text:
    HARTZ v. WAYNE CIRCUIT JUDGE.
    1. Appeal and Error — Mandamus—Review op Order Dismissing Appeal.
    A judgment of the circuit court, dismissing an appeal from the judgment and action of a township board, in proceedings to open a highway, under Act No. 195, Pub. Acts 1905, and 2 Comp. Laws, § 4042 et seq., is a final judgment, reviewable on certiorari, and therefore will not be vacated on mandamus. (3 Comp. Laws, § 10497.)
    2. Mandamus — Adequate Remedy.
    Mandamus does not lie where another adequate remedy exists.
    3. Appeal and Error — Statutes — Special Prooeedings — Eminent Domain.
    Proceedings which are purely statutory, and not after the course of the common law, are not reviewable by writ of error.
    4. Eminent Domain — Highways and Streets — Condemnation.
    Proceedings to condemn lands are summary in character, and, while subject to judicial review, are not judicial proceedings.
    5. Same — Appeal and Error — Certiorari.
    While a review by writ of error cannot be had in such proceedings, certiorari may issue to review them, not only as to the jurisdiction of the inferior tribunal, but also as to the manner of exercising it and any errors of law committed in so doing.
    Mandamus by John C. Hartz against James O. Murfin, one of the circuit judges of Wayne county, to vacate an order dismissing an appeal from proceedings of the township board of Plymouth to establish a highway, to reinstate said appeal, and to proceed to consider it.
    Submitted November 29, 1910.
    ( Calendar No. 24,273.)
    Writ denied December 30, 1910.

      Keena, Lightner & Oxtoby, for relator.

      C. C. Yerkes, for respondent.
   Stone, J.

In this case petitioner prays for a writ of mandamus to compel the circuit judge to vacate and set aside an order dismissing an appeal from the township board of the township of Plymouth, in a certain highway proceeding, and to reinstate said appeal in the circuit court.

It appears that upon the petition of the requisite number of freeholders of said township, the commissioner of highways took certain action to lay out a highway therein,- through lands belonging to the petitioner. The petitioner conceiving himself aggrieved by the determination of such commissioner, perfected an appeal therefrom to the township board of said township. Later said township board took action, and affirmed the determination of said commissioner in said matter. Thereupon petitioner, in pursuance with the statute, duly perfected an appeal from the determination of the township board to the circuit court for the .county of Wayne. Due return was made to said appeal. Later said cause came on for trial on said appeal. While the jury was being impaneled, a question was raised by the circuit judge as to the constitutionality of the proceeding, and he finally, by order, dismissed the appeal, upon the ground that the statute providing for an appeal and hearing is unconstitutional, because it contravenes the express language of the Constitution of this State. After the denial of a motion to vacate said order, the petitioner applied to this court for mandamus. An order to show cause was granted, and the respondent has answered.

Counsel for petitioner cites the following cases in support of his claim that he is entitled to invoke this remedy: Michigan Mut. Fire Ins. Co. v. Wayne Circuit Judge, 112 Mich. 272 (70 N. W. 582); Fingleton v. Kent Circuit Judge, 116 Mich. 211 (74 N. W. 473); Defoe v. Bay Circuit Judge, 116 Mich. 567 (74 N. W. 733).

Under the later decisions of this court, we are of opinion that the petitioner has mistaken his remedy, and that he presents a case where he has another adequate remedy, as the order made by the circuit judge amounted to a final judgment. Dages v. Sanilac Circuit Judge, 122 Mich. 490 (81 N. W. 355); Mardian v. Wayne Circuit Judge, 118 Mich. 353 (76 N. W. 497); Skutt v. Kent Circuit Judge, 136 Mich. 477 (99 N. W. 405); Cattermole v. Ionia Circuit Judge, 136 Mich. 274 (99 N. W. 1); City of Flint v. Genesee Circuit Judge, 146 Mich. 439 (109 N. W. 769); Moran v. Wayne Circuit Judge, 125 Mich. 6 (83 N. W. 1004).

It is a well-settled rule that mandamus will not lie when there is another adequate remedy. What is the adequate remedy in such a proceeding ?

It has been often held by this court that in proceedings which are purely statutory, and not after the course of the common law, the writ of error will not lie. Holbrook v. Cook, 5 Mich. 225; Cross v. People, 8 Mich. 113; Conrad v. Button, 28 Mich. 365; Cameron v. Bently, 28 Mich. 520; Smith v. Superintendents of the Poor, 34 Mich. 58.

In Detroit United Railway v. Oakland Circuit Judge, 146 Mich. 540 (109 N. W. 846), this court declined to review on mandamus the order of the circuit judge dismissing a petition for the condemnation of land, and the ease was later brought here and disposed of on its merits by writ of certiorari. Detroit United Railway v. Barnes Paper Co., 149 Mich. 675 (113 N. W. 285).

The proceeding in this case is one to condemn lands. Such proceedings are special and summary in character, and, while subject to judicial review and supervision for certain purposes, are not judicial proceedings. Toledo, etc., R. Co. v. Dunlap, 47 Mich. 456 (11 N. W. 271).

In that case Justice Campbell said:

“The proceedings to condemn lands, although made under the railroad laws subject to judicial review and supervision for certain purposes, are not in themselves, and never have been regarded as judicial proceedings. Our Constitution allows them to be conducted by highway commissioners in some cases, and by specially appointed commissioners or juries of freeholders. The inquiry in this State, as elsewhere, is an appraisal or estimate of values, and not a contest on litigious rights, and includes what is not elsewhere included, an inquiry into-the necessity of the proposed taking for public purposes, which-was never made by courts, but always heretofore by the legislature or some unjudicial body of its creation. Had it not been for the specific provisions in our Constitution the State could have provided for these inquiries to be made by any medium it might select. * * * Our present system is better calculated than the old one, if fairly applied, to secure the rights of landowners. But the nature of the proceeding remains as before, a special proceeding by a temporary tribunal selected for the occasion, and not a judicial proceeding in the ordinary sense.”

See, also, Michigan, etc., R. Co. v. Monroe Circuit Judge, 144 Mich. 44 (107 N. W. 704); U. S. Gypsum Co. v. Kent Circuit Judge, 150 Mich. 668 (114 N. W. 666); In re Koenig’s Estate, 152 Mich. 432 (116 N. W. 400).

A review cannot be had by writ of error in these special or extraordinary proceedings, not according to the course of the common law. The power of reviewing upon common-law certiorari even the judicial proceedings of inferior tribunals and bodies, which are not according to the course of the common law, has long been exercised. The right is not limited to an inquiry as to the jurisdiction of the inferior tribunal or body over the particular subject-matter, but extends to the manner in which that jurisdiction is exercised. It may reach all errors of law. Jackson v. People, 9 Mich. 111, 118 (77 Am. Dec. 491); Carver v. Chapell, 70 Mich. 49 (37 N. W. 879); People v. Stott, 90 Mich. 343 (51 N. W. 509). It is a constitutional writ. Const. Art. 7, §§ 4-7; Specht v. City of Detroit, 20 Mich. 168; City of Detroit v. Railway Co., 63 Mich. 715 (30 N. W. 321).

Our statute, section 10497, 3 Comp. Laws, provides for the issuance of the writ of certiorari in proceedings that are not according to the course of the common law.

In our opinion, the writ of certiorari is the proper remedy in this case.

The writ of mandamus is therefore denied, for the reasons stated, but without costs.

Bird, C. J., and Ostrander, Hooker, Moore, McAt.vaVj and Brooke, JJ., concurred. Blair, J., did not sit.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    CONSOLIDATED COAL CO. v. BOARD OF TRUSTEES OF THE MICHIGAN EMPLOYMENT INSTITUTION FOR THE BLIND.
    Public Officers — Fiduciary Relations —Contracts—Validity —Statutes.
    A sale of coal to the Michigan Employment Institution for the Blind, by a corporation in which one of the three trustees of the institution is interested as a stockholder, is absolutely void, under §§ 11384, 11385, 3 Comp. Laws, forbidding such trustee, agent, etc., of any State board from being interested in any contract, purchase or sale of such institution.
    Case-made from Saginaw; Gage, J.
    Submitted November 29, 1910.
    (Docket No. 73.)
    Decided December 30, 1910.
    Assumpsit by the Consolidated Coal Company, a foreign corporation, against the board of trustees of the Michigan Employment Institution for the Blind, for goods sold and delivered. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed, and no new trial ordered.

      Franz C. Kuhn, Attorney General, and J. Shurly Kennary, Assistant Attorney General, for appellant.

      Humphrey, Grant & Baker, for appellee.

