text:
    KENT v. BOYNE CITY CHEMICAL CO.
    Master and Servant — Workmen’s Compensation Law — Personal Injuries — Wilful Violation of Rule.
    Evidence, in proceedings for compensation under the workmen’s compensation act, held, sufficient to sustain the finding of the industrial accident hoard that deceased was not, at the time he was injured, wilfully and intentionally violating a rule made for his protection.

    Certiorari to Industrial Accident Board.
    Submitted January 22, 1917.
    (Docket No. 78.)
    Decided April 9, 1917.

      Blanche Kent presented her claim for compensation against the Boyne City Chemical Company for the accidental death of her husband in respondent’s employ. From an order awarding compensation, said respondent and the General Accident, Life & Fire Assurance Corporation, Ltd., bring certiorari.
    Affirmed.

      Kerr & Lacey, for appellants.

      J. M. Harris, for appellee.

      As to what constitutes serious and wilful misconduct within the meaning of the workmen’s compensation act, see note in L. R. A. 1916A, 355.

   Moore, J.

The husband of claimant had been in the employ of the Boyne City Chemical Company in various capacities for about a year prior to December 14, 1915. Upon that date, while helping to unload a coal car which was on a slightly elevated track and over a coal bunker adjacent to the furnace room, he received injuries which resulted in his death. His widow made a claim under the employers’ liability act (2 How. Stat. [2d Ed.] §§ 3939-4008, 2 Comp. Laws 1915, § 5423 et seq.). The record disclosed the following as occurring at the beginning of the hearing:

“Mr. Gloster: Q. Mr. Lacey, what is your position in this matter?
“A. Your honor, I believe the respondent in this case denies liability on two grounds. One ground that the accident did not arise out of and in the course of the employment, and fot" the other ground that the employee was injured by reason of his intentional and wilful misconduct.”

Considerable testimony was taken. The industrial accident board made the following findings:

“(1) James Kent was employed by the Boyne City. Chemical Company on December 14, 1915, and had been for a year prior thereto.
“(2) That on December 14, said James Kent received a personal injury arising out of and in the course of his employment; died as a result thereof on December 21, 1915.
“(3) That Blanche Kent (Drayton) was wholly dependent upon the deceased for her support at the time of the accident. -
“ (4) That the said James Kent was not guilty of intentional and wilful misconduct.”

The award of the committee of arbitration which gave claimant $6.72 a week for 300 weeks was affirmed. The case is brought here by certiorari.

The same defense is urged here that was urged be- . fore the arbitrators. The head fireman who was over Mr. Kent testified in part as follows:

“Q. Just prior to the accident did you see Mr. Kent?
“A. Yes, sir.
“Q. Where was he? * * *
“A. He was in the boiler room.
“Q. From what direction did he come?
“A. He came from the north door and came from the car, and he cleaned the front end of the car out and got the night engineer to pull the other end of the car down over the bunker hold.
“Q. What did he say to you?
“A. He came in and says: ‘I’ll go in and get Ambrose Folsom to help me dump that end of the car. I have it over the bunker hole/ I says: ‘James, I don’t believe I would go up there and dump that; you have coal enough to last all night.’ And he says: ‘Well, now, if I dump that end of the car I’ll have coal to roll down all night, and I won’t have to go up inside of the bunker hole at all.’ I said: ‘I am going to clean fires in a little while, and I don’t believe, if I was you, I would go.’ But he got his hammer and went on in the pumproom and got the lantern and Mr. Folsom. He got Mr. Folsom, and they went up there. I will say that it was only about a half hour till I hear Folsom holler. * * *
“Q. Did you instruct Mr. Kent to go under this car?
“A. No, sir; I did not.
“Q. I understand you told him not to do it?
“A. I told him, ‘If I was you, James, I wouldn’t go up and dump the car/ I didn’t say anything about going in under it. I said I wouldn’t go up and dump the car that night. There was plenty of coal if the car hadn’t been dumped.
“Q. Did you call that to his attention?
“A. I told him there was coal enough for the rest of the night.
“Q. Was that in the nature of a suggestion, or did you command him not to go up and unload the car?
“A. I just felt that I did not want him to go. It was just my opinion that he had enough coal. I didn’t think about his being killed.”

Mr. Folsom testified in part:

“Q. Did you witness the accident?
“A. I was the only one that witnessed it. * ® •* Mr. Kent came in the pumphouse and asked me if I would help him dump- a carload of coal. I told him I would; but I had to change my shoes; changed my shoes and went with him as far as the boiler house. He says: T will go in and get a hammer.’ He came out with a hammer, and wé went through the blacksmith shop to the car. When we came to the end of the car I climbed upon the roof of the building with the gas pipe and put it in. on the end of the wrench that dumped the pocket, and as I got it fixed he takes the lantern and goes around the side of the car between the building and the car, sets, the lantern down outside of the car, and crawls under the car with the hammer. And as he pounded on this place I pulled down with the lever to take all the slack out. He only hit three or four blows when the pocket gave loose, and the dust from the coal blinded so you could see nothing much, and the racket of the coal so you could hear nothing. But as soon as things, settled down I could hear him groaning.”

The record is clear that Mr. Kent Had dumped half of the car earlier in the evening, and at the time of the accident had crawled under that part of the car which had been dumped. He got too far under, and when the door dropped the top of his head was. caught between the falling door and the air tank under the car.

Much stress is laid by counsel upon the claim that Mr. Kent was violating a rule which had been enacted for his safety. There was no claim this was a written or printed rule. Evidence of it was given by Mr. San-, tose, the chief engineer, as follows:

“Q. Did you ever see any man at the Chemical Company ever go under a car to trip the car?
“A. I have.
“Q. As a part of the instructions to the men there at the plant, have you ever told them with reference to-the cars?
“A. I have told them, as to unloading the cars, that any time they noticed the car was dangerous or thought it was a dangerous car, or in any way working about a car that they had any difficulty with in unloading the car, to report to me, or else leave the car stand until the following morning; that is, if they were on nights. Furthermore, I told them that, if they noticed or thought it was dangerous to be on or around a car, to stay away from it. And more than that, to never go under a car at any time for the purpose of unloading, or to stand on top of those cars, that is, these special B. and O. gondola, to never stand on top of those cars to free the coal, as there was danger of falling through and being covered with coah
“Q. Did you ever say anything of this nature to, James Kent?
“A, I did.
“Q. Do you recall the particular occasion?
“A. Why, on the night or two previous to his accident Mr. Kent came to me and stated while in the act of unloading a car the night before Mr. Folsom and himself had a pipe on a wrench above their heads, and in trying to dump the car the pipe slipped and struck him on the head. It was then I made the statement to Mr. Kent in the presence of the firemen to never use a pipe or wrench where it extended over his head and pulling down upon it, for if the wrench slipped, he would be sure to get hurt. I also stated to Mr. Kent on this night that if he had any trouble in dumping the car to not go near it and use coal from the other bunkers, and that I would see that the car was dumped the following day. That is all.”

Counsel for claimant insists that, as Mr. Kent'i¡s; not here to give his version of what was stated to him, the testimony is incompetent. This same witness testified:

“By Mr. Urquhart: You might state if it was necessary sometimes to go under the cars?
“A. Well, now, I’ll tell you about dumping the cars. When these cars are manufactured the dumping mechanism is SO1 constructed and situated to make the car so that they will dump free, so that one man can dump them. But in constant using of the cars and the condition of the weather the bars become corroded; so when you receive the cars in the yard for dumping, sometimes you find a car that the mechanism works hard. So that is when it is necessary to use other means for assisting in dumping the cars. * * *
“Mr. Lacey: Did you ever know of another man going under the car?
“A. Yes; I have known of other men going under the car.
“Q. What do you mean by that?
“A. I have been under cars myself, and other men have been under them.
“Q. For what purpose?
“A. For the purpose of unlocking these doors.
“Q. When have they been under?
“A. At different times.
“Q. Nighttime and daytime?
“A. Nighttime and daytime.
“Q. Did you ever send a man under?
“A. I never did; I go myself.
“Q. Those instructions that were given to Mr. Kent were instructions to all the men?
“A. Yes.”

Mr. Folsom, who was assisting Mr. Kent when the accident happened, though he had been in the employ of the company a considerable time, and had helped to dump the cars six or eight times, testified that he never heard of the rule. We do not need to decide whether Mr. Santose’s statement about the rule was incompetent under the statute. He says the instruction was given to all of the men. Mr. Folsom says he never heard of it.

The head fireman’s testimony shows that he knew what Mr. Kent did earlier in the evening, and that he got the hammer and Mr. Folsom to help him unload the car, and while he advised him to wait until morning, he did not say to him he was violating a rule, and his testimony indicates that he did not expect Mr. Kent to be hurt.

In view of the testimony we have quoted, we do not think it can be said that Mr. Kent was wilfully and intentionally violating a rule made for his protection.

The findings of the industrial accident board should be sustained under the cases of Clem v. Motor Co., 178 Mich. 340 (144 N. W. 848, L. R. A. 1916A, 352); Rayner v. Furniture Co., 180 Mich. 168 (146 N. W. 665, L. R. A. 1916A, 22, Am. & Eng. Ann. Cas. 1916A, 386); Gignac v. Studebaker Corporation, 186 Mich. 574 (152 N. W. 1037); Papinaw v. Railway Co., 189 Mich. 441 (155 N. W. 545); Bischoff v. Foundry Co., 190 Mich. 229 (157 N. W. 34); and Beaudry v. Watkins, 191 Mich. 445 (158 N. W. 16, L. R. A. 1916A, 576).

Judgment is affirmed.

