text:
    STAPLETON v. CORNTHWAITE.
    Sales — Rescission—Fraud — Equity — Cancellation of Instruments.
    On appeal from a decree setting aside a sale of a laundry and canceling a note and mortgage given in payment therefor, conclusions that the parties did not deal with each other upon equal terms, defendant knowing he had knowledge not possessed by plaintiff concerning the quality and condition of the machinery; that the circumstances required defendant to disclose the same; and that the property was greatly overvalued and advantage taken of plaintiff’s want of knowledge and lack of experience, held, supported by evidence, sustaining the decree of the court below.
    Appeal from Cass; Des Voignes, J.
    Submitted April 18, 1918.
    (Docket No. 118.)
    Decided June 3, 1918.
    Bill by Thomas W. Stapleton against Arthur B. Cornthwaite to set aside a sale and mortgage on the ground of fraud. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Clarence M. Lyle, for plaintiff.

      Chester E. Cone, for defendant.
   Ostrander, C. J.

The trial court gave the following opinion:

“This bill of complaint was filed to set aside a sale and a mortgage given in consideration of the transfer of property wherein defendant sold what is known as the Cassopolis Steam Laundry and its equipment to plaintiff for the sum of eleven hundred dollars. Payment for the same having been made by the plaintiff giving a note secured by real estate mortgage on'lot number three in block one south, range two east, in the village of Cassopolis, in the sum of seven hundred dollars and giving back a mortgage on the laundry and equipment purchased for the sum of four hundred dollars.
“It is alleged by complainant that while he had worked in the laundry several months, he had no prior knowledge of the business, judgment or experience of the value of materials and equipments used in the conduct of the business.
“Defendant was many years the senior of plaintiff, had owned and operated this laundry and other laundries of a like character and was an experienced and capable business man, very efficient in the line of laundry work.
“The plaintiff is twenty-two years of age. Defendant knew that he was inexperienced in the laundry business, inexperienced in machinery and equipment and induced the plaintiff to buy the laundry and knowing that the laundry and its machinery equipment was worn out. That the machinery had been used for many years and its usefulness greatly impaired. The boiler, an old one, leaked, having been in use many years and practically worthless.
“The plaintiff, though working in the laundry for a time prior to the sale and up. to the time of the sale did not know of these defects, defendant carefully concealing the knowledge he had of its worthlessness from plaintiff.
“The plaintiff took possession of the laundry and proceeded to conduct the business, but within a short time discovered the true condition of the machinery, was obliged to shut down and discontinue the work on account of its worthless condition, and shortly thereafter notified defendant that a fraud had been perpetrated upon him and thereupon tendered back to the said Arthur B. Cornthwaite, the defendant, the laundry plant with all its machinery and equipment, at the same time demanding from defendant the note and mortgage given to secure the purchase price thereof, the defendant refused and this bill was then filed.
“A careful consideration of the testimony in this reqord affirmatively approves plaintiff’s condition, while defendant with some force argues, and while the records show that the plaintiff worked for several months in this laundry and ought to have known the true condition as well as the defendant and that in the light of such employment he was as well aware of its condition as the defendant and should have used his eyes, nevertheless the record discloses defendant is as already stated many years older than plaintiff and plaintiff is a mere boy in judgment. In view of the relations of these parties and his inability to properly judge and determine his rights in such a transaction, he was not able to cope with defendant in judgment, experience or foresight.
“The court could not avoid seeing during the trial, what was plain to all, that plaintiff was far below the average man in mental vigor and in ability to grasp business details and protecting himself in a transaction of this character. He mortgaged the only bit of property he possessed, and it had only been recently turned over to him by his guardian.
“Defendant is a shrewd, keen man of business experience, and, common regard for the rights of others, especially the rights of this boy, ought to have restrained him from attempting to make a sale of this character.
“Since the proofs were taken in this case and some ten days thereafter, the boiler, machinery and other apparatus of this laundry had been taken out from the place where they were installed and are a mere lot of used up material fit practically for the scrap pile only. This court has had an opportunity to examine in the open the boiler taken out and fully exposed. Many holes could be seen, the iron rotten and practically worthless, only for old iron.
“There was no adequate consideration for the note and mortgage given on lot No. 3 aforesaid. It was a fraud upon plaintiff and the note should be canceled and the mortgage released and discharged.
“The laundry machinery equipment returned to defendant.
“No costs or other damages to be awarded plaintiff, and a decree may be settled accordingly.”

Pursuant thereto, a decree was entered. Appellant contends that the parties were competent to contract, that something tangible was sold and delivered, that a price or consideration was agreed to and paid, that no warranties were asked for or given, that the sale was not in any respect executory but completed. This is true. It is true, also, that what was sold was not only certain machinery but a business, and the seller agreed not to engage in the business in the same community. The seller left the community, went to another State, and there purchased and operated a business. The buyer began work for the seller in the laundry in April, 1916. The last day of September, in the same year, he purchased the plant and business. It was not a large business. It was. carried on in a rented building. Washings were done twice each week. Defendant had carried on the business for seven years.

Plaintiff expressly, and inferentially, charges that defendant defrauded him, and bases the charges largely upon the failure, or neglect, of defendant to acquaint him with the condition of the physical property which he sold to him, it being claimed that it was old, decrepit, and, except when in charge of one having mechanical ability, acquainted with its peculiarities, incapable of performing its functions. Plaintiff testifies that defendant told him the—

“machinery was in good condition; everything was running that needed running, and hadn’t had much trouble with it, and he didn’t see why it wouldn’t continue running. * * * He stated to me that the boiler was new six years ago. He said the boiler would hold out as long as I ever wanted one.”

On cross-examination he testified that defendant told him that “perhaps it would last as long as” he wanted a boiler. As to the other machinery he says defendant said;

“All working; wasn’t so much spoken of that, because I told him as to the boiler, I didn’t know anything about the boiler and the steam engine; practically, knew nothing; the only reason I hated to buy it, because I knew nothing of them; was afraid of them in fact, and he mentioned that one was running; he hadn’t had much trouble and ought to continue to run.”

Asked what was said about the burner, plaintiff testified:

“Well, the burner was one that he had trouble with; that is the time it was choked up with carbon and had been out down there, and Richard Bryant and the Hayden plumbing department cleared it up and brought it back. I always cleaned it out and I took that down and cleaned it and brought it back and didn’t do any good then.”

Plaintiff testified with respect to his knowledge and experience of machinery and what he knew about the particular machinery. He said:

“I went to work in the City Steam Laundry in April, 1916. I gathered and delivered laundry and rubbed collars and shirts. I gathered laundry on "Monday mornings. It probably took about one day in the week to gather and delivery laundry. I worked on collars polishing them. I shaped collars and tied up the goods and delivered them. That is practically all there was of it. That is what I did when working for Mr. Cornthwaite. Arthur B. Cornthwaite owned the business, was in charge of and operating it. He looked after the machinery and after the management of the business while I was there. I only operated the collar polisher. That isn’t in the machinery room. I built fires in the boiler from the time I first commenced to work there. I started the fires in the morning. We had fire in the boiler only two or 'three days out of the week. I looked after the fire in the boiler until Mr. Cornthwaite arrived when he took charge of it. I had nothing more to do with the boiler aside from starting the fire. I have never had any experience in running gas engines or steam engines or a boiler or in operating an extractor or washing machine. I did not do this work while working for Mr. Cornthwaite. I have never worked around machinery or any other laundry. All the experience I have had in the laundry business was what I acquired in the laundry in question here at Cassopolis from April up to the time I bought it.”

He attempted to operate the machinery after his purchase, having a man to “do the boiler work.” That work he “watched to see the man did as far as I knew.”

When some of the machinery failed, plaintiff sought to have repairs made, discarded some of it, and ordered new machinery. Some new things were installed, some were not. Plaintiff bought a new washer in about two weeks after he took possession. This he proposed to do — intended to do — vwhen he bought the business. A new extractor was among the things ordered by him as well as a new collar shaper. The washing machine and extractor were installed November 1, 1916. Plaintiff again started the machinery and soon had a leaky boiler. On November 14, 1916, he wrote to defendant, this letter evidently not being the first of the correspondence. The contents of the letter were:

“Friend Cornthwaite,
“Your letter received. It seems you do not exactly understand the trouble here. Well first the small tub and extractor went bang. The pulley on the extractor wore in two. Caused by brace rod on brake. It had been wearing for some time. Would not have happened if brake band had been kept full. Next the burner for body iron and collar shaper quit work. It is done for I guess, at least no one here can fix it. I have a new one here in the express office. C. O. D. $22.50 looks like too much. Remember what you paid for yours? Next the boiler went out. It is no fault of any one. Only the mfg. A hole has rotted right where the rib is in the middle rather low down. Seems to be doing the same stunt all the way round. It is simply a rotten piece of metal. There are just two ways out. Patch this boiler — ? Don’t think it would pay. Buy a new one — ? Too much money owing to circumstances.
“Yours truly,
“Stapleton.
“Am sending shirts and collars Dowagiac (40 per cent.)”

The business, not conducted by operating the machinery, but the laundry business, plaintiff carried on until late in December. There is testimony tending to prove that the property and business were sold to plaintiff for too large a sum — that they were not worth $1,100.