      Act No. 107 of the Public Acts of 1873 (3 Comp. Laws, sections 11384, 11385), is entitled “An act to prohibit officers of public institutions from being interested in contracts made therewith, and to prevent bribery,” and it reads:
    “Section 1. The People of the State of Michigan enact, that no trustee, inspector, regent, superintendent, agent, officer, or member of any board having control or charge of any educational, charitable, penal, pauper, or reformatory public institutions of this State, or of any county thereof, shall be personally directly, or indirectly interested in any contract, purchase, or sale made for, or on account, or in behalf of any such institution, and all such contracts, purchases or sales shall be held null and void; nor shall any such officer corruptly accept any bribe from any persons interested in such contract; and it is hereby made the duty of the governor or other appointing power, upon proof satisfactory of a violation of the provisions of this section, to immediately remove the officer or employé offending as aforesaid; and upon conviction thereof before a court of competent jurisdiction, the offender shall be punished by a fine not exceeding five hundred dollars.
    “Sec. 2. Any person interested directly or indirectly in a contract with a State or county institution who shall corruptly give, offer, or promise to any officer of such institution any bribe, gift, or gratuity whatever, with intent to improperly influence his official action under such contract, shall be punished by a fine not exceeding five hundred dollars.
    “Sec. 3. This act shall take immediate effect.”
    Plaintiff is a Maine corporation authorized to do and doing business in Michigan. The Michigan Employment Institution for the Blind was established, its management provided for, and an appropriation made therefor, by Act No. 169 of the Public Acts of 1903. It is located in the city of Saginaw. Supervision and government of the institution is vested in a board of three trustees. During the year 1908, S. S. Judd was superintendent of the institution and performed the duties of the office. This action is assumpsit, brought against the trustees to recover the price and value of coal. The defendant board pleaded the general issue, and gave notice that it would insist in its defense that at the time the sales of coal were made James H. Malcolm was a member of the defendant board of trustees of said institution, as well as interested as a stockholder in plaintiff company, for which reason the coal was sold and purchased contrary to the provisions of the statute above referred to, and plaintiff could not recover.
    In addition to the facts already stated, the following were stipulated by the parties:
    ‘ ‘ That the coal described in plaintiff’s bill of particulars in this case was delivered by the plaintiff to said institution in the city of Saginaw, Mich., on the order of said Judd, as superintendent, in amounts and at the dates mentioned in said bill of particulars, and- that said coal was received, used, and consumed in the business and operation of said institution, and was of the value charged and set out in said bill of particulars at the respective dates of delivery, and at the time of its use and consumption by the said institution; that at the time the coal was so ordered and delivered there was an oral agreement between the plaintiff and defendant that the plaintiff should furnish and deliver to the defendant coal at and for the price of $2.85 per ton as needed and ordered.
    “ That the defendant has not paid the plaintiff for said coal, or any part thereof, and that, if the plaintiff is entitled to recover in this case against defendant, it is entitled to recover in the sum of $232.32, and, if entitled to recover interest, it is entitled to recover on $232.32 from June 1, 1908, at 5 per cent, per annum.
    “That at the time said coal was purchased and delivered by the plaintiff to the said institution, James H. Malcolm, of the city of Saginaw, Mich., was a member of the board of trustees of said institution, and the treasurer thereof, and was also a stockholder of plaintiff, and as such interested in plaintiff; but was not at said times an officer, director, or agent, nor in the employ, of plaintiff, and received no pecuniary pr other benefit or profit from the sale and delivery of the coal to said institution, except as a stockholder of plaintiff; that at that time the capital stock of plaintiff issued and outstanding was $2,-374,100, and the said James H. Malcolm was the owner of $30,000 thereof, and that the net profit to the plaintiff on said coal was 25 cents per ton.
    “ That the board of trustees of the said institution held a regular monthly meeting on the first Tuesday of August, 1908, at which time the bills for the coal specified in the plaintiff’s bill of particulars came before the said board of trustees for audit; that at that meeting the said S. S. Judd informed the said board of trustees that he had been advised by the attorney general’s department that the said coal bills could not be legally paid; that the said board, after being so informed, audited and allowed the said coal bills, the said James H. Malcolm being present and acting thereon, the said vouchers so audited being certified to by the ¡president and said James H. Malcolm as treasurer of said board; that the said James H. Malcolm, as treasurer, drew a check in payment of said claim in favor of plaintiff, and instructed said S. S. Judd to send said check to plaintiff; that thereafter the said board of trustees directed that the check be not delivered to plaintiff until said vouchers were approved by the auditor general.”
    The trial court found that the contract was not absolutely void; that the statute is merely an affirmance of the common law, and, if the purchase contravened its provisions, it was voidable, and not void; that, being voidable, the board of trustees could ratify it, and that it did so by auditing and allowing the account and issuing its check therefor; that if the contract was voidable, at the option of the said board of trustees, it could not be avoided without tendering back the property received, and, as it is not in a position to do that, it is bound to pay the reasonable value of the coal. He also made and stated the following conclusions:

      “Fifth. It does not appear that Mr. Malcolm’s vote was necessary to authorize, the purchase in question, and such purchase was not therefore even'voidable, notwithstanding any interest Mr. Malcolm may have had in the sale of the coal.

      “Sixth. It does not appear that Mr.Malcolm in any way participated in making the so-called oral agreement referred to in the fourth paragraph of the stipulation of facts, and there is no presumption that he did. So far as appears by the stipulated facts, therefore, that agreement was not contrary to public policy, and defendant had and consumed the coal of plaintiff, the latter can recover the value thereof in this suit.

      “Seventh. If said oral agreement was absolutely void under 3 Comp. Laws, § 11384, then the said agreement was of no force and effect, and no delivery of coal could be made thereafter under it. The coal for which this suit is brought was not delivered, therefore, by virtue of that' agreement, or under it, and, defendant having consumed the same, an action on the common counts will lie therefor.
    “ Eighth. Mr. Malcolm was not, by reason of his being a stockholder of plaintiff, ‘ personally directly or indirectly interested in the purchase’ of the coal in question.

      “Ninth. The plaintiff is entitled to recover $232.32 and interest at 5 per cent, per annum from June 1, 1908, to date of judgment.”
    To these conclusions the attorney general filed exceptions, upon which, later, error was assigned. Judgment passed for the plaintiff. The questions involved are stated by the attorney general in the brief as follows:
    “I. Was the said contract and purchase void at common law ?
    “II. Does section 11384, 3 Comp. Laws 1897, render contracts, purchases, and sales void or voidable ?
    “ III. Was it within the power of the board of trustees to ratify the contract ?
    “IV. Was the defendant required, before it could plead the statute, to return the coal ?
    “ Y. Was Mr. Malcolm’s vote in favor of the contract required under the statute, before the statute is operative against the contract ?
    “YI. Was the coal in question delivered under the contract ? If not, will an action on the common counts lie for the price and value thereof ?
    “ YII. Was Mr. Malcolm’s interest as a stockholder in the plaintiff corporation such an interest as to bring the contract within the prohibition of the statute ?
    “YIII. Was the plaintiff entitled to recover upon an implied contract ? ”
    And these are argued in the brief under the heads:

      “The Validity of the Contract under the Common Law.
    “ The Effect of the Statute upon the Contract.
    . “The Right of Plaintiff to Recover.”
   Ostrander, J.

(after stating the facts). If we regarded the statute which is invoked by the attorney general as merely affirmatory of a rule developed by the courts, we should be obliged to consider the limitations of the rule which the courts have recognized, some of which are stated and discussed in the briefs. We do not regard the statute as merely putting in form of positive law a rule developed by courts, but as a legislative rule, founded in public policy, the plain effect of which courts are not at liberty to deny or to amend. In this view, a very simple question is presented, namely: Was the sale of coal which is in question made in violation of the law ? If it was, it was a void sale. There can be but one answer to the question.

The judgment of the circuit court is reversed, with costs of both courts, and as, upon the stipulated facts, the plaintiff is not entitled to recover, a new trial will not be granted.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.


text:
    WILLARD v. CITY OF DETROIT.
    Municipal Corporations — Contributory Negligence — Defective Cross-Walks — Personal Injuries.
    In an action against a city for personal injuries sustained by plaintiff, a stranger to the locality, who stepped in a depression from 6 to 15 inches in depth, at the end of a bridge across a railway, and who appeared from the evidence to have first observed the depression at the instant he stepped into it, the court erred in directing a verdict for defendant on the ground of plaintiff’s contributory negligence, since different inferences might reasonably be drawn concerning his want of care in observing the condition of the street and his safety if he proceeded.
    Error to Wayne; Rohnert, J.
    Submitted November 30, 1910.
    (Docket No. 128.)
    Decided December 30, 1910.
    Case by Rufus A. Willard against the city of Detroit for negligence. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Washington I. Robinson, for appellant.

      Edmund Atkinson (P. J. M. Hally, of counsel), for appellee.
   Ostrander, J.

Twelfth street in the city of Detroit runs north and south, and is carried over the tracks of the Michigan Central railroad on a bridge. The first intersecting street north of the bridge is Howard street, the level of which is somewhat lower than the level of the bridge. At the north end of the bridge an alley leaves Twelfth street, running easterly, parallel with the railroad, descending as it leaves Twelfth street, and the level of the alley is lower than the level of the bridge. Plaintiff crossed the bridge January 14, 1908, at about 11 o’clock in the forenoon.' He claims that in stepping from the end of the bridge, or from the north abutment thereof, he fell and broke his leg, and to recover damages for this injury he brought this action against the city. The court, upon the case made for the plaintiff (no testimony was introduced by defendant), being of opinion that the contributory negligence of plaintiff was established, directed a verdict for the defendant, which was followed by judgment. The charge delivered to the jury in directing a verdict is the basis of the errors assigned and discussed in the brief for appellant.