Kuhn, C. J., and Stone, Bird, Steere, and Fellows, JJ., concurred. Ostrander and Brooke, JJ., concurred in the result.


source: Caselaw Access Project

author: Fellows, J.

license: Public Domain

text:
    NOWICKI v. KOPELCZAK.
    1. Specific Performance — Landlord and Tenant — Lease—Competency — Contracts.
    In a suit for specific performance of a lease of part of certain premises with a right to purchase the premises at a certain price within the term, evidence held sufficient to show that defendant was not intoxicated at the time of execution of the lease.
    2. Tender — Sufficiency—Option.
    Where a lessee had the right to purchase the leased premises within the term at a certain price, which was tendered to the defendant, after notice, by a check which defendant’s attorney suggested was not certified, and the cash was thereafter tendered before suit, and was brought into court, and refusal of defendant to deed the premises was based upon other grounds than noncertification of the check, held, that the tender was good.

    3. Landlord and Tenant — Description of Premises — Sufficiency.
    Where a lease described the leased premises as a certain part of certain premises, situated at a certain street number and the corner of a certain other street, and contained a right of purchase of “said premises,” held, that the premises at such number and corner to which the right of purchase related were sufficiently described.
    4. Specific Performance — Discretion of Court — Adequate Remedy at Law.
    Relief by decree of specific performance is not a remedy of right, but rests in a sound judicial discretion, and should only be allowed when the remedy at law is inadequate and the plaintiff has clearly established his right to such relief.
    5. Same — Landlord and Tenant — Option to Purchase — Permanent Improvements.
    In a suit for specific performance of a provision in a lease giving the lessee the right to purchase the premises described in the lease within the leased term at a certain price, where the lessee expended large sums of money in making permanent improvements with the knowledge of the lessor, and such as could be removed would be practically valueless in other quarters, and had built up a prosperous business on the premises, and it would be har'd for him to purchase other premises near by, and it would be. difficult, if not impossible, to compensate him in dollars and cents, specific performance was decreed, although the value of the premises had increased since the execution of the lease.
    6. Same — Contracts—Enforcement.
    Where decree was entered in a suit for specific performance of a contract granting specific performance upon conditions not contained in the contract, it was held, that parties make and are bound by their contracts, and courts cannot make, but can only enforce, them.
    7. Same — Accounting—Landlord and Tenant — Option to Purchase.
    In a suit for specific performance of a provision in a lease giving the lessee a right to purchase the premises, a part of which was occupied by the lessor, held, in decreeing specific performance, that the lessor should account for such use and occupation from the time of filing of the bill.
    8. Same — Contracts—Taxes.
    In a suit for specific performance of a provision in a lease giving the lessee a right of purchase of the leased premises, it was held, that the lessee was liable for and should pay all taxes and special assessments becoming due since the filing of the bill.
    Appeal from Wayne; Tucker, J., presiding.
    Submitted January 23, 1917.
    (Docket No. 146.)
    Decided April 9, 1917.
    Bill by Max B. Nowicki against Charles Kopelczak and another for specific performance. From the decree rendered, both parties appeal.
    Reversed.

      Benjamin S. Pagel, for plaintiff.

      Edward H. Kennedy, for defendants.

      On tender or payment of consideration as a condition precedent to a suit for the specific performance of a contract to convey realty consummated by the vendee’s exercise of an option, see note in 24 L. R. A. (N. S.) 91.

   Fellows, J.

The plaintiff files this bill for the specific performance of a written contract entered into November 18, 1912, by which plaintiff leased the first floor ot store and living rooms and the middle part of the barn of the premises situated at No. 1086 Chene street, corner of Frederick, in the city of Detroit, for a term of three years, with the privilege of buying said premises within the term at the sum of $7,000. At this time the store was vacant, and the two tenants preceding plaintiff had failed in business. At the time of the negotiations the defendants offered to sell the premises at the sum of $6,500, with a payment of $150 dowfi, but plaintiff was unable financially to assume the obligation, and as a result of the negotiations the purchase price was fixed at $7,000, provided plaintiff might have the option to purchase at that figure during the term. The defendants occupied the fiat over the store from that time, at least until the hearing. After plaintiff took possession he put on permanent improvements to the amount of $2,500 to $3,000, and built up a prosperous trade.

Prior to the expiration of the term he notified defendants that he should exercise his option to purchase the premises, tendered first a check, and afterwards the cash, and, upon refusal to deed, filed this bill and tendered the money into court. The defendants, by their answers and proofs, claim that at the time of the execution of the contract the defendant Charles was so intoxicated, through being plied with liquor by plaintiff, that he was incapacitated to transact business, and that he had no knowledge of the clause giving the privilege to buy being inserted in the contract. The trial court found that the claim that defendant Charles was intoxicated was without foundation, but entered a decree giving defendants the option to pay plaintiff $2,000, or tender a lease for seven years at a monthly rental of $35; otherwise specific performance was decreed. It is stated in one of the briefs that the lease was tendered and refused. Both parties appeal.

We agree with the trial court that the testimony does not support the claim of intoxication of defendant Charles. The testimony of Mr. Kowalski, the scrivener, a Polish attorney, who was acquainted with the parties, spoke their language, w'as entirely disinterested, that of several other witnesses present at the making of the papers, defendants’ intimate knowledge of the contents of the contract afterwards, the fact that just prior to this transaction he had tried to sell the premises and failed, the extensive permanent improvements defendants saw plaintiff, putting on the premises without inquiry, all satisfy us that the claim of defendants that prior to and at the time of making of the contract defendant was plied with liquor by plaintiff is untrue, and that plaintiff's version of the affair that the only drink served was a half dozen pints of beer, and this after the contract was signed and the transaction completed, is true.

The tender was good. The testimony satisfies us that plaintiff notified defendants that he intended to exercise the option to purchase, and fixed a day when he would be ready to pay the money; that at the time fixed he tendered a check, which was refused, and he was referred to defendants’ attorney; that the check was tendered to the attorney, who suggested that it was not certified, but did not base his refusal on that ground; that later and before the filing of this bill $7,000 in cash was tendered and refused. The contract between the parties contained the following language:

“The said parties of the first part, in consideration of the rents and covenants herein specified, do hereby let and lease to said party of the second part the following described premises, situated and being in the city of Detroit, county of Wayne, and State of Michigan, to wit, the entire first floor of store and living rooms and middle part of barn of the premises situated at No. 1086 Chene street, corner of Frederick, for the term of three years from and after the 1st day of December, 1912.”

The clause giving the plaintiif the right to purchase is as follows:

“Party of the second part has the privilege of buying said premises within the said three years for the sum of $7,000.”

While the plaintiif only leased a part of the premises, his option to purchase covered the “said premises” —the premises theretofore described. The description of the premises was sufficient. Goodenow v. Curtis, 18 Mich. 298; Slater v. Breese, 36 Mich. 77. The premises were described in the abstract oifered in evidence as. lot 8, Charles Chene’s subdivision of outlot 19, subdivision of Chene farm. These were the premises owned by the defendants at the corner of Chene and Frederick streets, and known as. No. 1086 Chene street, and were the only premises, there owned by them. It was not necessary to describe them by the lot number on the plat; a description by street number is sufficient to identify them. This seems to be the view entertained by defendants’ counsel in the court below;,in answer to the question by the court, “Is there any dispute about the lot?” he replied, “I don’t think there is, any dispute but what these are the premises described in the abstract.”

The granting relief by decreeing specific performance of a contract is not a remedy of right, but rests, and should rest, in sound judicial discretion. It should be refused where the party has a complete remedy at law, but where the remedy at law is inadequate, and the plaintiif has clearly established his right to such relief, so that the judicial discretion is moved, courts should not withhold or hesitate in granting the only relief adequate in the case. In the instant case the plaintiff has expended large sums of money in making permanent, improvements on the store, with the knowledge of the defendants, and such as he could remove would be practically valueless in other quarters; he has built up a prosperous business at this location, and the record discloses that it would be hard for him to purchase another building near there. The case is one where it would be difficult, if not impossible, to compensate him in dollars and cents. As against these equities of plaintiff it is urged that the increase in the value of these premises, since the execution of the contract, should weigh and overbalance. But increase in the value of the premises alone cannot defeat a suit to enforce the specific performance of a land contract. Cotharin v. Knoch, 99 Mich. 822 (58 N. W. 360).

We have examined all the objections urged by the learned counsel for defendants against granting the prayer of the bill, and are constrained' to overrule them.

Neither party attempts to sustain the decree as entered in the court below. Parties make and are bound by their contracts; courts cannot make and can only enforce them.

It follows that the decree of the court below must be reversed and one here entered in conformity with the prayer of the bill. The mortgage held by the Detroit Savings Bank on the premises will be first paid from the fund in the hands of the court. At the time of the hearing in the court below defendants were occupying the second story of the building; they should, account for such use and occupation from the filing of this bill. We are not advised whether they are now so occupying the same or not, nor are we advised which of the parties, if either, has paid taxes or special assessments, if any. Plaintiff is liable for and should pay all taxes and special assessments that have be-> come due since the filing of the bill. The case will therefore be remanded for this accounting, unless the parties are able to agree. The plaintiff will recover costs of both courts, to be deducted from the money tendered into court.

