government describing his land as the south fraction of section 29. Plaintiff’s patent c.alled for a full subdivision, to wit, the S. W. £ of- the N. W. £ of 29. Brown’s Lessee v. Clements, supra, and Wilson v. Hoffman, 54 Mich. 246, are cited.

In Palmer v. Dodd, 64 Mich. 474, defendant was the owner in fee of the E. £ of the N. W. fractional £ of section 23, described in the United States patent as containing 57 acres. Plaintiff was the owner in fee of the S. W. fractional £ of section 23. The section was made fractional by a lake and marsh, which was meandered by the United States survey. The trespass was committed within the boundaries of the S. W. i, if the quarter lines should be extended. The lake, which was surrounded by the marsh, was mostly located upon the S. E. ¿ of the S. W. i of the section. Defendant claimed to own to the center of the lake. The Court say:

“But no grantee by such patent, granting a legal subdivision of land, can derive title to land upon another legal subdivision. This we have decided in the cases of Wilson v. Hoffman, 54 Mich. 246, and Keyser v. Sutherland, 59 Id. 455, which were based upon the decision of the Supreme Court of the United States in Brown’s Lessee v. Clements, 3 How. 650. The principles which govern the rights of riparian ^proprietors do not apply to defendant’s grant. No part of the land granted to him in the description contained in his patent was bounded by a lake or other water. His grant extended no further south than the east and west quarter line of the section, and this line did not touch or intersect the shore of any lake. Indeed, the lake is nearly 40 rods south of this line.”

In the Palmer case the Court recognized the principles which govern the rights of riparian owners, but held that they did not apply. The question before the Court in the other cases was the significance of meander lines. In none of them did the question arise as to the rights of shore owners as between themselves. ”

It was held in Clute v. Fisher, supra, that the rule that private ownership of lands bounded on navigable fresh water is not restricted to the meander line must also apply to the small inland lakes by analogy, whether they can strictly be termed “navigable” or not; and it was also conceded that in case of a body of water so large that the lines of the sections or subdivisions of sections held by the shore owners, if extended, do not embrace the whole of said lake, then the rule of riparian ownership may be extended to the center line of.said lake. It would seem to follow that the extent of the qualified ownership in the bed of the river or lake must depend upon the shore ownership, rather than upon the distance from the shore to the parallel subdivision line. The rule laid down in that case, that the owner of a fractional subdivision owns the soil which is included within the extended subdivision lines, is inconsistent with the rule, repeatedly laid down in this State, that the shore proprietor owns • to the thread or center of the stream. It is also inconsistent with the rule laid down in Clark v. Campau, 19 Mich. 328, and Bay City Gas-Light Co. v. Industrial Works, 28 Id. 182, that side lines are tb be governed by the course of the stream, and the submerged land bounded by lines drawn at right angles with the central thread, rather than at right angles with the shore at the point of departure. The application of the rule of the Clute case to the one before us would leave the W. £ of the N. ~W. £ of section 34 without the lines of any subdivision, and would apportion that area upon the basis of imaginary subdivision lines, without reference to shore proprietorship. Again, the rule that a conveyance of a fractional subdivision actually conveys the entire subdivision is inconsistent with the rule laid down in Au Gres Boom Co. v. Whitney, 26 Mich. 42; Dart v. Barbour, 32 Id. 271; Jones v. Pashby, 62 Id. 614; Hartford Iron Mining Co. v. Cambria Mining Co., 80 Id. 491. In each of these cases part of a parcel of land having a water frontage was conveyed, describing it as half of the lot or parcel, and it was insisted that the conveyance was of half of the water frontage; but the Court held that the words “half of the lot” meant half in quantity of the upland.- A correct result was reached in the Clute case, but the reasons given are without support. That case and those upon which it relies were based upon Brown’s Lessee v. Clements, 3 How. 665, which was expressly overruled in Gazzam v. Lessee of Phillips, 20 How. 372. See, also, Hardin v. Jordan, 140 U. S. 371. In any event, we think that this case is governed by the rule laid down in Jones v. Lee, 77 Mich. 35.

