author: Blair, J.

text:
    WEAVER v. ANN ARBOR RAILROAD CO.
    1. Carriers — Live Stock — Persons in Charge.
    A person, designated by the shipper, and accepted by the carrier, to take charge of a shipment of live stock, is a “bona fideemployé ” of the shipper, within the meaning of those words as used in the contract of carriage, though he has not theretofore been in the shipper’s employ and receives no other compensation than his passage to the destination of the shipment.
    2. Same — Evidence—Sueeicienoy.
    On the issue of whether decedent, killed while riding on a drover’s pass, was in charge of a shipment of cattle, evidence examined and held, sufficient to justify a finding that he was actually placed in charge of the cattle by the shipper with the understanding that he should do whatever was necessary in caring for them.
    3. Same — Passenger—Person Riding on Drover’s Pass — Negligence — Limitation oe Liability — Contract.
    A person rightfully riding on a drover’s pass is a passenger for hire, and his release of liability for damages on account of the negligence of the carrier is invalid.
    Error to Gratiot; Stone, J.
    Submitted January 20, 1905.
    (Docket No. 96.)
    Decided April 4, 1905.
    Case by Lizzie Weaver, administratrix of the estate of John H. Weaver, deceased, against the Ann Arbor Railroad Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Alexander L. Smith, for appellant.

      Julius B. Kirby, for appellee.
   Blair, J.

This writ of error is prosecuted to reverse a judgment of the circuit court of Gratiot county in favor of the plaintiff, as administratrix of the estate of John H. Weaver, deceased, in' an action brought against the defendant railway company for injuries received by said decedent, caused by the negligence of the defendant, and from which he subsequently died.' The action was brought under the survival act. At the close of the plaintiff’s evidence defendant made a motion for a verdict on the pleadings and proofs, which the court overruled, and defendant excepted. The defendant offered no testimony. The case was thereupon submitted to a jury, which returned a verdict for plaintiff, on which judgment was entered. There is no dispute about the facts in the case. The errors assigned are the action of the court in overruling the motion above mentioned, in refusing to give in the charge to the'jury two requests of the defendant, and error in the charge as given.

Plaintiff’s decedent, John H. Weaver, was, at the time •of the accident causing his death, being transported on a freight train of defendant, which ,was at said time standing within what are known as “yard limits”of the station at Ashley, a village on the line of the defendant railroad. He was in the caboose at the rear of said , train, which was a south-bound train, known as “-No. 33.” The accident occurred shortly before midnight on the 29th of January, 1904. The accident was caused by another .south-bound freight train of defendant, known as “ No. 41,” coming into the yard or station limits at Ashley, and running into the caboose in which plaintiff was, wrecking that car, and causing a hay car in front of it to be derailed and upset upon plaintiff’s body, injuring him so severely that he died within a short time thereafter. The accident was due to the negligence of the engineer of train No. 41 in failing to keep his train under control when coming into yard or station limits, as required by a rule of the ■company.

The declaration avers that plaintiff’s intestate was being transported as a passenger for hire. In proof of this allegation there was offered in evidence of the right of said Weaver as a passenger on defendant’s train a paper found upon his body after his death. This document is designated a “limited liability live stock contract.” It was a written contract entered into by the railroad company and certain shippers of live stock, Messrs. Altenburg & Van Buskirk, providing for the transportation of 28 head of cattle from Ithaca, Mich., to Black Rock (near Buffalo), N. Y. Ithaca is a station on the defendant’s railroad a short distance north of Ashley. Under the contract the shippers had the right to accompany, or have an employé accompany, the stock, to take care of the same. The transportation of the man in charge was without other money consideration than the sum paid for the transportation of the stock.

The contract contained, among others, the following provisions:

“That the said shipper is, at his own sole risk and expense, to load and take care of and to feed and water said stock whilst being transported, whether delayed in transit or otherwise, and to unload the same, and neither said carrier nor any connecting carrier is to be under any liability or duty with reference thereto, except in the actual transportation of the same. * * *
“That said shipper shall see that all doors and openings in said car or cars are at all times so closed and fastened as to prevent the escape therefrom of any of said stock, and said carrier or any connecting carrier shall not be liaable on account of the escape of any of said stock from said car or cars. * * *
“That no claim for damages which .may accrue to the said shipper under this contract shall be allowed or paid by the said carrier, or sued for in any court by the said shipper, unless a claim for such loss or damage shall be made in writing, verified by the affidavit of the said shipper or his agent, etc. * * *
“ And it is further agreed by said shipper that, in consideration of the premises and* of the carriage of a person or persons in charge of said stock upon a freight train of' said carrier or its connecting carriers without charge other than the sum paid o’r to be paid for the transportation of the live stock in charge of which he is, the said shipper shall and will indemnify and save harmless said carrier and every connecting carrier from all claims, liabilities, and demands of every kind, nature, and description, by reason of personal injury sustained by said person or persons so in charge of said stock, whether the sáme be caused by the negligence of said carrier or any connecting carrier, or any of its or their employés, or otherwise. * * *
“And Altenburg & Van Buskirk does hereby acknowledge that he had the option of shipping the above described live stock at a higher rate, of freight according to the official tariffs, classifications, and rules of the said carrier and connecting carriers, and thereby receiving the security of the liability of the said carrier and connecting railroad, and transportation companies as common carriers of the said live stock upon their respective roads and lines, but has voluntarily decided to ship same under this contract at the reduced rate of freight above first mentioned.
“ Ann Arbor Railroad Company,
“By E. W. Angell, Station Agent.
“ Witness my hand,
“ Altenburg & Van Buskirk, Shipper.
“By-= — =—, Shipper’s Agent.
“E. W. Angell, Witness.
“ (See back for release for man in charge.)”

Upon the back of the contract appeared the following:

“ Form 258. Live stock contract:
“From Ithaca, Mich., to Black Rock, N. Y., viaM. C. R. R.
“ Date Jany 29th, ’04. Shipper,,-Altenburg & Van B.; consignee, do., ac Bun. W. B. Nos. M. C. 31 and M. C. 32; car Nos. M. C. 7991, T. C. S. D. 20836.
“Parties actually in charge of and accompanying within named stock are required to write their own names in ink here.
“John Weaver.
“Men in charge have written their own names above.
“E. W. Angell; Forwarding Agent.
“Ithaca, Mich., Station.
“ Note — Agents will permit only the signature of owners or bona fide employes, who accompany the stock, to be entered on back of contract, without regard to passes allowed by number of cars, and run a pen through the remaining lines.
“John Weaver.
.“I hereby sign my name as a means of identifying myself as original signer of this contract.
“ John Weaver.
“ Agents will fill in the blank spaces in face of contract in accordance with rates, weights, and conditions, as provided in tariffs and classifications, or such instructions as may be issued from time to time.
“ The names of persons who are actually entitled to pass free with stock must be entered on the waybill, and which, when certified to by the agent, is the authority for the conductor to pass them.
“No return passes will be given.
“ Agents will permit only the names of owners, or bona fide employés who accompany the stock, to be entered on waybill, without regard to passage allowed by number of cars.
“Agents are expected to adhere strictly to the rules in regard to the loading of mixed cars of stock, checking of shipments, examination of cars and doors, and the affording of proper facilities for the care of stock to parties in charge of same.
. “This contract must be signed in duplicate in all cases; the shipper to
“Release for man or men in charge.
“In consideration of the carriage of the undersigned upon a freight train of the carrier or carriers named in the within contract, without charge, other than the sum paid or to be paid for the carriage upon said freight train of the live stock mentioned in said contract, of which live • stock I am in charge, the undersigned do hereby voluntarily assume all risk of accidents or damage to his person or property, and do hereby release and discharge the said carrier or carriers from every and all claims, liabilities, and demands of every kind,' nature, and description, for or on account of any personal injury or damage of any kind sustained by the undersigned so in charge of said stock, whether the same be caused by the negligence of the said carrier or carriers, or any of its or their employés, or otherwise.
“John H. Weaver,
“Signature of man in charge.
“E. W. Angell, Witness.”

Defendant contends that:

“ John Weaver was not a passenger for hire, as claimed by plaintiff. In fact and law he was really a trespasser, to whom defendant owed no duty except to abstain from injuring him by wanton or willful acts. * * *
“The contract offered by plaintiff as the evidence of his right to be carried as a passenger contained, in the very paragraph signed by Weaver, a provision that it was intended only for bona fide employés. And in this paragraph, as well as in the release signed by him, the validity of which we shall discuss further on, he, in effect, represents and certifies that he is a bona fide employé of the shippers, in charge of their stock. That such was not the fact was well known to him and the shippers. It was not known to the railway company’s agent. And, if it had been, the contract, on its face, shows that the agent was authorized to issue the pass only to bona fide employés of the shippers. In fact, the whole transaction was a fraud on the company. The privilege of sending a ‘ man in charge ’ was abused by sending instead a man who was not in charge of the stock, and had no connection with it or the shippers. Weaver was, for the purpose of getting a ride for nothing, pretending (with the connivance of the shippers) to be what he was not — a bona fide employé of the shippers, in charge of their stock. Under these circumstances he had no right to the transportation. He ' was therefore wrongfully on the train. In other words, he was a trespasser. And, irrespective of the release signed by him, the company is not .liable.”