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


text:
    STOTT REALTY CO. v. UNITED AMUSEMENT CO.
    1. Landlord and Tenant — Eviction — Rent — Termination op Lease.
    A tenant’s obligation to pay rent ceases upon termination of bis right to occupancy of the land upon eviction by the landlord.
    2. Same — Contract por Rent — Re-entry—Action.
    It does not necessarily follow from the fact that a landlord cannot maintain an action for rent after eviction of the tenant that the parties may not by contract obligate themselves in such manner that an action technically upon the covenant to pay rent may not survive re-entry, and such contracts are lawful and enforceable.
    3. Same — Lease—Default — Eviction — Breach op Lease — Reentry — Remedy—Damages.
    Where a lease provided that in case of default the lessor might re-enter and repossess the premises and deduct from the sum deposited in the lessor’s hands as security all sums due the lessor and bring action for and collect all damages sustained on account of the breach, and that the remedies of the lessor should be cumulative, re-entry and eviction for such default was not a bar to an action to recover damages for such breach.

      4. Same — Default—Eviction—Re-entry—Demand—Waiver.
    Where a lessor peaceably re-entered upon, and evicted a sublessee from, the leased premises after default as to certain provisions of the lease for more than thirty days, and the lease provided that the lessor might, in case of default in any of its provisions for thirty days, re-enter and repossess the premises and remove and put out the lessee, and that the lessee expressly waived demand for possession, such re-entry and eviction by the lessor was lawful.
    5. Pleading — Admissions—Court Rules.
    Where a sublessee, defendant in an action for damages for breach of covenant of a lease, based its defense upon an eviction by the plaintiff as lessor and in its pleadings set up a notice of forfeiture of the lease because of such breach by the lessor and its surrender of the premises pursuant to such notice, held, that this was an admission by defendant under Circuit Court Rule 23, § 6, and plaintiff did not waive the defaults.
    Error to Wayne; Chester, J., presiding.
    Submitted January 17, 1917.
    (Docket No. 130.)
    Decided April 9, 1917.
    Rehearing denied June 1,1917.
    Assumpsit by the Stott Realty Company against the United Amusement Company for rent. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      Miller, Smith, Canfield, Paddock & Perry, for appellant.

      Robert M. Brownson, for appellee.
    On the 31st day of January, 1912, the plaintiff was the owner of lot No. 7 and the southerly one-half of lot No. 8 and the vacated 10-foot strip in front as decreed by Wayne circuit court May 6, 1901, in block 7 of the Governor and Judges Plan on the southwesterly side of Broadway, formerly Miami avenue. This property has a frontage of 98.47 feet on Broadway, a depth of 110 feet, and was worth $200,000. On this day plaintiff entered into a lease of these premises, with Benjamin Jacobson and Philip Gleichman. This lease contains 25 paragraphs. We shall recite only such provisions as are important to an understanding and decision of the case. By the terms of this lease the plaintiff agreed to erect a theater building on the premises in accordance with plans agreed upon, and Jacobson and Gleichman agreed to rent said premises for a period of 10 years and to pay in monthly installments an annual rental of $24,640, the term to begin August 15, 1912, or when the building was completed, if at a later date. The plaintiff erected the theater building at a cost to it of over $150,000, and the same was ready for occupancy January 1, 1913. By the terms of the lease Jacobson and Gleichman were to furnish certain equipment and furnishings, enumerated in the lease, and they agreed to pay cash or its equivalent therefor; this in order that there should be no liens or incumbrances on the property. The lessees agreed to, and did, deposit with the lessor the sum of $24,000 to be kept by it until the end of the term, upon which it should pay 5 per cent, interest, the lessees agreeing that the lessor might deduct from said sum damages for breach of the agreement. The lessees further agreed to keep the property insured against loss, or damage by fire; they also agreed to insure and keep insured the payment of all rentals and other sums due to the lessor from the lessees in responsible company or companies, in such amount as lessor might require. The lease also contained a similar provision with reference to indemnity or casualty insurance and boiler and elevator insurance. There was a clause which prohibited the giving of immoral shows, and no burlesque shows should be produced in the theater. Section 20 of the lease was as follows:
    “This lease is made upon the express condition that the lessees shall punctually perform all their coveinants and agreements as herein set forth, and if the Tents as aforesaid, or any part thereof, shall be in arrears and unpaid for a period of thirty (30) days after becoming due, or if default be made in any of the remaining covenants of this lease and such default shall continue for thirty (30) days, then it shall and may be lawful for the said lessor to re-enter into and re-possess the said premises and the said lessees and each and every other occupant to remove and put out, and the said lessor may deduct from the sum in its hands as security all sums due it hereunder and may bring suit for and collect all additional sums which may have accrued in said lessor’s favor and all damages sustained by said lessor on account of the breach of the lease by said lessees. And the said lessees hereby expressly waive demand for the payment of any rent which may become due upon this lease and for the possession of said premises.”
    Section 23 was as follows:
    “Each and every of the rights, remedies and benefits provided by this instrument shall be cumulative and shall not be exclusive of any of said rights, remedies and benefits, or of any other rights, remedies and bene-fits allowed by law. If the lessor shall one or more times waive its right to insist upon the strict letter of any obligation of the lessees hereunder, no such waiver shall release the lessees in the future from the strict letter of that obligation, or of any other obligation of this lease; and if said lessor shall for any length of time waive any right or rights accruing to it under the provisions of this instrument, such waiver shall be construed strictly in favor of the lessor and shall not estop it from insisting upon any rights accruing to it under this instrument not in terms specifically waived.”
    On the 8th of April, 1912, said parties entered into an agreement whereby Jacobson and Gleichman were to be paid $14,000 out of the $24,000 deposited with the plaintiff pursuant to the terms of the lease, and the plaintiff was to have the balance of $10,000 as its own and gave acquittance for the first month’s rent under the lease. October 30, 1912, the plaintiff, Jacobson and Gleichman, and defendant entered into an agreement by which Jacobson and Gleichman assigned their interest in said lease to the defendant, the plaintiff consenting thereto. The defendant assumed the liabilities of Jacobson and Gleichman in said lease, and also agreed to pay plaintiff an annual rental of $2,500 additional to the sum therein named. There was attached to this agreement a guaranty by George B. Remick, an officer of defendant, of performance by the defendant, limiting liability, however, to the sum of $10,000. March 10, 1913, Mr. Remick’s guaranty was surrendered and in place of it a cash guaranty of $10,000 was deposited with the Union Trust Company as security for the payment of rent and performance of the covenants of the agreement. On the 21st of November, 1913, defendant entered into an agreement with Benjamin Fay Mills, subleasing the said premises to him and contracting to sell him the fixtures, etc. The plaintiff consented to this arrangement, but without releasing defendant from liability.
    The August rent was paid by a 60-day note, which was later paid out of the guaranty fund in the hands of the Union Trust Company. The rent for September, October, and November was paid from the same source, and the balance left in that fund was used to pay the Vinton Company for work done on the theater. All of these payments of rent were made some time after they were due. Mills paid the December rent in advance, but defaulted in the January rent, and the same was not paid by any one. No rental insurance or indemnity insurance was ever taken out, although. requested by plaintiff’s president as early as September. Fire insurance was taken out, but upon failure to pay for the same it was canceled and it became necessary for plaintiff to take it out and pay for it. Some, at least, of the fixtures and furnishings put in by defendant were not paid for in cash or its equivalent, and there were liens for the purchase price thereon. On January 16, 1914, a grossly immoral show was given at the theater, causing considerable notoriety, and on January 20th, the plaintiff served a notice on defendant declaring the lease forfeited, stating as grounds the failure to procure rental and indemnity insurance and the giving of the immoral show. On the same day plaintiff made peaceable re-entry of the premises. Thereafter the plaintiff made all reasonable efforts to obtain a tenant for the theater, but was unable to secure one, and finally entered into a contract or lease with Bertram C. Whitney, which resulted in the receipt of no income from the theater. There were some subtenants of store property in the building who paid plaintiff their rent after the re-entry, but this was the only income.
    This suit was commenced July 14, 1914. The declaration counted on the lease and the breach of the covenant to pay rent and other covenants contained therein. The defendant pleaded the general issue, but later amended by giving notice thereunder that it had been given the notice of January 20th, that at the same time plaintiff re-entered said premises, and that defendant in compliance with the notice vacated and surrendered the said premises, and therefore there was no consideration for the demands set forth in the declaration. The trial court directed a verdict for the plaintiff for $15,769.26, which was'made up as follows: Rent from January 1 to 20, 1914, $1,507.78; water taxes paid by plaintiff $52.82; fire insurance to July 1, 1914, $125; care of property paid by plaintiff $174.87; damages for breach of covenant to pay rent $14,323.84 — making a total of $16,809.31, from which was deducted the amount received from the subtenants, $1,675 and to which balance was added interest, bringing the amount to the figures of the directed verdict.
   Fellows, J.

(after stating the facts). The reentry by the landlord, the eviction of the tenant either by the landlord or by a title paramount to his, terminates the relations of landlord and tenant, and puts an end to the right of the landlord to recover rent thereafter accruing. Rent is the amount agreed to be paid for the use and enjoyment of the land, and the occupation of the land is the consideration for it. If the right to the occupancy of the land is terminated by the act of the landlord in' evicting the tenant, the obligation to pay rent ceases. Wreford v. Kenrick, 107 Mich. 389 (65 N. W. 234); Kuschinsky v. Flanigan, 170 Mich. 245 (136 N. W. 362, 41 L. R. A. [N. S.] 430, Am. & Eng. Ann. Cas. 1914A, 1228); Jones on Landlord and Tenant, § 364; 1 Underhill on Landlord and Tenant, § 394. It follows that an action by the landlord cannot be maintained for rent after eviction, but it does not necessarily follow that parties may not by their contracts obligate themselves in such a manner as that an action technically upon the covenant to pay rent may not survive the re-entry. There is nothing unlawful about such contracts, and the courts have quite uniformly enforced such provisions. It was said in the early case of Ball v. Gould, 13 N. Y. 127:

“Taking all the provisions of the lease together, it was manifestly the intention of the parties that in case of a breach by the lessee, or any one under him, of the covenant ‘that he would not himself, nor would he allow any one else to make use of the premises for any kind of disreputable business, including the keeping of a retail grocery of liquors,’ and a re-entry by the lessor for such breach, the lessee should remain answerable for any loss of rent to the lessor. This is necessarily involved in the provision that in case of re-entry the lessor- was to relet the premises for the benefit of the lessee. This being the agreement of the parties by an instrument under their seals, providing for the exact case which has happened, I do not see upon what ground a court can refuse to hold them to its terms. ■ It certainly is not an illegal agreement, nor is there anything unreasonable nr a lessee agreeing^ to completely indemnify his lessor for any injury^ which may arise to him by. the lessee’s breach of his own agreement.”