Unless the contrary appear, a grant of land bounded by a' water-course conveys riparian rights (Richardson v. Prentiss, 48 Mich. 88); and the title of the riparian owner extends to the middle line of the lake or stream of the inland waters (Webber v. Boom Co., 62 Mich. 626, and cases cited at page 636). A boundary line may be so described as to preclude the extension of the grant by construction to the center of the stream. When it is said that meanders have no significance as boundaries, what is meant-is that meanders do not preclude such extension of the grant.

In Luce v. Carley, 24 Wend. 451, among the courses in the description of the premises were those to a hemlock stake standing on the east bank of the river; from thence down the river, as it winds and turns, 24 chains and 94 links, to a hard maple tree.” The court say:

“Tt is never thought that monuments mentioned in such a deed as occupying the bank of the river are meant by the parties to stand on the precise water line. * * * They are used rather to fix the termini of the line which is described as following the sinuosities of the stream. * * * Where the grant is so framed as to touch the water of the river, and the parties do not expressly except the river, * * * one-half the bed of the stream is included by construction of law.” Child v. Starr, 4 Hill, 375; Seneca Nation v. Knight, 23 N. Y. 498; Rix v. Johnson, 5 N. H. 520; Gouverneur v. Ice Co., 134 N. Y. 355.

The shore proprietor takes by virtue of shore ownership. His interest in the bed of the stream he acquires as 'appurtenant to the grant, and the extent of that interest depends upon his frontage, and the form, length, .and breadth of the body of water upon which he abuts. That a lake may be of such form as to render the designation in it of the boundaries of the several riparian owners somewhat difficult is not an objection to the application of the rule. Mr. Justice Campbell says in Lincoln v. Davis, 53 Mich. 390:

“In carrying out lines of ownership in narrow streams, it is easy to find the general course of the stream, and to draw lines perpendicular to that course from the terminal shore lines. But on lakes all lines from the shore tend to converge in some central part of the lake; and, while irregularity of shape prevents drawing them to a common center, they must all, if protracted, cross each other in a perplexing way. The rule adopted in such waters, where the whole surface could be appropriated, has always been to divide the water area in proportion to the shore frontage, and never to attempt any division by lines run from the shore, except over such parts of the lake as.are substantially adjacent to the shore. In some cases, by a fair partition, a shore owner would, by his extent of shore line, obtain a share beyond the center. But it seems impossible, if the whole water is to be regarded as divided up, to reach a division without some proceeding in the nature of a partition, which will fix the various possessions.”

Again, in Jones v. Lee, supra, Mr. Justice Campbell says:

“It appears clearly enough in the present case that while there is a considerable frontage facing north-west or south-east, the lake being longest in that direction, there must also be large end frontages, which look up or down the lake perpendicularly, or nearly so, to any line across from bank to bank, at most places along the shores. If this body of water were not navigable, and if all its waters could in any way be apportioned among the riparian proprietors for any lawful purpose, it is evident that it'could not be done by reference to any filurn aquae or middle thread, but must be done by some rule of proportion, which probably could only be got at by some partition proceeding, inasmuch as such waters - are common for all ordinary uses.”

In Blodgett & Davis Limber Co. v. Peters, 87 Mich. 498, the question arose as to the proper apportionment between several shore owners in a cove on Green Bay.

In Hardin v. Jordan, 140 U. S. 402, the Court say:

“ If there should arise any question between the plaintiff and other riparian owners of lands situated on the margin of the lake as to the convergence of the side lines of the plaintiff’s land in the lake, it can be disposed of by the parties themselves, by a resort to equity or to such other form of procedure as may .be proper.”

See, also, Gouverneur v. Ice Co., supra.

In the present case it is practically conceded by plaintiff that, unless the rule contended for by it is applicable, the judgment below was correct.

The judgment is therefore affirmed.

The other Justices concurred.