We do not think the trial judge erred in refusing to direct a verdict for defendant on the ground that Weaver was a trespasser. The contract relied upon was between Altenburg & Yan Buskirk as shippers, and the railroad company as carrier, and intended to be signed by both parties. It was signed by the carrier, and by its station agent, and purported to have been signed by the shippers, although Mr. Altenburg testified that he never signed it, and had never read it, and there was no evidence, so far as the record shows, who did sign the shippers’ names. The contract between the shippers and the carrier was all set forth upon the face of the. paper, appears to be complete, and contains no reference to anything upon the back'thereof. There is no provision in this contract, as signed, requiring that the person accompanying the stock shall be a “ bona fide employé ” of the shippers. It gave them the right to select whomsoever they chose, and send him in charge of the stock, in consideration of their indemnifying the carrier against liability for injuries received by the person so placed in charge. It was manifestly the shipper who assumed all of the risk of an improper selection, and not the carrier. Heller v. Railway Co., 109 Mich. 53.

The provisions with reference to “ bona fide employes ” are all upon the back of the agreement, not included in the agreement signed by the shippers, either explicitly or by reference, and are, in form, directions or instructions to the carrier’s agent,. Although one of these clauses was apparently signed by John Weaver, an inspection of the original in the return to the writ shows that it was not contemplated that it should be signed by him. Evidently the only clauses which it was intended that Weaver should sign were the two clauses reading as follows:

“ Parties actually in charge of and accompanying within-named stock are required to write their own names in ink here. * * *
“ I hereby sign my name as a means of identifying myself as original signer of this contract.”

These instructions to the carrier’s agent seem to be designed for the protection of the company by insuring that the person who received a pass should be the person actually in charge of and accompanying the stock. The words “bona fide employés,” as used in the instructions to the agent, mean the same thing as the expression, “Parties actually in charge of and accompanying within-named stock.” The word “ employe ” has a variety of meanings, according to the context, subject-matter, and circumstances in which it is used. According to Webster, an employe is “one who is employed.” According to the text of the 11 Am. & Eng. Enc. Law (2d Ed.), p. 1:

“Toemploy means to engage in one’s service; to use as an agent or substitute in transacting business; to commission and intrust with the management of one’s affairs; when used passively, it sometimes has a reflexive meaning, signifying only to be engaged in. To select; to designate. ”

In Reg. v. Reason, 23 L. J. Rep. (N. S.) part 3, p. 11, it was held that if a person, while engaged in gratuitously assisting a postmaster, at his request, in sorting the letters, steal one of them, he is liable to the severer penalties imposed by the statute as a person employed under the post office.

In the case of Reg. v. Foulkes, L. R. 2 C. C. R. 150, the prisoner’s father was clerk to a local board, and held other appointments. The prisoner lived with his father, and assisted him in his office and in the business of the board. In his father’s absence, the prisoner acted for him at the meetings of the board, and when present he assisted him. The prisoner was not appointed or paid by the board, and there was no evidence that he received any salary from his father. The board having occasion to raise a loan on mortgage, the prisoner managed the business for his father, and at his father’s office received the money from the mortgagees, and appropriated a part of it to his own use. Held, that there was evidence that the prisoner was a clerk or servant, or employed as a clerk or servant, and was guilty of embezzlement.

It was not necessary in this case that Weaver should have been employed before the occasion in question; nor was it necessary that there should have been any compensation in money provided for. It was sufficient if he was actually put in charge of the stock with the understanding that he should render such services as should become necessary in consideration of the transportation furnished to him. If this was substantially the transaction between Weaver and the shippers, then he was a bona fide employé in the sense in which those words are used on the back of the contract.

Defendant’s counsel regarded this inquiry as foreclosed by the testimony of Altenburg, who was called as a witness by plaintiff, and testified that Weaver was not in his employ' or the employ of Altenburg & Van Buskirk at any time during his lifetime; that Weaver came to him a perfect stranger, and told him he wanted to get a pass to Buffalo; that on learning he was the son of Dan Weaver, a friend of Altenburg’s, he gave him the pass simply as a favor to his father; that they had not been in the habit of sending a caretaker with their cattle, because it was unnecessary; that he told one of the defendant’s agents at the depot to give Weaver a pass; that he expected that, if anything happened to the stock, Weaver would take hold and help, if called upon, but didn’t think he would be called upon because of the light load. It appeared also from the testimony of Altenburg and others that Weaver put on two suits of clothes when he left home, and his overalls over them; that he got to the stockyards about 10-o’clock in the forenoon, and worked from then until 3 o’clock in the afternoon, at which time the loading of the stock was finished; that he told the conductor that he was in charge of the stock, and he signed the statement that he was in charge of the stock, and the agent authenticated it; that he had his overalls on when he was killed. Altenburg testified that Weaver was not asked to help load the stock; but he did help load it, and thereby plainly showed his understanding that he was to earn his pass by doing-whatever needed to be done about the stock. Altenburg had been notified by defendant’s attorney that the railroad company would look to Altenburg & Van Buskirk to* indemnify them against any damages on account of the death of Weaver, and the jury were entitled to view his testimony in the light of his manifest interest, and to reject some parts of it and accept others. We think there was evidence from which the jury might have found that Weaver was actually placed in charge of the stock by Altenburg, with the understanding that he should do whatever was necessary to be done in caring for them; and the trial judge would not have been warranted in taking this question from the jury.

But, in any event, defendant’s counsel contend: That the company is not liable because the release signed by plaintiff’s intestate was a valid and binding contract, and absolved the company from liability. That, whatever the law may be in other States, it is the settled law in Michigan that railway companies are not common carriers of live stock. They are not bound to perform the service of carrying live stock. Nor does the fact that they do in fact carry such stock under special contracts, such as the one in this case, make them common carriers. That if the railway company, in making the contract in question here, was not acting in the capacity of a common carrier, the whole argument against the validity of the release necessarily falls to the ground; for if it was contracting to do a service which it was not bound by law to do in any event, clearly it had the right to impose such conditions as it saw fit upon the performance of the service, and the agreement of the shippers to indemnify it against, and of Weaver to release it from, liability for injuries to the latter caused by the negligence of the company’s employes, is entirely valid — citing Michigan Southern, etc., R. Co. v. McDonough, 21 Mich. 165, 193; Lake Shore, etc., R. Co. v. Perkins, 25 Mich. 329; Heller v. Railway Co., 109 Mich. 53; McKenzie v. Railroad Co., 137 Mich. 112; Coup v. Railway Co., 56 Mich. 111, 115; Mann v. Railroad Co., 135 Mich. 210; Wilson v. Railroad Co., 129 Fed. 774, 783; Baltimore, etc., R. Co. v. Voigt, 176 U. S. 498, 514; Russell v. Railway Co., 157 Ind. 305, 316 (55 L. R. A. 253).

Plaintiff’s counsel does not claim, in support of the judgment in this case, that the defendant was a common carrier of live stock, but contends that, as to the plaintiff’s intestate, defendant was a common carrier of passengers, and therefore, upon grounds of public policy, it could not lawfully stipulate for exemption from responsibility for its own negligence.

In our opinion, the contention'of plaintiff’s counsel must be sustained. This precise question was exhaustively considered and discussed by Mr. Justice Bradley in the case of Railroad Co. v. Lockwood, 17 Wall. (U. S.) 357. In an opinion of great force and clearness of reasoning, concurred in by the entire court, it was held that the plaintiff, riding upon a stock drover’s pass, as in the present case, was a passenger for hire, and the release of liability for damages on account of negligence of the carrier was invalid. The same rule is adopted in Illinois (Illinois Cent. R. Co. v. Beebe, 174 Ill. 13 [43 L. R. A. 210]):

“It is said, however, that in Illinois a carrier may by contract limit its liability for all negligence except gross negligence. This rule has been laid down in some cases in reference to the shipment and carriage of property, but does not apply when a carrier intends to limit its liability for personal injury to a passenger paying fare. Where a passenger was traveling in the cars of a railroad company upon a free pass given him by the company, and received injuries to his person, it has been held that a contract exempting it from liability for any other-species or degree of negligence than gross negligence was valid. Illinois Cent. R. Co. v. Read, 37 Ill. 484; Toledo, etc., R. Co. v. Beggs, 85 Ill. 80. But in the present case it cannot be said that the deceased intestate was riding upon a free pass.
“‘A person who is traveling, with the consent of the railroad company, upon a freight train, in charge of stock or goods carried by the company for him, is a passenger. Indianapolis, etc., R. Co. v. Beaver, 41 Ind. 493; Lawson v. Railway Co., 64 Wis. 447. Even where such a person is traveling in charge of cattle on a drover’s pass, he is a passenger for hire. The consideration of his passage is the service he renders in taking care of the cattle, or the charge made against him or his employer for shipping the cattle. Railroad Co. v. Lockwood, 17 Wall. (U S.) 357; Indianapolis, etc., R. Co. v. Horst, 93 U. S. 291; Cleveland, etc., R Co. v. Curran, 19 Ohio St. 1; 3 Am. & Eng. Enc. Law. p. 16, and cases cited in notes; Lake Shore, etc., R. Co. v. Brown, 123 Ill. 162; New York, etc., R. Co. v. Blumenthai, 160 Ill 40.’ ”

Many authorities are cited in support of the doctrine in plaintiff’s briefs, and we are satisfied that it has in its support the great weight of reason and authority.