In Woodbury v. Sparrell Print, 187 Mass. 426 (73 N. E. 547), it was said:

“One of the provisions of the lease on which the plaintiffs’ claim is founded is as follows: ‘And, in case of such determination [of the lease by the lessor for a breach of the covenants] the lessee shall be liable to the lessor for all loss and damage sustained by the lessors on account of the premises remaining unleased, or being let for the remainder of the term for a less rent than that herein reserved.’ The second ground of demurrer is that the claim in the bill is for ‘rent and loss of rent.’ This stipulation is an agreement, which is binding as a contract in the nature of á covenant, to pay the lessors the amount of their loss or damage on account of the premises remaining unleased after a determination of the lease for a breach of the covenants. It also includes an agreement to pay for the loss, if any, on account of the premises being let at a less, rent for the remainder of the term. The liability thus created is as much contractual as the obligation under the covenant to pay the rent monthly.”

Speaking on this question, the supreme court of Illinois said, in the case of Grommes v. Trust Co., 147 Ill. 634, 643 (35 N. E. 820, 822, 37 Am. St. Rep. 248):

“There is nothing illegal or improper in an agreement that the obligation of the tenant to pay all the rent to the end of the term shall remain notwithstanding there has been a re-entry for default; and, if the parties choose to make such an agreement, we see no reason why it should not be held to be valid as against both the tenant and his sureties. The guarantors in this case agreed that the tenant should pay all rents to be by him paid ‘according to the terms and conditions of said lease for and during the entire term thereof.’ It may not be strictly accurate or correct to call the money to be paid after re-entry rent, or to treat the lease as in force after a re-entry. But the parties have a right to fix the amount of the rent to accrue according to the terms of the lease, as the amount of damages to be paid by the tenant in case of a breach of his covenants. It can make but little practical difference whether the sum agreed to be paid be called rent or damages. It may be regarded as damages for the purposes of this suit.”

Numerous authorities might be cited to the same effect, but we content ourselves with citing the following: 1 Underhill on Landlord and Tenant, § 394; Heims Brewing Co. v. Flannery, 137 Ill. 309 (27 N. E. 286); Edmands v. Drug Co., 191 Mass. 123 (77 N. E. 713); Longobardi v. Yuliano, 33 Misc. Rep. 472 (67 N. Y. Supp. 902); Peabody v. Beatty Co., 69 Misc. Rep. 582 (125 N. Y. Supp. 349); Michaels v. Fishel, 169 N. Y. 381 (62 N. E. 425).

If from a consideration of the entire contract we are satisfied that the defendant obligated itself to indemnify the plaintiff from any loss which might arise to it by reason of the breach of the covenants, and this notwithstanding re-entry by the landlord, then the re-entry and eviction is not a bar to this action. In considering the contract in question, it should be .stated that, while the word “forfeiture” appears in one paragraph of the lease, there is no provision in it that default in any of its provisions shall work a forfeiture, or that it shall be void and of no effect, or provisions of similar purport frequently found in leases; the absence of a provision of this character is a significant fact to be considered in the construction to be given this contract.

An examination of section 20, above quoted, shows that it provides that in case of default the lessor may re-enter and repossess the premises, and may deduct from the sum in its hands all sums due it, and “may bring suit for and collect * -* * all damages sustained by said lessor on account of the breach of the lease by said lessees.” The word “and” is used in each instance instead of the word “or.” This of itself clearly indicates an intention of the parties to preserve to the lessor all its remedies therein named rather than giving the right to an election of one of them to the exclusion of the others, as the law might give in the absence of any provision. Section 23 also provides that the remedies shall be cumulative and not exclusive. Unless we give to these provisions of the contract the effect contended for by the plaintiff, they are meaningless. Unless we construe them as preserving the liability of the lessee for breach of the contract, notwithstanding the re-entry, they have no force, and might as well have been omitted.

If this contract had provided for a recovery of liquidated damages, it would have preserved the liability of the lessee, notwithstanding the re-entry (Peabody v. Realty Co., supra); if it had provided therein for the payment of such specific damages as would be recoverable for a breach of the covenant to pay rent, the liability of the lessee would have survived the eviction (Woodbury v. Sparrell Print, supra). Instead of doing either, it provided for a recovery of all damages sustained by the plaintiff on account of the breach of the lease by the lessees. We are unable to distinguish on principle the contract in the instant case from those in the cases cited.

We must consider this contract in its entirety. By its terms the plaintiff not only agreed to lease the premises for a period of 10 years, but it also agreed to, and did at an expense of over $150,000, erect thereon a building designed for a special purpose, a building which both parties must have known and understood would be available to only a limited class of tenants. The erection of such a building was one of the considerations for the covenant to pay rent. Heims Brewing Co. v. Flannery, supra.

We conclude from the provisions of this contract to which attention has been called that the lessees therein obligated themselves to indemnify their lessor for all damages occasioned by breach of the covenants of the lease, notwithstanding re-entry and eviction; the defendant having assumed the liability of the lessees is answerable in this action.

The eviction was a lawful one. The undisputed, testimony shows that neither rental nor indemnity insurance had been taken out by defendant as required by the provisions of the lease, that the president of plaintiff requested the officers of the defendant that the insurance be furnished, but that the company had been in default as to these clauses for more than 30 days. The undisputed testimony also showed that defendant was in default as to other provisions of the lease, and had been for more than 30 days. No notice of the default was. required by the terms of the contract. The re-entry was a peaceable one, and lawful. Smith v. Loan & Building Ass’n, 115 Mich. 340 (73 N. W. 395, 39 L. R. A. 410, 69 Am. St. Rep. 575) ; Alexander v. Hodges, 41 Mich. 691 (3 N. W. 187); Pendill v. Mining Co., 64 Mich. 172 (31 N. W. 100). Defendant bottomed its defense upon the eviction, and in its pleadings set up the notice given it on January 20, 1914, and its surrender of the premises pursuant thereto. This was an admission by the defendant.. Circuit Court Rule 23, § 6. The plaintiff had not waived these defaults.

There was no question of fact in the case for the jury, nor is the defendant upon this record in a position to raise this, or any question other than those already discussed. It follows that the judgment, should be, and it is, affirmed.

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


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    GUNTZVILLER v. GITRE.
    1. Equity — Pleading—Variance.
    Allegations in a bill which are not supported by proof do not prevent relief if there are allegations supported by proof which are sufficient grounds for equitable relief.
    2. Quieting Title — Equity—Specific Performance — Pleading— Cross-Bill.
    Where a bill alleged the execution of certain deeds conveying certain premises to plaintiff upon condition that he pay a certain sum of money to each of the defendants; that plaintiff had offered to perform these conditions; that defendants had refused to accept the money, and that they asserted the mental incompetency of the grantor, and threatened to litigate with the plaintiff, held, that the bill was sufficient for relief if such allegations were proved, although other allegations were unproved, especially where a cross-bill put squarely in issue the question of the validity of the deeds.
    3. Witnesses — Matters Equally Within Knowledge of Deceased — Evidence.
    Under the provisions of 3 Comp. Laws, § 10212, as amended by Act No. 30, Pub. Acts 1903 (3 Comp. Laws 1915, § 12553), relating to the inadmissibility of evidence as to transactions with deceased persons, the testimony of plaintiff’s mother, who was an agent of plaintiff, and also that of plaintiff and his wife as to facts equally within their knowledge and that of plaintiff’s deceased grandaunt concerning a contract between plaintiff’s mother and the decedent sued on by plaintiff, is incompetent.

    4. Deeds — Competency of Grantor.
    An instrument testamentary in character or effect disposing of property is not to be set aside merely because the grantor or testator is old or weak or foolish or lacks the average mental capacity of his neighbors or relatives, if he .possesses sufficient mentality to know and understand the transaction, the extent and value of his property, those who are the natural objects of his bounty, is able to carry in his mind the general scope of the instrument and its effect, and to whom he is giving and from whom he is withholding.

    5. Same — Evidencie—Competency oe Grantor — Specific Performance.
    Evidence held, sufficient to show that plaintiff’s deceased grandaunt executed certain deeds conveying to him certain property and transferred to him a certain amount of money in consummation of an agreement therefor upon certain conditions on the part of plaintiff which he had fully performed or offered to perform, and that decedent was mentally competent at the time she executed such deeds.
    Appeal from Wayne; Hosmer, J.
    Submitted January 9, 1917.
    (Docket No. 66.)
    Decided April 9, 1917.
    Bill by George Guntzviller against Joseph. Gitre and others for a quitclaim of defendants’ interest in certain real property. From a decree for plaintiff, defendants appeal.
    Affirmed.

      James H. Pound, for plaintiff.

      Ormond F. Hunt, for defendants.

       On the applicability or rule excluding testimony of Interested person in controversies over succession to estate see extensive note in 51 L. R. A. (N. S.) 187.

