text:
    BOERTH v. DETROIT CITY GAS CO.
    1. Gas — Municipal Regulation — Price of Gas Furnished — Detroit Charter.
    Though no express authority to prescribe the rates at which gas shall be furnished to the inhabitants is given to the common council of Detroit by the charter or the statutes, there is nothing in either which expressly or by proper construction prohibits the exercise of the power, and it being highly expedient that it should possess that power, and the council being given by the charter (section 34, chap. 7, charter of 1904), and by the statute authorizing the incorporation of gas companies (section 7133, 2 Comp. Laws), broad powers with respect to the use of the streets, including the power to refuse its consent except upon compliance with reasonable regulations, the power to prescribe the rate at which gas shall be furnished, as a condition of the company’s occupancy of the streets, is impliedly granted.
    2. Same — Principles Involved.
    The power of a municipality to prescribe the rates at which gas shall be furnished to its inhabitants, as a condition of occupancy of its streets, is an incident of its power to make contracts for the benefit of its inhabitants, and is quite different from the legislative power to regulate rates generally, such as the legislature exercises with respect to railroads.

    3. Same — Rate Authorized — Ordinance—Construction.
    A gas ordinance providing that the gas company “shall not charge nor receive a higher rate than 90 cents ” for gas furnished gives the company a contract right to charge the price named.
    4. Same — Discrimination Between Customers — Remedy.
    A consumer of gas for fuel purposes who is charged 80 cents per thousand therefor, as prescribed by the gas ordinance, is not injured by the practice of the gas company in supplying gas to users for power at 60 cents per thousand, nor does such discrimination entitle him to be furnished gas for fuel at the price charged to power users, though the price of 60 cents is not authorized by the gas ordinance.

      Appeal from Wayne; Brooke, J.
    Submitted November 21, 1907.
    (Docket No. 38.)
    Decided May 26, 1908.
    Bill by Henry J. Boerth against the Detroit City Gas Company to enjoin an unlawful discrimination in rates. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Alex. J. Groesbeck and Guy A. Miller, for complainant.

      Angelí, Boynton, McMillan & Bodman (Brennan, Donnelly & Van De Mark, of counsel), for defendant.
    Complainant keeps a restaurant in the city of Detroit. In the month of October, 1901, he used for fuel purposes in said restaurant gas supplied by defendant to-the amount of 113,700 cubic feet. Defendant presented a bill charging complainant for said gas at the rate of 80 cents per thousand cubic feet. Complainant tendered compensation at the rate of 60 cents per thousand cubic feet. This tender defendant refused and threatened to remove complainant’s meter and discontinue his supply of gas. Thereupon complainant instituted this suit in equity for the purpose of securing a permanent injunction restraining such removal. He contends that the rate charged by defendant is at once unreásonable and unjust discrimination. He was not permitted to introduce testimony tending to prove the charge unreasonable, because the trial court held that the city of Detroit had entered into a valid contract permitting defendant to make a charge of 80 cents per thousand cubic feet for the gas furnished complainant. This contract was found in an ordinance of the city made in 1898 granting to defendant for 30 years the right to lay its gas pipes in the streets of the city, and is as follows:
    “The said company [defendant] shall not charge nor receive a higher rate than 90 cents per thousand cubic feet for manufactured gas sold to consumers for fuel purposes from illuminating mains within the city limits, and each and every consumer shall be entitled to a discount of ten cents per thousand cubic feet upon ” prompt payment.
    Complainant claims the rate charged to be an unjust discrimination because defendant supplied gas for power purposes to those who use gas engines in the city of Detroit at the rate of 60 cents per thousand cubic feet. This claim like the claim of unreasonableness was denied by the trial court and a decree entered dismissing complainant’s bill. Complainant appeals to this court. He asserts three propositions, and if he is right respecting any of them he is entitled to relief. Those propositions are:

      First. That the city of Detroit had no power to grant to defendant the right to charge 80 cents per thousand cubic feet for fuel gas furnished to consumers.

      Second. That the city of Detroit never did grant the right to make that charge.

      Third. That the making by defendant of the 60 cent rate to those who use gas for power purposes was unjust or unlawful discrimination entitling complainant-to relief.

       As to legislative regulation of gas rates, see note to Winchester & L. Turnpike Road, Co. v. Croxton (Ky.), 33 L. R. A. 181.

   Carpenter, J.

(after stating the facts). Did the city of Detroit have authority to grant defendant the right to charge 80 cents per thousand cubic feet for fuel gas delivered to consumers within said city ? The charter of the city of Detroit confers upon it this power:

“To control, prescribe and regulate the manner in which the highways, streets, avenues, lanes, alleys and public grounds and spaces within said city shall be used and enjoyed. * * * To provide for and regulate the lighting of said avenues, streets and public places.” Detroit Charter (1904), chap. 7, § 34.

The act for the organization of gas light companies— under which act defendant is incorporated — contains the following provision (section 7133, 3 Comp. Laws):

“ Any corporation formed under this act * * * shall have full power to manufacture * * * and sell * * * gas * * * and shall have power to lay conductors for conducting gas * * * through the streets, lanes, or squares of any city, town or village where said corporation is located, or carrying on its business, * * * which pipes or conductors shall be laid with the consent of the municipal authorities of such cities, townships or villages through which the same are laid under such reasonable regulations as they may prescribe.”

There is given by this language to the city of Detroit very broad powers. Without its consent a gas company cannot lay its pipes in the streets, and without so laying them it cannot furnish gas to the inhabitants of the municipality. The city may refuse to grant that consent. It is clear, too, that it may attach conditions to its consent. What conditions ? May it prescribe the rates at which gas shall be furnished to its inhabitants? The statute does not say in express terms that it can. Is it forbidden? It certainly is not forbidden in express terms. The only language in the statute limiting the authority of the municipality is to be round in the language authorizing the municipality to prescribe reasonable regulations for the laying of the pipe. Without undertaking to definitely determine what is meant by reasonable regulations, it is quite clear that nothing but unreasonable regulations are prohibited. Authority to prescribe rates then is not prohibited unless that authority may be properly denominated unreasonable. Is it. unreasonable ? There is no doubt that the municipality may determine for what length of time a gas company may use its streets for conveying gas. It had, therefore, authority — an authority exercised in this case — to determine that the gas company should use the streets for a period of 30 years, for the purpose of supplying its inhabitants with gas. Is it unreasonable for the city to prescribe the rates at which gas shall be furnished to its inhabitants ? If the city cannot prescribe those rates, consumers of gas must pay whatever price the gas company asks or resort to litigation, and pay what is there determined to he reasonable. Few consumers will resort to litigation. Indeed, gas bills are generally so small that it does not pay to question their amounts. If the rates are not prescribed it may be safely stated that nearly all consumers of gas will pay without question whatever bills are presented to them. This is illustrated by Pingree v. Mutual Gas Co., 107 Mich. 156. There it appeared that for many years the Mutual Gas Company of Detroit had' charged an excessive amount for the gas it furnished. It is a fair inference that not one of its thousands of consumers questioned these bills for years. Indeed, the plaintiff in that suit, the late Governor Pingree — a man not likely to submit to illegal extortion — himself paid these bills without protest, and the only question in the case was whether that circumstance disentitled him to recover. As a practical proposition it may be said, then, that consumers must either pay the rates fixed by the company or the rates prescribed by municipal authority — in the absence, as in this case, of any action by the legislature. It may be said, then, that in order to safeguard the rights of its inhabitants who use gas, it is not only not unreasonable that the city should have the power to fix rates, but it is highly expedient, — indeed, it is necessary, — that it should possess that power. It is therefore quite clear that there is nothing in the statute which either in express terms or by proper construction prohibits the city prescribing rates at which gas shall be furnished to its inhabitants.

In this respect the case at bar differs materially from Freeport Water Co. v. City of Freeport, 180 U. S. 587, a case relied upon by complainant. In that case it was held by a divided court that the authority of the municipality to enter into a contract which prescribed water rates was limited by express statutory enactment. There is no such limitation in this case.

It has already been stated that the statute does not give the city express authority to prescribe rates. Can that authority be implied ? Does it pass as an incident to the authority to attach conditions to its consent that pipes may be laid in the streets ? This raises the most important question in this case. Complainant contends that the power of a municipality to prescribe rates cannot rest in implication; that a municipality has not that power unless it is expressly granted. In support of this contention are cited many cases (Interstate Commerce Commission v. Railway Co., 167 U. S. 479, is the most important of these cases) relating to a grant of the legislative power of determining rates. The principle underlying these authorities is that there is a strong presumption against the grant of legislative authority. That principle and the authorities applying it have no application here. It is not contended that the city of Detroit has the legislative power of determining rates. That would be the power of regulating these rates according to its own wisdom from time to time precisely as the legislature regulates the rates of railroads. Complainant agrees with defendant that the city possesses no such power. The power to prescribe rates by contract — and that is the power which was exercised in this case — is a very different power from the legislative power of regulating rates.

Says the supreme court of Indiana in City of Indianapolis v. Gas-Light & Coke Co., 66 Ind. 396:

** This power to legislate within the authority delegated to them by law is distinct from the power to contract, although exercised by the same corporation. They cannot, by contract, delegate or restrict their legislative power, nor can they, merely by their legislative power, make a contract. These two powers need not be confounded. The exercise of the legislative power requires the consent of no person except those who legislate; while it is impossible to make a contract without the consent of another, or others. We think, therefore, that, when the city of Indianapolis made the contract in question with the GasLight Company [a contract like that involved in this case] it made it in the exercise of its power to contract, and not in the exercise of its power to legislate, although the power to make the contract was authorized by an ordinance; and, having the power to make a contract touching the subject-matter, it had the right to make it according to its own discretion as to its prudence or good policy, within the limits of its franchise.”