The cases of Baltimore, etc., R. Co. v. Voigt, 176 U. S. 498, and Russell v. Railway Co., 157 Ind. 305 (55 L. R. A. 253), upon which defendant’s counsel strongly rely, are, in our opinion, fatal to his contention. The case of Baltimore, etc., R. Co. v. Voigt distinctly recognizes and approves of the Lockwood Case, and distinguishes the case under consideration from that case, and therefore from the case before us. It was held that Voigt was not a passenger, while Lockwood was. So in the case of Russell v. Railway Co. the court fully recognize the validity of the rule adopted in the Lockwood Case and approved in Indiana in numerous cases. Among other cases the court quotes from its own decision in Louisville, etc., R. Co. v. Faylor, 126 Ind. 126, in which the plaintiff “was a passenger at the time he suffered the injury complained of, and was occupying a seat in a caboose attached to a freight train in which he was transporting a car load of cattle. While the train on which he was being carried was ascending a steep grade, a number of the cars, including the caboose in which the plaintiff and others were seated, became detached from the engine and the forward part of the train,” collided with a following engine, and plaintiff was severely injured. The railroad company set up, among other things, “that at the time of the injury complained of the plaintiff was in charge of a car load of cattle, and was riding under a contract, in which it was stipulated that, in consideration of a free pass and other valuable considerations, the company was to be exempt from any liability for any injury which the'plaintiff might sustain while in charge of the cattle.” The court held that:

“ A stipulation that the carrier shall not be bound to the exercise of care and diligence is, in effect, an agreement to absolve him from one of the essential duties of his employment, and it would be subversive of the very object of the law to permit the carrier to exempt himself from liability by a stipulation in his contract with a passenger that the latter should take the risk of the negligence of the carrier or of his servants. The law will not allow the carrier thus to abandon his obligation to the public, and hence all. stipulations which amount to a. denial or repudiation of duties which are of the very essence of his employment will be regarded as unreasonable, contrary to public policy, and tixerefore void.”

But the principal case under cqnsideration now distinguishes this case and the Lockwood Case and others, and holds that the Pullman car porter “did not occupy the position of an ordinary passenger upon appellee’s train.” The Voigt Case and the Russell Case sustain the rule contended for by plaintiff’s counsel that Weaver was a passenger for hire, as to whom defendant occupied the position of a common carrier of passengers, but as to express messengers and Pullman car porters the rule is different.

We find no errors in the rulings of the trial judge, and the judgment is affirmed.

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


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    LASLEY v. DELANO.
    1. Statute of Frauds — Promise to Answer for Debt of Another — Executed Agreement.
    A parol contract by which a part owner of land was authorized by other part owners to sell the same, and apply a part of the proceeds to the payment of a debt owed by himself and another party to the contract, is not, after it has been performed, and the money applied in accordance with its terms, within section 9515, subd. 2, 3 Gomp. Laws, requiring a special promise to answer for the debt of another to be in writing.
    2. Uses and Trusts — Executed Agreement.
    Nor is such contract, after performance, within the statute of uses and trusts. Sections 8829, 8833, 9509, 3 Comp. Laws.
    3. Bill for Accounting — Necessary Parties.
    Complainant’s husband and defendant purchased certain lands, the deedto her husband’s interest in which was subsequently made to complainant in order to assist her husband in financial troubles. Complainant’s husband and defendant were jointly indebted on anote to defendant’s wife, and, in order to liquidate the same, deeds were executed by complainant and her husband, with the name of the grantee in blank, and delivered to defendant, to enable him to sell the lands. It was agreed that defendant should pay the note' to his wife out of the proceeds. On a bill by complainant against defendant and his wife for an accounting, defendant claimed the benefit of. the payments to his wife, held, that complainant’s husband was not a necessary party to the suit.
    Appeal from Muskegon; Eussell, J.
    Submitted February 9, 1905.
    (Docket No. 116.)
    Decided April 4, 1905.
    Bill by Isabel A. Lasley against Horace L. Delano and Cora A. Delano for an accounting. From a decree for complainant, defendants appeal.
    Eeversed, and bill dismissed.
    Complainant, in her bill, alleges that in September, 1902, she and the defendant Cora A. Delano were the owners of the lands described in the bill, situated in the State of Louisiana; that prior to that time she had authorised and empowered defendant Horace L. Delano, the husband of said Cora, to find a purchaser for said lands; that he did find a purchaser; that he sold them for $9,715 — part in cash and part in notes; that her share of the cash was paid to her husband, and by him paid to her; that Mr. Delano took a mortgage for $4,346.90, accompanied by eight promissory notes, for the balance of the purchase price; that the mortgage and notes were made payable to Mr. Delano, trustee; that she never authorized him to take said mortgage and notes in his name as trustee, but that, if any securities were taken, they were to be taken in her name, in so far as her interest was concerned; that money has been received upon two of said notes, and accounted for to her husband; that said Mr. Delano had never accounted to her for the balance of said money; and she prays for an accounting, and payment to her of the money found to be due her.
    The joint answer of defendants admits the legal ownership of, an undivided one-half of said lands to have been in complainant, and that defendant Horace L. Delano was authorized to sell them, and did sell them, and avers that he has properly accounted for the proceeds — both the cash payment and the notes. That the lands were originally purchased by Mr. Lasley, complainant’s husband, and the defendant Horace L. Delano, the title being taken in Mr. Delano’s name. Subsequently he conveyed to Mr. Lasley an undivided half interest. That the deed was not recorded for several years. That in 1898 Mr. Lasley conveyed to complainant, at her request, and at the suggestion of the defendants, Mr. Lasley’s undivided one-half interest. That the conveyance was without consideration, and was made for the purpose of protecting and preserving said lands in the interest of Mr. Lasley, and to provide the means of payment to defendant Cora of an indebtedness owing to her by Mr. Lasley and Mr. Delano, and evidenced by a promissory note. That Mr. Lasley has in fact been the owner of the undivided one-half of said lands, and has transacted all the business relating thereto, and that she has held the legal naked title in trust for him and the defendant Cora.
    The answer avers: That the mortgage and notes were given to Mr. Delano, as trustee, with the full knowledge and assent of the complainant and her husband. That on October 14, 1893, Mr. Lasley and Mr. Delano were jointly indebted to Cora A. Delano in the sum of $3,256.21, for which they executed to her a promissory note. That at the time of the conveyance by Mr. Lasley to his wife, in 1898, the note was still unpaid, and Mr. Lasley was financially embarrassed, without any means to pay his share of the note, and that, in order to secure to Mrs. Delano the payment of his share of said indebtedness, it was agreed that he (Mr. Lasley) should convey his interest in the lands to said complainant, that a sale of said lands should be made as speedily as possible by Mr. Delano, and that from the proceeds a sufficient sum should be retained by Mr. Delano to pay one-half of the amount of said note. That, upon receipt of the cash payment from such sale, Mr. Lasley persuaded Mr. Delano to pay over to him one-half thereof, and to retain the notes — the proceeds thereof, when collected, to be used in payment of their joint note — and out of the receipts of said notes the one-half of the indebtedness to Mrs. Delano has been paid. Proofs were taken in open court, and decree entered for the complainant.

      M. Brown and William Carpenter, for complainant.

      Nims, Hoyt, Enoin, Sessions & Vanderwerp, for defendants.
   Grant, J.

(after stating the facts). 1. The testimony on the question of fact, namely, "Was there an agreement that, out of the moneys received from the sale of the lands, Mr. Delano’s obligation on this note should be paid? is in sharp conflict.

The circuit judge, in disposing of the case, said:

“ I have made an examination of the evidence, and I will state that it is impossible for the court to determine what the facts are as to what the truth is with reference to the arrangement they claim to have made. The evidence is very conflicting and very unsatisfactory, but I am inclined to the opinion that the theory of the defendants may be correct. * * * I have examined the evidence two or three times with a view to determining, but I am unable to satisfy myself, as to what the facts are. I have examined the authorities. * ' * * I think the law is against him [the defendant Mr. .Delano]. It may be conceded, for the disposition of the case, that the facts are with him, and I am inclined to think that they may be.”

We are convinced that the following facts are established by the testimony: Mr. Lasley and Mr. Delano purchased these lands. Mrs. Lasley paid nothing. The deed was made to her to assist her husband in his financial troubles, and was without any consideration. He was obligated on the note with Mr. Delano for one-half the amount thereof. Deeds were executed by Mrs. Lasley and Mr. Lasley, with the name of the grantee in blank, and delivered to Mr. Delano, to enable him to sell the lands. It was then agreed that, out of the proceeds received therefrom, the note of Mrs. Delano should be paid by Mr. Delano. Mr. Lasley acted for himself and for his wife. The funds received were treated as his own, and were used by him as his own. Both complainant and her husband knew that Mr. Delano sold the lands, received half in cash, and took a mortgage and notes to himself as trustee for the balance. Mr. Lasley’s obligation upon the note to Mrs. Delano is fully canceled. Mr. Delano carried out his instruction and executed his trust.

The legal questions raised are:

(1) Is the parol agreement void under the statute of frauds (3 Comp. Laws, § 9515, subd. 2) ?
(2) Is the agreement void as against the statute of uses and trusts, under 3 Comp. Laws, §§ 8829, 8833, 9509 ?
(3) Was Mr. Lasley a necessary party to the suit?

If these questions are answered in the negative, the decree must be reversed.

2. Neither the statute of frauds, nor that of uses and trusts, applies to this case. The parol contract between complainant and Mr. Delano has been performed, and the parol trust imposed upon him fully executed. No contract for the sale of lands is involved. The relation of vendor and vendee did not exist between them. Complainant concedes his right to sell and receive the money, and that he did sell and receive the money. The relation, then, between them, was not other or different than it would have been if she had sold the lands herself, and intrusted the money to him, to be disposed of as directed and agreed by her. Petrie v. Torrent, 88 Mich. 43; Carr v. Leavitt, 54 Mich. 540; Edinger v. Heiser, 62 Mich. 598. If, however, the trust rested in parol, and while so resting could not be enforced as an executory contract, yet, when the parol agreement has been executed, neither party can invoke the statute. The courts have repeatedly held that a party may perform a promise \yhich he could not legally be compelled to perform, and that, when so performed, it is binding upon him and the other party to it. Moore v. Crawford, 130 U. S. 122; Desmond v. Myers, 113 Mich. 437; Collar v. Collar, 86 Mich. 507 (13 L. R. A. 621); Bork v. Martin, 132 N. Y. 280; Gwaltney v. Wheeler, 26 Ind., 415.