       On w00t constitutes capacity or incapacity in making of will see notes in 27 L. R. A. (N. S.) 2; L. R. A. 1915A, 444.

   Fellows, J.

This bill was filed February 24, 1913, and its material allegations are substantially as follows: That Catherine Williams, Mary Ann Williams, Mary Williams, and Maribarb Williams were sisters. They came to this country, and a short time after their arrival purchased 25 acres of land of one Henry Rummley; that they were grandaunts of plaintiff; that upon the birth of plaintiff these grandaunts importuned his parents to permit them to adopt him, but his father declined to permit his son to go by another name, when they proposed to take plaintiff, raise him, and that he should have their property at their death; that this proposition was. accepted, and that it was agreed that plaintiff should be taken by these grandaunts, who were maiden ladies, as soon as he was able to be taken; that he was so taken by them upon their farm, and was raised by them; that Catherine died, leaving her property to the surviving sisters; that Mary Ann did the same; that Mary died leaving her property to Maribarb; that Maribarb had endeavored to carry out the agreement so made with reference to plaintiff by deeding to him, on May 7, 1907, the southerly 13 acres of the farm, in consideration of $200 to be paid for church services for her sister, which plaintiff alleges was paid; that on the 24th of January, 1908, the balance of the land was deeded to him upon condition that he pay $150 each to Maggie Guntzviller, plaintiff’s, mother, Josephine McHugh, Phinea Flanagan, Mary Cronin, and Joseph Gitre, which condition he accepted, and has offered to pay each of the defendants the $150 but they have refused to accept the same, and threaten to litigate with plaintiff. He also alleges that until he was married he received no salary or compensation, except spending monpy; that after his. marriage he still did all the farm work and cared for his aunts, obeyed their orders, buried them, and paid for their burial and their other debts; that defendants, together with plaintiff’s, mother, constitute all the heirs at law of Maribarb, and that .defendant Joseph Gitre has had himself appointed administrator of Maribarb’s estate, and threatens to set aside the deeds to plaintiff on the grounds of mental incapacity. He alleges that he is entitled to specific performance of the agreement under which he claims Maribarb and her sisters got 20 years of his life work. The prayer of the bill is for a decree requiring defendants to quitclaim their interest in the land in question and for general relief.

The defendants by their answer deny all the material facts alleged in the bill of complaint, claim the benefit of a cross-bill, and pray for affirmative relief. This pleading is not questioned, so it becomes unnecessary to set forth the allegations in it with the particularity with which we have detailed the allegations of plaintiff’s bill which is questioned, and it will be sufficient to say that they allege that Maribarb had been feeble-minded from childhood, was' mentally incompetent to, and did no,t, transact any business; was not mentally competent to execute the deeds in question, and that if she executed them, they were procured by fraud, duress, and undue influence; that in addition to the land in question plaintiff procured from Mari-barb $2,000 in cash by means of fraud, duress, and undue influence and when she was mentally incompetent to transact business; that.defendant Joseph Gitre has been duly appointed administrator of her estate. They make Eda Guntzviller, wife of plaintiff, party to the suit, and pray for the cancellation of the two deeds and an accounting to the administrator for the money. Plaintiff and his wife, Eda, answer this pleading by denying all the material allegations, and they set up that Eda has furnished about $2,000, most of which has gone into improvement of the property in question. Upon application to the court an order was entered, permitting Joseph Gitre to also appear in his representative capacity as administrator of the estate of Maribarb.

In the record the grandaunts are called Wilhelm, and the one named in the bill as Mary Ann appears as Mariann. We shall refer to them hereafter as the record discloses their names to be.

We shall first discuss the legal objections raised to the bill and the admissibility of evidence. The defendants first urge that the bill cannot be maintained because there is a fatal variance between plaintiff’s case as set forth in his bill and the testimony adduced upon the trial; that the .plaintiff has failed to establish the existence of the contract between the aunts and plaintiff’s parents. They urge that the bill is one for the specific performance of such contract, that plaintiff’s title cannot be quieted unless he establishes such contract and his right to its specific performance. It has been held by this court that surplusage will not render a bill multifarious; that a bill is not multifarious if in stating a case for equitable relief it contains allegations with reference to other matters insufficient to entitle complainant to relief with reference thereto. Wheeler v. Manufacturing Co., 162 Mich. 204 (127 N. W. 332). So we hold here that allegations in a bill which are not supported by proof do not prevent relief if there are allegations supported by proof which are sufficient grounds for equitable relief. We think the allegations of the execution of the deeds by Maribarb Wilhelm to plaintiff with the conditions therein contained, the offer to perform these conditions on the part of plaintiff, defendants’ refusal to accept the money, their assertion of the mental incompetency of Maribarb, and threats to litigate with plaintiff state a sufficient case for equitable relief. In addition to that, defendants, by that part of their answer which claims the benefit of a cross-bill, put squarely in issue the question of the validity of the deeds. Schmidt v. Gaukler, 156 Mich. 243 (120 N. W. 746). This objection of defendants is untenable.

To establish the contract with the Wilhelm sisters set forth in the bill, the plaintiff produced as a witness his mother, Margaret Gitre Guntzviller. The defendants insisted in the court below, and do here, that her testimony as to facts equally within the knowledge of the deceased was incompetent under the provisions of 3 Comp. Laws, § 10212, as amended by Act No. 30, Pub. Acts 1903 (3 Comp. Laws 1915, § 12553). They insist that the question is controlled by the case of Albring v. Ward, 137 Mich. 352 (100 N. W. 609). With this contention, we agree. In that case the complainant produced as a witness her father, John Bennett, to testify that he made an arrangement with deceased, to the effect that if he (Bennett) would relinquish to deceased all claim to the custody, care, and control of his daughter and all his rights, as. her father, the said deceased would make her his heir at law, and that at his death she should inherit a share of the property as if she were his. natural child. This court said, speaking through Mr. Justice Grant:

_ “But this testimony of the father is inadmissible under Act No. 30, Pub. Acts. 1903, which provides that no person ‘who shall have acted as an agent in the making or continuing of a contract with any person who may have died, shall be a competent witness in any suit involving such contract/ If any contract was made, it was made by Mr. Bennett on behalf of his daughter. A more appropriate case for the application of the law cannot well be imagined.”

The instant case is not, in any way, distinguishable from that case, and the rule there announced is controlling. Mrs. Guntzviller was not a competent witness to prove the arrangements made by her with the Wilhelm sisters for the benefit of her son, the plaintiff. The testimony of the plaintiff and his wife as to facts equally within the knowledge of deceased was also inadmissible under the provisions of 3 Comp. Laws, § 10212 (3 Comp. Laws 1915, § 12553).

It is unnecessary for us to decide, and we do not decide, whether, in view of the relations of plaintiff with deceased, the burden of proof rests with him, as we are satisfied that the determination of the case does not depend upon the balancing of presumptions, and that the proof is clear and convincing as to the controlling facts.

The testimony is in conflict and at times acrimonious; we cannot, in this opinion, attempt to detail it, and will content ourselves with a statement of the facts we are satisfied it establishes.

Catherine, Mariann, Maribarb, and Mary Wilhelm were sisters, all born and lived, until they were somewhat along in years, in St. Louis in Alsace-Lorraine. They had relatives living in Detroit and vicinity. Mary, the youngest, came to this country with her brother George, the understanding being that if she liked the country some one should be sent to the old country for the others. In 1874 the defendant Joseph Gitre, a nephew, went after them. They reached here in the fall. Maribarb at that time was 42 years old. They brought with them $4,500 in gold, and soon after purchased the land in question, consisting of about 24% acres located in the township of Greenfield, near Detroit, for $2,500. The title to these premises was' taken in joint tenancy, with the right of survivorship. The house on the premises was an old log one, and they built a new one, and largely conducted the work on the farm themselves, hiring some help. They appear to have been frugal and industrious. The plaintiff entered this household when he was about 2 years old. Eliminating the testimony of his mother, as we must, we are unable to find testimony in the case of the contract with these aunts as alleged in the bill; but the record furnishes abundant testimony that they treated him as if he were their child, regarded him as a son, expected he would always remain with them, and expected to leave him all, or a considerable portion, of their property. It is apparent that they wanted a child in their household, that they realized that in their later life they would need some one to care for their wants, and that this end would be attained much more surely by raising a child than to depend upon distant and indifferent relatives. They all realized that plaintiff should have compensation, and frequently expressed to neighbors and friends their intention to leave him their property.

We think the testimony establishes a settled and fixed intent on the part of these maiden aunts, from the time he entered their household, to leave practically all their property to plaintiff, and the testimony that at times he did not get along as well with Mary as the others, and that on her deathbed she made a will giving him less, and the other relatives more, than the final disposition made by Maribarb, does not counterbalance the testimony of the many neighbors, to whom the sisters talked and to whom they related their fondness for plaintiff and' their intent to give him their property.

Plaintiff as a boy went to both district and parochial schools; he did chores and helped on the farm; he was given spending money by the aunts, and treated and provided for as a son would have been. As he grew older he worked on the farm, and in the fall of 1903 he married. For a few weeks he lived across the street from the Wilhelms, but he and his wife soon took up their home with Mary and Maribarb, the then surviving sisters. Afterwards he rented another farm, which he worked in addition to the land in question, and for a time he and his wife lived on the rented place, but he continued to do whatever was needed for his aunts’ comforts and necessities. We think the preponderance of the evidence establishes that he was industrious, and while he occasionally drank, he was by no means dissipated, and treated the aunts well. While they may have had occasional troubles, they were by no means serious. He endeavored to, and did, look after their needs to their satisfaction and was to them the comfort and assistance they had planned for when he entered their home.