Says the United States' circuit court of appeals, eighth circuit, in Illinois Trust & Savings Bank v. Arkansas City, 76 Fed. 271 (34 L. R. A. 518):

“A city has two classes of powers, — the one legislative, public, governmental, in the exércise of which it is a sovereignty and governs its people; the other, proprietary, quasi private, conferred upon it, not for the purpose of governing its people, but for the private advantage of the inhabitants of the city and of the city itself as a legal personality. In the exercise of the powers of the former class it is governed by the rule here invoked. In their exercise it is ruling its people and is bound to transmit its powers of government to its successive sets of officers unimpaired. But in the exercise of the powers of the latter class it is controlled by no such rule, because it is acting and contracting for the private benefit of itself and its inhabitants, and it may exercise the business powers conferred upon it in the same way, and in their exercise it is to be governed by the same rules that govern a private individual or corporation. * * * In contracting for waterworks to supply itself and its inhabitants with water, the city is not exercising its governmental or legislative powers, but its business or proprietary powers. The purpose of such a contract is not to govern its inhabitants, but to obtain a private benefit for the city and its denizens.”

See, also, Omaha Water Co. v. City of Omaha, 147 Fed. 1; Muncie Natural Gas Co. v. City of Muncie, 160 Ind. 97 (60 L. R. A. 822); Zanesville v. Gas-Light Co., 47 Ohio St. 1.

Complainant invokes the authority of those cases (see Detroit Citizens’ St. Ry. Co. v. City of Detroit, 110 Mich. 384 [35 L. R. A. 859], 171 U. S. 48) which hold that the power to grant exclusive rights will not be implied from general language, but must be clearly and explicitly expressed. Nothing can better show the inapplicability of these decisions than by quoting the concluding language of the opinion rendered by the Supreme Court of the United States. It reads as follows:

Easements in the public streets for a limited time are different and have different consequences from those given in perpetuity. Those reserved from monopoly are different and have different consequences from those fixed in monopoly. Consequently those given in perpetuity and in monopoly must have for their authority explicit permission, or, if inferred from other powers, it is not enough that the authority is convenient to them, but it must be indispensable to them.”

Complainant has cited many other authorities. They have received our careful attention. None of them are in point. We can say of them, as of those discussed in this opinion, that they justify no argument helpful to complainant except upon the assumption • that the power to prescribe rates cannot be used in the interest of the inhabitants of the city. We have already shown it can be used to safeguard the interest of those inhabitants. Emphasis is placed upon the proposition that the rates prescribed by the ordinance are too high. This does not afford an argument-against the existence of the power to prescribe rates. In Mahan v. Telephone Co., 132 Mich. 242, the telephone company sought to avoid certain rates for telephonic service prescribed in a contract entered into by its predecessor and the city. It is apparent that the company thought the prescribed rates were too low. It was held that these rates governed. Surely the principle is not changed because a different “ox is gored.”

Concluding as we do that none of the authorities relied upon by complainant justify the proposition that the city of Detroit had not the implied authority of prescribing rates by contract, we proceed to consider opposing authorities. These authorities are so clear, authoritative, and harmonious that we shall not enter into a discussion of the principles governing the implied powers of municipalities. Though it should be borne in mind that, as already pointed out in this case, the power of a municipality to prescribe rates by which gas shall be furnished is a power necessary to safeguard the rights of its inhabitants.

The first case to receive attention is Mahan v. Telephone Co., supra. There the city of Detroit possessing, not the authority to exclude telephone companies from the use of its streets, but possessing only the authority to establish reasonable rules and regulations, enacted an ordinance fixing the maximum rate of telephonic charges. The telephone company accepted this ordinance. The successor of this telephone company declined to observe the terms of this ordinance. It denied the right of the city to fix rates. This contention was overruled, and it was said “the right of the city to make the contract in the premises cannot be questioned.”

In Muncie Natural Gas Co. v. City of Muncie, 160 Ind. 97 (60 L. R. A. 822), it was held that the grant of an exclusive power over the streets, highways, and alleys gave to the municipality authority to enter into a contract with the gas company prescribing the rates which should be charged. The court saying:

“The grant of exclusive power to the common council over such ways comprehends the right to permit gas companies to use the streets. If the common council may permit a natural gas company to use the streets without any conditions annexed, except such as the law attaches, it is not perceived why, as in this case, in making provision for supplying natural gas to all of the inhabitants of the city, it may not protect such inhabitants against extortion by providing that the company shall not charge in excess of certain prices for its service. The right to annex terms by way of limitation upon the authority of the grantee in such cases has been often affirmed by this court.”

Under a provision that a street railway shall not be constructed until the council “by ordinance shall have granted permission and prescribed the terms and conditions ” it was held that the city might enter into a contract prescribing the rates of fare. City of Cleveland v. Railway Co., 194 U. S. 517. See, also, City of Noblesville v. Improvement Co., 157 Ind. 162; Western Paving & Supply Co. v. Railroad Co., 128 Ind. 531 (10 L. R. A. 770); City of Indianapolis v. Trust Co., 140 Ind. 107 (27 L. R. A. 514); City of Zanesville v. Gas-Light Co., 47 Ohio St. 1; City of Cleveland v. Railway Co., 201 U. S. 529; Omaha Water Co. v. City of Omaha, 147 Fed. 1; City of Detroit v. Railway Co., 184 U. S. 368.

We conclude therefore that the city of Detroit did have authority to enter into the contract prescribing the rate which defendant should charge the inhabitants of the city of Detroit.

Did the city of Detroit enter into such a contract ? Did it grant to defendant the right to charge 80 cents per thousand cubic feet for gas used for fuel ? That depends • upon the proper construction of the following language:

“The said company [defendant] shall not charge nor receive a higher rate than 90 cents per thousand cubic feet for manufactured gas sold to consumers for fuel purposes from illuminating mains within the city .limits, and each and every consumer shall be entitled to a discount of ten cents per thousand cubic feet upon ” prompt payment.

Complainant argues that this language is a limitation upon the right of the company to charge and not a grant. This precise question was involved in City of Detroit v. Railway Co., 184 U. S. 368. There an ordinance provided “that the rate of fare shall not exceed five cents on any one car.” The court said:

“Nor does the language of the ordinance, which provides that the rate of fare for one passenger shall not be more than five cents, give any right to the city to reduce it below the rate of five cents established by the company. It is a contract which gives the company the right to charge a rate of fare up to the sum of five cents for a single passenger, and leaves no power with the city to reduce it without the consent of the company.”

See, also, City of Cleveland v. Railway Co., supra.

A similar question was involved in Pingree v. Railroad Co., 118 Mich. 314 (53 L. R. A. 274). There the charter of the railroad company provided that it should be lawful for said company from time to time to fix, regulate, and receive the tolls and charges to be taken for the transportation of property and persons on the road subject only to a limitation as to passengers of three cents a mile, and ten cents in addition on distances not exceeding 30 miles. It was held that this gave the company a contract right to make any charge not in excess of the amount specified, and that this right could not be abridged by subsequent. legislation not authorized by the charter. In opposition to these views, complainant relies upon a line of cases of which Georgia Railroad & Banking Co. v. Smith, 128 U. S. 179, is an illustration, which hold that similar language to that under discussion inserted in a statute does not prevent subsequent legislation reducing the charges. Those cases are not applicable. None of them are authorities for the proposition — and that is the proposition involved in this case — that before the enactment of such subsequent legislation, the rates prescribed in the statute could be enforced. Indeed, it is our understanding that all these cases proceed upon the theory that the prescribed rates governed until they were changed by legislation. We are therefore of the opinion that the ordinance under consideration gáve defendant a right to charge 80 cents per thousand cubic feet for gas used for fuel.

Did the making of a 60-cent rate to those who use gas engines constitute an unjust or unlawful discrimination entitling complainant to relief ? Defendant does discriminate in its charges for gas. It charges those who use.gas for illuminating purposes 90 cents per thousand cubic feet; those who use it for fuel purposes 80 cents per thousand cubic feet; those who use it for power 60 cents per thousand cubic feet. The discrimination between the use for illuminating purposes and fuel purposes was authorized by the ordinance of the city of Detroit. The discrimination between the use for fuel purposes and the use for power purposes was not authorized by that ordinance. The ground of that discrimination is this: That those who use gas for power purposes use on an average much more than those who use it for fuel purposes, and that if they could not get it at the reduced rate they would use some other material for the purpose of creating power. Counsel for each party have elaborately briefed the question of the lawfulness of this discrimination. Wé shall not however undertake to decide that question. It is not necessary to decide it in order to determine this case. The question is not likely to arise again, for since this suit was commenced a new ordinance has been passed by the city of Detroit authorizing that discrimination. ,

We do not undertake to decide the unlawfulness of the discrimination in question, because in our judgment it affords no ground upon which complainant is entitled to relief. Complainant .is not entitled to relief because the rate of 80 cents per thousand cubic feet is too high, for that was the rate which defendant was entitled to charge. His claim for relief must rest upon the ground that the rate charged those who used gas for power purposes is too Jow. He cannot complain of this unless he is in some way injured. The circumstance that a manager of a public utility is granting unlawful favors to one of several individuals — and we do not decide that that was done in this case — does not give a right of action to every member of the community. That is a grievance to be redressed by the public. On principle it cannot be redressed by an individual unless he is specially aggrieved thereby. As was said in Hays v. Pennsylvania Co., 12 Fed. 309.

It may be said that it is only when the discrimination inures to the undue advantage of one man, in consequence of some injustice inflicted on another, that the law interferes for the protection of the latter.”

See, also, Hozier v. Railway Co., 17 Sess. Cases (2d Series), 302. The users of gas engines who receive the reduced rates were in no just sense competitors of complainant. The reduced rates gave them no undue advantage over him. They did not injure him. They therefore afford no ground upon which he can claim relief.