It is evident from the opinion of the trial court that conclusion was rested upon something which is not before this court. While the claim was made and the issues fairly tendered that defendant was experienced and plaintiff inexperienced, in business affairs, that defendant knew and plaintiff did not know the condition of the property sold, that defendant was mature and the plaintiff immature in years, it is not claimed in the bill (and no such issue appears to have been tendered at the trial) that plaintiff is “far below the average man in mental vigor and in ability to grasp business details,” and what was disclosed upon this subject to the observation of the trial court we cannot reexamine ; nor can this court have the benefit of the observation of the particular property made by the trial judge after the proofs were closed. We can review, and have reviewed, the testimony, and that is persuasive of at least two conclusions, one that defendant was not guided by the ethical notions of conduct which some would think ought to have prevented him from selling the property to a boy in his employ unless certain that the boy was properly advised and fully understood the hazard of the purchase, the other that in rescinding the bargain and bringing this suit the young man, plaintiff, is seeking indemnity for losses growing out of an experiment in business which he freely, if not very intelligently, made. Beyond this, the testimony fairly supports — requires—certain other conclusions, which are (1) that these parties did not deal with each other upon equal terms, defendant knowing when they made their bargain that plaintiff was not in possession of the knowledge he himself possessed concerning the quality and condition of the machinery — knowledge which, if plaintiff had possessed it, ought to and probably would affect his judgment and conclusion; (2) circumstances required defendant, the seller, to,speak, to disclose; (3) the property was greatly overvalued, advantage was taken by defendant of plaintiff’s want of knowledge and his lack of experience which if possessed would have discovered to him what he needed to know to place the parties upon an equal footing.

These conclusions sustain the decree, and it is affirmed, with costs to appellee.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, C. J.

license: Public Domain

text:
    CITY OF DETROIT v. LAKE SUPERIOR PAPER CO.
    1. Commerce — “Imports”—Exemption from Taxation.
    Newsprint paper manufactured in Canada, and imported into Michigan by the manufacturer duty free and stored in its warehouse in the original packages in which it was imported, awaiting delivery to the purchaser, is “imports” within the meaning of sections 8 and 10, art. T, of the Federal Constitution, and not taxable.
    2. Same.
    That the paper had been or was to be sold is immaterial, since the right to sell goes along with the right to bring it into the country.
    Error to Wayne; Williams, J., presiding.
    Submitted April 4, 1918.
    (Docket No. 30.)
    Decided June 3, 1918.

      Assumpsit by the city of Detroit against the Lake Superior Paper Company, Limited, for taxes. Judgment for plaintiff on a directed verdict. Defendant brings error. ■
    Reversed.

      James E. Greene, for appellant.

      Walter Barlow (Divie B. Duffield, of counsel), for appellee.
    Plaintiff brought the action to recover the amount of a tax it had levied upon defendant’s personal property. With the plea defendant gave notice that it would show in its defense:
    “That the personal property taxed by plaintiff, as alleged in its declaration, was at the time said tax was levied and assessed, in process of transit to its purchasers: to wit, newspaper publishers within and without the city of Detroit, Mich., and that said property had been imported from a foreign country, to wit, the Dominion of Canada, and was at the time said tax was levied and assessed, in the possession and under the control of its original importer, the defendant herein, incased in the original packages in which it had been imported.”
    At the trial the facts were stipulated. Defendant moved the court to direct a verdict -in its favor on the ground:
    “That the tax is in conflict with section eight (8), article one (1), clause three (3), and section ten (10), article one (1), clause two (2), of the Federal Constitution.”
    A verdict for plaintiff was directed, and judgment was entered on the verdict.
    The stipulated facts are:
    “The Lake Superior Paper Co., Limited, is a foreign corporation, organized and existing under the laws of the Dominion of Canada, and is located at Sault Ste: Marie, Ontario, Canada. The said corporation manufactures newsprint paper and sells a part of its output to newspapers located and published in the city of Detroit, Mich., and other cities in the United States,. The terms of the contract under which this paper is sold, provide that paper shall be delivered by the Lake Superior Paper Co., Limited, to the various vendees F. O. B., their respective pressrooms. A warehouse is maintained by the Lake Superior Paper Co., Limited, at the foot of Eighth street in the city of Detroit, into which some of the paper received at Detroit is delivered and from which the same paper is distributed to the various vendees by rail, if the vendees are located in other cities than the city of Detroit, and by motor truck agency employed and paid for by the Lake Superior Paper Co., Limited, if the vendees are located in Detroit. Part of the paper arriving in Detroit from the defendant’s mills is distributed direct from the freight cars to the vendees who are located in Detroit. This is done whenever circumstances make it practicable and convenient. The paper is shipped from defendant’s mills and arrives in Detroit in rolls or bales, varying in weight from 500 to 1,400 pounds. Each roll is wrapped at the mills with a heavy wraping paper and sealed at either end. This casing remains intact, undisturbed, from the time it leaves the defendant’s mills at Sault Ste. Marie, Ontario, Canada, until final delivery to the various vendees at Detroit and elsewhere. The packages or rolls are not broken, until after they have left the hands of the Lake Superior Paper Co., Limited, and its agents.
    “In 1916, the city of Detroit assessed the paper of defendant, imported from Canada and warehoused at the foot of Eighth street, in the city of Detroit, in the original packages or casings in which it had been shipped from Canada at the sum of $100,000.00 and levied a tax of $1,852.04 thereon. Defendant refused to pay the tax. The city of Detroit commenced this suit for the recovery of said tax and the defendant voluntarily accepted service of process herein and stipulated to the facts involved in this cause.
    “The purpose of storing said paper in its said warehouse by said defendant is so that said defendant may have on hand at all times a sufficient supply of a surplus stock of paper to insure the fulfillment of its contracts with the several newspapers published in the city of Detroit and other cities of the United States to supply said papers with the necessary paper to print said newspapers. The amount of stock of paper stored in said warehouse varies from time to time during the year but on April 1, 1916, when the assessment in question was made on said stock of paper so stored in said warehouse, there was stored in said warehouse paper belonging to the defendant of the value of $100,000.00, on which the taxes, $1,852.04, involved in this suit, were levied.
    “Each roll of paper is marked at the mills prior to the time it is loaded on cars for shipment with the following marks: “First, size of roll; second, a roll number; third, the weight of the roll; and fourth, the name of the vendee publication to whom it is to be sent.
    “A roll list is then made up in triplicate, one copy of which is sent forward to the vendee publication. This roll list shows that a roll of a certain size, weight and number has been shipped to the publication on a certain date in a car, the number and initial of which is also given in the roll list. The publication then checks up the paper it receives with this roll list to make sure that paper sent from the' mill to it is the paper that is actually delivered to it.
    “The only reason the paper is placed in the warehouse is because it is cheaper for the defendant to rent a warehouse than to pay demurrage charges on freight cars. The paper is stored in the warehouse merely as an incident to and as an integral part of defendant’s contracts to deliver the paper F. O. B. pressrooms of the several publications to whom it sells its paper according to the terms of such contracts.
    “Shipments of paper in question were made in car load lots consigned to Lake Superior Paper Company, Limited, for the Detroit Free Press or other publications to whom it was to be delivered.
    “There were no United States customs duties required to be paid by defendant on this shipment of paper; that is, all paper involved herein entered the country duty free.”
   Ostrander, C. J.

(after stating the facts). The provision of the Constitution which is first invoked by appellant grants to the congress the power to lay and collect taxes, duties, imposts, and the other provisio'n denies to the States, without the consent of the congress, power to lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing inspection laws.

The goods of defendant were brought into the United States from a foreign country. Appellee contends that whether they were imports within the meaning of the Constitution depends upon whether a duty had or had not been laid on them by the United States, and reference is made to language found in opinions delivered by the Federal courts to the effect that the payment of duties to the United States gives the right to sell the thing imported, a right which can not be impaired or forbidden by a State. It is said, also, that the tax which was levied is not an impost tax or duty on articles brought into the country. Imports are things imported, the articles brought into the country. A duty on (imports is not merely a duty on the act of importation but is a duty on the things imported. Brown v. Maryland, 12 Wheat. (U. S.) 419, 437, 438. It would seem to be obvious that in providing that certain articles may be admittéd into the country duty free the congress is exercising the power granted to it in the Constitution, the exclusive power to lay duties on imports involving the power to determine whether any tax or duty shall be paid. In any event, the prohibition of State action in the premises remains. Although the tax was not laid as an impost tax or a duty, still, if “the tax intercepts the import, as an import, in its way to become incorporated with the general mass of property, and denies it the privilege of becoming so incorporated until it shall have contributed to the revenue of the State,” it is a tax upon imports. Brown v. Maryland, 12 Wheat. (U. S.) 419, 443.

Although, the indictment in Brown v. Maryland, supra, was against the importer for selling a package of dry goods, in the form in which it was imported, without securing a license required to be taken out by an act of the legislature of the State of Maryland, and the case on the facts in no way involved a tax or duty laid by the State upon the goods, the reasoning which denied the right to require a license involved the statement and application of principles which deny the right of a State to tax the import while it retains its character as an import and remains the property of the importer, in his warehouse, in the original form or package in which it was imported. May v. New Orleans, 178 U. S. 496, 507.