3. Mr. Lasley was not a necessary party to the suit. The issue presented by the pleadings upon this branch of the case is whether Mr. Delano disposed of this money as it wás agreed he should do. The condition of accounts between Mr. Delano and Mr. Lasley is not in issue here, except in so far as it might throw light upon the question whether Mr. Delano had disposed of this fund as agreed. All three agreed that but of this fund, received from the sale of the lands, Mr. Delano should pay Mr. Lasley’s share of this note. He has done this. If Mr. Delano owes Mr. Lasley on accounts which have run between them, that is a question in which complainant has no concern. She very properly did not make her husband a defendant in the suit; neither did defendants make any objection that he was not a party.

Decree reversed and bill dismissed, with the costs of both courts.

Moore, C. J., and Carpenter, McAlvay, and Hooker, JJ., concurred.


author: Carpenter, J.

text:
    RHOADES v. SEIDEL.
    1. Landlord and Tenant — Defective Premises — Injury to Tenant — Liability of Landlord.
    Where defendants leased to plaintiff a house containing an open sewer, which after some two weeks 'began to emit noxious gases, causing sickness, defendants were not liable on the ground that they rented the premises in a defective condition, inasmuch as they did not know and were not chargeable with knowledge of the defect at the time the premises were rented.

    2. Same — Repairs—Duty to Make.
    Where a landlord does not agree to make repairs, he is under no obligation to make them.
    3. Same — Agreement to Repair — Consideration.
    Where, after the execution of a lease not obligating the landlord to make repairs, he agrees so to do, the agreement is without consideration and unenforceable.
    4. Same — Failure to Perform — Negligence.
    Where, after premises were leased, an open sewer thereon began to emit sewer gas, and the landlord promised to remedy the defect, but failed in an attempt to do so, and the tenant became sick in consequence of the gas, the landlord was not liable on the ground that the agreement to repair was negligently executed.
    Error to Wayne; Donovan, J.
    Submitted February 10, 1905.
    (Docket No. 126.)
    Decided April 4, 1905.
    Case by Joseph A. Rhoades against August F. Seidel and Victoria Seidel for damages caused by the defective condition of a house rented from defendants. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Lodge, Trevor & Brown, for appellant.

      Louis O. Wurzer {May, Denby & O’Brien, of counsel), for appellees.

       As to liability of landlord for injury to tenant from defect in premises, see note to Hines v. Willcox (Tenn.), 34 L. R. A. 824.

   Carpenter, J.

Plaintiff leased a house from defendants. While occupying this house he was taken ill with typhoid fever. He alleges that this disease was caused by a noxious gas and discharge emanating from an open sewer in the rented house. He brings this suit to recover damages. His testimony tends to prove that he entered into the occupancy of the house under defendants’ assurances that it was all right. No arrangement was made about repairs. He was a tenant from month to month. In the cellar was an open drain, which defendants intended should later be used to make connections for a closet or bath tub. About two weeks after the tenancy commenced, there came from this drain an odorous gas, which plaintiff says was a sewer gas.’ Later there came from it a nasty liquid discharge. About two weeks after he noticed this gas, plaintiff notified defendants. Defendant August promised to fix it, and came on the premises and made an attempt to do so. This was ineffectual, as plaintiff knew. He, left, giving plaintiff directions to stop the discharge by a stream of running water. This plaintiff tried, but it also proved ineffectual. A week later plaintiff notified defendants that the trouble was getting worse. Defendant August came again, and made another ineffectual attempt to remedy the difficulty, and he left after repeating his directions to use a stream of running water. This plaintiff tried the second time, and a second time it proved ineffectual. About two weeks later — on the day before plaintiff was taken ill — defendants were again notified, and made another ineffectual attempt to remedy the difficulty. On this evidence the trial court directed a verdict in defendants’ favor. The question raised on this appeal relates to the correctness of this direction.'

Defendants’ liability must rest either upon the ground that they rented the premises in a defective condition, or that after notice they wrongfully neglected to remedy the defect. The liability of a landlord to a tenant for injuries resulting from defects existing at the time premises are leased extends only to defects -which he knows or which he should know, and which are not open to the observation of the tenant. See 1 Taylor on Landlord & Tenant, § 175b, and cases cited. Willcox v. Hines, 100 Tenn. 538 (41 L. R. A. 278), relied upon by plaintiff, does not extend this rule beyond the above statement. This open sewer was as well known to the plaintiff as to the defendants. It is true that the plaintiff did not know that a noxious gas or discharge would come from it. It is equally true that the defendants did not know that.

It is contended, however, that as the sewer was built under instructions given by them, defendants should have known that it would emit this noxious gas and discharge. This contention assumes that the instructions given by defendants contemplated that no precautions whatever should be taken to prevent the escape of gas. This assumption is unwarranted. Indeed, there was no evidence that the sewer was originally constructed without precautions being taken to prevent the escape of gas. The fact that gas did not escape for two weeks warrants the belief that such precautions were taken, and that through defective workmanship they proved entirely inadequate. "We cannot hold defendants responsible upon the ground that a defect existed at the time of the letting without declaring that a landlord is a guarantor to a tenant of the competence and skill of plumbers and other workmen employed in constructing the building. It is clear he is not such a guarantor. See Willcox v. Hines, supra.

Are defendants liable because they did not, after notice, remedy the defect ? They had not agreed to make repairs, and therefore they were under no obligation to make them. See Gregor v. Cady, 82 Me. 135; Gill v. Middleton, 105 Mass. 477. Their agreement to make repairs, testified to by plaintiff, made after the premises were leased, was without consideration, and therefore unenforceable. See Libbey v. Tolford, 48 Me. 316.

Plaintiff relies upon authorities (see Gregor v. Cady, 82 Me. 131; Gill v. Middleton, 105 Mass. 477; Wertheimer v. Saunders, 95 Wis. 573 [37 L. R. A. 146]; Little v. Macadaras, 29 Mo. App. 332) which hold that, if a landlord voluntarily undertakes to repair, he is responsible for injuries resulting from the'negligent performance of his undertaking. The principle of these cases is inapplicable to the case at bar. Here plaintiff was injured not by reason of negligence in the performance of the voluntary undertaking, but because that undertaking was not, as he knew, carried out. It may be said in this case that the landlord, to the tenant’s knowledge, neglected to perform his undertaking to remedy the defect. Plaintiff’s complaint, then, must rest upon the proposition that a landlord has no right to refuse to perform a voluntary undertaking to remedy a defect. To assert that proposition is to deny the elementary principle that a promise based on no consideration is not enforceable.

We conclude that there was no ground upon which defendants could be held liable, and the verdict in their favor was properly directed.

Judgment affirmed.