The sisters did not speak the English language, and only Mariann and Mary could understand it, and they quite indifferently; most of the neighbors and witnesses, however, could converse in German; they used that language in talking with the Wilhelms, and are able to relate their conversations. Catherine was an invalid for a number of years, and died in 1896; Mariann died in 1903, and Mary in April, 1907. Shortly after Mary’s death Maribarb conveyed to' plaintiff and his wife the southerly 13 acres of the land in question; $200 was to be paid by plaintiff for church services for Mary, and it was so paid. About this time she caused her account at the bank to be changed to a joint account with plaintiff, thus giving him authority to withdraw the same. In January following she conveyed the balance of the land to plaintiff and wife. This conveyance was conditioned upon the payment by the grantees, within 2 years, of the sum of $150 to each of the following persons: Maggie Guntzviller, Josephine McHugh, Phinea L. Flanagan, Mary Cronin, and Joseph Gitre. Both of the deeds were drawn by Anthony Grosfield, who appears to be perfectly disinterested. He understood and spoke German. The instructions given by her were in that language, and after he had completed the documents they were explained to her in her native tongue. Both he and the witnesses to these instruments testify to her mental capacity, and that she fully understood the transactions. After their execution théy were placed on record by Mr. Grosfield. Plaintiff paid the $150 to his mother, and offered payment to the others, but they refused to accept the same. Plaintiff and his wife continued to care for her down to her death, which occurred nearly 5 years after the execution of the last deed, and when she was 80 years of age. During all this time she was contented, and frequently told her friends that she had conveyed her property to plaintiff ; that plaintiff was to care for her as long as she lived, and expressed her entire satisfaction with the arrangement.

We are clearly convinced that Maribarb executed these papers and transferred the money to plaintiff in order to carry out the well fixed and settled plan of herself and three sisters to give plaintiff the major portion of their property if he remained with and cared for them until the death of the last survivor. That the transaction was consummated soon after the death of Mary, to our minds conveys no evidence of duress or undue influence, but, on the contrary, indicates that Mary’s death, which was sudden, brought to the mind of Maribarb the necessity of carrying out the plan of herself and her deceased sisters.

The record in this case is a lengthy one, containing 594 pages. We have read it with care. Upon the hearing many witnesses were called on both sides. The evidence, while in conflict, strongly preponderates in favor of the plaintiff. The scrivener who drew the deeds, the witnesses who were -present when they were executed, the intimate friends of the Wilhelms and their near neighbors bespeak the mental competency of Maribarb; others, among them the defendants and acquaintances* of the Wilhelms, are of the opinion that she was mentally incompetent. Some reach this conclusion because she was* reticent, did little talking during her entire life, others because she did not quickly recognize them, although it is admitted on all hands that she had lost the sight of one of her eyes and the other was* somewhat affected; others had more or less tangible grounds for their belief.

Defendants and their witnesses seem to agree that she did not possess the mental acumen of Mary or some of the other sisters, but instruments, testamentary in character or effect, disposing of property, are not to be set aside merely because the grantors or testators are old or weak, or foolish, or lack the average mental capacity of their neighbors or relatives. If they possess sufficient mentality to know and understand the transaction in which they are engaged, the extent and value of their property, those who are the natural objects of their bounty, are able to carry in their minds the general scope of the instrument and its effect, to whom they are giving and from whom withholding, they have the mental capacity to make such disposition, and if sufficient capacity exists it is not for the court to measure degrees of capacity or to indulge in comparison with other minds.

We are satisfied upon this record that Maribarb possessed sufficient mental capacity to plan and carry out each and all the transactions involved in this litigation, and that she did so; that there was no undue influence, fraud, or duress practiced upon her by plaintiff or any one else; that the disposition made by her of her property was her intelligent and voluntary act. It was not an unnatural disposition; in fact it was the most natural thing that she should dispose of her property as she did. It came down to her by survivor-ship of her sisters. They and she had had the services and companionship of plaintiff from the time he was 2 years old. She had some time yet to live and must be cared for, and expected the plaintiff and his wife to furnish such care. Under these circumstances she did the natural thing, the thing to be expected, the rational thing. There is not upon this record sufficient evidence to justify us in disturbing her acts, the great preponderance of it sustains her acts.

We agree with the circuit judge that the claim for reimbursement for expenses, advanced to bring the sisters to this country set up by defendant Joseph Gitre is not established. The decree of the court below will be affirmed, with costs.

Kuhn, C. J., and Stone, Bird, Moore, and Brooke, JJ., concurred with Fellows, J. Ostrander and Steere, JJ., concurred in the result.


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    LONG v. TOWNSHIP OF WEARE.
    1. Evidence — Condition of Road — Witnesses.
    A witness who testified that he had been over a road on the day of an accident thereon, and had traveled it almost daily thereafter, and that the condition of the road was the same after as on the day of the accident, was competent to testify as to what that condition was.
    2. Appeal and Error — Harmless Error — Leading Question — Conclusion of Witness.
    In an action against a township to recover damages for personal injuries sustained while driving over a public road, where a witness was asked whether a certain end of the road was closed from public travel on that day, an answer that it was not, admitted over objection that the question was leading and called for a conclusion, was not reversible error, where the witness, further testifying, described the conditions, that there was no barrier, that he traveled there, and that the track remained the same.

    3. Municipal Corporations — Highways and Streets — Personal Injuries — Negligence—Contributory Negligence.
    In an action to recover damages against a township for personal injuries sustained while plaintiff was driving over a public road, where it appeared that plaintiff was traveling over the center track of the road which was perfectly safe, and left it for another track so as to get to his home to dinner, such an emergency was not presented as to relieve plaintiff from a charge of contributory negligence for an injury incurred by reason of so leaving the center track.
    4. Same — Closed Highway — Notice—Barriers.
    Although a barrier across a highway is one and may be the best or most usual means of giving notice that the highway is closed, it is not the exclusive means, and it is sufficient if the public by other means equally efficient receives notice that a highway is closed.
    5. Same — Trial—Instructions—Notice—Barrier.
    In an' action to recover damages against a township for personal injuries sustained by plaintiff while driving over a public road, an instruction that a barrier across a road closed from travel is not a positive requirement but that other notice of such closing may be given, as by the situation of the road, was not prejudicial to plaintiff where he claimed to have received other notice to leave the part of the road on which he was driving.
    6. Trial — Jury—Instructions—Refusal to Repeat Charge — Appeal and Error.
    Where the subject-matter inquired of by a juror for further instruction was already fully covered by the charge, refusal to re-read or repeat the charge was not error.
    Error to Oceana; Sullivan, J.
    Submitted January 18, 1917.
    (Docket No. 6.)
    Decided April 9, 1917.
    Case by Eli Long against the township of Weare for personal injuries. Judgment for defendant. Plaintiff brings error.
    Affirmed

      Hall & Greene, for appellant.

      Earl C. Pugsley (Frank E. Wetmore, of counsel), for appellee.

      On liability of township for defects in highway, see notes in 13 L. R. A. (N. S.) 1219; 32 L. R. A. (N. S.) 1090.

   Fellows, J.

The defendant township in the summer of 1914 commenced the building of a State reward road on one of its highways running east and west. Before the work on the road was commenced there were three tracks, the one in the center having a clay top, the one on each side being sandy. The grading commenced the last of July for a road 15 feet wide, a dirt shoulder being constructed on each side of the graded portion of the center road from 1% to 2% feet high. Plaintiff and his grandson had traversed the road for several consecutive days prior to the accident. On August 3d they were returning from their work about half past 5 or 6 o’clock in a buggy drawn by a gentle horse, the grandson driving. They, came from the east. At the east end of the improvement the work had then, been commenced and a barrier had been placed across the center track. It was there in the morning when they went down, and they had previously seen it. They took the south track, and had gone but a short distance when they were overtaken by an automobile which desired to pass. It is the plaintiff’s claim that there was no place to turn out except to get up on the center track, and he did so, returning to the south track as soon as the automobile had passed, that they soon overtook the automobile, which was stalled in the sand, and were obliged to and did again get up on the center track. They then traveled along this track for some distance until near the west ■end of the improvement which, plaintiff claims, was ■closed by a barrier, when they saw wagon tracks leading down to the south road; they there turned down to get back into that road; that the place appeared safe, sound, and solid and to all appearances seemed free from danger; that the grade here was about 21/2 feet high; that in going down the left wheel of the buggy gave way in the loose sand, the buggy tipped over, throwing plaintiff out, causing a fracture of the ankle and other serious injuries. He claims that the township did not maintain the highway in a reasonably safe condition for public travel; that there were no places where a traveler could turn out except by going onto the center track; that where he saw the wagon tracks leading down to the south road was a traveled part of the highway, and was not constructed or maintained in a reasonably safe manner or condition; that he and his grandson were free from negligence contributing to the injury.

Defendant gave testimony that there were places along the south track where plaintiff could have turned out without going on the center track; that there was no barrier across the west end of the center track so that plaintiff and his grandson could have continued in safety on that track, and defendant insisted that it was free from negligence, and that plaintiff and the driver were guilty of contributory negligence. The case was submitted to the jury on a charge quite favorable to plaintiff, and a verdict for defendant rendered. We shall consider the assignments of error relied upon in their order.

The defendant called as a witness Isaac Jockett, who testified that he was over this road the day of the accident and testified to its condition. He testified that a party could turn out along the way, and he had frequently done so. Objection being made that his testimony covered a time subsequent to the accident, he was asked, and, over objection, answered that the conditions there were the same as on the day of the accident, and then testified to what these conditions were. It is insisted that this testimony was incompetent under the holdings of this court in McGrail v. City of Kalamazoo, 94 Mich. 52 (53 N. W. 955); Branch v. Klatt, 173 Mich. 31 (138 N. W. 263) ; and similar cases. These cases hold that it is not competent to prove the happening of an accident subsequent to the one complained of. The testimony in the instant case had no reference to the happening of an accident, but related solely to the condition of the road which the witness said continued the same as on the day of the accident.