The question presented, then, is whether the goods had lost the character of imports when the tax was laid and had become a part of the general property of the State liable to State taxation. When the tax was laid, the goods were the property of the defendant, the importer, in its warehouse, in the original form and package in which they were imported. That they had been or were to be sold by the importer is true, but the right to sell them goes along with the right to bring them into the country. That under similar circumstances these goods if brought into the State from another State would be subject to taxation without offending the Federal Constitution, is perhaps true. American Steel & Wire Co. v. Speed, 192 U. S. 500. But it is said in the opinion in the case just referred to:

“Since Brown v. Maryland, 12 Wheat. (U. S.) 419, it has not been open to question that taxation imposed by the States upon imported goods, whether levied directly on the goods imported or indirectly by burdening the right to dispose of them, is repugnant to that provision of the Constitution providing that ‘No State shall, without the consent of the congress, lay any imposts or duties on imports or exports.’ Article I, sec. 10, paragraph 2. And Brown v. Maryland also settled that where goods were imported they preserved their character, as imports, and were therefore not subject to either direct or indirect State taxation as long as they were unsold in the original packages in which they were imported. A recent case referring to the authorities and restating this elementary doctrine is May v. New Orleans, 178 U. S. 496. Assuming that the goods concerning which the State taxes in this case were levied were in the original packages and had not been sold, if the bringing of the goods into Tennessee from another State constituted an importation, in the constitutional signification of that word, it is clear they could not be directly or indirectly taxed. But the goods not having been brought from abroad, they were not imported in the legal sense and were subject to State taxation after they had reached' their destination and whilst held in the State for sale. This is as conclusively foreclosed by the decisions of this court as is the doctrine resting upon the decision in Brown v. Maryland. Woodruff v. Parham, 8 Wall. (U. S.) 123; Brown v. Houston, 114 U. S. 622. The doctrine upon which the cases rest was this, that imports, in the constitutional sense, embraces only goods brought from.a foreign country, and consequently does not include merchandise shipped from one State to another. The several States, therefore, not being controlled as to such merchandise by the prohibition against the taxation of imports, it was held that the States had the power, after the goods had reached their destination and were held for sale, to tax them, without discrimination, like other property situated within the State.
“Those two cases, decided, the one more than thirty-five and the other more than eighteen years ago, are decisive of every contention urged on this record depending on the import and the commerce clause of the Constitution of the United States. The doctrine which the two cases announced has never since been questioned. It has become the basis of taxing power exerted for years, by all the States of the Union. The cases themselves have been approvingly referred to in decisions in this court too numerous to be cited, and we therefore content ourselves by mentioning two of the cases where the doctrine was restated.”

Applying the general rule is In re Appeal of Pitkin & Brooks, 193 Ill. 268, it must be held, upon- the stipulated facts, that the goods taxed were not taxable.

The judgment is reversed, with costs to appellant.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


author: Bird, J.

text:
    ANDERSON v. McVANNELL.
    Master and Servant — Workmen’s Compensation Act — Acceptance by Employer — More Than One Business.
    It being optional with an employer engaged in more than one line of business to accept the provisions of the workmen's compensation act for one business and not for another, the protection of the act does not extend to an employee engaged in a business not so accepted by the employer, and an award thereunder by the industrial accident board is unauthorized.
    See notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.
    Certiorari to Industrial Accident Board.
    Submitted April 9, 1918.
    (Docket No. 48.)
    Decided June 3, 1918.
    Anna Anderson presented her claim for compensation against William McVannell for the accidental death of her son in defendant’s employ. From an order awarding compensation, defendant and the Travelers’ Insurance Company, insurer, bring certiorari.
    Reversed, and award vacated.

      Vandeveer & Foster, for appellants.

      Harlow A. Clark, for appellee.
   Bird, J.

Defendant McVannell, who was engaged in the livery business in the city of Marquette, entered into a contract in September, 1914, with the city to improve Specular street. Before commencing the work he accepted in writing the provisions of the workmen’s compensation law for his livery business and street contract work. In July, 1915, he contracted with Charles Dutmer to clear a certain piece of land lying two miles north of the city. To aid him in this work he employed Charles Anderson, a son of the plaintiff. While blasting stumps Anderson was killed. His mother, the plaintiff, applied to the industrial accident board for an award and it was granted in the sum of $6.49 per week for 300 weeks.

Defendants contended before the board, as they do here, that the board had no jurisdiction to make an award in the premises, because the deceased did not belong to either class of employees which was protected by McVannell’s acceptance of the compensation law; that Anderson was neither employed in the livery stable nor on the street contract. The material part of McVannell’s acceptance of the compensation law is in the following form:

“......Number of employees: Eight.
“Location of place of employment: Livery and road contract.
“ (If more than one plant, place of business or work, place, state each fully.)
“Livery: Baraga avenue; street contract: Specular street, Marquette, Michigan.
“Nature of employment: Livery and street contract.”

Plaintiff takes the position that:

“An employer of labor in Michigan who accepts the provisions of the- Michigan workingman’s compensation law, accepts it for the benefit of all employees he employs in all the businesses he conducts. Except only that his acceptance does not cover household, domestic servants and farm laborers unless the acceptance specifically covers such employees; and except, also, that no acceptance includes any person whose employment is but casual, or is not in the usual course of the trade, business, profession or occupation of the employer.”

An examination of the compensation act does not disclose that it anywhere in express terms permits an employer to come under the law as to one business and not to another, nor does it anywhere prohibit it in express terms. It does not compel an employer to accept its terms for any of his business activities unless he chooses to do so. He is free to come under the law or to stay out. This being so, why may he not accept its terms as to one business and not to another? Inasmuch as the election lies with him whether he will come under the law, I can see no good reason why he should not be permitted to accept its terms -for one distinct business and not for another. It may be, and probably is, a reasonable construction of the act to say that when one elects to come under it his election covers all employees in the distinct business specified in his application, because if this were not so it would lead to much confusion among the employers as to which ones were covered and which were not covered. But no serious confusion would occur if all employees in a distinct business were protected. We think it is doing no violence to the act to hold that it contemplates that an employer with two or more business activities may accept as to one and not as to the others. This question , was before the court in Kauri v. Messner, 198 Mich. 126. It was there said:

“It is contended by defendant that the acceptance of the act and Messner’s contract of indemnity cover only the men engaged in his lumbering business, and not the men to whom he gives casual employment in some other business. In other words, that he had a right to accept the compensation act as a lumberman without doing so as a farmer. This point appears to be well taken. It has already been decided by this court that a man may engage in more than one enterprise and may accept the terms of the compensation act as to one and not as to the other.” Citing Bayer v. Bayer, 191 Mich. 423.

A suggestion is made that this holding is not conclusive of the present controversy, if the conclusion in the case cited was rested on the fact that the employee was engaged in farming, an occupation within the excepted class. The language of the opinion clearly indicates that the result reached was not rested upon that ground but was rested squarely on the fact that the deceased was not within the class of employees engaged in logging. We think the case is ruled by the one cited, and, therefore, the finding of the industrial accident board must be reversed and the award vacated.

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


author: Bird, J. Moore, J.

text:
    BOARD OF ROAD COMMISSIONERS OF OAKLAND COUNTY v. PITTMANS & DEAN CO.
    1. Eminent Domain — Certiorari—Condemnation for Highway— Statutes — Appeals from Probate Court.
    Certiorari is the proper remedy to review condemnation proceedings for highway purposes under Act No. 283, Pub. Acts 1909 (1 Comp. Laws 1915, § 4287 et seq.), said act not providing for review, and section 14145, 3 Comp. Laws 1915, providing for appeals from probate court to the circuit court in all cases not specifically prohibited by statute, which is substantially a re-enactment of section 669, 1 Comp. Laws, as amended, being inapplicable to review such proceedings.

      2. Same — Necessity—Finding oe Commissioners.
    In such, proceedings, failure of the commissioners to find that the proposed road was a necessity, as required by the statute, was a fatal omission. Moore, J., dissenting.
    Certiorari to Oakland probate court; Rockwell, J.
    Submitted April 4, 1918.
    (Docket No. 31.)
    Decided June 3, 1918.
    Condemnation proceedings by the board of road commissioners of Oakland county against Pittmans & Dean Company for a strip of land for road purposes. From an order confirming the award of the commissioners, defendant brings certiorari.
    Reversed.

      Elmer R. & Charles P. Webster, for appellant.

      Glenn C. Gillespie and A. Floyd Blakeslee, for appellee.
   Bird, J.

In April, 1916, the county of Oakland voted to raise a million dollars for the construction of certain highways. Among those to be constructed was its portion of what is known as the “Saginaw Turnpike” extending from Detroit to the city of Saginaw, provision having been made therefor by Act No. 334, Pub. Acts 1913 (1 Comp. Laws 1915, § 4851 et seq.). That portion of the road lying between Parshalls crossing and Drayton Plains, a distance of about three-quarters of a mile, is not yet constructed. This strip extends along the right of way of the Detroit, Grand Haven & Milwaukee Railway and crosses the railway twice within that distance. For the purpose of eliminating these two grade crossings two parcels of land were purchased by the county road commissioners north of the railroad and an attempt was made to purchase the remaining parcel of defendant company in order to carry the highway on the north side of the railway. Being unable to agree with defendant for its 3.07 acres of land the county road commissioners filed a petition in the probate court to condemn it, under the authority of Act No. 283, Pub. Acts 1909 (1 Comp. Laws 1915, § 4287 et seq.). Three commissioners were appointed by the probate judge in response to the petition, and after an inspection of the premises, and a hearing as to the necessity and value, they made the following report:

“That we find that it is necessary that said parcel of land described in said petition, filed herein and hereinbefore described, owned by said Pittmans & Dean Company, is necessary to be taken for highway purposes as prayed for in said petition and for road purposes by said board of county road commissioners of Oakland county, and further, as therein described, that we assess the damages to be paid by said board of county road commissioners of Oakland county to the said Pittmans & Dean Company, as compensation for the taking of said parcel of land described in said petition, at the sum of fifteen hundred ($1,500) dollars.”

This report was subsequently confirmed by the court. Defendant’s officers feeling aggrieved at this.finding asked for and obtained a writ of certiorari from this court to review the proceeding.

At the outset plaintiff questions the remedy chosen by defendant to review the proceedings in this court. The contention is that inasmuch as Act No. 283, Pub. Acts of 1909, makes no provision for a review of such proceedings either in the circuit court or in this court it is controlled by section 14145, 3 Comp. Laws 1915, which provides that:

“In all cases not specifically prohibited by statute, any person aggrieved by any order, sentence, decree or denial of the judge of probate, may appeal therefrom to the circuit court for the same county,” etc.

Defendant’s answer to this point is that the foregoing provision is substantially a re-enactment of section 669, 1 Comp. Laws, as amended by Act No. 238, Pub. Acts 1911, which has been in existence for many years, and has been held by this court, on several occasions, to be inapplicable to special proceedings to condemn land; that no material change having been made in this provision when it was inserted in the judicature act, it should receive the same construction as did the previous one, in the following cases: United States Gypsum Co. v. Kent Circuit Judge, 150 Mich. 668; Stapleton v. Macomb Circuit Judge, 151 Mich. 210; Hartz v. Wayne Circuit Judge, 164 Mich. 231.