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


text:
    KELLOGG v. FROHLICH.
    1. Sales — Passing of Title — Property not Identified.
    Plaintiff, who manufactured oils of various kinds, which were stored in tanks and drawn therefrom for shipment to customers, sold oil to defendant by a contract calling for a certain number of barrels, four different kinds of oil being specified, but no amount of each kind being called for, and delivery was to be made from month to month, the contract calling for a minimum and maximum number of car loads each month. Held, that, no oil having been identified and set. apart as defendant’s, no title to any oil passed to him.
    3. Same —Contract —Breach by Buyer — Notice of Resale— Damages.
    Where the purchaser under such a contract refused to accept the goods, and the seller sued for the damages, alleged to be the difference between the contract price and the price at which the seller was forced to resell, no notice of resale was necessary, the measure of damages being the difference between the contract and market price at the time of breach.
    3. Same — Remedy of Seller — Modifioation of Contract.
    •A contract for the sale of a number of barrels of oil required shipment to be made of from one to three car loads each month between specified dates, as ordered by the buyer. The seller, after urging the buyer to comply with his contract by ' giving orders for shipment, wrote that he would prefer to have shipping directions, but that unless he received them it would be necessary for him to ship the oil without notice. Thereafter the seller shipped one car load, which was paid for, but the buyer made no reply to the letter. Held, in an action for the buyer’s breach of contract, that plaintiff had not assumed to deliver all the oil, plaintiff’s letter having varied the terms of the contract, on which variation defendant could not rely in the absence of acquiescence.
    4. Same — Breach by Buyer — Subsequent Offer to Receive Goods.
    Where plaintiff sold defendant a number of barrels of oil, the contract calling for payment 30 days from date of invoice, and defendant refused to take the oil within the time provided for by the contract, his subsequent offer to take all the oil on the terms provided for in the contract was not an offer that plaintiff was under any obligation to accept.
    Error to Wayne; Frazer, J.
    Submitted February 10, 1905.
    (Docket No. 132.)
    Decided April 4, 1905.
    Assumpsit by Spencer Kellogg against Edward Frohlich for breach of a contract to purchase certain oil. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    Plaintiff, a resident of Buffalo, N. Y., made a contract with the defendant, residing in Detroit, and doing business under the name of Edward Frohlich Glass Company. The contract, dated July 17, 1902, was in two parts, one signed by the plaintiff, and the other by the defendant. The part signed by the plaintiff reads as follows:
    “ I have this day sold and agreed to deliver to Edward Frohlich Glass Company, of Detroit, Michigan, fire and strike excepted, 900 barrels pure linseed oil, delivered in barrels at Detroit, Michigan, as follows: 900 barrels in car loads of 60 barrels each, all to be taken between October 15th, 1902, and July 1st, 1903, not less than one car nor to exceed three cars in any one month. Raw oil, 6c. per lb.; boiled oil or aged raw oil, 2 /15c. per lb.; Kellogg varnish or refined oil, 4/15c. per lb.;. heavy bodied boiled or superior oil, 10 /15c. per lb., over raw oil price. Terms of payment, 30 days or less 1 per cent., if paid in 10 days from invoice date. Shipments to be made according to this agreement in car load lots and within ten days of specified dates. It is understood that there are no conditions or representations relating to this sale other than stated hereon.”
    The part signed by the defendant reads as follows:
    “We, the undersigned, have this day bought and agreed to receive of Spencer Kellogg,.Buffalo, N. Y., fire and strike excepted, 900 bbls. pure linseed oil, delivered in barrels at Detroit, Mich., as follows: 900 bbls. in car loads of 60 barrels each, all to be taken between October 15th, 1902, and July 1, 1903, not less than one car nor to exceed three cars in any one month. Raw oil, 6c. per lb.; boiled oil or aged raw oil, 2/ 15c. per lb.; Kellogg varnish or refined oil, 4/15c. per lb.; heavy bodied boiled or superior oil, 10/15c. per lb., over raw oil price. Terms of payment, 30 days or less 1 per cent., if paid in ten days from invoice date. Shipments to be made according to this agreement in car load lots and within ten days of specified dates. It is understood that there are no conditions or representations relating to this sale other than stated hereon.”
    Defendant ordered one car load shipped in November, and one in February. These cars were shipped, and at the same time defendant requested plaintiff not to send any more oil, as he was crowded for room. Plaintiff continually urged the defendant to take the oil as the contract provided, and on February 14, 1903, wrote him as follows:
    “ If the oil had been taken as it was contracted for, possibly you might have disposed of it. However, you are so much behind now, it may be difficult for you to do so. In any event our former letter stands good, and we are obliged to ask you for shipping instructions for all oil due as per the amount already mentioned. I should much prefer having your shipping instructions for the oil than to ship it out without notice, which it will be absolutely necessary to do unless I hear from you with shipping orders. According to the contract, I understand from our attorney, that it is sufficient to give notice if shipment as per these letters for all undelivered oil. This is not aimed at any one in particular, but is absolutely imperative on our part, as we cannot hold the oil any longer. Kindly let me hear from you by return mail.”
    After this one car load of oil was shipped without any order, and accepted and paid for. Defendant gave. no other orders. Plaintiff shipped no more oil. At the expiration of the time, July 1, 1903, plaintiff placed the case in the hands of his attorneys. One of them saw the defendant, and had a conversation with him about the claim. Thereupon, and on July 10, 1903, defendant wrote the-following letter in duplicate, sending one. to plaintiff at Buffalo, and the other to his attorneys at Detroit:

      “We have written your attorneys, Messrs. Bowen, Douglas & Whiting, as follows:
    “ ‘ Your Mr. Murfin called on me relative to the balance of oil you claim to be due under our contract of July 17, 1902, with Spencer Kellogg, and as I stated to him, I am now ready to carry out the contract and take the oil you claim due me under the contract. Therefore please ship 500 bbls. of the total amount in raw, and the remainder in boiled. Please see to it that the cooperage is first class.’
    “ This offer is made without prejudice to any of the rights we may have in this matter.” ■
    Plaintiff refused to then deliver the oil, and brought suit to recover for breach of contract.
    The declaration sets forth the contract in full, alleges a breach by the defendant, alleges that the market price had fallen, and that in consequence of his failure to perform the contract plaintiff had suffered great loss, ‘ ‘ being the difference between the price indicated by the contract, and the price at which the plaintiff was forced to resell, and did resell, his said oil.”
    Three defenses are made:
    (1) That the contract is an executed contract; that under it the title to the oil vested absolutely in the defendant ; and that, in order to recover under the declaration, plaintiff must have given notice to defendant of his intention to sell the oil, and must actually have sold it.

      {%) That it was plaintiff’s duty to deliver the oil at Detroit, and that, having failed to deliyer or tender the oil there, he cannot recover.
    (3) That it was plaintiff’s duty to accept defendant’s offer to take the oil as contained in defendant’s letter of July 10th.
    The case was submitted to the jury, and verdict rendered for plaintiff.

      Wilkinson & Younglove, for appellant.
    Bowen, Douglas, Whiting & Murfin, for appellee.
   Grant, J.

{after stating the facts). 1. Plaintiffwas a manufacturer of oils of various- kinds or types. As it was manufactured it was stored in large tanks, from which it was drawn to ship to plaintiff’s customers as orders were received or contracts made. Manifestly, the oil which was covered by this contract was not in existence at the time the contract was made. It was not, therefore, contemplated that the oil covered by the contract was a part of a distinct mass then in existence and stored in plaintiff’s tanks. The contract called for four different kinds, but not for a specific amount of each kind. The defendant could have ordered the whole 900 barrels of one kind, or of two or of all kinds. There was to be no delivery if delivery was prevented by fire or strikes. There was no identification, and no selection out of a common mass. The minds of the parties could only meet as to the identical goods to be furnished when the defendant, in compliance with his contract, had ordered the number of barrels of such oil as he wished shipped to him. Under these conditions, nothing short of language which can leave no doubt of the intention of the parties to pass title will justify the finding that the title had passed. 1 Mechem on Sales, §§ 695, 717; Lingham v. Eggleston, 27 Mich. 324; First Nat. Bank of Marquette v. Crowley, 24 Mich. 492; Hahn v. Fredericks, 30 Mich. 223. We find no such language in this contract. The expressions “have sold,” in the one part, and “have bought” in the other, are to be construed with reference to all the provisions of the contract and the surrounding circumstances. They are not of themselves conclusive of the intent.

In this connection it is urged that the plaintiff’s declaration is framed upon the theory of a resale, “ and that- said resale cannot be without notice of an intention to resell; and, no such notice having been given, the plaintiff cannot recover.” As already stated, title had not passed; there was no oil identified and set apart as the defendant’s; there was no identical oil to put up for sale. The oil specified in the contract had a market value, and, presumably, the. price at which it would sell would not be above that value. It is probable that the oil which would have been furnished to the defendant, had he complied with his contract, had been sold, as the tanks were constantly being emptied and filled. Counsel cite no authorities that notice of a sale was necessary. Evidently the notice would have been an idle ceremony, as the real damage sustained would be the difference between the contract and the market or selling price at the time of the breach. We think notice of an intention to sell was unnecessary. The request, therefore, was properly refused.

%. Plaintiff was under no obligation to deliver the goods except as instructed by the defendant. The delivery was to be of one to three car loads each month, of such kinds as defendant should direct plaintiff to deliver, within 10 days of the dates specified. Defendant could not wait until after the expiration of the time and then order a delivery of the whole amount. After repeatedly urging the defendant to comply with his contract in giving orders for shipment, the plaintiff, on February 14th, wrote to him for shipping instructions, and in the letter said:

“I should much prefer having your shipping instructions for the oil than to ship it out without notice, which it will be absolutely necessary to do unless I hear from you with shipping orders.”

It is urged that the plaintiff by this letter assumed the delivery, and, by shipping one car load thereafter, assumed the burden of delivering all the oil at Detroit. To this letter defendant made no reply. It was not a waiver of the obligation on the part of the defendant to comply with the contract. It varied the terms of the contract, and the defendant is not in position to assert such change, unless he acquiesced in it.

3. Plaintiff was under no obligation to accept defendant’s offer contained in his letter of July 10th. Defendant had violated his contract. He had not ordered the goods as required. His offer was to “take the oil you claim due me under the contract.” The times of delivery had expired. It was, of course, the duty of the plaintiff to make all reasonable effort to reduce the damages. The contract was at an end, and he was under no obligation to sell upon credit. The contract provided for payment 30 days from date of the invoice, or less 1 per cent, if paid within 10 days from such date. Defendant’s offer in the letter was not to pay cash, but to take the goods upon the credit provided in the contract. If defendant had offered to take the goods, and tendered in cash the price fixed by the contract, undoubtedly the plaintiff would have been required to accept it, or, failing to accept it, would have been held to waive any claim for damages. But defendant was seeking to revive a dead and broken contract.

Judgment affirmed.

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


author: Ostrander, J.

text:
    CADY v. ST. CLAIR CIRCUIT JUDGE.
    Bastardy — Nature of Proceeding — Privilege from Arrest.
    Bastardy proceedings are so far cf a criminal nature that a person who is within the State only for the purpose of putting in special bail in an action in which he was arrested on a capias is not privileged from arrest on a charge of bastardy.
    Mandamus by Burt D. Cady, prosecuting attorney, to compel Eugene P. Law, circuit judge, of St. Clair county, to vacate an order discharging a prisoner from arrest.
    Submitted February 14, 19G5.
    (Calendar No. 20,909.)
    Writ granted April 4, 1905.

      Burt D. Cady, in pro. per.

      Moore & Brown, for respondent.
   Ostrander, J.

On the application of the petitioner, the prosecuting attorney of St. Clair county, for a mandamus, an order to show cause was granted, the return of respondent has been filed, and the matter stands upon the petition and answer.