The decree dismissing complainant’s bill is affirmed.

Montgomery, Ostrander, Hooker, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    CITY OF DETROIT v. MYERS.
    1. Highways and Streets — Establishment — Prescription — Requisites.
    A city can establish a public way by prescription only by showing an uninterrupted and undisputed user of the land for the prescribed period.

    3. Dedication — Reservation—Private Way.
    The reservation of land as a private way negatives its dedication to the public.
    3. Highways and Streets — Establishment—Prescription—Evidence — Taxation of Land.
    Though the rights of the public in a highway cannot be admitted away by taxing officers, the fact that the land has been at all times listed as private property is of some significance, in connection with other facts, as affecting the question of adverse, exclusive, and uninterrupted user.
    4. Same — Encroachment—Injunction—Propriety.
    A bill to compel the removal of a building covering a part of a strip of land claimed to be part of the public highway, and to enjoin encroachment thereon, is properly dismissed; it appearing that the-strip was expressly reserved in the plat as a private way, that it was contiguous to a public way, that the public use shown of the greater portion was as consistent with permission as with hostility, that the alleged encroachment was not an interruption of the use of the graded roadbed covering a part of the strip, and that there were other various asserted and recognized rights of the owners to portions of the strip.
    5. Same — Establishment—Prescription—Statutory Width.
    The use by the public of a portion of a strip of land claimed to be a public way does not, of necessity, either in city streets or country roads, determine the public right to extend over four rods in width. Section 4061, 3 Gomp. Laws.
    Appeal from Wayne; Brooke, J.
    Submitted January 9, 1908.
    (Docket No. 21.)
    Decided May 26, 1908.

      Bill by the city of Detroit against George W. Myers, Margaret Myers, Clarence M. Burton, and John C. Goodrich to enjoin an encroachment upon a street. From a decree for complainant, defendants appeal.
    Reversed, and bill dismissed.

      Denton Guinness (Timothy E. Tarsney, of counsel), for complainant.

      Herbert O. Munro, for defendants.

       As to acquirement of highway easement by prescription, see note to Marion v. Skillman (Ind.), 11 L. R. A. 55.

   Ostrander, J.

In 1885, Hamlin & Brown platteddot 3 of section 57, 10,000 acre tract, Detroit. Lots fronted on Hamlin, now Bethune, avenue, and ran back 120 feet to a strip of land 30 feet wide, marked on the plat “Private Way,” which strip extended from Woodward avenue to Oakland avenue. The dedication of the plat contains the following:

“We do hereby dedicate to the perpetual use of the public, the streets and alleys as shown thereon, * * * excepting the north 30 feet of Custer avenue, which we reserve as a private right of way.”

The lots were conveyed subject to a building restriction which secured the principal entrance to each house on Hamlin avenue. Just south of the Hamlin & Brown plat is one, laid out in 1884, on the north side of which is a public way 30 feet wide parallel with the private way, which if used with the private way would make a street 60 feet in width. It is known as Custer avenue. Both Custer and Bethune avenues and the 30-foot strip are now intersected by John R. street, Brush street, Beaubien street, and St. Antoine street, between Woodward and Oakland avenues, and, apparently, by an alley situated between Woodward avenue and John R. street.

It is charged in the bill of complaint, filed by the city of Detroit, that the 30-foot private way has at all times been used and enjoyed by the public as a public way in connection with the 30-foot public way immediately south of, it, and has been improved from year to year by the city authorities as a part of Ouster avenue; that defendants Myers have recently erected or caused to be erected upon said private way a building at Oakland avenue, and that defendants Burton and Goodrich claim an interest in the premises. The relief prayed for is that the defendants remove the building and be restrained by injunction from making any further encroachment upon this strip of land.

In the case of Lever v. Grant, 139 Mich. 273, we had occasion to determine between rival individual claimants the right to a portion of this private way. With the opinion in that case is a map of the two plats sufficient to indicate the situation. As in that case, it appears here that the strip has been assessed by the city assessors and taxed from 1889'to the time of beginning this suit. It appears here, also, that Hamlin & Brown in 1892 began suit in ejectment against those in possession of a part of the strip. In 1903, a building was erected at the northeast corner of the intersection of Beaubien street. Proceedings were taken to open Beaubien street across this strip in .1891 and an award in condemnation proceedings was made and paid. In 1894, proceedings were had to condemn a right of way for John R. street. They were discontinued after verdict and no award was paid and no assessment to pay an award was levied. In 1889, Hamlin & Brown conveyed to the city of Detroit by deed that portion of the strip lying between John R. and Brush streets. The land .between John R. street and Oakland avenue is claimed by defendants Goodrich and Burton. Defendant George Myers asserts no claim to any of it. Defendant Margaret Myers is lessee of Goodrich and Burton, who base their claim on a sheriff’s deed of the interest of one of the original proprietors. Mr. Burton also claims title under various tax deeds issued upon sale of the land for State and county taxes for the years 1889, 1890, 1891, 1892, 1893,1896.- As to portions of this strip of land, the city has since 1886 taken such care of it as it usually does with public alleys, removing ashes and rubbish of various kinds. The graded portion of Ouster avenue (the city graded the roadbed in 1886) is 15 feet wide, and its center line is 30 feet north of the south line of the avenue, as shown by the south or Hibbard Baker plat. The water main is on the south and the sewer on the north side of this center line. There has been a foot path five or ten feet north of the road used for many years by any person having occasion to pass. The distance between the south line of Custer avenue and the south line of the lots on the Hamlin & Brown subdivision varies, being 64.50 feet at Oakland avenue, 65.25 feet at St. Antoine street, 66.13 feet at Beaubien street, 66.75 feet at Brush street, and 68 feet at John R. street. Sidewalks have been laid on the south side of Custer avenue. Fire department poles, supporting wires, were erected some 16 years ago along this strip; just where does not clearly appear. The position of the complainant city is that this strip of land has become by user and adverse enjoyment a public highway. It is further claimed, we suppose to obviate any difficulty growing out of an actual use of only a part of the strip, that section 4061, 2 Comp. Laws, is applicable and if there is a highway by user it is, by aid of the statute, four rods wide.

The complainant can succeed only by showing an uninterrupted and undisputed user of the land for the prescribed period. Attention cannot ' be confined — is not sought to be confined — to the particular piece of ground occupied by the alleged encroachment. The term private way suggests the use of the land for travel; the reservation of the land as a private way negatives its dedication to the public. While the rights of the public in a highway cannot be admitted away by taxing officers, Campau v. City of Detroit, 104 Mich. 562, the fact that the land has been at all times listed as private property is of some significance in connection with other facts as affecting the question of adverse, exclusive, and uninterrupted public user. In view of the fact that some úse of the land by the public is entirely consistent with the idea of a private way, that it was expressly reserved as a private way, that it is contiguous to a public way, that public use of the greater portion is as consistent with permission as with hostility, that the alleged encroachment is not an interruption of the use of the graded roadbed, and in view of other various asserted and recognized rights of the owners to portions of the strip, it is not clear there is support for a judicial determination, in a proceeding of this nature, that the 30-foot strip is a public highway. The use of a portion of the land by the public does not, of necessity, in city streets, determine the public right to extend over four rods in width, City of Detroit v. Railroad Co., 23 Mich. 173; nor in a country road, Watz v. Sunderland, 147 Mich. 96.

The decree of the court below is reversed, and a decree will be entered in this court dismissing the bill of complaint, with costs of both courts to defendants.

Blair, Montgomery Hooker, and Moore, JJ., concurred.


author: Carpenter, J.

text:
    SPITZLEY v. RIVARD.
    Contracts — Legality—Stirling Bidding at Judicial Sale.
    A contract by which one of the parties agrees to purchase property to be sold on foreclosure of a mechanics’ lien in favor of the other, provided he is not obliged to pay more than the amount of the decree, with interest and costs, and in case he does purchase, to give his notes to the other for a certain amount in payment for his interest, to be relieved from his contract in case some one else bids more than the stipulated amount, is, in effect, a contract for the sale of the decree, and is not invalid as designed “to stifle competition in bidding at a public auction.”

      Error to Wayne; Donovan, J.
    Submitted January 14, 1908.
    (Docket No. 51.)
    Decided May 26, 1908.
    Assumpsit by Henry Spitzley and Joseph Spitzley against John Rivard and John William Garrison on a promissory note. There was judgment for defendants, and plaintiffs bring error.
    Reversed.

      James H. Pound, for appellants.