We think counsels’ view that the provision is not applicable to this proceeding is the proper one. The act having failed to provide for a review in proceedings under- it, it is reviewable by writ of certiorari. "

It is argued that the award is invalid and ought to be set aside for constitutional and statutory reasons. The important statutory objection assigned is that, the provisions of the law were not observed in that, the report of the commissioners does not show that they passed upon the necessity of the proposed road. The statute in this respect requires that:

“On the day of hearing, the court shall hear the parties and appoint three disinterested persons commissioners, * * * whose duty it shall be to determine the necessity of such proposed road and the necessity for taking each parcel of land described in the petition therefor, and if they shall decide that it is necessary, then to appraise the damages to be paid as compensation for the taking of each such parcel therefor * * 1 Comp. Laws 1915, § 4359.

It will be noted that this provision of the law requires a finding (a) That the proposed road is necessary; (6) that the taking of each parcel of land is necessary; (e) that if found necessary then damages shall be assessed. An examination of the report, supra, does not show that proposition (a) was given any consideration by the commissioners. The report fails to show, except by inference, what their views were as to the necessity for the proposed road. Their findings, therefore, mean no more than this: Assuming the proposed road to be necessary we find it is necessary to take defendant’s land therefor and we find its value to be $1,500. This entirely overlooks one essential requirement of the statute. Before defendant can be deprived of its property under 'this statute its provisions must be strictly complied with and it must affirmatively appear that the proposed improvement is a necessary one. In proceedings of this character this court has always demanded a strict compliance with the mode of procedure marked out by the legislature. The observations made by Mr. Justice Graves in a similar case are apropos here:

“The rule is well settled that in all cases where the property of individuals is sought to be condemned for the public use by adverse proceedings, the laws which regulate such proceedings must be strictly followed, and especially that every jurisdictional step and every requirement, shaped to guard the rights and interests of parties whose property is meant to be taken, must be observed with much exactness.” Detroit Sharpshooters’ Ass’n v. The Highway Com’rs of Hamtramck, 34 Mich. 36.

We think the failure of the commissioners to find that the proposed road was a necessity is an omission fatal to the proceedings. Having determined that the award is invalid on statutory grounds, it will be unnecessary to consider the constitutional objections raised by counsel.

The award is reversed.

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

Moore, J.

I think the award was a substantial compliance with the statute and that the award should be affirmed.


text:
    CITY OF OWOSSO v. MICHIGAN UNITED RAILWAYS CO.
    1. Street Railways — Municipal Corporations — Order to Relocate Track — Validity.
    An order of a city council to a street car company to change its track from the side to the middle of a street is not invalid because its track, within the prescribed points, crosses another railroad and it could not legally change its track at the crossing without the consent of the State railroad commission, since the statute (section 8365, 2 Comp. Laws 1915) has pointed out the way by which consent may be secured, and it will not be assumed that such consent will be withheld.
    2. Same — Mandamus—Impossible Act.
    Mandamus will lie to compel compliance with said order, since it cannot be said that it is one with which defendant cannot comply, that it is an impossible act, or that the issuance of the writ will be unavailing.
    3. Same — Reservation in Franchise — Regulation by Municipality — Reasonableness.
    Under section 8550, 2 Comp. Laws 1915, and the reservation in defendant’s franchise, the city council had authority to order relocation of defendants track from the side to the middle of the street; the considerations of drainage, public safety, and convenience justifying the conclusion that it is a reasonable order, and there being no such engineering difficulties or expense as to make it unreasonable.
    Certiorari to Shiawassee; Davis, J., presiding.
    Submitted April 2, 1918.
    (Calendar No. 28,106.)
    Decided June 3, 1918.
    Mandamus by the city of Owosso to compel the Michigan United Railways Company and the Michigan Railway Company to relay certain tracks. From an order granting the writ] defendants bring certiorari.
    Affirmed.

      Sanford W. Ladd and Justin B. Whiting (Warren, Cady, Ladd & Hill, of counsel), for appellants.

      Leon F. Miner, for appellee.
   Bird, J.

The plaintiff city passed a resolution requiring defendants to move their car track from the side to the middle of Corunna avenue between .Lincoln avenue and the city limits, a distance of 1,800 feet. After reciting that it has been determined by the commissioner of public improvements that it is a necessary public improvement that Corunna avenue from Lincoln avenue east to the city limits be macadamized, the resolution proceeds:

“Now, therefore, be it resolved that it is hereby determined by this commission that it is advisable and necessary as a proper regulation to protect and promote the interest, safety, welfare and accommodation of the public of the city of Owosso that the tracks of the electric railway, known as ‘The Owosso & Corunna Railway/ now operated by the Michigan Railway Company and owned by the Michigan United Railways Company, be removed to the center of said Corunna avenue from Lincoln avenue east to the city limits.”

Defendants refused to comply with the resolution and denied the power of the city to impose the burden. A hearing was had at which testimony was taken bearing upon the reasonableness of the resolution. The* trial court was of the opinion that the city had the power to make the order, that it was not an unreasonable one, and ordered a compliance therewith. Defendants have removed the proceedings to this court by writ of certiorari and raise two questions which call for our consideration.

Defendants’ first contention is that, assuming the city possesses the power to order a change in the location of the track, the order is invalid because it requires defendants to do an act which they, under the laws of the State, are prohibited from doing except by the consent and order of the State railroad commission, namely: The moving of the track from the point where it now crosses the Ann Arbor railroad track, the crossing being within the 1,800 feet covered by the order.

We are not unmindful of the rule that courts will refuse to order the issuance of a writ of mandamus when it is clear that it will prove unavailing, but we do not think the facts of this case disclose that such an order will be unavailing. While it is true, as urged, that defendants could not legally move their track from its present point of contact with the Ann Arbor track without the consent of the railroad commission (2 Comp. Laws 1915, § 8365), the statute has pointed out the way by which they may secure the consent of the railroad commission. We cannot assume that after the plaintiff city has determined the necessity of the change in aid of a public improvement, the railroad commission is going to withhold its consent. Of course, it may do so upon an investigation of the whole matter, but if it should, a showing to that effect by the defendants would undoubtedly relieve them from the effects of a contempt proceeding for not doing it. It cannot be said that it is an order that the defendants cannot comply with. They can move the track without objection except at the point of contact. At that point they may apply for permission to the railroad commission, with at least a fair prospect that the application will be granted. Therefore, it does not appear to be an impossible act, nor is it clear that the issuance of the writ will be unavailing.

People, ex rel. Green, v. Railroad Co., 58 N. Y. 152, is helpful upon this branch of the case. A mandamus was asked to compel the railroad company to restore a public highway. The railroad company answered that it could not restore it without condemning land and that the outcome of condemnation proceedings was so uncertain that the writ ought not to issue. The specific objections thereto being that:

“A mandamus will not command that which is impossible ; neither will it issue to compel one to do an act which he has not within himself the power to do.” .

In overruling these objections the court said-in part:

“The third point made by the appellant is, that a mandamus will not command that which is impossible. It is claimed that to obey the command of the peremptory writ, in this case, the appellant must acquire by compulsory measures additional land to that now owned by it; and that it cannot now take such measures, for that it has no statutory power so to do. It is true that the court will not, by its writ of mandamus, command a defendant to perform an impossibility. And it is so, that there must be express sanction and clear authority of law before a railroad company can condemn land for its purposes. Rensselaer, etc., R. Co. v. Davis, 43 N. Y. 137. But there is not in this case the difficulty which the appellant fears. * * * The statute cited gives- ample power to take compulsorily the land thus required. * * * It follows that it is possible to acquire the additional land, and that the writ does- not command an impossibility nor an unlawful act.
“The next point made by the appellant grows out of the last. It is, that a mandamus will never issue to compel one to do an act which he has not within himself the power to do. This proposition, applied to this case, is, that the appellant will not be. compelled to restore the highway at a certain point, if lands must be acquired therefor by proceedings under the statute. But this writ has, not seldom, been sent to quasi public corporations directing them to action, which required similar proceedings on their part. Reg. v. Railway Co., 2 Ad. & El. (N. S.) 47. In that case, it was held that though the time in which compulsory proceedings might be taken had expired, that fact presented no reason why a mandamus should not go. A fortiori, may it go if the power to take such proceedings exists. The first position was questioned in Reg. v. Railway Co., 10 Ad. & El. 531-557. The latter position was not.
“To the argument of the appellant, that in proceedings to take lands compulsorily it might be defeated, it is to be answered: that if that result was upon the merits and not from its own default or miscarriage, it would be a good answer for it, if proceeded against as in contempt for not obeying the writ. The same court which adjudged that it should not take the land would not punish it for not taking it when permission to take could not be had.”

Defendants’ second contention is that, independent of the objection just considered, the city has no power to impose the burden upon them of moving the track. The principal reasons assigned are: (a) That to construct the track in the middle of the street is to construct it immediately over the sewer which, when being repaired, will interfere with the operation of its cars; (b) That the track was constructed nearly 22 years ago and the city made no objection to its location; (a) That it made no objection to its re-construction a few years ago, and (d) That while the reservation of power in the franchise gives the city certain right of control and regulation, that control and regulation does not include the power to compel them to move their track at an estimated expense of $3,500.