It is alleged in the declaration, in substance and effect, that at the point on the east side of Twelfth street where it, or the east sidewalk on it, crosses the alley which has been referred to, and where the bridge ends, there was a drop and a “depressed, sunken, defective, dangerous, and perilous condition of the said crosswalk,” where it had “ become sunken, depressed, and had fallen several inches below its normal grade,” and that “ a vertical declivity and abruption existed.” The testimony on the part of the plaintiff tended to prove that there was some difference in the levels (elevations) of the bridge proper, including the abutment thereto, and the ground immediately at the end of the bridge and in the alley. Prom the bridge and across the alley, the way was made of crushed stone. The drop or fall was at the end of the bridge. Witnesses describe it variously as a depression and drop and space, and the variation of levels as 5 or 6, and 6 or 8, and 10 or 12, inches. Plaintiff testified that he “calculated there was certainly 15 inches of depression by the end of the bridge, where I tripped.”

Whatever the condition was, it had existed for several months. The testimony of the plaintiff tended to prove that upon this occasion he was walking for his pleasure.

“ I was observing the work on the tunnel, an elevator running on an incline, and when I got to the end of the bridge walk I did not notice any particular depression. I walked along and let go of the rail and just then I heard a whistle and I turned to see the cause of the whistle, and just then I stepped, and as I stepped, I came down and heard a crack in my leg, and I realized that I had broken my leg. I lay there for a few minutes in a dazed condition and then I looked around and saw the fence of Mrs. Graham’s property. I saw the depression then in the roadway; it seemed as though the surface had washed away, and there was quite a depression there. I concluded there was certainly 15 inches of depression by the end of the bridge there, where I tripped. A policeman then came up and some other gentlemen, and they helped me into this little store. That drop, it seems to me, was a sudden one, like stepping off a step. A locomotive whistled, startled me, and I turned to see it just as I stepped. I have lived in Detroit two years, but had never been in that location before. As I walked along, before I fell, I moved my hand along on top of the rail and the walk seemed clear of ice and snow. After I fell, I saw snow at the edges and in crevices, but in the center, where I lay there, it was almost free of ice. I don’t think there was any ice there that I noticed; it had melted away leaving cinders and ashes. When I fell, I came right down solid. I stepped right off.

“Q. As though you would step downstairs ?

“A. Yes, I miscalculated my step. * * * JI don’t remember going over that bridge before. That day I fell was a clear day; there was nothing to interfere with my seeing where I was going; I was carrying no bundles, and there were no obstructions and no trees, nor anything to block my view. I was talking to no one; I was alone. I was walking north on the east side of Twelfth street, on a wooden walk, with my hand on the rail; I did not observe any slope or any ice on the pavement. When I let go of this handrail and stepped off this wooden walk, I fell with full force on this leg and broke it. Just as I was stepping off, I heard the whistle of an engine. I was looking at the tunnel-operations down in the Michigan Central right of way; I was looking sideways and backwards in a measure, but I was not looking at them constantly. I threw my eyes around as I approached the bridge. I was on the crossing; I intended to make the crossing, but I was deceived about the space of depth there, where the earth had been washed away, or had sunk away. There was nothing to interfere with my view; there was no obstruction. My eyes are fairly good.

“Q. You had not heard of any washing away of the earth there at any time ?

“A. Why, the alley was not on a line as it should be with the end of the bridge.

“Q. We have covered that question. As you cast your eyes ahead, and saw this depression, you stepped down from the end of the wooden walk of the bridge ?

“A. I saw it at a glance; yes, sir.

“Q. There was nothing to interfere with your taking it all in as you looked at it; there was nothing to obstruct your view in any way ? ■

“A. There was no obstruction there.

“Q. Your eyes were fairly good, or were at that time ?

“A. Fairly good.

“Q. Now you may tell us the depth of that spot; I think you stated it to Mr. Seely.

“A. I think it was — I thought at the time it was a slight spot; I found I was mistaken when I reached the bottom of it. If it had been in proper condition and filled up even to the floor of the bridge, there would not have been an accident.

“Q. The accident was caused by the fact that there was a deep spot at the end of the wooden walk ?

“A. It was caused, of course, because there had been a failure to keep it filled in.

“Q. You are drawing conclusions. Was it caused by the step at the end of the wooden walk? Was that the cause of the accident ?

“A. T don’t understand your drift.

“Q. You say if there had been no step there, it would not have happened.

“(Mr. Robinson: He did not say a step; he said if there had not been a depression there, that place washed out.)

“Q. So that all you know of what caused the accident was that that step was deeper than you had calculated it to be by looking at it ?

“A. Yes, sir.

“Q. Now, in addition to that icy condition, this condition at the step contributed to your fall, did it not ?

“A. Possibly; I don’t know.

“Q. What is your best judgment in that respect; did it or did it not, the icy condition at the step there, contribute to your accident ?

“A. Well, I judge, of course — as I said before — I judged that the step was not as deep as I found it to be.

“Q. In addition to that, I ask you with reference to whether the icy condition of the walk at the foot of that step contributed in a measure to your loss of your footing ?

“A. I answer you that possibly it might.

“Q. Do you think it did ?

“A. I don’t know.

“Q. Would you say it did; you said that you did not notice any ice on the bridge; you were not looking particularly to observe whether the walk was icy or not ?

“A. My recollection was that there was no ice on the bridge, on the footwalk of the bridge; that is my recollection.

“Q. Let me ask you if, when you came, after you had come to the end of the rail and had let go of the rail, if your feet went out from under you, had you cleared the rail on which your right hand rested ?

“A. I think I was just in the act of the step down when I turned to see what the whistle meant.

“Q. Did you notice the rail ceased just at that point?

“A. Yes, sir.

“Q. Did you — that you could not longer rest your hand on it ?

“A. Yes, sir.

“Q. You had your hand off of the rail; you had let go of the rail before you fell?

“A. Yes, sir.

“Q. Almost the same instant ?

“A. Yes; just as I stepped, simultaneously.

VQ. But you were found — you found yourself on the ground some five feet from the step — some witnesses said. As your feet went out from under you, did you slide down in any way ?

“A. No, sir; I came down like that; I stepped down and sunk right down on my side here, as I said before; I cracked the bone. I heard the bone crack as I stepped down and lay there in a partially dazed condition, realizing the condition of my leg, just as things come on your mind when you have time to think of them. There was nobody near by there at first, that is, I saw nobody near by; but a little later, a few minutes after, a policeman" came and one or two witnesses helped him ■ put me into this little store. * * *

“Q. Was there anything to hinder your stepping to the opposite side of that walk and avoiding this step which you saw ahead of you ?

“A. I don’t remember.

“Q. There was no obstruction at all, was there, Mr. Willard?

“A. The walk — I was on the walk of the bridge — and it seemed to be perfectly clear. There seemed to be no obstruction there.

“Q. Nothing to hinder your crossing over to the left-hand side of the walk ?

“A. No.

“Q. And nothing to hinder your continuing on the left-hand side, and avoiding this step ?

“A. Well, it didn’t occur to me. There was no necessity of avoiding it.

“Q. No; and you had looked at the step as you saw it ahead of you; but coming back again, I ask whether there was anything to hinder you stepping across and continuing on the left-hand side and so avoiding the step ?

“A. I. did not consider that; I couldn’t answer that question.

“Q. You don’t recall any obstruction of any sort, do you?

“A. No; I didn’t see any obstruction. * * *

“Q. Now, isn’t it a fact, Mr. Willard, that looking at this step, if you thought that it ought to' be avoided, that by stepping a few feet to one side you would have avoided it ?

“A. I saw no step there. When you speak of a step, do I understand you to mean the end of the bridge? And after I left the bridge I would step — what I mean by that, the nest step would be down in the depression of the right of way, and there is where I landed— * * *

“Q. Could you see the character of this crosswalk, as you approached it ?

“A. I didn’t notice it. I didn’t notice it until I landed on it.

“Q. Could you then see what it was ?

“A. Yes, sir.

“Q. What was it?

“A. There was some dirt and ice, more dirt than ice and cinders.

“Q. You told us this morning it was stone and cinders. •

“A. I don’t remember; I may have said cinders; I don’t recollect seeing any stone there. It was almost free; there was just a few particles of melted ice there, not enough to cover the crosswalk, and it seemed to be composed more of cinders. * * *

“Q. Mr. Atkinson used the expression ‘a step.’ Do you understand just what he meant by that ?

“A. No, sir.

“{Mr. Atkinson: I got the expression from the witness. He said, ‘ I miscalculated my step.’

“Mr. Robinson: But by that expression he does not mean a step up or down in the walk.

“The Court: There was no question about what he testified this morning. He said there was a depression there, and he misjudged it.

“Mr. Robinson: Yes, sir; that is all right.)”