      John E. Moloney, for appellees.
    Plaintiffs brought suit upon a promissory note for 11,166.66. The first-named defendant was the maker of the note and the second-named defendant was the indorser. It was claimed by defendants that their signatures were procured by fraud. The issue was tried before a jury and a verdict and judgment rendered in defendants’ favor. The transaction out of which the note was given, briefly stated, was as follows: The plaintiffs, contractors and builders in the city of Detroit, made certain improvements upon leasehold property belonging to one Robert Stock. The property was located on the river front and is known as Beller’s garden. The owner of the property was Jacob Beller. Beller had leased the property to Stock for several years at an annual rental of about $5,000. Stock failing to pay for making the improvements, plaintiffs instituted mechanics’ lien proceedings and obtained a decree in a suit wherein both Stock and Beller were defendants, ordering a sale of the leasehold property by a circuit court commissioner. Before said sale occurred, plaintiffs as parties of the first part entered into an agreement with said defendant Rivard as party of the second part. This agreement, after reciting the facts, proceeded as follows:
    “Now, therefore, said parties of the first part hereby agree to have said interest sold by said circuit court commissioner in pursuance of such notice on said 16th day of April, 1904, or at such time as the same may be adjourned to, and the said John Rivard, party of the second part, hereby agrees to bid off such interests, provided, however, he shall not be compelled to bid to exceed the amount of the decree in said case, viz., $4,357, with the costs of suit, costs of sale, and interest added.
    -“And if said party of the second part does purchase such interests, he is to pay to the parties of the first part the sum of $3,500 for their interest in the same. Said amount of $3,500 is to be paid in three payments, $1,166.66 each, the first payment to be made on or before June 20th, 1904, the second payment to be made on or before July 20th, 1904, and the third and last payment to be made on or before August 20th, 1904. All such sums are to bear interest at the rate of six per cent.
    “Said party of the second part is to give three notes to evidence and secure the payment of said sum of $3,500.00, said notes to be payable respectively as above specified, and to be indorsed by John William Garrison.
    “ It is further agreed that said notes shall be deposited in the Union National Bank of Detroit, with the cashier of said bank, Louis 0. Sherwood, to be delivered to the said parties of the first part, or their attorney, as soon as the said Rivard, party of the second part, shall be given possession of said premises, by virtue of such sale. And if said Rivard shall refuse or fail to purchase said premises at said sale, then said notes are to belong to said parties of the first part, and are to be turned over to them, but in case some person shall bid more than the amount due to the parties of the first part, under and by virtue of said decree, including interest and costs, then said party of the second part is not to be obliged to purchase said premises, if he does not wish so to do, and in case he does not, then said notes are to be returned to said party of the second part.”
    The notes referred to in said agreement were given. One of those is the note in suit. Before the contract was signed, full opportunity was afforded Rivard to examine the terms of the decree, and the lease given by Beller to Stock which was a part thereof. Rivard did refuse to purchase said premises at said sale and plaintiff brought this suit.
   Carpenter, J.

(after stating the facts). The ve diet of the jury was based upon the ground that the signature of defendant Rivard to the note and contract was procured by fraud. It is contended that there was no evidence of fraud, and the jury should therefore have been directed to return a verdict in plaintiffs’ favor. A careful examination of the record convinces us that this contention is well taken. No testimony is pointed out, and we can discover no testimony from which it can be legitimately inferred, that Rivard was deceived by any false statement made by plaintiffs or by plaintiffs’ agents. It would seem from the testimony of defendant himself that the ground upon which he refused to proceed was an unwarranted exaction of Mr. Beller. It is scarcely necessary to say that this afforded no justification.

In support of the judgment in favor of his clients in the court below, defendants’ counsel urged that the agreement in question was void on the ground of public policy, because it was designed “to stifle competition in bidding at a public auction.” In support of this contention numerous cases are cited. We refrain from discussing them. None of them have any application. On principle it cannot be said that the arrangement had any tendency to stifle competition or to injuriously affect any one interested in the property or any one contemplating bidding at the sale. The transaction in question was in the nature of a contract for the sale of the decree. Indeed, it would be quite correct to say that when you deny the application of the authorities relied on by defendant — and we do deny their application — his position can be sustained only by deciding that an absolute sale of the decree is void because it tends to stifle competition. No such proposition-of course is insisted upon; no such proposition is tenable. It is clear to us, therefore, that the contract is not open to the objection under consideration.

The judgment is reversed, and a new trial ordered.

Grant, O. J., and Blair, Moore, and McAlvay, JJ., concurred.


author: McAlvay, J.

text:
    CLARK v. BASSO.
    Reformation of Instruments — Deeds — Mistake — Evidence — Sufficiency.
    On a bill to reform a deed by which complainant by mistake deeded defendant two feet more of a city lot than he owned, and to enjoin an action at law to recover for the deficiency, evidence examined, and held, to entitle complainant to the relief prayed.
    Appeal from Calhoun; North, J.
    Submitted January 15, 1908.
    (Docket No. 60.)
    Decided May 26, 1908.
    Bill by Alexander L. Clark against John Basso to reform a deed, and to enjoin an action at law. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      Frank W. Clapp, for complainant.

      J. L. Hooper and J. M. & J. L. Powers, for defendant.
   McAlvay, J.

Complainant and his brother, Walter Clark, by inheritance, acquired title to lot 19 of block 1 in the city of Battle Creek, Mich., except a strip of land 4 by 38 feet off from the north end reserved for stairway. On October 9, 1895, upon a settlement and division of property with his brother, Walter Clark and wife conveyed to complainant the west 11 feet of said lot, with the above exception. This deed was duly recorded October 14,1895. Complainant on the same date, for the same purpose, conveyed to his brother Walter the east 22 feet of said lot, with the above exception, which deed was recorded October 12, 1895. At the time of these conveyances by these brothers a brick store occupied the east 24 feet of said lot, which store was built many years before that date. A few days after making these deeds by the brothers, Walter Clark discovered the mistake that he had acquired but 22 feet of the 24 feet upon which the building he was to take was situated, and making another deed dated October 14, 1895, conveying the east 24 feet of said lot to him, presented it to his brother Alexander, who executed it at once. This deed was recorded October 28, 1895. By this correction complainant owned the west 9 feet of said lot. Lot 20 lies to the west of this lot 19. These lots were considered to be each 83 feet in width. On the west 24 feet of lot 20 was situated a brick building. In the year 1847 B. F. and H. J. Hinman, who then owned said lot 20, and the father of complainant, who then owned lot 19, joined in erecting a three-story brick building upon these lots, one-half of said building being located on the westerly 9 feet of lot 19 and one-half on the easterly 9 feet of lot 20, the respective halves belonging to the party who owned the land on which each was situated. The building fronted 18 feet on Main street. The ground floor was occupied as a store; there being no partition through the center showing the dividing line. It was rented as a whole, each owner receiving one-half of the rent. This condition continued after complainant acquired title to the westerly 9 feet of lot 19. The defendant, who had been engaged in the fruit business in the city of Battle Creek since 1883, on April 12, 1892, first rented this 18-foot store and basement for a period of five years, by a written lease, the rental being $600 per year,'payable $50 monthly. In April, 1897, at the expiration of this lease, defendant, John Basso, and his brother Antonio Basso entered into a new lease of these premises in writing with H. J. Hinman and complainant, who in the meantime had become the owner of one-half, at a rental of $500 per year, payable $41.67 per month, of which each lessor received one-half. On June 12, 1900, complainant conveyed by warranty deed his interest in this property to defendant. In the deed it was described as the westerly 11 feet of lot 19 of block 1, excepting stairway on the northeasterly end, 4 feet wide by 33 feet long. The consideration was $2,500, which included a mortgage of $1,000 assumed by defendant, dated April 13, 1900, in which the property was described the same as in the deed to defendant. Complainant at the time was the owner of but 9 feet of this land. After his purchase from complainant, defendant continued to occupy the premises, and to pay Mr. Hinman, the owner of the westerly half, his representatives or assigns, the sum of $20.84 monthly rental until February 27, 1902, when defendant purchased that interest in this property from the grantee of the Hinman estate, and occupied it until February, 1904, when he claims he discovered through a survey made at the time that at the time of his conveyance complainant owned but 9 feet of land on the west side of lot 19, and had by his deed conveyed to him 11 feet. He brought suit at law by summons against complainant March 4, 1904, and complainant at once caused his appearance to be entered by his attorney. The declaration in this suit was not filed or served until October 23, 1906. Complainant, being informed by his attorney of such filing and service, came to Battle Creek on November 12, 1906, and went to Marshall for the purpose of obtaining an abstract, and then for the first time learned that a mistake had been made in his deed to defendant. Later he filed his bill of complaint in the suit at bar, asking that the mistake in the deed to defendant might be corrected, and that defendant be restrained from prosecuting the suit at law. The circuit court denied any relief, and dismissed his bill of complaint. He has appealed, and asks the reversal of said decree. A detailed statement of facts has been given because such statement makes it apparent that a mistake was in fact made.

The question in the case is a question of fact. There is no dispute as to the law. There is no claim made that complainant intentionally deeded property he did not own; but it is claimed, and the court so found, that complainant represented that he owned 11 feet of this lot, and that defendant understood that he was buying 11 feet. How the mistake was made in the first deed to complainant, where 11 feet was deeded, when the clear intention was to deed 9 feet, cannot be explained. It was corrected at once; but without doubt, as complainant testifies, that was the deed which was used in getting the description for the deed to defendant in 1900. Defendant had occupied these premises since 1892, and this court will presume that he was perfectly well acquainted with them. He knew that the premises were owned in separate interests. For the greater share of the time, he knew that each interest claimed and received one-half of each month’s rent. He also knew that the costs of repairs were divided between them. He knew that he was purchasing the share of complainant in the building and premises he occupied, and makes no claim that he was purchasing anything more. There is no dispute but that this building was about 18 feet in width. At the time of the purchase of complainant’s interest by defendant he was paying to each of the owners one-half of the rent each month, and continued to pay the Hinman interest the same amount for two years after-wards. He was furnished an abstract by complainant, upon which appeared the deeds containing the first mistake and the one correcting it. He began his suit against complainant, and allowed two years and seven months to-pass before he revealed by his declaration his claim against him. Notwithstanding the disagreement between the parties in their testimony, we are satisfied from these facts and others contained in the record that complainant established by a preponderance of the evidence that this was a mutual mistake, and that he was entitled to the relief prayed.

The decree of the circuit court is reversed, and set aside, and a decree will be entered in this court correcting the mistake in said deed, and reforming the same to correctly describe the property conveyed, and also perpetually enjoining defendant from further proceeding in said suit at law against complainant. Costs of both courts will be allowed complainant.

Grant, C. J., and Blair, Moore, and Carpenter, JJ., concurred.


author: Mooré, J.

text:
    PETERSON v. CITY OF IONIA.