The reservations in the franchise under which defendants are operating are relied on as well as the statutory provision (which is made a part thereof by reference), to establish the city’s authority to make the order in question. The reservations referred to cil'S I

“And the said street railway shall be constructed and laid on such parts of the streets hereinbefore designated as the common council of said city shall direct, * * * and the rails shall conform to the grade of the street on which the track is laid as now fixed or may hereafter be established by the city.”
“The common council hereby reserves the right to make such further regulations as may from time to time be deemed necessary to protect the interest and safety and welfare and accommodation of the public in relation to said railway, not inconsistent with the provisions of this ordinance.”
“Said railway company shall at all times be subject to any ordinance that shall be passed' by the common council of the city of Owosso, and shall at all times be subject to the laws of the State of Michigan governing railway companies.”

The statutory provision provides that:

“The common council or other corporate authorities of the city or village, in which any street railway shall be located, may, from time to time, by ordinance or otherwise, establish and prescribe such rules and regulations in regard to such railway as may be required for the grading, paving and repairing the street, and the construction of sewers, drains, reservoirs and crossings, and the laying of gas and water pipes, upon, in and along the streets traversed by such road, and to obstructions thereon.” 2 Comp. Laws 1915, § 8550.

We entertain no doubt that these reservations in the franchise are sufficient to establish the authority of the city to make the order in question. City of Detroit v. Railway Co., 90 Mich. 646; City of Kalamazoo v. Traction Co., 126 Mich. 525; City of Lansing v. Railway Co., 109 Mich. 123; 2 Elliott on Roads & Streets (3d Ed.), § 958.

It is said by Elliott in hisuwork on Roads and Streets, supra, that:

“It has also beeii held that street railway companies take the privilege granted to them subject to the municipal authority to regulate the use of the streets as the necessities of the public may require, and that this authority extends so far as to vest in the municipality a right to change the track of the railway from one part of the street to another.”

The considerations of drainage, public safety and convenience alleged in the order and shown by the proofs justify the conclusion of the trial court that it is a reasonable order. The record shows that the 1,800 feet is part of a much traveled street and highway ; that defendants’ track from the business portion of Owosso to Corunna is all in the middle of the street save the strip in question. Travelers leaving Owosso going in an easterly direction are obliged to cross the track twice, which would be unnecessary if the track were located in the middle of the street. The proposed change of location of the track presents no such engineering difficulties nor expense as to make the order unreasonable.

The order of the trial court is affirmed.

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


author: Moore, J.

text:
    THOMAS v. MILLER.
    1. Fraud — Exchange of Property — Evidence—Sufficiency.
    In an action for fraud in an exchange of property, testimony on the part of- plaintiff that defendant obtained valuable property from her without giving her any substantial return, held, sufficient to sustain a verdict and judgment for plaintiff.
    2. Same — Transactions Between Parties — Evidence.
    Testimony as to certain lots proposed by defendant to be conveyed to plaintiff in lieu of the property agreed upon, held, admissible, since it related to the transactions between the parties.
    Error to Wayne; Mandell, J.
    Submitted April 10, 1918.
    (Docket No. 49.)
    Decided June 3, 1918.

      Case by Annie E. Thomas against Frank E. Miller for fraud and deceit. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      David N. Harper, for appellant.

      Dingeman & Schueler, for appellee.
   Moore, J.

This is a suit for fraud started by writ of capias, which writ was quashed and the suit proceeded as if started by summons. The plaintiff, a widow nearly 70 years old at the time of the trial, claimed, in substance, that she was the owner of a house and lot in Columbus, Ohio, for which she had been offered $2,800; that she saw an advertisement of defendant stating he owned property On Medbury avenue in Detroit he would.exchange for property in Ohio; that she had an interview with defendant, after which she went to see the Medbury avenue property and stated to defendant she would trade her Ohio property for it; that the defendant went to see the Columbus property and said that he would trade the Medbury avenue property for it; that she delivered to him a deed and abstract of her property, and he was to furnish her a deed and abstract of the Med-bury avenue property; that later he stated to her that the abstract showed there was a defect in the title that would prevent his deeding to her the Medbury avenue property; that she then told him they would call the deal off and wanted her deed and abstract back; that defendant then told her he could not give them back because he had disposed of the Columbus property, but said he owned some desirable property on Hawthorne avenue worth $5,400, and which he would guarantee would rent for $50 a month, and that he would credit her with $2,100 for the Columbus property, and that she could pay the balance at the rate of $35 a month out of the rentals; that a land contract was drawn, that she was unable to rent the Hawthorne avenue property for some time, and that at no time could she rent it for more than $36 a month and that she learned defendant did not own the property; that she complained to defendant and that he then proposed that she surrender the contract on the Hawthorne avenue property and he would convey to her a clear title to five lots in Fairmount Park subdivision he claimed he owned; that she surrendered the contract; that defendant never conveyed to her the lots as agreed and that he in fact never owned them. i.- .- ■ <"'•*

Defendant admitted he had such an advertisement about the Medbury avenue property as plaintiff described and that it was because of that advertisement the parties were brought together. He denied, however, that he agreed to trade the Medbury avenue property for the Columbus property, and claimed in substance that the only trade agreed upon was for the Hawthorne avenue property, and that his statements in relation to that property were true. He denies that the consideration for plaintiff’s surrender of the land contract on the Hawthorne avenue property was an agreement on his part to convey to her the five lots in Fairmount Park subdivision, and says plaintiff abandoned the Hawthorne avenue property because she could not make the payments the contract provided and that while he talked of letting her have the five lots mentioned if he could get the title to them, it was because he was sorry for her and not because he was legally bound to do so. He admitted he had no title to these lots and testified that he realized only twelve hundred or fifteen hundred dollars for the Columbus property. There was testimony tending to support the diverse claims of the parties.

At the close of the testimony for the plaintiff and again at the close of all the testimony defendant asked for a directed verdict in his favor. Both requests were denied and the case was submitted to the jury, which returned a verdict in favor of the plaintiff for $3,255. Defendant then moved the court to enter a judgment in his favor notwithstanding the verdict; this the judge declined to do and entered a judgment for the amount of the verdict for plaintiff, stating his reasons for so doing. A motion was later made by the defendant for a new trial which motion was overruled, the trial judge stating his reasons for doing so, to which exceptions were taken. The case is here by writ of error.

Defendant argues but 6 of the 22 assignments of error, which may be grouped under two heads:

(1) Did the court err in refusing to direct a verdict for the defendant at the close of plaintiff’s1 case on the ground that none of the material allegations in the plaintiff’s declaration had been proved and that there was no fraud shown?

(2) Did the court err in admitting proof as to the dealings between the parties relative to the lots in Fairmount Park?

As to the first group defendant’s position is shown by the following excerpt from his brief:

“While in a civil case it is only necessary to prove fraud or the commission of a crime by a preponderance of the evidence, there should, however, be testimony of sufficient weight and character to satisfy the court or jury that a fraud or a crime has been committed. Baird v. Abbey, 73 Mich. 354; 17 Cyc. pp. 754 and 757.
“There is no preponderance unless the evidence is sufficient to overcome the presumption of innocence as well as the opposing evidence. Monaghan v. Insurance Co., 53 Mich. 238.
“The jury should be cautious in arriving at conclusions prejudicial to character and honesty. Watkins v. Wallace, 19 Mich. 57.
“Clear and convincing proof is required where fraud is the ground for relief and it is sought to rescind bargains intelligently made. Breemersch v. Linn, 101 Mich. 64.”

It is claimed that the proof of fraud was not clear and convincing and for that reason a verdict should have been directed in favor of the defendant.

In Hoffman v. Loud, 111 Mich. 156, Justice Montgomery, speaking for the court, said:

‘‘In civil cases a preponderance of evidence is all that is required, and by a ‘preponderance of evidence’ is meant such evidence as, when weighed with that opposed to it, has more convincing force, and from which it results that the greater probability is in favor of the party upon whom the burden rests. Proof to a demonstration is not required, and it is usually unfortunate to employ qualifying words when defining' the necessity for a preponderance of evidence, when it is possible that the terms employed may lead the jury to draw the inference that something more than a mere preponderance is required. See Watkins v. Wallace, 19 Mich. 77; Ferris v. McQueen, 94 Mich. 367; Gumberg v. Treusch, 103 Mich. 543. There is respectable authority for holding that the use of the term ‘clear preponderance’ is in itself sufficient to mislead the jury, and that it is error to employ such term in an instruction. McDeed v. McDeed, 67 Ill. 546; Bitter v. Saathoff, 98 Ill. 266; Mitchell v. Hindman, 150 Ill. 538; Marx v. Kilpatrick, 25 Neb. 118. Whether we would be prepared to adopt this view of all cases, without regard to other portions of the charge it is not now important to determine.”

See Fitch v. Vatter, 143 Mich. 568.

The testimony was in sharp conflict. If that offered on the part of the plaintiff is true defendant has obtained valuable property from her without her receiving any substantial return, under such circumstances as to justify the claim of fraud.

As to the second group of errors: Did the court err in admitting testimony? The charge was fraud. The admitted testimony related to the transactions between the parties. An examination of the testimony does not disclose any abuse of discretion in the latitude granted by the circuit judge as to the admission of testimony. Fury v. Strohecker, 44 Mich. 337; Arnstine Bros. v. Treat, 71 Mich. 561; Gumberg v. Treusch, 103 Mich. 543.

The pivotal questions were questions of fact which were fairly submitted to the jury.

Judgment is affirmed, with costs.

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


text:
    EVERHARD v. DODGE BROS.
    1. Automobiles — Negligence—Law of Road — Evidence—Question for Jury.
    In an action for damages to plaintiffs automobile caused by a collision with a truck owned by defendant, in view of tbe law of tbe road that tbe driver should go to the center of an intersecting street before turning into it to the left, evidence that defendant’s driver turned diagonally to the northeast, causing the collision, held, to present a question of fact for the jury as to defendant’s negligence.

    2. Justices of the Peace — Amendments on Appeal — Substituting New Party.
    On appeal from justice’s court where suit for damages by collision was brought in the name of the owner of the automobile, the court was in error in allowing an amendment to the declaration to the effect that suit was brought in plaintiff's name as' trustee for the insurer, since the effect of the amendment is to bring a new plaintiff into the case without giving defendant an opportunity to litigate his claim in justice’s court, contrary to the provisions of section 12353, 3 Comp. Laws 1915.