The witness having been over the road on the day of the accident and having traveled it almost daily after that, and having testified that the condition was the same after as at the time of the accident, it was competent for him to testify what that condition was. Langworthy v. Township of Green, 88 Mich. 207 (50 N. W. 130); Williams v. City of Lansing, 152 Mich. 169 (115 N. W. 961); Fuller v. City of Jackson, 92 Mich. 197 (52 N. W. 1075) ; Arndt v. Bourke, 120 Mich. 263 (79 N. W. 190).

The following question was asked the witness James Wright: “Was the west end of that road closed from public travel on that day?” It was objected to as leading and calling for a conclusion; the objection being overruled the witness answered, “No, sir.” The witness, in addition to this answer, described the conditions ; that there had been no barriers put up; that he traveled along there; that the old track remained the same. Under these circumstances admission of the answer did not constitute reversible error. The plaintiff requested the court to charge the jury as follows:

“I charge you that if you find that the plaintiff was compelled to get upon the stone road by reason of the failure of defendant to keep the highway reasonably fit for travel and in a reasonably safe condition, then the plaintiff was placed in this position by reason of the negligence of defendant. The plaintiff being placed in a dangerous situation, to escape which he voluntarily incurs another danger, the defendant is liable, although the plaintiff may not, in the emergency, have pursued the course which ordinary prudence would have dictated.”

This court has frequently held that where a party has been placed in imminent danger through the negligence of the defendant, and in the emergency chooses the course which reasonable prudence might not dictate, he is not chargeable with contributory negligence. But there was in the instant case no imminent danger, no sudden emergency, no occasion for quick thought or action.

When the plaintiff was traveling along the center track he was in a place of perfect safety; his concern, as he testifies, was to get home to supper. We are constrained to hold that this did not create such an emergency as justifies the invocation of the rule contended for. The language of the court in Harris v. Township of Clinton, 64 Mich. 447 (31 N. W. 425, 8 Am. St. Rep. 842), the case cited by plaintiff, is in point:

“Emergencies may sometimes be given in evidence, and will justify what otherwise would be considered a rash and indefensible act; such as those of an engineer of a train of cars standing at his post in the endeavor to save the lives of the passengers or others when a collision is imminent, of a person rushing in front of an engine to save the life of a child, of a person placing himself in a position of danger to save the life of another (citing cases). But mere illness in a family which does not hinder a person from the prosecution of his ordinary business, or prevent him from leaving home to perform the ordinary duties of a constable, as was this case, cannnot be considered as a circumstance attending the transaction which the jury would be authorized to consider in determining whether he acted as a prudent man would in attempting to cross, or in crossing, the stream in question.”

The jury several times returned to the court for further instructions. On one of these occasions, in response to a question from a juror, the court gave instructions with reference to the necessity of the erection of a barrier across the road. It will not be necessary to quote all that was said on the subject, as the following excerpts show the view of the court to which exception is taken:

“I say if the situation there indicates that a road is shut up and not open to travel in any other manner than a barrier, that is sufficient to shut the road up. There is no law that positively requires a barrier. * * * If it appears that the road was shut up so that the people would understand that it was closed to public travel and the public generally would understand from the situation of the road that was being improved there, in relation to the other end and that end, and what was doing, that that part of the road was not open to public travel,, that would be sufficient to indicate that it was closed.”

The erection of a barrier across a street is one of the means used to give notice to the public that the street is closed, but it is not the exclusive means; if the public by other means equally efficient receives notice that the street is closed, it is sufficient; a barrier may be the best or most usual way to give that notice, but it is not the only way.

But the plaintiff was in no way harmed by this instruction. The importance, and the only importance of the question of the barrier as the case was submitted to the jury, lay in the claim of the plaintiff that one of his reasons for leaving the center track where he would have been safe and going to the place where he received his injuries was the presence of a barrier across the road at the west end, his other reason was that the highway commissioner was there and made a motion with some brush. The defendant denied the existence of a barrier at that end of the improvement, and insisted that plaintiff should have continued his journey on the center track. The instruction of the court, therefore, amounted to a statement that a barrier was. not necessary to give plaintiff notice to get off that part of the road, but that if he had other notice it was sufficient. Surely plaintiff cannot complain.

On one of the occasions when the jury returned for further instructions the court apparently felt that he was being called upon to pass upon a question within the domain of the facts, and quite curtly declined so to do. Error .is assigned on this. The court had very fully covered the questions in the case in his charge, and the charge as given had covered the subject-matter inquired about by the juror; he had quite fully instructed them when they had returned for further instructions before. While he might have had the charge read to the jury again, or repeated what he had said on former occasions, it was not error to decline so to do.

' The balance of the assignments of error relied upon relate to the refusal to charge and the charge as given. The requests discussed were given in substance. We have considered the charge with care, and find no error in it to the prejudice of the plaintiff; it was on the whole quite favorable to the plaintiff and fully protected his rights.

The judgment is affirmed.

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


text:
    NOBLE v. HUNTER.
    1. Deeds — Capacity of Grantor — Evidence—Undue Influence— Parent and Child.
    On a bill to set aside deeds on the grounds of mental incapacity and undue influence, evidence held, sufficient to show that plaintiff’s deceased father was mentally competent at the time of the execution of certain deeds, although he was at the time sick in bed, and had been, prior to that time, under a high fever and in a delirious or apathetic condition from typhoid.

    2. Same — Undue Influence — Opportunity—Evidence.
    Opportunity for the exercise of undue influence upon a party executing an instrument is not proof of its exercise; proof of opportunity alone is not sufficient.
    3. Same — Cancellation of Instruments — Validity—Burden of Proof — Undue Influence — Fiduciary Relations.
    On a bill to set aside deeds on the grounds of mental incapacity and undue influence, evidence held, sufficient to sustain a finding that fiduciary relations existed between plaintiff’s father and her brother at the time of the execution of such deeds by her father conveying certain property' to her brother and to her' stepmother, so as to impose the burden of proof upon defendants to show the validity of the transaction.
    4, Witnesses — Principal and Agent — Matters Equally Within Knowledge op Deceased.
    An attorney, to whom plaintiff’s father sent her brother to prepare certain deeds held by such attorney in escrow until the father’s death, was not an agent or attorney for the brother, and was therefore not incompetent, under section 10212, 3 Comp. Laws, as amended by Act No. 239, Pub. Acts 1901 (3 Comp. Laws 1915, § 12553), relating to transactions with deceased persons, to testify in a suit brought after the father’s death for the cancellation of such deeds.
    5. Same — Naked Trustee.
    The holder of a deed in escrow until the grantor’s death is at most a naked trustee and as such is not prevented by section 10212, 3 Comp. Laws, as amended by Act No. 239, Pub. Acts 1901 (3 Comp. Laws 1915, § 12553), relating to transactions with deceased persons, from testifying in a suit brought after the grantor’s death to set aside the deed.
    Appeal from Ottawa; Cross, J„
    Submitted January 3, 1917,
    (Docket No. 24.)
    Decided April 9, 1917.
    Bill by Josie Noble against Mark L. Hunter and others to set aside certain deeds, and for an accounting. From a decree for defendants, plaintiff appeals.
    Affirmed.

      Charles E. Misner and Smedley & Linsey, for plaintiff.

      Lillie, Lillie & Lillie (Ernest L. Marvin, of counsel), for defendants.

       On presumption and burden of proof as to undue influence respecting gifts inter vivos from parent to child, see note in 35 L. R. A. (N. S.) 944.

   Fellows, J.

The bill in this case is filed to set aside, on the grounds of mental incapacity and undue influence, two deeds executed by complainant’s father shortly before his death and for an accounting from defendant Mark L. Hunter of the proceeds of certain certificates of deposit and a note turned over to Mark by his father about the time the deeds, were executed. Plaintiff Josie Noble and defendant Mark L. Hunter are the children, and all the children of Silas Hunter, deceased. Silas was an old soldier; had retired from farming and lived in Coopersville, Ottawa county, for a number of years. He and his comrades and other old cronies frequently and almost daily played cards in the saloons at Coopersville. The record shows that he was something of a steady drinker, but it does not show that he was a dissipated man, or that he became intoxicated. Plaintiff also lived in Coopersville, and had for a great many years. Mark lived in Beaumont, Tex., and had for 15 years. Silas’ wife, the mother of plaintiff and Mark, died in November, 1912, and Silas thereupon took up his home with plaintiff. In January, following his wife’s death, he and his sister Mrs. Murdock went to visit his son and other relations in Texas. Silas spent most of his time with his son, returning to Coopersville and plaintiff’s home in April. Silas does not appear to have been over-punctual at meal times, and, while this did not cause serious friction between father and daughter, he decided to take his meals at the hotel where he could get them at any time, but continued to room at the Noble home until July, 1913.

Defendants called as a witness Philo P. Henderson, a neighbor of plaintiff, who testified that the last of July he heard a conversation between plaintiff and her father; he testifies:

“She said that he was a drinking man; a drunken old devil, or something; I don’t know exactly; I ain’t going to say exactly what she said; and he was spending his money for whisky and on women — now that I did hear. He left her home that very day.”