A witness for plaintiff testified:

“Q. You stated in response to Mr. Atkinson’s question there was always a drop there and then a drop at the time of the accident. Now distinguish between those two drops, please.
“A. Well, at one time there, the crosswalk of the alley came almost up to the top of the sidewalk on the bridge, but there always was a sort of little drop there of probably a couple inches. It didn’t amount to anything, but for about four 0» five months prior to January, 1908, there was a larger drop there. Around that time there was quite a large drop on the eastern side of that sidewalk.
“Q. I show you Exhibit G, Mr. Baxter, and ask you to show to the court and jury just about where that walk started to slope, or from where the drop started.
“A. Well, the drop started near the iron pipe, I think it is a gas pipe, and it sloped down across towards the east. And either on this part here — this is the eastern part of the sidewalk — here is where the largest drop was.
“Q. And where did it start from ?
“A. It started from the west side of the sidewalk here, near this pipe. The drop over on the western side wasn’t so large as on the eastern side, but the ground sloped down.
“Q. How big a drop was there just previous to this accident on the eastern side of this walk ?
“A. I should judge there would be a drop of possibly 10 or 12 inches there. * * *
“Q. Any defect in the crosswalk itself, except this drop from the end of the bridge sidewalk to that crosswalk ?
“A. There wasn’t a crosswalk there; that is the sum and substance of it.
“Q. None there to be defective ?
“A. No; there was just a drop, and practically a hole there in the side of the crosswalk.
“Q. A hole means something to the jury, and something to me, and something to you. Now let me see if you use the word ‘ hole ’ definitely and frankly. What do you mean by hole ?
“A. I mean an excavation; not exactly an excavation, but a depression.
"Q. A hole means a decided excavation at some particular place?
“A. Yes, sir.
“Q. And do you mean to say there was any place there where there was a hole ?
“A. I do not mean to say there was an excavation, but there was such a drop there.
"Q. You do not mean to say that this whole crosswalk was ever lower than the alley east of it, do you ?
“A. The alley east of it ?
“Q. Yes, immediately alongside of it.
“A. I do not understand that question.
“Q. From this crosswalk to the east runs an alley; do you mean to say that this crosswalk was lower than the alley?
“A. Yes, sir; at the corner of the bridge.
“Q. You do ?
“A. Yes, sir.
“Q. At what time ?
“A. From the fall of the year and the winter.
"Q. Will you please tell me how anybody could get on Twelfth street, which was still higher than the alley ?
“A. They would walk across.
"Q. How could a team or traffic coming through that alley, down into this place where this crosswalk was, lower than the alley, how could they get out on Twelfth street ?
“A. You asked the question whether it was lower on the eastern side of that alley than it was at the northern part of it, and I answered it ‘yes.’
“Q. No, I didn’t ask any such question. I asked you if you knew at any time when ■ that crosswalk was lower than the alley to the east of it ?
“A. Than the alley to the east of it ?
“Q. Yes. * * *
“A. Yes, sir; it was.
“Q. So that as one drove from Twelfth street west, he drove into a hole where a crosswalk ought to be ?
“A. Well, it wasn’t—
"Q. Then he drove up in the alley out of that hole ?
“A. Well, yes, if he were driving that way.
“Q. When did that exist ?
“A. That existed in the fall of the year.
“Q. In the fall of 1907 ?
"A. Fall and winter of 1907; yes, sir.
"Q. How much higher was the Twelfth street pavement than the surface of this hole, where the crosswalk ought to be ?
“A. I should think that would be possibly a foot and a half. * * *
“Q. A team going east over Twelfth street, driving across this alley crosswalk, would first of all drive into this hole, where this alley crosswalk would be ?
“A. Yes, sir.
“Q. Afoot and a half deep, lower than the Twelfth street pavement ?
“A. I think it was.
“Q. And back up on Twelfth street pavement, there was a hole where an alley crosswalk would be, that was a foot and a half deep ?
“A. No, I didn’t say anything of the kind.
"Q. Let me get you right; this alley crosswalk was next to the pavement on Twelfth street ?
“A. Yes, sir.
"Q. There was a hole where the alley crosswalk should have been a foot and a half deep ?
“A. On the eastern side of the crossing, I said.
"Q. On the eastern side of the crosswalk ?
“A. Yes, sir.
“Q. Only in a portion, and where the crosswalk ought to have been ?
“A. Yes, sir.
“Q. A team driving from Twelfth street into that alley would drive down into this depression or hole from Twelfth street, and then would have to drive up again to get into the alley ?
“A. It would not be a regular drop, but they would have to drive down that depression and drive up again.
“Q. So that you have seen that alley crosswalk when it was lower than the alley to the eastward ?
“A. Yes, sir; I think it is yet. * * *
“Q. Mr. Baxter, as I understand, there was a depression there. Now, how long or how wide was this depression across the top ?
“A. Across the top ?
“Q. Yes, on the easterly side of the bridge ?
“A. Possibly it would be about three feet, possibly four feet.
“Q. Then it didn’t stretch across the whole alley ?
“A. No, it didn’t stretch across the whole alley, nor across the alley crosswalk.
“Q. Then if a team went in on the north side of the alley, state whether or not it would have to go through this hole?
“A. No, sir; it wouldn’t have to go through this hole.”
“By Mr. Atkinson: Q. Now listen, Mr. Baxter. A man passing in the daytime from the Twelfth street bridge, and looking where he was going, seeing this depression down by stepping a few feet to the side one way or the other of this depression, not covering more that two feet in width, could they have gone by in perfect safety ?
“A.. If he had seen it, and stepped to one side.
Q. Was there anything there to prevent his stepping to one side ?
“A. Not if he had noticed the hole; he could easily have stepped to one side.
“Q. Was there any obstruction at that time about that bridge that is not now disclosed in this picture ?
“A. Any obstruction, in what way ?
“Q. Of any sort; is there anything to prevent a man coming down from the Twelfth sidewalk, from the bridge, stepping to one side or the other, that is not shown now in that picture ?
“A. No, sir.”

We think the testimony for plaintiff tends to prove that at the end of this bridge, and not necessarily visible or observable by a stranger approaching it, there was a considerable depression, not a step planned and made by the city, in the place once occupied by a board crosswalk across the alley, which walk had decayed and had been removed or filled in with crushed stone or cinders or both. Into this depression, plaintiff, a stranger to the locality, stepped, noticing at the instant that he stepped, and not before, that there was a depression. The proper inferences to be drawn from his testimony, and the condition of the highway, are not ^o certain that it can be said, as matter of law, that plaintiff was negligent in not observing the condition of the street, or in assuming that he might step from the end of the bridge in safety. And the inference that plaintiff deliberately stepped into the depression after calculating its depth and his own safety — an inference apparently indulged by the court as the basis for the ruling complained about — is not the only reasonable inference which may be drawn from the testimony.

The court erred in directing a verdict.

The judgment is reversed, and a new trial granted.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.


author: Bbooke, J.

text:
    JOHNSON v. CITY OF BAY CITY.
    1. Infants — Contributory Negligence — Electricity.
    An infant of five years and four months is not chargeable with contributory negligence for coming in contact with a live electric wire, broken and hanging in a public street.

    2. Highways and Streets — Trespass—Municipal Corporations.
    In going upon an ornamental grass plat between the sidewalk and curb line of a street, and coming in contact with a broken electric wire hanging there, the infant plaintiff did not commit a trespass.

      3. Same — Interference With Wires.
    In the absence of testimony tending to show that plaintiff meddled with the wire, except the position and character of the injuries she received, she was' not chargeable with a trespass for playing with it.
    4. Electricity — Municipal Corporations — Negligence — Construction of Line.
    So constructing a line of electrio wires carrying a current of about 2,200 volts, that limbs of adjacent trees come in contact with the wires and cause a short circuit and burn them off, cannot be said, as a matter of law, to constitute due care.
    5. Same — Expert Evidence — Special Question.
    Although the jury found, in answer to a special question, that the wires did not come in contact with each other, the court cannot say, as a matter of law, that the limbs did not otherwise cause a short circuit in the wet weather shown by the testimony to have existed.
    6. Municipal Corporations — Damages—Excessiveness—Amount Claimed — Presentment of Claim.
    Since the notice and statement of claim presented by the injured person to the municipality need not contain the amount of damages claimed, a statement in such claim fixing plaintiff’s damages at §5,000 might be rejected as surplusage, and a verdict rendered for a larger amount.

      7. Damages — Evidence—Excessive Award.
    Under testimony that plaintiff, a child of about five years of age, was permanently injured by coming in contact with an electric wire, and lost two fingers and part of a third, sustaining other less serious burns, and a severe nervous shock, which might result in permanent nervousness, a verdict of §7,500 was not reversible as excessive. Brooke and McAlvay, JJ., dissenting.
    Error to Bay; Collins, J.
    Submitted December 1, 1910.
    (Docket No. 158.)
    Decided December 30, 1910.
    Case by Ruth. Johnson, by Christ Johnson, her next friend, for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      S. G. Houghton, for appellant.

      De Vere Hall (L. P. Cowmans, of counsel), for appellee.

      Defendant operated an electric lighting plant, by means of which it furnished electricity for both public and private lighting. As a part of its equipment, it maintained a row of poles on South Raymond street in Bay City, upon which wires were strung, carrying an electric current of 2,200 volts. These poles on Raymond street were set between the sidewalk and the curb on that portion of the street designed to be used as a grass plat or lawn, for ornamental purposes. There were several large trees upon the same side of the street. The record shows that, while the wires were supported by an arm which extended from the pole towards the center of the street, yet they were so placed as to permit a branch or branches of one of the trees to come in contact with them. During the night of June 21-22, 1906, a severe storm, accompanied by wind, visited Bay City. While the storm was somewhat unusual in severity, it does not appear to have been such as might not reasonably have been expected to occur. On this night, the wires in question were burned off at a point where they passed through the branches of a tree, and one of the loose ends dropped down until it touched, or very nearly touched, the earth. Plaintiff lived in a house facing upon Raymond street, but a few feet distant from the hanging wire. She was, at that time, but five years and four months old. In some manner not shown by the record, she came in contact with the end of the broken wire and received through her body the electric current. Pier left hand, with which she seems to have laid hold of the wire, was so severely burned that it was found necessary to amputate the first two fingers entirely, and the third finger at the second joint. This disability, together with an alleged nervousness, said to have been caused by the shock, constitutes the permanent injury for which plaintiff seeks compensation. The negligence relied upon by the plaintiff is set out in her declaration as follows:
    “(1) In that it carelessly and negligently erected, constructed and maintained said electric lighting wires so that by usual winds or storms they would come and be brought in contact with the limbs, branches and foliage, of trees situate near them.