      Error to Wayne; Hart, J., presiding.
    Submitted April 11, 1918.
    (Docket No. 70.)
    Decided June 3, 1918.
    Case in justice’s court by Althea C. Everhard against Dodge Brothers for damage to plaintiff’s automobile. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      Frederick J. Ward, for appellant.

      Vandeveer & Foster, for appellee.

      See notes in 38 L. R. A. (N. S.) 488; 41 L. R. A. (N. S.) 322, 337; 42 L. R. A. (N. S.) 1180; 51 L. R. A. (N. S.) 993.

   Moore, J.

This case was commenced in justice’s court. It was appealed to the circuit court. From a verdict and judgment in favor of the plaintiff in the sum of $140 the case is brought here by writ of error.

Jefferson avenue is a wide street in Detroit, running east and west, upon which there is a double track street railway line. Bates street is a narrow street with a single track street car line running north and south crossing Jefferson avenue. It was the claim of the plaintiff that while she was driving her electric car west on Jefferson avenue, as she approached Bates street, a large automobile truck coming from the west on Jefferson avenue, driven by an employee of the defendant corporation, as it approached Bates street at a speed of 12 to 15 miles an hour, instead of keeping to the right of the center of the intersection of these streets when it reached Bates street, turned, diagonally to the northeast ahead of her car and before she could stop it a collision occurred causing damage to her car which cost $142 to make good. The defendant denied that the truck was going 12 or 15 miles an hour and claims it was going 6 or 7 miles an hour; that it kept to the right of the intersection of the street, and that, instead of the truck running into the car of plaintiff, she drove her electric car into the truck. The testimony is in sharp conflict. The first question calling for consideration is the claim of appellant that a verdict should have been directed in its favor because of the contributory negligence of the plaintiff. We shall not attempt to recite the testimony, but in view of the law of the road which should be observed by the drivers of automobiles, and the sharp conflict in the testimony we think this feature of the case presented a question of fact for the jury.

The other question calling for consideration is, Did the court err in permitting an amendment to the declaration to the effect that suit was brought in the name of the plaintiff as trustee, for the use and benefit of the Travelers’ Insurance Company. The name of the insurance company does not appear in any of the pleadings in justice’s court. The car of the plaintiff was insured by this company. The policy had a provision that in case a loss was paid the insured would assign her claim to the insurance company upon request. No assignment had been made at the time of the trial though the insurance company had paid the amount the repairs to the car cost the plaintiff before the suit was begun.

Upon the cross-examination of Mrs. Everhard she gave testimony as follows:

“Q. Now, Mrs. Everhard, you were paid your money in this case by the Travelers’ Insurance Company?
“A. Yes, sir.
“Q. And whatever claim you had you turned' over to them, didn’t you?
“The Court: Let her answer, there is no jury here, you may answer.
“A. I don’t know how to answer that. I don’t know as L understand exactly what it means.
“Q. Well you have received your money and this case is now brought for .the purpose of reimbursing the insurance company?
“A. Yes, sir.
“Q. So the only interest you have in it is giving evidence here as to how the accident took place?
“A. Yes, sir.
“Q. You have no other interest in the case whatever?
“A. No.
“Q. That is all. * * *
“Mr. Ward: Did you authorize any action to be brought for them?
“A. No.
“Q. And you never have known and don’t know now, up to. the present time there was any such claim in this suit, did you, Mrs. Everhard?
“A. I don’t know that I did.”

In Fowler v. Hyland, 48 Mich. 179, as to an appeal commenced in justice’s court it was said:

“But when the appeal removed the case to the circuit court it took up the same case that was before the justice. Cross v. Eaton, decided herewith, post 184.”

In Loranger v. Davidson, 110 Mich., at p. 607, it is said:

“The jurisdiction of the circuit court on appeal is appellate only. The appeal transfers to the circuit court the same cause that was before the justice and an amendment cannot be allowed that states a different cause of action from that stated in justice’s court,” citing several cases.

This case is cited with approval in Frohlich v. Graulick, 118 Mich. 65. In overruling the motion for a new trial the circuit judge expressed himself of the opinion that, as substantial justice had been done, though he may have erred in granting the amendment, under the judicature act he had the right to allow the judgment to stand.

Counsel for appellant cite from the judicature act as follows:

“Every action shall be prosecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute, may sue in his own name without joining with him the party for whose benefit the action is brought.” 3 Comp. Laws 1915, § 12353.

Counsel for the appellee cite Union Ice Co. v. Railway Co., 178 Mich. 347, as sustaining the action of the trial judge. A reference to the opinion in that case will show that plaintiff had a substantial interest in the subject matter of the litigation and that the case originated in the circuit court. The practical effect of the amendment to the declaration is to bring a new plaintiff into the case without giving the defendant an opportunity to litigate his claim in the justice’s court.

We think the judgment must be reversed without a new trial. Defendant will recover costs.

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


text:
    ORTNER v. MICHIGAN CENTRAL RAILROAD CO.
    Carriers — Failure to Deliver — Order Bill oe Lading — Liability oe Carrier.
    In an action by a shipper against a railroad company for failure to deliver 250 bags of beans shipped over defendant’s railroad, where they were covered by an order bill of lading which recited the receipt of the beans consigned to order of shipper, notify C., which, with draft attached, was sent to a bank for collection and was returned to plaintiff unpaid, and later be resbipped them, surrendering tbe bill of lading to defendant and receiving another reciting receipt from “owners” of tbe beans consigned to order C., notify P., and requiring its surrender properly indorsed before delivery of tbe beans, which be sent with draft attached to a bank, and it was never paid, and tbe beans were never delivered; plaintiff having put defendant in possession of tbe beans, and having always retained control of tbe bills of lading, held, entitled to recover.

      See note in 2 L. R. A. (N. S.) 1078.

      Error to Tuscola; Beach, J.
    Submitted April 17, 1918.
    (Docket No. 106.)
    Decided June 3, 1918.
    Assumpsit by John L. Ortner against the Michigan Central Railroad Company and Henry W. Carr Company for the nondelivery of a carload of beans. Judgment for defendant railroad company on a directed verdict, whereupon suit was discontinued as to other defendant. Plaintiff brings error.
    Reversed.

      R. L. Crane, for appellant.

      Cooley, Hewitt & Wixson (Humphrey, Grant & Henry, of counsel), for appellee.
   Moore, J.

This suit was commenced by declaration, the first count of which was in assumpsit, the other two counts sounded in tort. The trial judge directed a verdict in favor of the railroad company. The plaintiff discontinued the suit as to the other defendant. The case is here by writ of error.

Plaintiff owned an elevator in Richville and shipped in February, 1915, two hundred and fifty bags of beans to the defendant Henry W. Carr Company at Saginaw as a car load lot over defendant railroad company’s line from Richville to Saginaw. This shipment was covered by an order bill of lading dated February 28, 1915, and recited the receipt from plaintiff of two hundred and fifty bags of beans, consigned to the order of J. L. Ortner, Saginaw, Michigan, notify H. W. Carr Company, Saginaw. To this bill of lading was attached a draft on defendant Henry W. Carr Company for the price of the beans, and it was sent through the bank and later returned unpaid to the plaintiff with the bill of lading. The car load of beans was sent to Saginaw but was not taken by Henry W. Carr Company. Plaintiff testifies that in May, 1915, defendant Carr told him that if he shipped the beans to Hammond, Indiana, that Post Brothers of that place would buy them; that soon thereafter plaintiff received by mail a bill of lading from Henry W. Carr Company partly filled out; that upon receiving this second bill of lading he went to the railroad company’s agent at Richville, and, after being assured by him it would be all right to do so, turned over to him the February bill of lading, and received from the agent at Richville the second bill of lading duly signed. Plaintiff testifies that at the time he received this second bill of lading and at the time he presented it to Rupprecht, the agent, it was all made out except the signature of the agent. The second bilk of lading is dated May 18, 1915, and recites the receipt from “owners” of two hundred and fifty bags of beans consigned “to order the Henry W. Carr Company of Sagináw,” Hammond, Indiana, notify Post Brothers at the same place. It is signed “Henry W; Carr Co., per A. E. W.,” Shippers, and “John Rupprecht,” agent.'

The words “consigned to order Henry W. Carr Co., of Saginaw” were printed on the bill of lading. It contained a provision as follows:

“The surrender of this original order bill of lading properly indorsed shall be required before delivery of the property.”

This bill of lading with draft on Post Brothers attached was delivered by the plaintiff to a bank for collection and was not paid. Plaintiff did not know Post Brothers and had never heard anything' from them except what he was told by Mr. Carr. The bill of lading and draft later were returned to the plaintiff by the bank. The plaintiff was unable to learn what had become of the beans and invoked the aid of the agents of the railroad company, and had several interviews with defendant’s agents. He later was notified they were with the Michigan Warehouse Company at Chicago. He tried to sell the beans and could not and finally went to Chicago to learn what was the trouble. What were said to be his beans were pointed out to him. He testified that the beans there shown him as having arrived in the car moving from Saginaw were not his beans. That his beans were handpicked and in new bags, while those shown him were cull beans and in old bags.

In the course of the correspondence plaintiff received the following:

“New York Central Lines.
“Michigan Central Railway Company.
“Saginaw, E. S., Mich., Sept. 24, 1915.
“Mr. J. L. Ortner,
“Richville, Mich.
“Dear Sir: Referring to your conversation regarding car load of beans shipped to Hammond, Ind., on May 14th m M. C. 46482.
“The Michigan Warehouse Company advised me at the present charges against this shipment up to and including October 4th will be $94.77 which is made up as follows:
“Freight charges and car service $68.52, storage $26.25. Would suggest that you have taken care of without delay to avoid paying further storage.
“Yours truly,
“S. S. Armstrong, Agent.”