The facts, briefly stated, are as follows: Norris C. Peterson is a resident of Sarnia, in the province of Ontario. He was arrested on November 15, 1904, at Port Huron, by the sheriff of St. Clair county, upon a writ of capias ad respondendum sued out of the circuit court for that county. The writ was indorsed with an order, made by the circuit judge, that the defendant be held to bail by the sheriff in the sum of $1,500. By some special arrangement he deposited $1,500 in currency on the evening of the day of his arrest with the sheriff as a guaranty for his appearance, and that he would furnish special bail on the following day which would be acceptable to the court, and thereupon the sheriff released him from custody, and he returned home. On the succeeding day, November 16th, he returned to Port Huron for the purpose, it is claimed, and the only purpose, of putting in special bail. He was arrested upon a warrantissued by a justice of-the peace of Port Huron in bastardy proceedings instituted by the daughter of the plaintiff in the action first mentioned. He gave special bail in the first case, was arraigned before .the magistrate in the bastardy proceedings, made no defense before the justice, and was required to and did enter into a recognizance to fhe'satisfaction of the justice in the sum of $500 to appear at the next term of the circuit court for the county of St. Clair to abide the order of the said court, and was thereupon discharged from custody. His counsel made and entered a motion in the circuit court, based upon the affidavit .of said Peterson' and upon the records and files in the bastardy proceedings and in the capias suit, for an order discharging said Peterson and dismissing the bastardy proceedings, for the reason that at the time of his arrest he was in Port Huron solely for the purpose of securing his release by furnishing bail in the suit begun by capias. It is not claimed that .before the justice any privilege from arrest was suggested. The respondent, the cir ■ cuit judge, upon the hearing of said motion, made an order, the form of which is not before us, discharging the respondent from arrest, but refusing to dismiss the proceedings. Thereupon, on the same day, the prosecuting attorney (relator) moved the court to vacate, reverse, and set aside the order discharging Peterson from arrest, for the reason that said Peterson was not privileged from arrest at the time and under the circumstances of his arrest. The circuit judge denied this motion, and the prosecuting attorney asks that he be compelled to enter the order asked for.

We are of opinion that bastardy proceedings are so far criminal proceedings that respondent was not privileged from the arrest. It is true that such proceedings are special and statutory, and are strictly neither civil nor criminal in nature. But it is contemplated, and is essential, that control be had of the person of the respondent. A recognizance is taken as in criminal cases, and is forfeited, as in criminal cases, for nonappearance. For a failure to recognize he may be committed.

The writ will issue as prayed.

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


author: Montgomery, J,

text:
    WILKINSON v. DUNKLEY-WILLIAMS CO.
    I. Injunction — Injury to Land-^-Watercourses.
    Injunction will issue to restrain injury to lots and a street adjoining a river by cutting through them to make a channel and basin in which to turn a steamboat too large for the river.
    3. Same — Injury to Street — Private Person — Peculiar Interest.
    The owner of the lots, to which access is possible only along such street, has the peculiar interest in the street necessary to enable him to maintain injunction to restrain interference with it.
    3. Same — Equitable Owner — Right to Sue.
    That complainant’s deed of land was only intended as a mortgage is immaterial to a stranger against whom injunction is sought to restrain his interference with the property.
    Appeal from Van Burén; Carr, J.
    Submitted January II, 1905.
    (Docket No. 42.)
    Decided April 21, 1905.
    Bill by Thomas L. Wilkinson against the DunkleyWilliams Company to restrain an encroachment upon land. From a decree for complainant, defendant appeals.
    Affirmed.

      Sam H. Kelley and M. L. Howell, for complainant.

      H. T. Cook and A. J. Mills, for defendant.
   Montgomery, J,

The bill alleges that complainant is the owner of a number of lots lying between Black River and Black River street in the city of South Haven; that Black River street can be reached from the other parts of the town only by way of Dyckman street, and that the lots can only be reached from Black River street; that in May, 1903, the defendant unlawfully and without authority or permission cue a channel or basin from the then water’s edge on lots 4, 5, 6, and 7, in block 7, in Dyckman & Woodman’s Addition to South Haven, through those lots, and into and part way across Black River street, so that the lots invaded were not only destroyed, but access to the other property of complainant lying below this excavation was interfered with and destroyed. This was done to enable defendants to turn a steamer which was so large that it could not turn in the river. The answer denied complainant’s title, alleging that his deed was in fact a mortgage. It alleged that a basin for turning boats existed on the premises before its entry, and that it deepened and dredged out this basin, and excavated into Black River street, and that consent was given by the city authorities. The evidence was taken in open court, and showed that the defendant removed a large amount of earth from said lots, and a considerable distance into Black River street. The court visited and examined the premises and adjacent property, and found the allegations of the bill to be true.

There is little room for questioning the conclusion of the circuit judge on the facts. We are satisfied that the bank of the river, as fixed by the platting and as recognized by the authorities, was substantially as claimed by complainant; that Black River street was platted as a means of furnishing access to the lots now owned by complainant ; and that the defendant has cut into both the lots and the street. That a remedy by injunction exists in such a case is clear. Davis v. Township of Frankenlust, 118 Mich. 494, and cases cited; Stock v. Township of Jefferson, 114 Mich. 357 (38 L. R. A. 355).

We think, also, that complainant has such a peculiar interest in this street as to entitle him to protection against invasion by the defendant. Grand Rapids, etc., R. Co. v. Heisel, 47 Mich. 393.

The defendant insists that, as complainant holds the legal title as security only, He is not 'entitled to maintain tHis action. No question arises between the complainant and the equitable owner of the land. The question here is 'whether the owner of the legal title, whose interest is in equity that of a mortgagee, may maintain a bill for an injunction to preserve the property. We think he may. 20 Am. & Eng. Enc. Law (2d Ed.), p. 1017, and cases cited in note 3. The cases of Taylor v. McConnell, 53 Mich. 587, and Collins v. Rea, 127 Mich. 273, cited by defendant’s counsel, do not make for a contrary rule. The most that can be said of either case is that it was not found necessary to declare the doctrine above stated, and that it was not declared.

The decree is affirmed.

Moore, C. J., and Carpenter, Ostrander, and Hooker, JJ., concurred.


author: Montgomery, J.

text:
    FINN v. SOWDERS’ ESTATE.

    1. Witnesses — Competency — Matters Within Knowledge of Deceased.
    A husband cannot testify to conversations between himself and decedent which are relied upon as forming the contract between his wife and decedent on which the wife bases a claim against decedent’s estate. Act No. 30, Pub. Acts 1903.
    2. Work and Labor — Services Rendered to Deceased — Claim Under Will.
    One who accepts the terms of a will, and retains the property granted thereby as compensation for services rendered testator, cannot make a further claim against the estate for compensation. - . (
    Error to Bay; Shepard, -J.
    Submitted January 19, 1905.
    (Docket No. 85.)
    Decided April 21, 1905.
    Christie Finn presented a claim against the estate of Minerva Sowders, deceased, for services rendered. The claim was allowed in part by the commissioners, and defendant appealed to the circuit court. There was judgment for claimant at the circuit, and defendant brings error.
    Reversed.

      T. A. E. & J. O. Weadock, for appellant.

      Lee E. Joslyn, for appellee.

       Rehearing denied May 12, 1905.

   Montgomery, J.

In the year 1898 Minerva Sowders was the owner of two houses in West Bay City, in one of which she lived, had an income of about $7 a month from a land contract on lands recently theretofore sold by her, and an additional income of $8 a month from a government pension. She was of advanced age, and was suffering from cancer. During the year 1898 her granddaughter, Christie Finn, claimant in this case, came to her on a visit. A short time afterwards her husband, William Finn, also came to West Bay City, and the two thereafter lived rent free with Mrs. Sowders in one of the latter’s houses, and this arrangement continued until the time of Mrs. Sowders’ death, September 17,1902. During that time Mrs. Sowders submitted twice to surgical operations for cancer. During all of this time Mrs. Finn resided with her. Mrs. Sowders was an invalid, confined to her bed a great portion of the time, and in need of constant care and attention. It is not disputed that Mrs. Finn gave her such attendance and care during that time as one member of a family would and should give another under such circumstances, and that this attendance involved considerable extra work on Mrs. Finn’s part in addition to her work as housekeeper.

On June 17, 1902, Mrs. Sowders made a will, that portion of which pertinent to this case was as follows:

“I give, devise, and bequeath my estate and property, real and personal, as follows, that is to say, I give, devise, and bequeath to my three sons and granddaughter, Christie Finn, Charles Órrin Sowders, Samuel Sowders, George Washington Sowders, and Christie Finn, all of my real estate, consisting of lot eight in block four, Mulholland & Shearer’s addition to West Bay City, Michigan, with dwellings thereon, to be divided between them equally, share and share alike, provided all of my legal debts, my funeral expenses, and the expenses of my last sickness shall be paid first. ; ,
‘ ‘ My household furniture and personal effects I bequeath to my granddaughter, Christie Finn, provided that she remains in my house and boards me for the rent of the two houses until my death, but should said Christie Finn leave my house and fail to do as she ágreed, I bequeath to her one dollar only, and the personal' and real estate property to be divided equally among my three sons above mentioned.”

After Mrs. Sowders’ death, and after the opening of the will, Mrs. Finn accepted the devises and bequests made her therein, and then filed a claim against Mrs. Sowders’ estate, which claim is as follows:

“ Estate of Minerva Sowders, deceased, In account with Christie Finn, Dr. 1902, June 17, To board, lodging, nursing and care, from September 15, 1898, to June 17, 1902, 45 months at $12.00 per month, * * * $540.00.”