      “ (2) Having erected, constructed and main -ined said electric lighting wires near to such trees and through their limbs, branches and foliage in that it carelessly and negligently failed and omitted to cut, trim and remove such limbs, branches and foliage so that by usual winds or storms the said wires would not come or be brought in contact therewith.
    “ (3) Having erected, constructed and maintained said electric lighting wires so near to such trees and so through their limbs, branches and foliage, and having failed and omitted to cut, trim and remove such limbs, branches and foliage so that by usual winds or storms the wires would not come or be brought in contact therewith, in that after the occurrence of such wind or storm on the night of June 21-22, 1906, it carelessly and negligently failed and omitted to examine and inspect the said wires to ascertain and discover whether they remained unbroken, in place and regularly and properly strung and attached to said poles.
    “(4) Having erected, constructed and maintained said electric lighting wires so near to such trees and so through their limbs, branches and foliage and having failed and omitted to cut, trim and remove such limbs, branches and foliage so that by usual winds or storms the said wires would not come or be brought in contact therewith, in that after the occurrence of such wind or storm on the night of June 21-22, 1906, having examined and inspected the said wires and ascertained and discovered that they were broken, displaced and not regularly and properly strung .and attached to said poles, it carelessly and negligently failed and omitted to repair the said wires before employing a current of electricity thereon. -
    “(5) Having knowledge and notice of the erection, construction and maintenance of said electric lighting wires so near to said trees and so through their limbs, branches and foliage and of the voltage of electricity carried thereby and of the failure and omission to cut, trim and remove such limbs, branches and foliage and that by usual winds or storms the said wires would come or be brought in contact therewith, thus forming such current and rendering said wires liable to burn, break and fall onto or near the ground in said street at or about the said sidewalk and line of persons lawfully employing the said street and sidewalk, and thus come or be brought into contact with such persons passing along said street and sidewalk, thereby exposing them to serious injury or death, in that after the occurrence of such usual wind or storm on the night of June 21-22, 1906, it carelessly and negligently failed and omitted to turn off and withhold such current of electricity from said line of wires until the same had been examined and inspected, to ascertain and discover whether the said wires remained unbroken, in place and regularly and properly strung and attached to said poles.”
    Plaintiff recovered a judgment for $7,500, and defendant has removed the case to this court for review, by writ of error.

      As to liability for injuries by electric wires in highways, see note to Denver Consolidated Elec. Co. v. Simpson (Colo.), 31 L. R. A. 566.

   Bbooke, J.

(after stating the facts). The first assignment of error argued by defendant’s counsel is that the court erred in charging the jury that plaintiff could not be guilty of contributory negligence, as a matter of law, and was not a trespasser. At the time of the injury plaintiff was five years and four months old. We are of opinion that an infant of this extremely tender age cannot be charged with contributory negligence. There comes a time in the life of every child, when the doing of an act which results in injury to itself may be said to be negligence, as a matter of law, and there is a period between that time and extreme youth when the question of whether or not the child had sufficient intelligence to appreciate the dangerous consequences liable to flow from its act becomes one for the jury. We believe, however, that all reasonable minds would agree that an infant, but little more than five years of age, could not have sufficient intelligence to be charged with negligence, either as a matter of law or as a matter of fact. It may be difficult, perhaps impossible, to point out the exact age at which the question becomes one for the jury, but it is, we think, clear that it has not arrived at five years and four months. Richardson v. Nelson, 221 Ill. 254 (77 N. E. 583); Walbridge v. Railway Co., 190 Pa. St. 274 (42 Atl. 689); Central Trust Co. v. Railway Co. (C. C.), 31 Fed. 246; Rolin v. Tobacco Co., 141 N. C. 300 (53 S. E. 891, 7 L. R. A. [N. S.] 335); 29 Cyc. p. 533, and cases cited.

In going upon the ornamental grass plat, between the sidewalk and the curb line, plaintiff was not a trespasser. That ground is as much a part of the street as any other ground within its limits, and no citizen could be guilty of trespass in going upon or over it. We are not here considering the statutory duty of municipalities to keep their streets, etc., in a condition reasonably safe and fit for public travel. The plaintiff plants her right of action upon the alleged omission of the municipality to perform a common-law duty.

It is urged by defendant that in any event plaintiff was guilty of trespass in meddling or playing with the dangerous hanging wire, the property of the defendant. As pointed out in the statement of facts, the record does not show how plaintiff came in contact with the wire. A small burn on her head lends some color to the theory that she may first have touched it with her head, not having noticed it; that she then seized it with her hand to free herself from it. When first discovered by her mother, she was lying upon the ground, the wire having burned itself free from her hand. There is no testimony in the record, other than the fact of her injuries and their location upon her person, to show that she was “meddling ” with the wire, as that term is ordinarily used. These facts, we think, serve to clearly distinguish the present case from Iamurri v. Gas Co., 148 Mich. 27 (111 N. W. 884), and the cases therein cited. That case was very fully considered, and was affirmed by a divided court. In the case at bar, the question is not present, for there is no evidence of even a technical trespass.

It is next claimed by defendant that there is no evidence of negligence on the part of the defendant. The record shows conclusively that, at the point where the wires parted, they passed through the branches of a large tree; that one of the limbs, about an inch in diameter, was scored or burned where it came in contact with the wires; that the insulation was entirely worn off of the wires at the points where they came in contact with the limb. It was the plaintiff’s theory that, the insulation having been destroyed by abrasion against the limb, and the wires coming in contact with the limb at a time when it was very wet, the limb served to conduct the electricity from one wire to the other, thus forming a “short circuit” which would instantly cause the wires to burn off. Plaintiff does not claim that defendant was negligent in not seasonably replacing the wires after it had notice that they were down, but does claim that it was negligence to construct and maintain the line in such a manner as to permit the wires to come in contact with the branch in question. Three employés of defendant repaired these wires after the accident. Two of the three gave as their opinion that the wires burned off because of a “ short circuit ” caused by the limb. The third was of opinion that a wet green limb could not have acted as a conductor so as to have closed the circuit and so caused the wires to fuse. It was his claim that the wires could burn off only if they came into actual contact with each other, or with a wire which touched both. The record contains no other expert testimony upon this question. The learned circuit judge submitted both theories to the jury and they found for the plaintiff. We cannot say that they were not warranted in so finding, under the testimony. Nor can it be said, as a matter of law, that defendant was not negligent in the manner of its construction and maintenance of the wires in question. If the limb operated to “short circuit ” the wires, either by itself conducting the current across the intervening space, or by its swaying motion it brought the wires together, thus causing them to burn off, we think the question of defendant’s negligence became one of fact for the determination of the jury, and, as such, it was properly submitted.

Counsel for defendant contends that, as the jury found in answer to the special question, the wires did not come in contact with each other, they must have found that the wet green limb coming in contact with the two bare wires caused the “short circuit,” and this, he claims, is a scientific impossibility. In answer to this position, we can only say that it is the duty of this court to consider only the evidence we find in the record except matters of which the court may properly take judicial cognizance. The defendant, if correct in its theory, could have and should have, produced overwhelming evidence of its truth. Upon this record the weight of the evidence is against that theory.

A motion for a new trial was made and denied. Upon that motion it was urged that the verdict was excessive:

First, because plaintiff, in submitting her claim to defendant in compliance with the charter, had fixed her damages at $5,000. As to the excess of the verdict over this amount, defendant claims that it was never presented to it for audit and allowance as the charter requires. We think this position not tenable. We have held a notice of claim under a similar charter provision to be sufficient where no sum was set forth in the notice. Oesterreich v. City of Detroit, 137 Mich. 415 (100 N. W. 593). Where the claim is unliquidated and for a tort, the charter requirement is served when the notice sets out the facts upon which the claim rests, as required by the charter. In our opinion, the addition of the amount of the claim is mere surplusage. Morgan v. City of Lewiston, 91 Me. 566 (40 Atl. 545); Burdick v. Richmond, 16 R. I. 502 (17 Atl. 917); 2 Beach on Public Corporations, § 855.

Second. But the question still remains whether or not the verdict of $7,500 is excessive. We think that the judgment of a jury, supported by the findings of the trial judge in his denial of a new trial, should not be lightly interfered with, particularly where that judgment and finding fixes compensation for a permanent injury. The legislature has, however, seen fit to place the responsibility of finally determining the justice of the verdict and judgment upon this court, and, as was said in Re McIntyre's Estate, 160 Mich. 117 (125 N. W. 51), we cannot escape that responsibility. A careful consideration of the injuries from which this unfortunate little girl is suffering and will continue to suffer during the remainder of her life, leads us to the conclusion that the verdict is excessive. She has lost two fingers and a part of a third and the palm of the same .hand is badly scarred from the burn. Her mother gives testimony to the effect that, during thunder storms, she is nervous and excitable. Her attending physician testified that:

So far as her nourishment is concerned and her general appearance of health for a child of eight years of age, I do not see anything especially abnormal.”