A check was sent for this amount but the Michigan Warehouse Company declined to receive it without a surrender of the bill of lading. In October, plaintiff made a written demand on the railroad company for the beans or the value thereof. The defendant dedined to pay or them, assigning as a reason that the time limit in the bill of lading for making a claim had expired. November 9, 1915, plaintiff sent to the railroad company a draft of $68.52 in payment of its charges. This draft was indorsed by the railroad company and paid November 27, 1915.

Suit was commenced April 4, 1916. Defendants introduced no witnesses. As before stated, a verdict was directed in favor of the railroad, and it is insisted this was properly done. We quote from the brief of counsel:

“The case is clearly governed by the decision in Nelson Grain Co. v. Railroad Co., 174 Mich. 80 (140 N. W. 486). This case has been so recently and so frequently before this court that an extended review of the facts is unnecessary.”

The case cited differs from the case before us in the very important particular, that in that case the shipment was delivered to the consignee named in the bill of lading, while in the instant case there has been no delivery of the beans.

In Ithaca Roller Mills v. Railroad Co., 197 Mich. 440 (163 N. W. 934), Justice Fellows, speaking for the court, said:

“The bill of lading as drawn, made Voorheis Bros. prima facie the owner of the goods shipped; this upon the theory that, where goods are shipped through a carrier to a third party, on delivery to the shipper of a bill of lading, the consignee is prima facie the owner. But this presumption may be overcome by proof of facts showing the actual transaction and the intent of the parties. Sturges v. Railway Co., 166 Mich. 231 (131 N. W. 706); Turnbull v. Railroad Co., 183 Mich. 213 (150 N. W. 132). In the instant case the proof is conclusive and undisputed that plaintiff’s contract with Voorheis Bros, called for delivery of the goods to them at Homestead; the defendant acknowledge receipt of the goods for transportation from the plaintiff; named it in the bill of lading as the shipper; the contract of carriage was with it. Beyond question the plaintiff was the owner of the goods until their delivery to Voorheis Bros., was the owner when the damage was done, was the party with whom defendant contracted, and therefore can maintain this action in its own right for the negligent performance of the contract of carriage entered into between it and defendant.”

In the case we are considering the plaintiff put the railroad company in possession of the beans. He has always retained control of the bills of landing. The beans in fact have never been delivered. Instead of directing a verdict in favor of the defendant upon the showing made, one should have been directed in favor of the plaintiff.

The judgment is reversed and a new trial ordered, with costs to the plaintiff.

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


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    BAASE v. BANNER COAL CO.
    Master and Servant — Workmen’s Compensation Act — Limitation op Action.
    Where an injured employee failed to make claim for compensation within six months after the injury, as required by section 15, part 2, of the workmen’s compensation act, an award by the industrial accident board under said act was unauthorized.
    See notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.
    Certiorari to Industrial Accident Board.
    Submitted April 19, 1918.
    (Docket No. 82.)
    Decided June 3, 1918.

      Charles Baase presented his claim for compensation against the Banner Coal Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Employers’ Liability Assurance Corporation, Limited, insurer, bring certiorari.
    Reversed, and award vacated.

      Angell, Bodman & Turner and C. G. Dyer, for appellants.

      Purcell & Travers, for appellee.
   Moore, J.

Charles Baase prior to October 29, 1915, was in the employ of the Banner Coal Company. The Employers’ Liability Assurance Corporation, Limited, is the insurance company carrying the risk of said coal company. On the date mentioned claimant sustained an injury while in the course of his employment. This injury was duly reported by thg employer to the insurance company, which in turn reported the accident to the industrial accident board. After the injury claimant was treated by various doctors. On December 17, 1916, claimant made his first claim in writing for compensation. On December 23, 1916, he filed the regular “Notice to Employer of Claim for Injury.” The claim was heard before an arbitration committee on April 27, 1917, and an award made that claimant was entitled to receive and recover from defendants the sum of $7.14 per week for the period of his disability. This award upon appeal was affirmed by the full board. The case is brought here by certiorari.

Appellants claim:

1. That the present disability of claimant is not due to the injury of October 29, 1915, and the decision of the board to that effect is based entirely on conjecture and not supported by any competent evidence.

2. That no claim for compensation with respect to the alleged injury was made within six months after the occurrence of the same, and there was no evidence whatsoever of any physical or mental incapacity on the part of claimant which would extend the statutory period.

A determination of the second claim will make it unnecessary to discuss the other.

Sections 15 to 18 of part 2 of the workmen’s compensation act (2 Comp. Laws 1915, §§ 5445-5448) had the attention of this court in Armstrong v. Pickle Co., 197 Mich. 334; Podkastelnea v. Railroad Co., 198 Mich. 321; Cooke v. Furnace Co., 200 Mich. 192; Dane v. Traction Co., 200 Mich. 612; and Kalucki v. Foundry Co., 200 Mich. 604. In the last three cases opinions were handed down in March, 1918. It is there determined that the claim for compensation must be made within six months of the time of the injury. It is the contention of claimant that though he did not make a claim in writing within six months that he did so in fact. This claim is based upon his testimony, reading as follows:

“Q. About that time or shortly after, did you have a conversation with Mr. Carmichael?
“A. I did.
“Q. What position did he hold with the Banner Coal Company?-
“A. So far as I know he was manager. * * *
“Q. When was this conversation with Mr. Carmichael ^
“A. About February 16, 1916.
“Q. Did you explain to him fully what your injury was?
“A. I stated that my injury bothered me, and I was sore, and I really had to quit. * * *
“Q. What was Mr. Carmichael doing at that time?
“A. Mr. Carmichael was back of the bar, in what they call the office, párt, in the front part of the saloon.
“Q. What did you say to him? .
“A. I was standing there talking to him, one thing and another and I spoke about my money.
“Q. What money?
“A. Money that I supposed that I had coming.
“Q. For work?
“A. Yes, sir.
“Q. And what else?
“A. I spoke to him about my lungs and about working out there, and about one thing and another, and I told him that my lungs bothered me so much out there in the mine that I would have to quit.
“Q. You talked generally about the mine and the conditions of the mine and your condition?
“A. Yes; and I told him that I would have to make a claim for compensation, if I didn’t get along better.
“Q. And what did he say about that?
“A. It went from one thing to another, general conversation. I don’t remember what he did say.
“Q. That was practically all that you said?
“A. Yes, and a general conversation.”

Mr. Carmichael admits he might have had a conversation with the claimant at the time and place mentioned, though he says he does not remember that he had, but says if a claim for compensation had been made it would have been reported, and that there was no report made of a claim. Counsel cite, in support' of the contention that a sufficient claim was made, Luckie v. Merry, 3 K. B. Div. (1915) 83, and Gailey v. Manufacturing Co., 98 Kan. 53 (157 Pac. 431). A reference to the cases will show they are not controlling.

It is not necessary to quote here section 15, part 2 of the act (2 Comp. Laws 1915, § 5445), but its language is not ambiguous. Giving the claimant’s testimony the most favorable construction possible, it amounts to a statement that he. would have to make a claim if he did not get better. We think this is not a compliance with the requirements of the act.

The award is set aside.

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


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    McBRIDE v. CHIPPEWA CIRCUIT JUDGE.
    New Trial — Ejectment—Limitation of Actions — Repeal of Statute — Saving Clause.
    The right to new trial in ejectment within three years after judgment, under section 10981, 3 Comp. Laws, repealed by section 30, chap. 29, of the judicature act (section 13197, 3 Comp. Laws 1915), was saved, where the right had accrued before the repealing act took effect, by section 9, chap. 9, of said act (section 12319, 3 Comp. Laws 1915), providing that rights in respect to limitation of actions or right of entry should be governed by the act under which they accrued.
    Mandamus by James McBride to compel Louis H. Fead, circuit judge of Chippewa county, to vacate an order denying a motion for a new trial.
    Submitted April 5, 1918.
    (Calendar No. 27,975.)
    Writ granted June 3, 1918.

      John W. Shine, for plaintiff.

      Davidson & Hudson, for defendant.
   Moore, J.

Dayton W. Closser recovered judgment in ejectment against relator August 2, 1913. The judgment was affirmed in this court October 2, 1914. Closser v. McBride, 182 Mich. 594. On May 1, 1917, relator applied for a new trial on payment of costs which motion the court denied. This proceeding is brought to set aside the order denying relator’s motion for a new trial, and to have an order entered granting the motion.

We quote from relator’s brief:

“The statute, 3 Comp. Laws, § 10981, provides for a new trial in ejectment as a matter of right within three years after judgment. See Clareview Park Improvement Co. v. Wayne Circuit Judge, 172 Mich. 172.
“The three years begin to run from the date of affirmance in the Supreme Court. Boyce v. Osceola Circuit Judge, 79 Mich. 154.
“Under the old law there could be no question of relator’s right to a new trial. The judicature act took effect January 1, 1916, and before the expiration of the three years given relator under the old law for a new trial. The judicature act took effect also before the application for a new trial was. made.”

The circuit judge thought it governed this case.

Relator contends:

“1. That the judicature act is prospective in its application and does not affect relator’s right.
“2. That by express provisions of the judicature act relator’s rights are governed by the law in force at the time his right accrued,” citing Harrison v. Metz, 17 Mich. 377; Ludwig v. Stewart, 32 Mich. 27; McKisson v. Davenport, 83 Mich. 211; Stambaugh v. Snoblin, 32 Mich. 296; Hathaway v. Milling Co., 139 Mich. 708; McKenzie v. A. P. Cook Co., 113 Mich. 452.

Defendant claims that the right as a matter of course to a second trial in. ejectment was repealed by the judicature act (Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 13197), section 30, chapter 29 of which reads:

“Except as hereinafter provided, new trials may be granted in ejectment cases for the same reasons, and in the same manner as in personal actions; but no new trial shall be granted as a matter of course.”