    1. Pleading —Amendment — Allowance — Propriety — Invited Error.
    In an action against a city to recover the balance due for grading a street, plaintiff was allowed to amend his declaration by counting specially on an' addition to the embankment of two feet in excess of the original contract, whereupon defendant’s attorney asked permission to amend his plea by setting forth that the contract for the two feet was ultra vires. Plaintiff’s attorney stated that the plea showed that defendant had work it had not paid for, and that the amendment should be allowed. Held, that plaintiff was not in a position to complain about the allowance of the amendment.
    ■ 2. Municipal Corporations — Ionia Charter — Streets — Improvements — Raising Grade — Validity oe Contract.
    Where the council of Ionia let a contract to grade a street in accordance with certain plans and specifications, and, before the work was finished, contracted with the same person to add two feet to the embankment specified in the original contraot, the latter work came within the term “improvements ” as used in the charter of Ionia (section 108, Act No. 219, Laws 1873, as amended by Act No. 352, Local Acts 1897), since what was done was to take a strip of land and so improve it as to make it usable as a street, whence the charter provisions as to advertisement and letting should have been observed.

      3. Same — Ultra Vires Contract — Liability op City.
    Where the common council of a city under due authority let a _ contract for the improvement of a street, and later, without observing the formalities required by the charter, employed the contractor to raise the grade of the street two feet higher than his original' contract provided, and the work was performed as agreed, the city is liable for the additional work.
    Error to Ionia; Davis, J.
    Submitted January 16, 1908.
    (Docket No. 74.)
    Decided May 26, 1908.
    Assumpsit by Peter Peterson against the city of Ionia for work and labor. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Lee E. Joslyn, for appellant.

      Alfred B. Locke (Scully & Davis and Dwight C. Sheldon, of counsel), for appellee.

       Rehearing denied June 27, 1908.

   Mooré, J.

Mr. Peterson brought suit against defendant for a balance claimed to be due him for filling and grading a street. In the early summer of 1905, the defendant city advertised for and solicited bids for work in accordance with a profile and certain specifications. The plaintiff was the lowest bidder and the contract was let to him. On July 3d, the following resolution was adopted by the defendant’s city council:

“Resolved, That the mayor and the city attorney are hereby instructed to enter into a contract with Mr. Peterson for the filling, grading and completion of Cleveland street, according to plans and specifications; excepting that the level of said street south of the Pere Marquette tracks be raised above the level of survey in plans two feet, contract to provide for said two feet raise at same compensation per yard as bid accepted by council.”

On June 23,1905, previous, the council adopted the following resolution:

“ Resolved, That the abutment for the new bridge be built two feet higher than at present planned, and that the Cleveland street roadway be also built two feet higher than present survey.”

After the adoption of the foregoing resolutions, and on July 8, 1905, a contract was made in writing between the parties, in which Peterson agreed to do the work required as specified in his bid and provided in the profile and specifications, and also to raise the grade two feet. This contract was made in accordance with the foregoing resolutions of the council.

The plaintiff claims he performed the contract. At the time the work was completed plaintiff had been paid $5,000. A dispute arose as to the number of yards of dirt in the street. The city employed McVey & Northrop to measure the number of yards and adopted the following resolution:

“Resolved, That the city clerk is hereby instructed to notify Contractor Peterson that the city is ready and willing to settle for building the Cleveland street road on the basis of the figures submitted by McVey & Northrop as to volume of fill, after the road is properly completed according to contract and road accepted.”

After the adoption of the foregoing resolutions, Peterson presented a sworn bill to the council, and the following resolution was adopted:

“By Alderman Carten: Resolved, That the claim of Peter Peterson for balance due for filling and grading Cleveland street be allowed according to McVey & Northrop’s measurements; said balance due, according to such measurements, being $8,015.32. That there be deducted from said balance due the sum of $300 on account of the claim of the city, for damages due the city in consequence • of said Peterson’s failure to complete and perform his contract according to the terms thereof; that the clerk and mayor issue an order for the amount of $2,715.32, payable to the order of said Peter Peterson.”

The $2,715.32 allowed in thé foregoing resolution was paid, the $300 was retained by the city, and this suit was brought. The defendant pleaded the general issue and gave notice that the contract had not been completed and claimed damages by way of set off and recoupment.

On the trial defendant claimed that plaintiff could not recover for any part of the additional two feet raise, for the reason that the contract was void as being ultra vires, the city having failed to advertise for bids therefor. The court ruled that the plaintiff could recover for no part of the extra two feet in the grading of the street and refused to permit plaintiff to recover for the $300 allowed by resolution of the council, less any damages the city might show by reason of defendant’s failure to complete the contract, and directed a verdict for defendant. The case is brought here by writ of error. It is argued strenuously that the court erred in permitting defendant to amend its plea, and notice of defense of ultra vires. The plaintiff’s attorney had said he would amend his declaration when the following occurred:

Mr. Locke: Now may it please the court in view of the order of the court permitting the plaintiff to amend his declaration counting specially upon this extra two feet, I desire permission to amend our plea by setting forth that that part of the contract was absolutely void. Also to amend our plea as to the other question, common counts; that any claim they may have for the extra two feet north of the track is also void, for the reason under the charter such contract is without authority. * * *

“Mr. Joslyn: I think if their plea here shows anything it shows they have got work they.have not paid for. The city attorney has got this case in such shape as to raise a defense which. admits the work was done but the city hadn’t ought to pay for it because he didn’t know the law. I think he ought to be permitted to amend. I think they ought to go together.

“Mr. Scully: Thanks to the gentleman for that.”

We do not think counsel is in a position to complain about the amendment.

It is insisted plaintiff should have been allowed to recover the $300 withheld at the time the $2,715.32 was paid. The trouble with that contention is that the resolution must be treated as an entirety, and as an effort to settle. The plaintiff took the money, but did not acquiesce in the claim o£ the city that it had a right to withhold ' the $300 as damages. The counsel admitted his client had been paid for everything except the two feet raise in the embankment.

This brings us to the important question and that is, whether plaintiff was entitled to recover for that work. The city charter, section 108, Act No. 219, Laws of 1873,. as amended by Act No. 352, Local Acts 1897, provides:

“ In all cases when any repairs or improvements are to be made to any street [in] of said city, which shall exceed ih the cost or expense therefor the sum of one hundred dollars, it shall be the duty of the common council to direct and order such officer as may have the superintendence of the streets of said city to advertise, as said council may direct, for bids for the making of said repairs or said improvements, and by such officer to contract for the making of such repairs or improvements with the person or persons who may make the lowest bid therefor which may be acceptable to said council; and said council may require the contracting party to give security for the faithful performance of the contract upon his or their part according to the terms thereof.”

It is argued that, as the street was a new one, what was done was neither repairs nor improvements, and did not come within the charter provision. We think this claim too technical. What was done was to take a strip of land and so improve it as to make it usable as a street.

It is argued that, as the city has had the benefit of the improvement, the defense of ultra vires is inequitable and unjust, and cannot be successfully urged in this case, counsel citing Coit v. City of Grand Rapids, 115 Mich. 493; Carey v. City of Saginaw, 79 Mich. 73; East Jordan Lumber Co. v. Village of East Jordan, 100 Mich. 201; Spier v. City of Kalamazoo, 138 Mich. 652; Arbuckle-Ryan Co. v. City of Grand Ledge, 122 Mich. 491, and many other cases.

On the other hand, it is claimed that Chittenden v. City of Lansing, 120 Mich. 539, rules this case instead of Coit v. City of Grand Rapids, 115 Mich. 493. We are of the opinion that Chittenden v. City of Lansing is inapplicable. There the plaintiff Chittenden substituted Blue Amherst Select stone for Blue Amherst stone under an arrangement, not with the common council, the contracting authority, but with the board of public works, who had no authority to make a contract. The opinion states: “The council repudiated this action without

delay. ” It was held that the city was not bound to pay the increased price of select stone. There was no opportunity in that case to apply the principle that as the city had obtained the benefit of the work, it should make compensation therefor, the contracting authority of the municipality having repudiated the action from the beginning. Legally speaking, the case was not different than it would have been had the contractor never been authorized to make the change. In the case at bar the work was done in pursuance of a contract entered into by the council,' who was duly authorized to contract. The law requiring such contract to be made by bids was disregarded. The city obtained the benefit. The case is indistinguishable from Coit v. City of Grand Rapids, supra, and the authorities there cited.

The judgment is reversed, and new trial ordered.

Grant, C. J., and Blair, Carpenter, and McAlvay, JJ., concurred.


text:
    SCOTT v. UNIVERSITY OF MICHIGAN ATHLETIC ASS’N.

    1. University oe Michigan — Athletic Association — Negligence-Liability.
    The University of Michigan Athletic Association is a voluntary association of undergraduates and alumni who contribute money, with an associate membership of business men, having a graduate director, who, though he is paid by the regents and is dependent for his position upon his engagement by them, is one of the directors of the association, and by its constitution is a member of its financial committee and also exercises such powers and performs such duties as its board of control may from time to time determine and require. The funds of the association are devoted to athletics and to the furnishing and maintaining of a field belonging to the University devoted to athletics, and the regents exercise no control over the funds except to insist upon a proper audit of accounts. The association, through its graduate director, asked and received from the regents permission to erect a bleacher upon the field and erected the same accordingly. Held, that the association and its officers, and not the regents, were proper parties defendant to an action brought by a spectator at a football game for personal injuries resulting from the collapse of the bleacher due to negligent construction.
    2. Same — Athletic Association — Exhibition — Liability for Negligence.
    The University of Michigan Athletic Association and its officers are not relieved from liability for injuries to a spectator at a game of football, caused by the collapse of a wholly inadequate bleacher, by the fact that the structure was erected by a competent and experienced builder, of good materials, and before it was used it was inspected by competent inspectors who pronounced it safe; since by inviting the public and charging an admission fee to witness games, the association occupied the position of a proprietor of a public resort, and there was an implied contract that, except for defects not discoverable by reasonable means, the stand was safe.