Testifying as to her nervousness, he said:

That it might produce a permanent nervousness; that is, for a number of years. Perhaps until the child is 15 or 16 years old. Then I would expect it to be somewhat better after she arrived at that age.”

Such nervousness as the child now exhibits during a thunder storm is not very uncommon among children, or adults either, for that matter, and is, in our opinion, not a very serious matter.

The injury to the hand is, of course, serious and permanent, but, upon a careful review of the whole matter, we have concluded that unless plaintiff will remit all over $5,000, the judgment must be set aside and a new trial ordered. If she does so remit, it will stand affirmed.

McAlvay, J., concurred with Brooke, J.

Hooker, J. We are of the opinion the judgment should be affirmed.

Moore and Ostrander, JJ., concurred with Hooker, J.


author: Brooke, J. Brooke, J..

text:
    PAINTER v. LEBANON LAND CO.
    1. Fraud — Opinion—Representations as to Fact.
    In making a sale of land in Cuba to plaintiffs, the agent of defendant corporation stated that the company which he represented had sold 2,000 acres in the vicinity of the property conveyed, and that the purchasers were going there within six months or a year and make their permanent homes there. In fact no land had been sold to other settlers. Held, that the representations were not of mere matters of opinion, and that they were false and material.
    2. Parties — Fraud—Joinder op Plaintiffs.
    A purchaser who subsequently united in the purchase of the land with the plaintiff to whom false representations were made, was properly joined as plaintiff in the action; it appearing that the statements influenced, and were intended to influence, him.
    3. Damages — Fraudulent Representations.
    While it was erroneous to charge the jury as to the measure of damages, that if they found for plaintiffs, the damages would consist of their joint expenditures, their payments on the land and compensation for their labor upon it, after deducting the actual value of the property, the error was not prejudicial under evidence which would justify a much larger award on the basis of the general rule of damages. (Modified on rehearing — cf. headnote No. 6.)
    4. Same — General Damages.
    The measure of the plaintiffs’ loss for fraud in the sale of land to them would be the difference between the value of the land as it was and land of the quality and condition represented.
    5. Amendment — Trial—Discretion.
    An amendment of the declaration permitted at the trial without imposing terms, in relation to a matter which was trivial ' and could not have taken the defendant by surprise, was a proper exercise of the court’s discretion.
    on rehearing.
    6. Damages — Erroneous Instruction — Prejudice.
    Although plaintiffs’ testimony on the question of damages was uncontradicted, and would warrant the jury in finding as large or a larger verdict than they awarded, it is not sufficiently clear that they would have so found, and a new trial must be granted to determine the amount.
    Error to Washtenaw; Kinne, J.
    Submitted June 17, 1910.
    (Docket No. 29.)
    Decided September 27, 1910.
    Reargued March 6, 1911.
    Former opinion modified March 13, 1911.
    Case by Resom M. Painter and Samuel L. Wilgus against the Lebanon Land Company for fraud. A judg. ment for plaintiffs is reviewed.^ by defendant on writ of error.
    Reversed.

      jRobert E. Bunker and B. M. Thompson, for appellant.

      M. J. Cavanaugh and Arthur Brown (E. JR. Bunderland, of counsel), for appellees.
   Brooke, J.

The action is trespass on the case in which plaintiffs recovered a judgment against defendant fqr $993.28.

The defendant was the owner of a tract of wild land in the island of Cuba, upwards of 9,000 acres in extent. It appears to have been its purpose to subdivide this tract into farms of 40 or 50 acres each, and to sell them to prospective settlers. Through one of its agents, it sold one of these farms to plaintiffs, who went to Cuba in March, 1908. Wilgus remained there until October, 1907, and Painter, with the exception of five months spent in Florida, remained there until April, 1908. Suit was commenced in July, 1908; plaintiffs claiming that they were induced to make the contract in question through false and fraudulent representations made by defendant through its agent. Paragraph 3 of the declaration is as follows:

“That on the date aforesaid the said defendant, by its duly authorized officers and agents, offered to sell to said plaintiffs a certain part or portion of said large tract of land for the sum of $1,275, and then and there by its officers and agents represented to the plaintiffs that about one-half of a large tract of land, consisting of some 4,000 or 5,000 acres, had been sold by said defendant company in tracts or parcels of 40 or 50 acres each, to persons who were going to settle upon each and every parcel thereof, clear said lands, • and make their homes thereon; that such concerted and united effort so to be made by each of said persons, to clear and settle upon each of said parcels of land, would greatly enhance the value of each and every parcel of said large tract of land, including the parcel of land so offered for sale by said defendant company to said plaintiffs.”

The alleged false and fraudulent representations were made by one Beaman, who represented himself to be the general manager of the defendant. His authority to negotiate for the sale of the property cannot be questioned.

The plaintiffs are brothers-in-law, and it was their purpose to go together to Cuba and act in concert. This fact was known to Beaman, as is indicated by letters, written by him, addressed to both plaintiffs in Cuba before the contract was entered into. The representations were made by Beaman to plaintiff Wilgus only, at Belfontaine, Ohio, in February or March, 1906. Wilgus testified in part as follows:

“ Q. What did he say as to how much of this land had been sold ?
“A. I said to him, 'How much of this land have you sold ?’ He says: * Here are 4,000 acres, made in tracts of 40 or 50 acres each. We have sold 2,000 acres of that land.’ I says to him: 'How have you sold it? * * * Have you sold it to actual settlers or to speculators who are going to buy it and not go there and wait until people transfer it and then sell it at a price above and let other people make the improvements down there ?* He says, ‘We have sold that to actual settlers who are going on that land within sis months or a year and settle on it and make it their permanent home.’ Beaman says at that time that the.settlers would commence to go there October 1, 1906; * * * that there was going to be a large amount of people there. I would be the last of them.
“ Q. There would be a settler upon each one of these parcels they had sold ?
“A. He said they had sold these, and it was going to be settled upon within six months or a year, and they would make their permanent homes there. * * * He claimed that in all 2,000 acres were sold to actual settlers, in parcels of 40 or 50 acres.”

This information was communicated by Wilgus to Painter, his brother-in-law, and on March 20, 1906, they together set out from Ohio, for Cuba. Arrived in Havana, they were met by J. Warren James, secretary of defendant, who accompanied them to the land, 417 miles east of Havana. Both plaintiffs testify that they told James of the representations as to sales made by Beaman, and that James told them that they might rely implicitly upon what Beaman had said, though he personally did not know what sales Beaman had made. Plaintiffs examined the lands for several weeks and found them as represented, fertile wild lands. They finally selected a certain lot, and after considerable correspondence with Beaman entered into a contract to purchase it. They sent for their families and remained in Cuba upwards of 18 months, during which time they cleared about 15 acres of the land. Wilgus testifies that, had the representations made by Beaman been true, the land purchased by him and Painter would have been worth $4,000; that alone in the wilderness, as he and Painter were, it was utterly impossible to exist, and the land was worthless. Becoming convinced that no actual settlers would go upon the land, plaintiffs abandoned their property, returned to Ohio, and brought suit against defendant for damages.

It was not claimed by the defendant, upon the trial, that, at the time Beaman is said to have made the representations relied upon, the defendant had sold a single acre of ground to any person who either had or had not the intention of settling thereon. It is urged by defendant that, even if Beaman made the representations as claimed by plaintiffs, said statements being concededly false, yet they are not actionable, for the reason that the false statement as to the fact of sale was coupled with the promise or opinion of Beaman that those to whom he had sold would settle upon the lands so sold within a few months. Defendant cites many authorities (which was unnecessary) to the proposition that statements of mere opinion, “dealers’ talk,” or promises of what will be done in the future, are not actionable. The difficulty with defendant’s position is that, if Beaman made the representations as claimed, they do not fall within this line of authorities. In effect, he said to "Wilgus:

“ I have sold 2,000 acres of this land, in parcels of 40 or 50 acres each, to individuals who assured me of their intention to settle thereon with six months or a year.”

This was a statement of fact, not only as to the actual sale, but as to assurances theretofore made by the purchasers to Beaman. Both were false, both were past, and both material. There can be no doubt, under the testimony in this record, that plaintiffs relied upon these statements, acted upon them, and were injured thereby. If made by defendant’s agent, as claimed by plaintiffs, they were clearly actionable. See McDonald v. Smith, 139 Mich. 211 (102 N. W. 668), and cases there cited and discussed.

It is next urged by defendant that, inasmuch as the representations were made by Beaman to Wilgus alone, Painter is improperly joined as a party plaintiff. It is true that “ one making a misrepresentation is responsible to such person only as it is intended for;” but, as indicated above, we think it clear that Beaman knew that Painter was interested as well as Wilgus, and was acting with Wilgus in reliance upon his statements. The letters written by Beaman to Wilgus and Painter before the contract was executed put this matter beyond dispute. If the misrepresentations were made, they were obviously made for the purpose of influencing Painter as well as Wilgus. It follows that the parties plaintiff are properly joined. 14 Am. & Eng. Enc. Law (2d Ed.), p. 149, and cases cited.

A more serious question is raised as to the measure of damages. Upon this point the court charged the jury as follows: '

“ If you find for the plaintiffs, I think they would be entitled to recover such sums of money as they have shown by the evidence to have jointly expended in such enterprise by way of payments upon said land, and a fair compensation for their labor and expenditures in the way of improvements upon said land, less and deducting therefrom what you may find from the evidence is the actual worth and value of the land in question as it now stands.”