This claim was duly presented to the probate court, and by it allowed at the sum of $304, from which allowance an appeal was taken by the administrator to the circuit court, and where, after a jury trial, the claim was allowed at the sum of $403.

Upon the trial, plaintiff’s husband, under the defendant’s objection, was allowed to testify that, when his wife and he first came to West Bay City, Mrs. Sowders asked them to stay there and take care of her as long as she lived, and in return that she would leave Mrs. Finn her property when she died. He also testified to a like agreement made about 10 months before Mrs. Sowders’ death. Both of these conversations which he testified to were between himself and Mrs. Sowders, and evidently constitute the express agreement upon which the claimant relies. Mr. Finn also testified that he himself furnished the house and supplied the table from September, 1898, to the date of Mrs. Sowders’ death. Other witnesses produced by the claimant testified as to statements made by Mrs. Sowders during her lifetime as to her intentions to leave her property to the claimant at her death, but none of these witnesses testified that Mrs. Sowders ever -admitted the existence of any contract or agreement whatsoever between herself and Mr. or Mrs. Finn, or the existence of any obligation whatsoever on her part to leave her property to Mrs. Finn.

The testimony of these witnesses may be said to be consistent with a purpose on the part of Mrs. Sowders to provide for the claimant by testamentary bequest according to her own notions of right; but assuming that the testimony was open to the construction contended for by claimant, i. e., that Mrs. Sowders had agreed to pay for these services, there is, in our view, manifest error which makes a reversal imperative. Under the circumstances of this case, the testimony of claimant’s husband to facts equally within the knowledge of the deceased should have been excluded, under section 10212, 3 Comp. Laws, as amended by Act No. 30, Pub. Acts 1903. This case is not distinguishable from Stackable v. Stackable’s Estate, 65 Mich. 515.

The court submitted to the jury the question whether there was an acceptance of the terms of the will by the claimant. Her testimony shows that, with full knowledge of the provisions of the will, she accepted the personal property and continued to live in the house, and testified in answer to the question, “You are claiming all the household goods and the interest in the real estate?” “Yes, sir.” On this record a verdict should have been directed for the estate.

Judgment reversed, and a new trial ordered.

McAlvay, Grant, Blair, and Ostrander, JJ., concurred.


author: Moore, C. J.

text:
    WETMORE v. DEAN.
    Certiorari — Return—Conoeusiveness.
    The return of a justice of the peace to a writ of certiorari is conclusive.
    Error to Mason; McAlvay, J.'
    Submitted February 8, 1905.
    (Docket No. 107.)
    Decided April 21, 1905.
    Assumpsit by Frank E. Wetmore against Charles M. Dean for the amount of¡a judgment. Plaintiff had judgment in the justice’s court, and defendant appealed to the circuit court by writ of certiorari.There was judgment for defendant, and plaintiff brings error.
    Reversed.

      Wallace Foote, for appellant.

      Virgil A. Fitch, for appellee.
   Moore, C. J.

The plaintiff obtained judgment in justice’s court against defendant. The case was removed to the circuit court by certiorari, where the judgment was reversed. The case is brought here by writ of error. There were a good many reasons assigned in the affidavit for the writ why the judgment should be set aside. An inspection of the record shows that each of these reasons was fully answered by the return of the justice. This return must be regarded as conclusive. Young v. Kelsey, 46 Mich. 414; Rawson v. McElvaine, 49 Mich. 194; Mann v. Tyler, 56 Mich. 564; People v. Hux, 68 Mich. 477. We think, instead of reversing the judgment of the justice, it should have been affirmed.

Judgment is reversed, and the judgment rendered in justice’s court is affirmed, with costs of both courts.

Carpenter, Grant, Blair, and Hooker, JJ., concurred.


text:
    COOPER v. LAWSON.
    1. Landlord and Tenant — Unsafe Premises — Liability of Landlord — Actions—Evidence.
    In an action against a landlord for injuries to a tenant’s property arising from an unswept chimney flue, evidence of a conversation between the landlord’s agent and another tenant relative to sweeping the flue in another apartment was properly rejected.
    2. Same.
    Evidence as to the control assumed by another tenant over the means of access to the roof of the building was also properly rejected.
    3. Same — Landlord’s Duty to Repair — Several Lessees.
    When a landlord leaves separate portions of the same building to different tenants, and reserves control of those parts of the building or premises used in common by all the tenants, he must use reasonable diligence to keep in a safe condition the parts over which he retains control.
    4. Same — Duty to Sweep Chimney.
    Where the chimneys to the several apartments of a building are separate, and the tenant of a single apartment might sweep its chimney without trespassing or interfering with the others, there is no duty resting upon the landlord to sweep it.
    5. Same — City Ordinance.
    A city ordinance making it the duty of the owner, agent, or occupant of any building to have the chimney thereof swept once in each year imposes no duty in that respect upon the landlord in favor of the tenant.
    Error to Wayne; (Rohnert, J.
    Submitted February 10, 1905.
    (Docket No. 120.)
    Decided April 21, 1905.
    Case by George W. Cooper against George E. Lawson and Thomas J. Kennedy, administrators of the estate of Thomas Kennedy, deceased, for damages caused by fire in premises rented from defendants. There was judginent for defendants on a verdict directed by the court, .and plaintiff brings error.
    Affirmed.

      Walter Barlow (Edward A. Strieker, of counsel), for appellant.

      May & O'Brien (Clarence A. Lightner, of counsel), for appellees.
   Montgomery, J.

The estate of Thomas Kennedy, deceased, owns the building known as Nos. 247, 249, and 251 Michigan avenue, in the city of Detroit. It is a three-story brick building, with stores underneath, and flats above the stores. It has stairways running up from Michigan avenue for entrances to the two upper stories of the building. There-are three stairways in this building .from the ground floor — one at No. 247, one at No. 249, ■and one at No. 251 Michigan avenue. The building thus contains three stores on the ground floor, and two flats •above each store, or six flats in all, for dwelling purposes. The tenants dwelling in the several flats or apartments go up to their flats from the street by a hallway from Michigan avenue. Those dwelling in the third-story flats use the same stairway's and hallways as the tenants of the •second-story flats. All the stairways are in common hallways used by the tenants. At the rear of the building there are stairways leading up from the yard to the back porches or landings to the several flats. The rear stairways do not continue up to the roof of the building. There is a platform or small porch above the stairway in rear of the third floor. The means of going from this platform to the roof is an iron fire-esc¿pe ladder. The stairway ends at the third floor.' There are back kitchen doors a,t the stairway landings of each floor. This iron fire-escape ladder is fastened to the roof on the inside of -the back porch, with a trapdoor above it. The trapdoor was kept down and closed, but unfastened. The ladder works on hinges or joints, so as to fasten it up to the roof, and is kept up most of the time. The ladder is lowered by pulling it down with a rope. By means of this ladder is the only way to get on to the roof of the building. There is a chimney built on the east side of the building, in the east wall of the building. This chimney and the fireplace are on the east side of the front parlor, about midway, four or five feet back from the front of the building. The fire grate is an open grate — a grate for the purpose of burning soft coal. The fireplace is about the regulation size. The opening is about two feet wide and two feet high. This chimney is one chimney with three flues, and built to accommodate several apartments.

The plaintiff, with his family, resided in the flat on the second floor 'of this apartment building, over No. 24? Michigan avenue, from June, 1900, until December 26, 1902. He moved into this apartment before the death of Mr. Thomas Kennedy, as his tenant. Mr. Kennedy died September 13, 1900. Defendants are administrators of his estate, and, as such, in charge of the building. On December 26, 1902, fire occurred in the apartment or flat occupied by the plaintiff and his family, and burned and destroyed all of his household furniture, pictures, and household goods in his two parlors, and two bedrooms and dining room. He had no insurance on his household goods and effects at the time of the fire. This fire resulted from an explosion of coal gas generated from burning soft-coal soot in the inside of the chimney leading from the fire grate in the front parlor of the apartment or flat occupied by plaintiff. This chimney had not been cleaned during the plaintiff’s occupancy of this apartment or flat.

The plaintiff commenced suit in the court below to recover his damages for the loss of his household furniture, etc., resulting from this explosion and fire incident thereto; and the court, at the conclusion of all the testimony offered on the trial of the case, on motion of counsel for defendants, directed the jury to return a verdict in favor of the defendants of no cause for action, and judgment was accordingly entered on such verdict. The case is brought to this court by the plaintiff on writ of error for review.

It does not appear that there was any covenant or agreement on the part of the landlord to keep the premises in repair. Mrs. Gay, who, with her' husband, occupied the flat above that of plaintiff, was called as a witness, and was asked as to a conversation' with a Mr. Sevald, who collected rents for Mr. Kennedy, relative to cleaning the chimney. The question was ruled out. No error was committed in this. A new duty to plaintiff could not have arisen out of any conversation with Mrs. Gay relative to the condition of the flue connecting with her apartments.

The Botsfords had at one time occupied the flat above plaintiff, and plaintiff was asked:

“ Now, do you know what the Botsfords did as to this folding ladder that you speak of — whether or not they allowed anybody to use it ? ”

This was ruled out for the reason that the witness had testified that he never had any occasion to go up there. It is to be noted that Botsford was not a tenant of defendants at the time of the accident, and had not been later than the fall of 1900. And their assumption of authority over this ladder, which was the only means of access to the roof, would not have fixed their rights even while they were occupying the flat. Much less would it have fixed the rights of the Coopers, who succeeded in the occupancy of the tenement. Moreover, it is undoubted that other tenants would be excluded from the use of this upper platform except as they had occasion to go upon the roof for a proper purpose.