Mrs. Henderson corroborates the testimony of her husband. The plaintiff denies this conversation. There is nothing .upon the record to impeach the testimony of these two neighbors. The houses were about 100 feet apart, and Silas Hunter’s hearing was somewhat impaired, and one had to speak quite loud to make him hear. It is admitted on all hands that he left plaintiff’s home at about this time, and never visited plaintiff again, nor did she visit him. In his last sickness she was advised of his condition and urged to visit him, but she failed to do so, and did not attend his funeral. She gives reasons of more or less plausibility for this; while they might satisfy this court, it is to be remembered that the property involved in this litigation was the property of Silas Hunter. It was his to give and his to withhold, and he, and not this court, had the determination of the question as to who was entitled to his bounty.

In March, 1914, Mr. Hunter married Margaret Dumis,“"a widow who owned a home in Coopersville about three blocks from plaintiff’s residence. After the marriage Mr. and Mrs. Hunter took up their home in this house, and continued to reside there until his death.'

For a couple of weeks prior to October 7, 1914, Mr. Hunter had been ailing, but had supposed that his condition was due to rheumatism, and home remedies had been applied. On this day he was up and about, but a physician was called, who found him afflicted with typhoid fever, with a temperature of 103. He was at once ordered to bed and put on treatment for that disease. The doctor who attended him during his entire illness testified that while the fever was up his mental condition was rather apathetic, and he was more or less drowsy, due to the high temperature, but that there was no delirium. That the apathetic condition was not due to any drugs administered, but that his drowsiness was due to the toxemia that comes from the typhoid, and that when his temperature lowered the apathetic condition cleared out, and that before the arrival of the son Mark, the fever had cleared out, and that after the temperature lowered Mr. Hunter was all right mentally. Mark’s aunt, Mrs. Murdock, informed him by telegram of his father’s illness, but there was an error in transmission of the telegram, and Mark did not reach Coopersville until the afternoon of October 13th. He remained at his father’s home until after his father’s death, but soon after his arrival he called at plaintiffs home and visited with her and her family. The old gentleman realized his condition and the seriousness of his illness, and sent his son Mark to Mr. Ernest L. Marvin, an attorney of high standing and unquestioned probity, and an acquaintance of many years of Mr. Hunter, to have him. prepare deeds of his property, conveying to his son. Mark a livery stable owned by him in Coopersville, and to his wife, Margaret, his house and lot, the value of." the two pieces being $2,500. Mr. Marvin prepared the two deeds in his office before going to the Hunter residence. Upon arrival at the Hunter residence he had some general conversation with Mr. Hunter:

“* * * And finally I said to him — I had to speak pretty loud because he was a little deaf; I said, ‘Hunter, they tell me you want to fix up some papers. Now,’ I said, ‘What do you want to do?’ and at that time he said, T want to deed that livery stable property to Mark, and I want to deed my house on Main street to my wife, Margaret.’ Then I went on and showed him the deeds. I said, ‘This deed is the deed of the livery stable property, and it runs, to Mark’; and I said, ‘The date is all put in, and ready to sign’; and I said, ‘Do you want to sign that?’ and he started to turn over in bed to get in shape to sign the deed, and I said, ‘If you feel too weak to sign, you can sign by mark’; and it was arranged that he should sign by mark, and I wrote his name on the deeds myself. I explained both deeds; told him that one deed run to Mark Hunter and the other deed run to his wife, Margaret Hunter. * * * After he had made the mark, I asked the question, ‘You acknowledge this, to be your free act and deed?’ and he said, ‘Yes, I do.’ ”

The deeds were witnessed and taken away by Mr. Marvin to be held in escrow, delivery to be made on Mr. Hunter’s death; at the same time the old gentleman indorsed a certificate of deposit and a note, both of which were then, in the possession of Mark. Mrs. Hunter executed an agreement which recites in substance that in consideration of the house and lot being deeded to her she would make no further claim on his property! Mr. Hunter also stated to Mr. Marvin that Mark was. to give Mrs. Murdock, sister of Silas, $200; Mrs. Ackerman, a sister of Mr. Hunter’s first wife, $200; to plaintiff’s children, $25 each; to plaintiff, $100, and was to see that some furniture stored at plaintiff’s home was delivered to Mrs. Ackerman. This transaction occurred on October 15, 1914, and on the 20th of October Mr. Hunter died, at the age of 77 years.

> In addition to the livery stable Mark was also given certificates of deposit to the amount of $1,350, and the note of $100, above referred to. Mark paid the expenses of his father’s last sickness, the funeral expenses, and all of his father’s indebtedness, including that to Mr. Marvin, who, after the death of Mr. Hunter, delivered the deeds pursuant to his instructions.

The bill in this case was filed September 1, 1915. In the meantime Margaret Hunter had died, leaving as her sole heir defendant William V. Meggison, and Mark had sold a part of the livery stable property to defendant Joseph Dyk, who, it is claimed, purchased with notice of plaintiff’s claim.

It is not, and cannot be, claimed upon this record that there is any evidence of mental disorder, except such as was produced by the disease of typhoid fever. Witnesses who saw him when his fever was high and he was in this apathetic, drowsy condition, testified that in their judgment he was not in a mental condition to transact business, but the doctor who attended him, Mr. Marvin and the nurse who witnessed the papers, pronounced him mentally competent to execute the instruments in.question when he did execute them, and many neighbors and old friends who saw him during his last sickness pronounced him mentally competent. The fact that they were admitted to the sick room in violation of the doctor’s orders does not militate against their testimony, nor does the fact that other old friends were excluded in compliance with the doctor’s orders take the place of substantive proof. The papers were executed after the fever had been broken and his temperature had run down. The only testimony tending to show mental incapacity was while the fever was on. Not only is the record barren of any testimony of mental incapacity at the time the papers were executed, but the testimony in the case affirmatively and conclusively establishes that he was mentally competent to execute the papers at the time of their execution.

It is urged on behalf of plaintiff that she has established as a fact undue influence on the part of Mark over his father, and that in any event fiduciary relations existed between Mark and his father, and that the burden rests upon defendants to show that the transaction was in all regards fair, and that the father had independent advice before he executed the papers in question. Mr. Hunter apparently was fond of his son and had confidence in him, but this should be and is the usual relation between parent and child; it does not establish undue influence. The most that can be said of the proof submitted by plaintiff on the fact of undue influence is that about a year and a half before the execution of these deeds Mr. Hunter spent several months with his son in Beaumont, Texas; that for two days before the execution of the deeds Mark was with his father at his Coopersville home. This proves opportunity for its exercise, and it proves nothing more. Opportunity for the exercise of undue influence is not proof of its exercise; proof of opportunity alone is not sufficient. Severance v. Severance, 90 Mich. 417 (52 N. W. 292); Blackman v. Andrews, 150 Mich. 322 (114 N. W. 218); In re Williams’ Estate, 185 Mich. 97 (151 N. W. 731).

But it is urged that the fiduciary relations are shown to have existed between Mark and his father, and that therefore the burden rests- upon the defendants to establish the validity of the transaction, and many authorities from this and other States are cited to the effect that where such relations are shown to exist the burden is upon him holding such relations, and seeking the enforcement of an unfair or unconscionable contract to show that it was fairly entered into, after independent advice, and without fraud or undue influence. It will not profit the parties or the profession to discuss- these authorities, as we are satisfied that there is nothing on this record from which we should or could find that the fiduciary relations existed. The language of Mr. Justice Steere, speaking for this court in Nelson v. Wiggins, 172 Mich. 191, 196 (137 N. W. 623), a case where the proofs were much stronger upon this question than in the instant case, is quite in point. He there said:

“Wiggins was a business man of extensive experience. He was engaged in lumbering operations for 30 years, at times handling large interests and in affluence, at other times meeting reverses. Nelson’s business ability and experience were limited. He was a farmer and laborer. That he relied upon Wiggins, deferred to his business judgment, and was guided by his advice is not to be doubted. Such relations do not imply coercion or undue influence. Confidence in, respect for, and desire to please another, or the influence of long association, affection, or gratitude, are neither coercion nor undue influence.”

Mr. Hunter’s relations with his son were not out of the ordinary. It is apparent that he realized that death was approaching, and that he wanted to provide for the disposition of his property. Over a year before that he and plaintiff had become estranged, and she was responsible for that estrangement; for over a year she made no effort to effect a reconciliation with her father.

We are satisfied that the plaintiff has failed to make out a case of mental incapacity or undue influence, and that the disposition made by Silas Hunter of his property, and which is here assailed, represents his free and intelligent act.

It is insisted, however, by the plaintiff, that there is no competent proof of the delivery of the deeds; that Mr. Marvin was the agent and attorney for Mark, and therefore his testimony was inadmissible under section* 10212, 3 Comp, Laws, as amended by Act No. 239, Pub. Acts 1901 (3 Comp. Laws 1915, § 12553). It is unnecessary for us to decide the effect of this statute if Mr. Marvin had been acting as the agent of Mark, as we are satisfied that Mr. Marvin was not acting in that capacity. Mr. Hunter sent for Mr. Marvin to make out these papers. He was then on his deathbed and unable to go to Mr. Marvin’s office. Mark was only the messenger for his father, and was not Mr. Marvin’s principal. After the deeds were made out they were given to Mr. Marvin, with instructions from the grantor to retain until Mr. Hunter’s death, and then deliver them to the grantees. He was at most a naked trustee, and as such was not precluded from giving testimony. Jenkinson v. Brooks, 119 Mich. 108 (77 N. W. 640). The amendment of 1901 does not change the rule announced in this case, as the trustee selected by the decedent to deliver the instruments held by him in escrow cannot be held to have “acted as an agent in the making or continuing of a contract with any person who may have died.”

Having reached' the same conclusion as the trial court, it follows that the decree must be affirmed. Defendants will recover costs of both courts.

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