After this charge was given and the jury had retired for a time, they returned to the courtroom and asked the court the following question: “Is the land contract still in force ?” The court requested counsel for defendant to answer the question, which request was refused. A long colloquy followed between the court and counsel for both .parties, in the course of which counsel for plaintiffs disclaimed any further interest in the lands. The jury were finally told to disregard the colloquy and follow the instructions previously given. Defendant insists, and counsel for plaintiffs concede, that the true measure of damages in the case at bar is that laid down in Page v. Wells, 37 Mich. 415, where the court said:

“ If the plaintiff was induced to purchase upon the representations which proved to be untrue, the measure of his loss, as it seems to us, would be perfectly plain, and would be reached by an answer to the following question: How much less is the land worth as it is than it would have been if its condition and quality had been as represented ?”

See, also, Smith v. Werkheiser, 152 Mich. 177 (115 N. W. 964, 15 L. R. A. [N. S.] 1092, 125 Am. St. Rep. 406); Peters v. Birkett, 153 Mich. 61 (116 N. W. 538).

But it is urged on behalf of the plaintiffs, that, had the correct rule been given, the damages allowed by the jury would have been much larger; therefore the error is without prejudice. It is pointed out that the only testimony, as to what the lands embraced in the contract would have been worth had the representations been true, was given by plaintiff Wilgus, who testified that they would have been worth $4,000. He likewise testified that they were valueless in their present condition. But, assuming the contract price to be some evidence of value, and permitting it to control, there would still remain the difference between $1,250 and $4,000, a sum about three times as large as the verdict returned under the erroneous instructions. We are disposed to the view that defendant did not suffer because of this error in the charge.

Error is assigned upon the conduct of the trial. It is asserted by counsel for defendant that the attitude of the trial court was palpably unfair and led to a miscarriage of justice. Emphasis is laid upon the fact that an amendment to the declaration was permitted without imposing terms. We think the court acted clearly within his discretion in permitting the amendment in question. It was of a trivial character, was perhaps unnecessary, and could not, in any event, have taken defendant by surprise.

Our attention is next directed to the proceedings had when the jury returned to the courtroom for further instructions. We have examined these proceedings with care and fail to find any error therein, except the reiteration by the court of the erroneous rule of damages, which, for the reason above pointed out, was not reversible.

Upon a review of the whole case, we are not able to say that the judgment indicates that the jury were swayed by any motive not entirely proper.

The judgment is affirmed.

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

ON REHEARING.

Brooke, J..

It was held in our former opinion, ante, 260 (127 N. W. 739), that the erroneous instruction upon the measure of damages was without prejudice to defendant, for the reason that, under a correct instruction, the jury might have found a much larger verdict in plaintiffs’ favor. This conclusion is based upon the assumption that the jury would have believed plaintiffs’ testimony as to values. While this testimony was uncontradicted and would apparently warrant a jury, under proper instructions, in finding for plaintiffs in an amount at least as large as the verdict rendered, we think, upon further consideration, that it cannot be said, as a matter of law, that the jury would have so found. Where the jury proceeds to verdict under an erroneous instruction, it should very clearly appear that the defeated party could not, in any view of the case, have succeeded; otherwise prejudice must be presumed to follow the error. Warner v. Beebe, 47 Mich. 435 (11 N. W. 258); Toledo, etc., R. Co. v. Johnson, 49 Mich. 148 (13 N. W. 492).

The judgment must be reversed and a new trial ordered.

Ostrander, C. J., and Hooker, Moore, and Mc-Alvay, JJ., concurred.


author: Ostrander, J. Ostrander, O. J.

text:
    PEOPLE v. SHARRAR.
    1. Intoxicating Liquors — Druggists — Statutes — Habitual Drunkards.
    Under the local-option law (3 Comp. Laws, § 5413 et seq.; Act No. 307, Pub. Acts 1889, as amended by Act No. 183, Pub. Acts 1899), a sale of intoxicating liquors by a druggist to a' person in the habit of becoming intoxicated is unlawful, although the latter presents the prescription of a physician and the druggist acts in good faith. 3 Comp. Laws,'§§ 5381, 5391.
    3. Same — Evidence—Good Faith.
    Good faith being immaterial, evidence of it, such as the fact that a physician’s prescription was presented by the purchaser, is immaterial.

      3. Same.
    The statute was intended to forbid the sale of liquor by druggists to certain persons, even for medicinal purposes.
    4. Same — Medicines—Alcoholic Beverages.
    Whether a particular mixture containing alcohol is a medicinal compound and unfit for use except in medicinal doses, is
    • generally a question of fact.
    5. ^Same.
    But a mixture of 10 grains of quinine and 8 ounces of whisky is, as a matter of law, an intoxicating liquor.
    6. Same — Evidence—Opinion.
    Testimony to the effect that no reasonable person would drink it as a beverage or drink sufficient of it to become intoxicated was not admissible.

      7. Same — Criminal Law — Sentence.
    Act No. 183, Pub. Acts 1899, requires the imposition of both fine and imprisonment upon persons convicted of violating’ its provisions.
    ON REHEARING.
    1. Criminal Law — Sentence—Fine and Imprisonment.
    It is immaterial whether or not both a fine and imprisonment were required by Act No. 183, Pub. Acts 1899, where, at the time of imposing sentence, the trial court indicated his opinion that the fine and imprisonment were about what he ought . to impose on respondent.
    3. Same — Intent—Intoxicating Liquors.
    Intent is not a necessary element of the offense defined by such statute; i. e., the sale of intoxicating liquors to persons in the habit of becoming intoxicated.
    Error to Gratiot; Searl, J.
    Submitted June 24, 1910.
    (Docket No. 143.)
    Decided September 27, 1910.
    Reargued March 6, 1911.
    Former opinion affirmed March 31, 1911.
    George E. Sharrar was convicted of violating the local-option law, and sentenced to pay a fine of $50 and to imprisonment for 20 days in the county jail.
    Affirmed.

      Stone & Watson and James G. Kress, for appellant.

      John E. Bird, Attorney General, and John M. Ever-den, Prosecuting Attorney (O. G. Tuttle, of counsel), for the people.
   Ostrander, J.

Respondent was a druggist doing business at Alma, Mich. On the 2d day of October, 1908, one Simon Oberlin, a farmer who resided some five miles from Alma, delivered to the respondent a prescription signed by a physician of the city which called for 8 ounces of whisky containing 10 grains of quinine. Respondent filled the prescription, placing a label on the bottle bearing the number of the prescription and the name of the physician who prescribed, and delivered it to Oberlin. The local-option law (Act No. 207, Pub. Acts 1889) was in force in the county of Gratiot, in which the city of Alma is. Respondent was informed against for selling, giving, and furnishing to Oberlin this liquor; it being alleged that the said Oberlin was then and there a person who was in the habit of getting intoxicated, and the respondent then and there a druggist, etc., the information being laid under the local-option law. Respondent was convicted and sentenced to pay a fine and to be imprisoned. Upon the trial the circuit judge excluded evidence of the prescription, of the physician who gave it, and of the good faith of the respondent in filling the prescription, and the jury was instructed, in accordance with these rulings, that if they found that Oberlin was a person in the habit of getting intoxicated, the people had shown sufficient to warrant a verdict of guilty. The fact that the whisky and quinine was sold and delivered to Oberlin was admitted by respondent on the stand. The rulings of the court referred to and the charge present the meritorious question, which is properly raised by exceptions and by assignments of error.

It is the contention of the people that, while the prosecution is properly laid under the act of 1889 (Bishopp v. Hillsdale Circuit Judge, 94 Mich. 462 [53 N. W. 1093]), the respondent as a druggist was governed as to the sale of liquor by the provisions of the general law, and that under the general law a druggist who sells liquor to a person who is in fact in the habit of becoming intoxicated is not excused by good faith; that is to say, want of knowledge that the person is in the habit of becoming intoxicated, or by the fact that the liquor was sold in filling the prescription of a physician. It is a further contention that the addition of the quinine to the whisky in no way destroyed the intoxicating effect of the liquor, and that it is immaterial as affecting the question of the guilt of the respondent.

Section 1 of Act No. 207 of the Public Acts of 1889 (2 Comp. Laws, § 5412) has this proviso:

“ That the provisions of this section shall not apply to druggists, or registered pharmacists, in selling any such liquors under and in compliance with the restrictions and requirements imposed upon them by the general laws of this State.”

Section 2 of the same act has this proviso:

“That all sales of liquors by druggists, or registered pharmacists, in such counties shall be under the restrictions and requirements imposed upon them by the general laws of this State.”

By the provisions of the general law it is unlawful for any person, except a druggist, to sell, give, or furnish any spirituous liquors to a minor, an intoxicated person, or a person in the habit of getting intoxicated (2 Comp. Laws, § 5391), and as to druggists, they are excepted from the penal provisions of the act when they sell liquors for chemical, scientific, medicinal, mechanical, or sacramental purposes only, and in strict compliance with law; it is unlawful for any druggist at any time to sell, furnish, give, or deliver any spirituous liquor to any person in the habit of getting intoxicated (section 5381). Persons in the habit of getting intoxicated are classed, in the statute, with intoxicated persons and minors who do not present a written order of parent or guardian. In construing this section of the statute, it was held, in People v. Curtis, 129 Mich. 1 (87 N. W. 1040, 95 Am. St. Rep. 404), which was the case of a sale by a druggist to a minor, that intent is not an ingredient of the offense, and that the statute imposes upon the seller the duty of ascertaining, at his peril, that he is selling to one whom the law permits him to sell to. Good faith being immaterial, evidence of it, such as the fact that a physician’s prescription for the liquor sold was presented by the purchaser, is immaterial. The prescription of the physician and the mixture prescribed and prepared are some evidence that the liquor was purchased and sold for medicinal purposes. We are of opinion, however, that the statute forbids, and was intended to forbid, sales of liquor by druggists to certain persons even for medicinal purposes.