This leaves for consideration the question of whether the circuit judge was right in directing a verdict. No case is cited to us, nor have we in our research found a case, which rules this. Recourse must be had to general principles in determining whether, at the common law, and in the absence of any obligation imposed by ordinance (such as will be referred to later), the landlord was, under the circumstances of this case, bound to keep the chimney clean. The general rule that; in the absence of any agreement between the parties, the landlord is under no obligations to his tenant to keep the premises in repair, is well settled, and is not questioned in this case. See 18 Am. & Eng. Enc. Law (3d Ed.), p. 215. It is also generally held that, where only a part of the buiding is demised to a particular tenant, the landlord is not responsible to such tenant for conditions created by an occupant of another portion of the building which prove detrimental to the first-named tenant. Id. 318.

The plaintiff, while recognizing these settled rules, rests his case upon the rule which appears to have received the sanction of most courts which have dealt with the question, and which appears to us sound in principle: That when the landlord leases separate portions of the same building to different tenants, and reserves control of those parts of the building or premises used in common by all the tenants, he is under an implied obligation to us© reasonable diligence to keep in a safe condition the parts over which he reserves control. The cases in which this rule has been laid down and applied are numerous: Dollard v. Roberts, 130 N. Y. 369 (14 L. R. A. 338); McGinley v. Trust Co., 168 Mo. 357 (56 L. R. A. 334); Lindsey v. Leighton, 150 Mass. 385— being illustrative cases. In these cases, as well as in all to which our attention has been directed, injury resulted from a defective condition of a common stairway or landing, or defective appliances, of which the landlord had control. In each case it appeared that the tenant could not, without becoming a trespasser, make the repairs himself. If we apply this rule to the present case, does it aid plaintiff’s contention ? The use of hallways and stairways was undoubtedly appurtenant to plaintiff’s landed interest. He had the right to use these passageways for ingress and egress. In reason, why might he not have used them also for the purpose of reaching the roof to have the flue to his chimney swept ? We think it clear that he had this right. Control over the flue of plaintiff’s chimney was not reserved to the landlord either expressly or by implication. The plaintiff’s access to, and right to care for, this flue, as a part of his premises, can be no less because there were other flues to the same chimney in use by other tenants. Plaintiff’s flue could be cleaned'without molesting the other flues. We think that, independent of the ordinance, the defendant was not liable for the consequences of the casualty.

The ordinance referred to reads as follows:

“ It shall be the duty of every owner, agent, or occupant of any building within the limits of the city of Detroit to have the chimneys of such building swept at least once in each year, providing that the same has been used for carrying off of smoke for the consumption of wood or soft coal.”

Without determining whether the ordinance could be invoked by any other than the public, or whether, on the other hand, it is to be construed as a purely penal statute, it is enough for the purposes of this case to say that the very terms of the ordinance indicate that there was no purpose of fixing the duty of keeping the chimneys cleaned, as between the owner and occupant.'

No error is found.

Judgment affirmed.

Carpenter, McAlvay, Grant, and Hooker, JJ., concurred.


text:
    WOODRUFF v. COFFMAN.
    Mortgages — Foreclosure — Insufficient Advertisement — Effect.
    . An attempted foreclosure by advertisement which is wholly void for failure of the notice to describe the land, and other defects, is no bar to a subsequent foreclosure in chancery, though the mortgagee purchased at the sale had pursuant to advertisement, and has been in possession thereunder ever since.
    Appeal from Mason; McAlvay, J.
    Submitted February 10, 1905.
    (Docket No. 131.)
    Decided April 21, 1905.
    Bill by John S. Woodruff against Ira R. Coffman for the foreclosure of a mortgage. From a decree for complainant, defendant appeals.
    Affirmed.

      Henry O. Hutton {M. B. Danaher, of counsel), for complainant.

      Fitch & Reek, for defendant.
   Ostrander, J.

Defendant, July 22, 1886, borrowed $500 from complainant, giving a note therefor, due five years after date, drawing interest at 10 per cent, per annum. To secure payment he executed to complainant a mortgage on the north half of the north half of the southeast quarter, and the northeast quarter of the southwest quarter, of section 25, town 18 north, range 16 west. This mortgage seems to have been recorded July 24, 1886.

In 1891 an attempt was made to foreclose this mortgage by advertisement. The notice of sale is dated January 15,1891, which, it will be noticed, is more than six months before the note fell due. The notice recites that the mortgage, after being given, was assigned to one C. H. Wood-ruff, without stating anything further about the assignment, and describes the premises to be sold as the north half of the north half of the southeast quarter, and the northeast quarter of the southeast quarter, of section 35, township 18 north, range 16 west. Sale was fixed for the 18th of April, 1891, on which day, as appears from the sheriff’s deed, a sale was made to complainant of property described as it is described in the notice of sale just referred to. This deed also recites that the mortgage was assigned to C. H. Woodruff. The bid made at the sale seems to have been large enough to,satisfy the mortgage debt. After the period for redemption.had expired, complainant entered into possession of the property described in the mortgage, and has since by himself or his tenants possessed and used the same, paid taxes, and exercised usual acts of ownership. The bill in this cause was filed to foreclose this mortgage. An abstract only of the bill and answer appears in the record. The cause coming on to be heard in open court, testimony was introduced, and a decree as in chancery foreclosures was entered. This decree recites the circumstances of. the prior attempted foreclosure, sets those proceedings aside, and expressly finds that complainant is owner of the note and mortgage. We find no testimony which warrants a different finding. From this decree, defendant has appealed to this court.

The brief of counsel for appellant contends that the only ground urged for relief is that complainant’s agent, who foreclosed the mortgage, made a mistake in omitting one description contained in the mortgage from the notice of sale, and that this calls for the application of the elementary rule that a court of chancery will assist only the vigilant. He also urges that the mortgagee being purchaser at such a sale takes title with notice of the defects in the foreclosure proceedings, and cannot be heard to say that the sale is illegal or irregular when the mortgagor makes no objection. It is claimed that the sum bid at the first sale must be presumed to have been paid to the assignee of the mortgage, C. H. Woodruff, resulting in payment of the mortgage indebtedness. We see no reason for indulging a presumption of fact opposed to the real fact found by the court. It will be noticed, and has been already stated, that the attempted statutory foreclosure did not have a proper notice of sale under our statute, if there was an assignee of the mortgage. It will be noticed that it describes none of the land which is described in the mortgage. Both the notice of sale and the sheriff’s deed described the land as on section 35, when as a matter of fact it was on section 25, and also misdescribed the second 40 acres. There does not appear to have been any foreclosure of this mortgage. If at any time defendant had filed a bill to redeem, the decree must have provided for a redemption from the mortgage as an unforeclosed security. Grover v. Fox, 36 Mich. 461, 472.

Counsel for appellant say in their brief:

“ In any case, the amount declared tobe due by the decree, as well as the method of computation, is so culpably erroneous as to call for but little comment.
“As an instance, the credits to the defendant are placed at the paltry sum of $272.98, which included interest on credits at 10 per cent., and is put forward as full compensation for the use of the whole premises for 11 years and over, in face of the testimony of complainant’s own witness Parker that the value of the use was at least $60 per year, which, with the average interest computed at 10 per cent., amounts to $993.”

Complainant, after stating the years for which he had paid taxes and the amounts paid for taxes, computed that there was due him on the 1st of January, 1903, $1,685.18; that, “putting in everything I had received, and crediting interest on everything I had received at the same rate, ” the total of credits was $272.98. This left a balance of $1,412.20. He was not cross-examined upon this subject at all, nor did counsel point out in what respect, if any, the computation was erroneous. As matter of fact, it is substantially what the note would have amounted to at simple interest at 10 per cent, if we treat the principal sum as $750 after the maturity of the note. Another witness testified that the fair rental value of the place from the time he went there until he went away was $60 a year. When he went there and when he went away the record does not disclose. The only proof upon this subject is given by complainant, and it is that “about that time [after redemption had expired] I let Russell ,H. Parker go onto the.place; have been in possession ever since; by Parker a good share of the time, and Mr. Arnold for one year.” The lease to Parker was offered in evidence, but it does not appear in the record. The fact that Parker had an agreement with defendant in 1895, about the land, was - testified to by Parker, and that the agreement was in' writing. The writing was introduced in evidence. It does not appear in the record. It is apparent, therefore, that the certificate attached to the record, which bears no date, but which states that it contains all the testimony presented and all the exhibits, is not true in fact. Presumably, counsel for appellant prepared the record for, this court. The decree being for the sum of $1,024.02, it is apparent that the circuit judge made an allowance to the defendant of more than $272.98, and more than $600. We. do not know how this sum of six hundred and odd dollars was made up. Counsel for complainant say in their brief thatthe circuit judge computed the amount due upon the mortgage from its date to the day of hearing and deducted therefrom the rental value of the premises at the ?ate of $60 a year. If any contention arose over the method of computing the amount due, the record does not disclose it. The borrowed money has not been paid. No rights except those of the mortgagor and the mortgagee are involved. The only question presented, in our opinion, is whether the bill can be sustained as a sufficient pleading to warrant foreclosure of the mortgage now. We think it can be. We are furnished by counsel no reason why the mortgage is not a present, valid, subsisting lien upon the premises described in it, nor why the bill filed cannot be and should not be sustained as containing the averments necessary for a foreclosure of the mortgage.

The decree of the court below is affirmed, with costs.

Carpenter, Grant, Montgomery, and Hooker, JJ., concurred.