      Error to Monroe; Lockwood, J.
    Submitted January 23, 1908.
    (Docket No. 76.)
    Decided May 26, 1908.
    Case by Frank W. Scott against the University of Michigan Athletic Association and others for personal injuries. There was judgment for defendants on a verdict directed by the court, and . plaintiff brings error.
    Reversed.

      Lee N. Brown, E. B. Norris, and J. W. Bennett, for appellant.

      Arthur Brown and Edson B. Sunderland (Thomas A. Bogle, of counsel), for appellees.

       Rehearing denied September 10, 1908.

   Ostrander, J.

Testimony was given from which the jury might have found that plaintiff was injured by the collapse of a stand, or bleacher, erected by the defendant association, for the use of and used by the public, at a game of football to which the public was invited and required to pay an admission fee for the profit of said association; that the stand, designed to support 5,000 spectators, collapsed, from inherent and discoverable weakness, when put to its intended use, when occupied by less than 3,000 persons. At the trial, both parties introduced testimony and the court, without, so far as the record discloses, assigning reasons, directed a verdict for defendants. Judgment was entered on the verdict.

Plaintiff, appellant, contends that the case should have been submitted to the jury. Defendants make three contentions. They are (1) that the plaintiff has in any event no right of action against these, or any of these, defendants ; (2) that plaintiff has not shown that defendants were guilty of any negligence; (3) that if the circumstances made out a prima facie case of negligent construction of the stand, the undisputed testimony for defendants established the fact of the exercise of due care on the part of defendants to render the premises safe.

And first, as to the parties defendant. They are the voluntary association and its officers, of whom defendant Baird is one, filling the position of graduate director. The active members of the association are the undergraduates and alumni who contribute money, with an associate membership of business men. Defendant Pipp is the person employed by the association to erect, and who did erect, the stand. The theory of defendants is:

“Mr. Baird as agent of the board of regents was authorized by Regent Fletcher to put up the bleacher; he did so, had it inspected, and the board of regents had it inspected. Not only does the record fail to show any act whatever on the part of the Athletic Association in regard to the building of the bleacher, but it shows affirmatively that the Athletic Association could not have built a bleacher had it desired to do so. Ferry Field was a recreation ground for the students, and the students, of course, used the field and the structures standing upon it. As Regent Fletcher testified, the association was simply the student in another form. It appears, therefore, that while the Athletic Association had nothing to do with the erection of this bleacher, it was allowed by the regents to use the field and the bleacher for the purpose of carrying on and exhibiting the football game between Michigan and Wisconsin Universities on November 18, 1905. But the board of regents never surrendered full and absolute control of Ferry Field. While the association was using the field it was as much subject to the control of the board of regents as at other times. In other words, Ferry Field is exactly like other University property; it is owned and controlled by the board of regents for the use of the students, but such use can never be hostile to or exclusive of the continued control by the board. Having no independent rights in Ferry Field the Athletic Association could sustain no independent liabilities consequent upon its use.

“ It seems clear that the Athletic Association, under its permission from the board of regents to use Ferry Field pursuant to the general purposes of the University, at most merely represented the board of regents in conducting the game in question. So far as the public is concerned, the association might therefore be deemed the agent of the board of regents in conducting and exhibiting the game for the benefit of all who wished to witness it. And in that capacity the liability of the Athletic Association would appear to be the same as that of Mr. Baird himself. Each is liable, if at all, as agent of the board of regents.

“ Now, it is an elementary principle of the law that an agent is not liable for mere acts of nonfeasance, but only for acts of misfeasance. This principle has been applied in a great variety of cases.”

Whether the fact is or is not controlling, a point not precisely involved, we do not find in the record any testimony tending to prove that the regents, directly or indirectly, constructed or supervised the construction of the stand, or that the defendant association or Mr. Baird was an agent of the regents in that behalf. The record discloses that while Mr. Baird applied to the chairman of the committee on-buildings and grounds for and received permission to build the bleacher, it and all other structures upon the grounds were paid for out of the moneys of the defendant association. The funds of the association are devoted to athletics and to the furnishing and maintaining. of Ferry Field. The association receives and disburses its money and the regents exercise no control of its funds except to insist that there shall be a proper auditing of accounts. Assuming that the regents might have refused permission to erect the particular bleacher, they did not do so. They did not erect it. Assuming, further, that Mr. Baird is paid for his services as adviser of the association’s athletic policy by the regents, and that his position of graduate director is dependent upon his engagement with the regents, he is nevertheless one of the directors of defendant association, and by its constitution is a member of its financial committee, and he also exercises such powers and performs such duties as its board of control may from time to time determine and require. Whether the related facts affect alike all of the defendants, whether for any reason the judgment should be affirmed as to some of the defendants, are subjects not referred to in argument and questions not considered.

The remaining contentions may be considered together. The testimony goes much beyond proving merely an accident and resulting injury. That relied upon to show that defendants exercised due care tends to prove that the stand was erected by a competent and experienced builder, of good materials; that before it was used it was inspected by engineers and others admittedly competent to perform the work of inspection, who pronounced it safe. It is clear, however, that a wholly inadequate structure was in fact tendered for public use, and it cannot be determined, upon this record, as matter of law, that a latent and not a patent defect, discoverable in the exercise of proper care, existed. The managers of the grounds and stands occupied upon the occasion in question the position of proprietors of a public resort. Plaintiff was not a mere licensee and did not occupy the stand by mere invitation. Whether responsibility to the plaintiff is grounded, in the form of action instituted, upon a contract or upon a duty, it exists, if at all, because of an implied contract. The implied contract was that the stand was reasonably fit and proper for the use to which it was put; the duty was to see to it that it was in a fit and proper condition for such use. Neither plaintiff nor the public generally would be expected to examine the stand and judge of its safety. This consideration, and the probable consequences of failure of the structure, imposed upon the responsible and profiting persons the duty of exercising a high degree of care to prevent disaster. They were not insurers of safety, they did not contract that there were no unknown defects, not discoverable by the use of reasonable means; but, having constructed the stand, they did contract that, except for such defects, it was safe. 1 Thompson on Negligence, §§ 994-997; 21 Am. & Eng. Enc. Law (2d Ed.), p. 472; Francis v. Cockrell, L. R. 5 Q. B. 184, 39 L. J. Rep. (N. S.) Q. B. 113, 291. See, also, Fox v. Buffalo Park, 21 App. Div. (N. Y.) 321, 163 N. Y. 559.

The judgment is reversed, and a new trial granted.

Grant, C. J., and Blair, Montgomery, and Carpenter, JJ., concurred.


author: Grant, C. J.

text:
    ATTORNEY GENERAL v. STATE BOARD OF AGRICULTURE.
    1. Mandamus — Issues—Answer.
    Where, on application for a writ of mandamus, no issues are framed, the allegations of the answer will be taken as true.
    2. Same — Propriety — Discretionary Writ — Disastrous Re* sult.
    ■The State board of agriculture will not be compelled, by a peremptory writ of mandamus, to discontinue furnishing water and sewerage to the inhabitants of a village near the agricultural college, in accordance with the terms of a contract entered into between the board and the owners of the plat upon which the village is built, irrespective of whether the contract was one which the board had a right to make or was otherwise invalid, where the answer states that, upon its attention being called to the invalidity of the contract, the board gave notice that it would discontinue the service upon a certain future date, and that to summarily cut off the service would seriously endanger the health of the community, and it appears that the college has abundance of water and sewerage and is deriving a profit from the contract.
    Mandamus by John E. Bird, attorney general, to compel the State board of agriculture to discontinue the furnishing of water to private parties.
    Submitted February 1,8, 1908.
    (Calendar No. 22,564.)
    'Writ denied May 26, 1908.
    ' John E. Bird (.Arthur P. Hicks, of counsel), in pro. per.

      Edward Cahill, for respondent.
    . Section 11 of article 13 of the Constitution of Michigan authorizes the legislature to establish and maintain an agricultural school. The legislature, pursuant to this authority, enacted a law (Act No. 188, Laws 1861) establishing the State Agricultural College, “toafford thorough instruction in agriculture and the natural sciences connected therewith.” It is placed under .the control of the respondent, the State board of agriculture. The purchase of about one thousand acres of land was authorized, about three miles from the city of Lansing, for that purpose, and provision made for the erection of buildings. The college has flourished and now contains a large number of students and teachers.
    In September, 1899, the board of agriculture entered into a contract with certain persons, owners of a plat known as Oakwood, adjacent to the grounds of the Agricultural College, by which the respondent agreed to furnish to the owners of this plat water and sewerage, for which the residents of the plat were to pay certain specified rates. The contract, after reciting that the Agricultural College had a surplus of sewerage and water, agreed upon terms for furnishing them to the owners and inhabitants of the territory covered by the plat. The respondent reserved the right to terminate the use of the sewerage and water at any time when the supply should not be sufficient for its own use.
    The secretary of the respondent, it appears from the petition, was interested in Oakwood plat, and signed the contract as an official of the respondent and also' as one of the owners of the plat. The attention of the attorney general having been called to this contract, he wrote a letter to the president of the college advising him that this contract was void for two reasons: (1) The board had no lawful authority to make it; (2) that it was in violation of section 11384, 3 Comp. Laws, which reads as follows:
    “No trustee, inspector, regent, superintendent, agent, officer, or member of any board having control or charge of any educational, charitable, penal, pauper, or reformatory, public institutions of this State, or of any county thereof, shall be personally directly or indirectly interested in any contract, purchase, or sale made for, or on account, or in behalf of, any such institution, and all such contracts, purchases or sales shall be held null and void; nor shall any such officer corruptly accept any bribe from any persons interested in such contract; and it is hereby made the duty of the governor or other appointing power, upon proof satisfactory of a violation of the provisions of this section, to immediately remove the officer or employé offending as aforesaid; and upon conviction thereof before a court of competent jurisdiction, the offender shall be punished by a fine not exceeding five hundred dollars.”
    At a meeting held July 9 and 10, 1907, the State board of agriculture, in response to the opinion of the attorney general, determined that, as many residents had purchased and built houses relying upon the use of water and the sewerage, as provided in said contract, and that to summarily cut them off from the use thereof would endanger their health and the health of those living upon the college grounds and vicinity, said residents and other persons interested should be given a reasonable time in which to make other arrangements for water and sewerage, and that such reasonable time would be until the 1st of January, 1909. Thereupon the attorney general filed the petition in this case on October 31, 1907, for the writ of mandamus to compel the respondent to discontinue the use of the water and sewerage as provided in said contract.
    The answer admits the making of the contract; states that 39 families, including some professors, have built houses, connecting them with this water and sewerage, and asserts that to now deprive them of their use would result in serious danger to the health of the inhabitants, and that the time fixed by the respondent to make other arrangements is reasonable. The respondent also maintains that the contract is valid.
   Grant, C. J.