We quote from the brief:

“Statutes which relate only to the remedy, without creating, enlarging or destroying the right, operate on existing causes of action. Judd v. Judd, 125 Mich. 228; Lohrstorfer v. Lohrstorfer, 140 Mich. 551; Gibson v. Hibbard, 13 Mich. 214; C. H. Little Co. v. L. L. Hazen Co., 185 Mich. 316; Beebe v. Birkett, 108 Mich. 234; State Savings Bank of Detroit v. Matthews, 123 Mich. 56.”

An examination of each of these cases, will show them distinguishable from the instant case.

Much reliance is placed on the last case cited. It may be well to quote from it:

“If we compare the law as amended with it as it was before the amendment occurred, we will find it does not change the time of possession either of the mortgagor or of the mortgagee. It changes the form of the decree. It shortens the time after the suit is brought when sale may be made, but it adds a period of redemption after the sale which did not exist before. We do not think it can be said that there is any such material change in the relation of the mortgagor to the mortgagee, or to the rights of each, as to amount to an impairment of the obligation of contracts.”

Clearly this is a different case than the one before us. Immediately before the time the judicature act took effect plaintiff was entitled as of course to a new trial upon the payment of costs. If he had a meritorious case this was a valuable right which we think is saved by section 9, chapter 9, of the judicature act (3 Comp. Laws 1915, § 12319), which reads:

“All actions and rights shall be governed and determined according to the law under which the right accrued, in respect to the limitations of such actions or rights of entry.”

The circuit judge should have granted relator’s motion for a new trial. The writ of mandamus will issue as prayed, with costs to relator.

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


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    THOMAS CANNING CO. v. CANNERS’ EXCHANGE SUBSCRIBERS AT WARNER INTER-INSURANCE BUREAU.
    Certiorari — Overruling Motion to Dismiss — Review.
    The judicature act (section 4, chap. 14; section 12456, 3 Comp. Laws 1915) having abolished all demurrers, pleas in abatement, and pleas to the jurisdiction, and requiring that all such questions of demurrer and plea shall now be raised by motion to dismiss or by notice annexed to the plea, certiorari will not lie to review the action of the trial judge in overruling a motion to dismiss for reasons stated in the notice attached to the general issue.
    Certiorari to superior court of Grand Rapids; Dun-ham, J.
    Submitted April 16, 1918.
    (Docket No. 97.)
    Decided June 3, 1918.
    Assumpsit by the Thomas Canning Company against the Canners’ Exchange Subscribers at Warner Inter-Insurance Bureau and others on policies of insurance. From an order denying a motion to dismiss, defendants bring certiorari.
    Affirmed.

      Kleinhans, Knappen & Uhl and Zane, Morse & McKinney, for appellants.

      Colin P. Campbell (Henry C. Walters, of counsel), for appellee.
   Moore, J.

The plaintiff brought suit to recover for fire losses claimed to be covered by policies of insurance issued by defendants. On October 30, 1917, defendants pleaded the general issue and gave notice of a number of special defenses. December 18, 1917, defendants moved the court to dismiss the case for reasons stated in various paragraphs contained in the notice of special defenses attached to the plea of the general issue. This motion was overruled. Certiorari is brought to review the action of the trial judge in overruling the motion to dismiss. Upon the oral argument the Chief Justice, for the court, called the attention of the attorneys for the appellants to the method of bringing the litigation at its present stage into this court.

In the appellants’ reply brief is the following:

“The issue is as to the sufficiency as matter of defense of the facts stated in the notice under the amended plea.
“By section 2, chapter 14, of the judicature act (3 Comp. Laws 1915, § 12454), declarations in common use are retained. By section 10, chapter 14 (§ 12462), the only pleading by the defendant is the general issue which, by section 11 (§ 12463), is a demand for a trial. By section 12, chapter 14 (§ 12464), all matter of defense requiring to be specially pleaded, must be stated by way of notice annexed to the general issue.
“By_section 4, chapter 14 (§ 12456), all demurrers, pleas in abatement and pleas to the jurisdiction are abolished. All such questions of demurrer and plea shall now be raised by motion to dismiss, or by notice annexed to the plea, and where such questions are raised by the notice under the plea, the same may be brought on for hearing and determination before trial by either party. If the defect of plaintiff’s declaration appears on the face of the declaration, a defendant moves to dismiss instead of demurring. If the matter of defense requires the statement of facts, such facts are stated in the notice under the general issue and a plaintiff, if he wishes to deny the facts set up in defense, amends his declaration. If he does not think the matter sufficient or if he does not desire to amend, he stands upon his declaration and either he or the defendant may bring the special matter on for hearing and have the judgment of the court as to its sufficiency. * * *
“If the policy and power of attorney in question here had been set forth in the declaration, the defendants could have moved to dismiss. But since the documents which form the contract sued on were not set forth in the declaration, the defendants were required to set them forth in their notice annexed to the general issue.”

Counsel insists that certiorari will lie to review the action of the trial judge in overruling the motion to dismiss. A like situation was presented in the recent case of Pagenkoff v. Insurance Co., 197 Mich. 166.

The construction of section 4, chapter 14, of the judicature act in that opinion is against the contention of appellants’ counsel. We will not repeat here what was there said by Chief Justice Kuhn.

The order overruling the motion to dismiss is affirmed, with costs to the appellee.

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


text:
    PATRONS’ MUTUAL FIRE INSURANCE CO. v. GOODMAN.
    Trial — Findings of Fact, Failure to Make — Judgment.
    Where the court below merely recited the claims of the parties, but no findings were made as to which of the claims were true, there was nothing upon which to base a judgment.
    Error to Bay; Coumans, J.
    Submitted April 16, 1918.
    (Docket No. 77.)
    Decided June 3, 1918.
    Assumpsit in justice’s court by the Patrons’ Mutual Fire Insurance Company, Limited, of Michigan, against Philip Goodman for assessments due on a policy of insurance. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.
    Reversed.

      G. C. Leibrand (Gilbert W. Hand, of counsel), for appellant.

      B. J. Henderson, for appellee.
   Moore, J.

This case was commenced in justice’s court and appealed to the circuit court, where it was tried without a jury. The case is brought here by writ of error.

The judge made findings of fact and law as follows:

“Findings of Facts.
“1. On August 6, 1916, defendant applied for insurance in plaintiff company; policy No. 5668 was issued to defendant on August 7, 1906. The annual assessment period of plaintiff company extends from August 1, of any year to August 1, of the following; the books are closed on that date for levying assessments, and the assessments are payable in October following. Defendant paid all assessments levied against him until the assessment of 1909, which was for losses and expenses of the company from August 1, 1908, to August 1, 1909; the amount was $3.75; the $3.75 appears^ on the 1909 assessment roll, although the plaintiff did not introduce or produce the roll for that year.
“2. Defendant claims that in the latter part of August, 1908, he paid what assessments were due against him and surrendered his policy for cancellation ; that he gave his policy to Berling Price, the then local director of, the company. Mr. Price testified that he mailed the policy to plaintiff and paid the assessment of 1908, which would pay defendant’s obligations up to August 1, 1908. Mr. Holden, the secretary of the company, testified that he did not receive the policy. It is the claim of the plaintiff that the defendant not having paid the $3.75 due plaintiff for losses and expenses from August 1, 1908, to August 1, 1909, that the same was properly assessed in. 1909 for the entire 1909 assessment in the sum of $8.75. Plaintiff claims that no other assessment was made against defendant as he was off the active list of members on February 1, 1910, and no losses and expenses of the company were assessed against him or his policy since that date, and that his name did not appear on any assessment roll issued by the company until the year 1914.
“3. Article 10 of the articles of association of the plaintiff provide: * * * (The article is here quoted.)
“Section 26 of the by-laws of plaintiff provide * * * (The section is here quoted.)
“4. It is the claim of the defendant that he did not receive notice of the assessment made August 1, 1909, but if said assessment was made that he, the defendant, ceased to be a member on October 1, 1909, according to the by-laws No. 26 of said plaintiff company, and if he was owing anything to plaintiff at that time for losses and expenses between the date of the 1909 assessment and the date when he ceased to be a member that the statute of limitation would run against such claim from said last mentioned date.
“Conclusions of Law:
“From the foregoing findings of fact, I conclude as matter of law:
“1. That sufficient proof was offered to entitle the application of defendant to be received; it appearing that the defendant received the policy issued thereunder and paid several assessments thereon.
“2. That sufficient proof was offered to show that defendant’s name appeared on the assessment roll of plaintiff for the year 1909 for losses and expenses of the company assessed or levied against him or his policy to August 1, 1909, in the sum of $3.75.
“3. I am of opinion that all sums due the plaintiff from the defendant were due and payable to it October 1, 1909, and the statute of limitations began to run from that time.”

The court found that as the suit was commenced December 29, 1915, the statute of limitations had run and entered judgment for the defendant.

The attention of the court was called to the fact that he had stated the claims of the parties in paragraphs two and four instead of making findings of fact, and amendments were proposed which were overruled and exceptions were duly taken.

The appellant insists that the second and fourth paragraphs are mere recitals of the claims of the parties and are not findings of fact, and that the other two paragraphs are not sufficient to be made the basis of the judgment.

The case presented is unlike White v. Gypsum Co., 168 Mich. 288, where the findings, though loosely drawn, were in fact made. In the instant case the claims of the parties were recited but no findings were made as to which of the claims were true, and there is nothing upon which to base the judgment. See Yelverton v. Steele, 40 Mich. 538; Downey v. Andrus, 43 Mich. 65; Steele v. Matteson, 50 Mich. 313.

It is unnecessary to discuss the other questions.

Judgment is reversed, and a new trial granted, with costs to the plaintiff.

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