(after stating the facts). No issue was framed. The allegations of the answer, for the purposes of this motion, must therefore be taken as true. Besides, it is apparent that serious inconvenience and danger to health would result from a summary deprivation of the use of the water and sewers. The houses are provided with water-closets and modern arrangements for the use of water and sewage.

We do hot think that the discretionary writ of mandamus should be summarily used when its use would result so disastrously. We the more readily come to this conclusion because it appears that the State is not suffering any loss from the arrangement, the answer asserting that the State is now deriving a profit from it. We do not therefore think it essential to determine the legal questions involved. It is to be presumed that the respondent will carry out in good faith its determination to end the contract at the time proposed.

It may not be improper to say that the respondent is not by the act of the legislature expressly empowered to make such contracts. It is at least a doubtful question whether such power exists by implication. It must not be inferred that we hold that the legislature may confer such power upon the respondent. These questions are left for future determination should the occasion ever require!

For the reason above given, the writ is denied.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Grant, C. J. Ostrander, J.

text:
    BACHINSKI v. BACHINSKI’S ESTATE.
    1. Descent and Distribution — Wills—Excluded Child — Petition for Share in Estate — Evidence.
    In a proceeding by a child of a testator, under section 9286, 3 Comp. Laws, for a share in her father’s estate, on the ground that he omitted to provide for her in his will through mistake, it appearing that the will was made when she was 11 years old, whether she became an inmate of a house of ill-fame when 18 years old was immaterial, and she having denied it on examination as a witness, evidence to prove the fact was properly rejected.
    2. Same — Wills—Omission op Child — Mistake—Evidence.
    In a proceeding under section 9286, 3 Comp. Laws, by a child, for a share in her father’s estate, on the ground that he omitted to provide for her in his will through mistake, the fact of mistake may be proved by extrinsic evidence.
    3. Same — Mistake op Law.
    The mistake causing a testator to omit to provide in his will for a child which will authorize assigning to such child such a share in his estate as she would have received had he died intestate (section 9286, 3 Comp! Laws), may be a mistake of law as well as a mistake of fact.
    4. Same — Mistake op Scrivener.
    Where a testator relied upon the opinion of the scrivener who drew his will that his daughter would share in his estate notwithstanding his omission to provide for her, there was a mistake of law authorizing the distribution to her of a share in the estate under section 9286, 3 Comp. Laws.
    5. Same — Evidence.
    In a proceeding by a child for a share in her father’s estate, under section 9286, 3 Comp. Laws, the financial condition of the estate was immaterial, and was not admissible as res gestee.
    6. Appeal and Error — Review — Record — Admissibility op Letters.
    Whether there was error in refusing to admit certain letters olaimed to have been written by petitioner, but which she denied writing, cannot be reviewed where neither the letters nor a statement of their contents are in the record.

      Error to Bay; Collins, J.
    Submitted February 18, 1908.
    (Docket No. 67.)
    Decided May 26, 1908.
    Annie Bachinski filed a petition in the probate court under 3 Comp. Laws, § 9286, for a share in the estate of John Bachinski, deceased. The petition was granted, and Frances Bachinski, executrix of the will, appealed to the circuit court. There was judgment for petitioner, and defendant brings error.
    Affirmed.

      Pierce & Kinnane, for appellant.

      Frank 8. Pratt (W, A. Hayes, of counsel), for appellee.
    Petitioner, the daughter of John Bachinski, deceased, filed the petition in this case in the probate court of Bay county, asking that she be decreed the same share in her father’s estate that she would have been entitled to had he died intestate. The petition was presented under 3 Comp. Laws, § 9286, which provides that such child shall be entitled to such a decree, if it appear that such omission was not intentional but was made by mistake or accident. Petitioner’s mother died when she was between 4 and 5 years of age. Some time after her death the father became acquainted with a widow, Mrs. Frances Plath, who had two daughters. The latter part of 1890, Mr. Bachinski took the petitioner and went to live with Mrs. Plath and her daughters. Mrs. Plath had a child by Mr. Bachinski. Some ten years after the birth of the child Mrs. Plath and Bachinski were married. The will was executed July 13, 1891. It gave all his property to Mrs. Plath, and made her his executrix. After the will was admitted to probate this petition was filed. The prayer was granted, and Mrs. Bachinski appealed to the circuit court where the case was tried by a jury who rendered a verdict in favor of the petitioner.
    To a special question, “Was the omission to provide in the will in question for Annie Bachinski intentional ? ” the jury answered, “No;” and to the question, “Was the omission to provide in the will in question for Annie Bachinski due either to accident of mistake ? ” they answered, “Yes.”
    Mrs. Bachinski seeks a reversal in this court for alleged errors upon the trial.
   Grant, C. J.

{after stating the.facts). The petitioner was 11 years old when the will was made. She lived with her fatherabout six years thereafter. Respondent sought to show, on cross-examination of the peti-' tioner, that she, when about 18 years of age, became an inmate of a house of prostitution. The testimony was properly rejected. People v. McLean, 71 Mich. 309; People v. Mills, 94 Mich. 630; People v. Abbott, 97 Mich. 484.

It is claimed that on account of this conduct an estrangement took place between the father and daughter. Even if this were so, it' would have no bearing upon the condition of affairs at the time the will was made, six years before, when petitioner was a little over 11 years of age, neither would it afford any reason for his omission to provide for her. The record contains no evidence tending to show that there was the slightest estrangement between them at the date of the will, neither could there well be in the case of a child of such tender years. The only excuse offered for disinheriting his own daughter is that Mrs. Plath had loaned him some money.

Kinney v. Kinney, 34 Mich. 250, and Waldron v. Waldron, 45 Mich. 350, have no application to a case under this statute. Those cases apply to the construction of provisions of wills devising property to devisees therein named, not to a case where the testator omits his own offspring from his bounty. There is a serious conflict in the cases as to the character of the evidence required by this and similar statutes. 1 Underhill on Wills, § 243. A rule that the question must be determined “from the four corners of the instrument” would render .the statute of little value. In reason and common sense resort must be had to extrinsic evidence. The intent cannot often appear from the will itself. See note to Thomas v. Black, 8 Am. Prob. Rep. 340 (113 Mo. 66), where numerous authorities are cited; Coulam v. Doull, 133 U. S. 216.

It appears from the testimony of the scrivener who drew the will that the testator knew that he omitted to mention his daughter, but it also appears that the scrivener told him that it would not cut off his daughter from a share in his estate. The mistake therefore was one of law. Is such mistake within the statute ? We held that it is not a universal, though a general, rule that equity will not relieve against a mistake of law. Renard v. Clink, 91 Mich. 1.

It would certainly be a harsh rule to hold that where it clearly appeared that the testator omitted his own children from his will by a mistake of law and in the belief that he had not disinherited them, the omission was intentional. This question is decided under á statute practically like our own by the supreme court of Massachusetts. Ramsdill v. Wentworth, 101 Mass. 125. It was there said:

“ The nature of the mistake is not material. There is no distinction between mistake of fact and mistake of law in this regard. If the testator, in ignorance or mistake of law, supposed that he had provided for.them by the terms used in his will, then his failure to name them, or to use apt words of devise to them, cannot, within the meaning of the statute, be regarded as an intentional omission.”

In this case it is clear that the testator did not, within the meaning of the statute, purposely omit his daughter from his will. The statement made by the scrivener to him, and statements made by the testator that his' property would go to his two children, were competent to show that he unintentionally omitted petitioner from his will. We held in Re Estate of Stebbins, 94 Mich. 304, that although the testator had named his grandchild in his will but without making any provision for her, the question of whether he intentionally or unintentionally omitted her from the will was a question of fact for the jury. We think there is stronger evidence in this case than in that to show the testator’s intention.

The court did not err in refusing to permit the respondent to show the financial condition of the estate of the deceased. Whether the deceased left an estate large or small has no bearing whatever upon the issue. The amount of the estate would not afford any reason for excluding his only legitimate child from his bounty.

It is also urged that the court erred in refusing to admit certain letters, claimed to have been written by the petitioner but which she denied writing. Neither the letters nor a statement of their contents are in the record. The question of their admissibility, therefore, is not properly before us.

Judgment affirmed..

Moore, J., concurred.

Ostrander, J.

I agree to an affirmance of the judgment. As to the point first discussed in the opinion of Mr. Justice Grant, the record discloses that the petitioner denied on her direct examination that she had ever been an inmate of a house of ill-fame. Appellant then offered to prove the fact. I think, under the circumstances of this case, as set out in the opinion of Mr. Justice Grant, the testimony was properly excluded. Upon the subject of the condition of the estate of the deceased, which appellant offered to prove and was not permitted to prove, I concur in holding that the condition of the estate was not a part of the res gestee, which is the ground, and only ground, asserted in this court for admitting thé testimony.

Blair and Montgomery, JJ., concurred.


author: Mooke, J.

text:
    WEBB v. DEPEW.
    1. Appeal and Error — Judgments Appealable— Consent Verdict.
    Where, on appeal from a judgment for plaintiff in justice’s court, in an action for a breach of a contract of employment, the circuit- judge, at the beginning of the trial, ruled that plaintiff could not make proof of damages later than the date of the trial in justice’s court, to which plaintiff duly excepted> the claim that the verdict for plaintiff subsequently rendered for less than the amount of plaintiff’s claim was a consent verdict and not appealable, is untenable.
    2. Master and Servant — Contract of Employment — Breach-Action — Pleading.
    In an action by a servant for breach of the contract of employment, plaintiff declared on the common counts and a special count setting up the contract and its breach. Accompanying the common counts was a bill of particulars, one item of which claimed damages for the breach in the amount plaintiff would have earned if allowed to cofnplete the contract. Defendant gave notice of justification for plaintiff’s discharge. Held, that defendant’s claim that the special count was not for breach of contract, but was to recover wages, is untenable, defendant not having been misled.
    J. Same — Wrongful Discharge — Damages.
    In an action by a servant for breach of the contract of employment by wrongful discharge, plaintiff is not limited in his recovery to damages which have accrued at the time of the trial, but may recover in the one action all his damages for an entire non-fulfillment of the contract.
    Error to Muskegon; Davis, J., presiding.
    Submitted February 19, 1908.
    (Docket No. 97.)
    Decided May 26, 1908.
    Assumpsit by Jennie Webb against Frances Depew for breach of a contract of employment. There was judgment for plaintiff, on a verdict directed by the court, for less than the amount claimed, and she brings error.
    Reversed.

      Nims, Hoyt, Erwin & Vanderwerjp,. for appellant.

      Cross, Lovelace & Boss (Ed. E. Kane, of counsel), for appellee.
   Mooke, J.

This suit was brought in justice’s court on July 3, 1907. The plaintiff filed a written declaration containing a special count alleging a contract, breach and damages, and the common counts, with bill of particulars' attached. The defendant pleaded the general issue and gave notice of justification for the discharge of plaintiff and a set-off. The case was tried in justice’s court before a jury, and on July 17,1907, a judgment was rendered in favor of plaintiff for $190. Defendant appealed the case to the circuit court and on September 25, 1907, it came on for trial before a jury.

Counsel for plaintiff in his openiúg statement said that plaintiff and her daughter, Anna, were employed by defendant as domestics at defendant’s summer home near Muskegon, Michigan, for a period .from about June 21, 1907, to such time as defendant should leave said summer home, but to at least October 1, 1907; that after plaintiff and her daughter had worked for defendant under this contract for about ten days’, they were discharged by defendant without cause; that this suit was then instituted to recover the wages plaintiff and her daughter had already earned and damages for breach-of the contract on the part of defendant.

After the opening statement had been made, and before any evidence had been introduced, the trial court made a ruling that - plaintiff would be limited to recover such damages only as had accrued from the date of her discharge by defendant to the date of trial in justice’s court, a period of 17 days. To this ruling plaintiff’s counsel excepted.

Plaintiff’s counsel contended that, if the rule adopted by the court was correct, plaintiff was still entitled to recover such damages as had accrued from the date of her discharge to the date when the case was tried in circuit court. The trial court held that the case must be determined as it existed in justice’s court, and no damages could be recovered beyond that time, to which ruling plaintiff’s counsel excepted.

The assignments of error are discussed by counsel under two heads:

First. The court erred in holding that plaintiff could not recover damages for the whole contract period, but that she was limited in her recovery to such damages as had accrued at the time of the trial in justice’s court.

Second. The court erred in not allowing plaintiff to recover such damages as had accrued up to the time of the trial in circuit court.

Before proceeding to discuss the two heads presented by counsel for appellants, some attention must be given to the contention of counsel for defendant. It is claimed the verdict was a consent verdict and not appealable. We do not so understand the record. The plaintiff claimed the right to prove her damages in full, but the court ruled she could not make proof of damages later than the date of trial in justice’s court. Exception was duly taken and the action of the court is reviewable.

• It is claimed the special count is not for a breach of the contract, but is an action on the contract to recover plaintiff’s wages. We do not agree with this contention. The special count set out the contract and its breach. A bill of particulars was filed, one item of which reads:

“ To damage by breach of contract being what plaintiff and daughter would have earned if allowed to complete contract, $144.”

Under her plea, defendant gave notice of justification for the discharge of plaintiff and her daughter. The defendant was not misled. See Costello v. Ten Eyck, 86 Mich. 348.

We now come to the important question and that is, Was the trial court right in relation to the measure of damages ? An examination of the authorities will show that there is a hopeless conflict in them. The precise question is a new one in this State. This court has held that, in case of a contract for life, or during one’s ability and disposition to perform the duties of- his position, prospective damages are recoverable in an action for its breach, and that the plaintiff is entitled to recover such a sum as represents fairly and reasonably the extent of his loss, the measure of damages being the present value of the contract. Brighton v. Railway Co., 103 Mich. 420, 112 Mich. 217; Stearns v. Railway Co., 112 Mich. 651.

In Cutter v. Gillette, 163 Mass. 95, it was said:

“The remaining question is whether the jury should have been allowed to assess damages for the period of time subsequent to the trial. The plaintiff was hired for five years from April 25, 1892, and was discharged about the middle of July, 1892. He brought suit on November 10,1892, and the verdict was rendered on March 14,1894. The verdict assessed at the sum of $3,180.95 the plaintiff’s whole damages for breach of the contract for hiring, and stated that of the amount $1,392.95 was the damage to the time of trial. The defendant concedes that the plaintiff is entitled to recover damages for an entire breach, so far as such damages can be ascertained, but contends that, as the trial occurred before the expiration of the contract period, it was impossible for the jury to ascertain or assess the damage for the unexpired portion of the contract period subsequent to the time of trial. In support of this contention defendant cites the cases of Colburn v. Woodworth, 31 Barb. (N. Y.) 381, Fowler v. Armour, 24 Ala. 194, Litchenstein v. Brooks, 75 Tex. 196, and Gordon v. Brewster, 7 Wis. 355, in which cases it seems to have been held that, if the suit is begun before the- expiration of the contract period, damages can only be allowed to the time of the trial. He asserts that in the case of Howard v. Daly, 61 N. Y. 362, in which full damages were given, the writ was brought after the expiration of the contract period. On the other hand it has been held in Vermont that, if there has been such a breach as to authorize the plaintiff to treat it as entirely putting an end to the contract, he may recover damages for an entire non-fulfillment, and is not limited to what he has actually sustained at the time of his bringing suit or the time of trial. Remelee v. Hall, 31 Vt. 582. And in Maine, in an action for breach of a contract for hiring, brought before the expiratiou of the contract period, it was held that the just recompense for the actual injury sustained by the illegal discharge was the stipulated wages, less whatever sum the plaintiff actually earned, or might have earned by the use of reasonable diligence. Sutherland v. Wyer, 67 Me. 64.

/“ Such would seem to be the rule in Pennsylvania. See King v. Steiren, 44 Pa. 99; Chamberlin v. Morgan, 68 Pa. 168. And the defendant concedes that such is the rule in England. We do not go into an exhaustive consideration of the decisions upon the question, as we consider it to have been settled in favor of the ruling given at the trial by our decisions. Dennis v. Maxwell, 10 Allen (Mass.), 138; Blair v. Laflin, 127 Mass. 522; Jewett v. Brooks, 134 Mass. 505; Paige v. Barrett, 151 Mass. 67. See, also, Warner v. Bacon, 8 Gray (Mass.), 397, 408; Amos v. Oakley, 131 Mass. 413; Parker v. Russell, 133 Mass. 74; Drummond v. Crane, 159 Mass. 577, 581 (23 L. R. A. 707). The plaintiff’s cause of action accrued when he was wrongfully discharged. His suit is not for wages, but for damages for the breach of his contract by the defendant. For this breach he can have but one action. In estimating his damages the jury have the right to consider the wages which he would have earned under the contract, the probability whether his life and that of the defendant would continue to the end of the contract period, whether the plaintiff’s working ability would continue, and any other uncertainties growing out of the terms of the contract, as well as the likelihood that the plaintiff would be able to earn money in other work during the time. But it is not the law that damages, which may be larger Or smaller because of such uncertainties, are not recoverable: The same kind of difficulty is encountered in the assessment of damages for personal injuries. All the elements which bear upon the matters involved in the prognostication are to be considered by the jury, and from the evidence in each case they are to form an opinion upon which all can agree, and to which, unless it is set aside by the court, the parties must submit. The liability to have the damages which he inflicts by breaking his contract so assessed is one which the defendant must be taken to have understood when he wrongfully discharged the plaintiff, and if he did not wish to be subjected to it he should have kept his agreement.”

To the same effect are the following cases: Blair v. Laflin, 127 Mass. 518; Boland v. Clendale Quarry Co., 127 Mo. 520; Rhoades v. Railway Co., 49 W. Va. 494 (55 L. R. A. 170); Prichard v. Martin, 27 Miss. 305; Saxonia Mining & Reduction Co. v. Cook, 7 Colo. 569; Hamilton v. Love, 152 Ind. 641; Forked Deer Pants Co. v. Shipley, 25 Ky. Law Rep. 2299; Moore v. Foundry Co., 68 N. J. Law, 14; Pierce v. Railroad Co., 173 U. S. 1; Dugan v. Anderson, 36 Md. 567; Winkler v. Carriage Co., 99 Wis. 184; Remelee v. Hall, 31 Vt. 582; Sutherland v. Wyer, 67 Me. 64.

The rule of damages stated in these cases is in harmony with the rule approved in Brighton v. Railway Co., 103 Mich. 420.

Judgment is reversed, and new trial ordered.

Grant, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.