It was not denied — indeed, it was conceded — that the addition of the quinine to the whisky did not destroy the intoxicating effect of the whisky; but it is contended that it is a question of fact whether the mixture could be, or probably would be, used as a beverage. It may be conceded that whether a particular mixture containing alcohol is a medicinal compound — a medicine — and unfit for use except in medicinal doses, is generally a question of fact. Black on Intoxicating Liquors, § 8. We think no such question of fact is presented with respect to a mixture containing 10 grains of quinine and 8 ounces of whisky. It is common knowledge that it is neither impossible nor ancommon for such a mixture to be drunk, and that to one used to and desiring intoxicants the presence of the quinine does not prevent such use of the whisky as is desired. Such a mixture is without doubt an intoxicating liquor. It was not error to exclude testimony offered to prove that “no reasonable person would drink it as a beverage, or would drink sufficient of it to become intoxicated upon it.” Such testimony would present no proper test. Undoubtedly, testimony is always available to prove that no reasonable person will use whisky at all.

Complaint is made that the court exercised no discretion in imposing sentence upon the respondent; the ground of the complaint being that it was held that the statute required the imposition of both fine and imprisonment. The case of People v. Minter, 59 Mich. 557 (26 N. W. 701), is relied upon. The court did say, in pronouncing sentence, that he construed the language of section 16, Act No. 188, Pub. Acts 1899, as requiring the imposition of both fine and imprisonment. We are of opinion that the construction given was right, and that the discretion of the court, if sentence is imposed, is to be exercised with respect to the statute maximum and minimum.

We find no error, and the conviction is therefore affirmed.

Hooker, McAlvay, Blair, and Stone, JJ., concurred.

ON REHEARING.

Ostrander, O. J.

This cause has been reheard upon the application of respondent. We are satisfied, after a. careful re-examination of the record, that whether the court properly construed the statute as requiring the imposition of a fine and a term of imprisonment is a question not involved. In People v. Minter, 59 Mich. 557 (26 N. W. 701), relied upon by respondent, it appeared in the judgment entry that the court declined to exercise the discretion to fine or imprison upon the groimd that such discretionary power did not exist. In the present case, preliminary to passing sentence, the court in a similar way denied the right of the court to exercise a discretion to fine or imprison. But the court went further, and, after yeciting facts and reasons for refusing to exercise a discretion in favor of respondent, and after imposing sentence, concluded by saying:

“I presume that the ultratemperance people will think that it is very much too low, while your friends will think it is very much too high. The court is satisfied that it is just about what it ought to be.”

The court was warranted in imposing the sentence which was pronounced. It does not appear that the construction which the court placed upon the statute affected the judgment pronounced. The contrary conclusion is supported by the statement ’of the court above quoted. In holding as we did in the former opinion that the statute sentence in such cases is fine and imprisonment and that it may not be fine or imprisonment, we were influenced by the fact that section 16 of Act No. 207, Pub. Acts 1889, provided for a punishment by fine or imprisonment, and the same section, practically renacted in Act No. 183, Pub. Acts 1899, provides for the punishment by fine and imprisonment. See, also, Act No. 107, Pub. Acts 1909. 3 Comp. Laws, § 11973, is a portion of chapter 334, entitled “Judgments in Criminal Cases,” and it reads:

“ Whenever it is provided that an offender shall be punished by imprisonment in the county jail and a fine, such offender may, at the discretion of the court, be sentenced to be punished by such imprisonment without the fine, or by such fine without the imprisonment; and, whenever it is provided that an offense shall be punished by fine or imprisonment, the court may impose both such fine and imprisonment, in its discretion.”

If this general statute modifies the provisions of section 16 of the Public Acts of 1899, it is wholly immaterial whether the punishment provided is fine and imprisonment or fine or imprisonment. If no limitation upon the discretion of the court was intended by the legislature when it amended section 16, then nothing was accomplished by substituting in the law the word "and” for the word “or.” We were of opinion that such intention may be found in the very fact and character of the amendments.

If liquor is sold in a local-option county, upon the regular prescriptions of a regular practicing physician, to a man who is in the habit of getting intoxicated, is the druggist protected if he acted in good faith without knowledge of the habits of the purchaser ? The discussion may be narrowed. It is, and must be, admitted that the local-option law in terms refer to the general law and to the. local-option law for rules controlling sales of liquor by druggists. The general law forbids sales of liquor by druggists for any other than medicinal and scientific purposes. So does the local-option law. The general law forbids any sales, directly or indirectly, by druggists to minors who do not present the written order of a parent or guardian, to intoxicated persons, to persons in the habit of getting intoxicated, to Indians and to various others.

Construing this law (2 Comp. Laws, § 5881), this court held, in a case where liquor was sold to a minor, that the^ good faith belief of the druggist, based upon the appearance and statements of the purchaser that he was not a minor, was not a defense. It was said that the statute had not made intent an ingredient of the offense. People v. Curtis, 129 Mich. 1 (87 N. W. 1040, 95 Am. St. Rep. 404). In Bailey v. Briggs, 143 Mich. 303 (106 N. W. 863), which was an action brought by a parent against a druggist for damages resulting from a sale of liquor to a minor who presented a forged order of the parent, the rule of People v. Curtis was followed. It will be noted that the statute classes minors, who do not present an order from the parent, with persons intoxicated, those in the habit of getting intoxicated, Indians, and various others. Therefore, if intent is not an ingredient of the offense of selling liquor to a minor, it is not an ingredient of the offense when liquor is sold to a person who is in the habit of getting intoxicated. And if the provision in the local-option law for sales only upon a prescription merely adds to the provisions of the general law a further regulation, then a druggist may not sell to any of the classes named in the general law upon a prescription, although a proper prescription is presented, and must determine, at his peril, that a purchaser is not one to whom sales are forbidden.

The consequences of such a construction are considerable. The purpose of the local-option law is to prohibit sales of liquor as a beverage in certain localities. It is not its purpose to forbid, or even to diminish, sales of liquor for medicinal or mechanical purposes. In local-option counties the drug' store is the only place where liquor may be dispensed for such lawful purposes. The regulations and restrictions upon the traffic are aimed at preventing sales of liquor to be used as a beverage under the guise of sales for medicinal and scientific purposes. If sales of liquor to certain persons are absolutely forbidden, it is the sale and the status of the person to whom the sale is made which are controlling in determining whether the law is violated, and not the purpose for which the liquor is procured. A man in the habit of getting intoxicated may not procure liquor upon a «prescription made for a member of his family. An infinite variety of facts may be supposed, the consequences of which, under the law, would appear to be insensible or harmful.

A consideration urged by counsel for respondent is that the construction of the law which is indicated operates to deny to certain persons benefits which the law secures to others. We are not apprehensive that one to whom liquor would be beneficial as a medicine will be deprived of its beneficial use. It must be assumed that all consequences of administering the law according to its terms were considered by the legislature. We cannot say that the legislative power has been abused. The law is an exercise of police power, and after mature reflection we are still of opinion that the construction which we placed upon it in the former opinion is the only reasonable, and therefore the required, construction.

Hooker, Moore, McAlvay, Brooke, Blair, and Stone, JJ., concurred. Bird, J., did not sit.


author: McAlvay, J.

text:
    DETROIT LUMBER CO. v. CLEFF.
    1. Husband and Wine — Principal and Agent — Improvements to Property on Wine.
    A verdict should not be directed against a married woman, in an action for lumber and building materials delivered to her husband on his credit and used by him in constructing houses upon her property, with the knowledge, but not under the directions,of the wife who furnished him money for the purpose, but never ordered or inspected materials or examined the completed buildings; and the question of the husband’s agency for defendant is for the jury.
    2. Same — Contracts on Married Women.
    A married woman can make no obligation except on account of her own property, and there can be no presumption of her husband’s authority to act for the wife.
    3. Same — Building Contracts — Materials.
    A married woman is not responsible for improvements made on her real property by her husband, without any extension of credit to her from one furnishing materials.
    Error to Wayne; Murfin, J.
    Submitted October 18, 1910.
    (Docket No. 84.)
    Decided November 11, 1910.
    Rehearing denied April 1, 1911.
    Assumpsit by the Detroit Lumber Company, a corporation, against Rose Cleff. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Reversed.

      Bumps & Bishop, for appellant.

      E. T. Berger, for appellee.
   McAlvay, J.

Plaintiff recovered a judgment by direction of the court in an action of assumpsit against defendant for certain lumber claimed to have been sold and delivered by plaintiff to John Cleff, her husband, acting as her agent, and which was delivered to him and went into the construction of certain houses built upon land belonging to defendant in the city of Detroit. The facts disclosed by this record are that plaintiff for several years 'had dealings with John Cleff, who was a contractor and builder, selling him lumber which was used by him in his business, and extended credit to him for such lumber, keeping an account with him in its books, which included the lumber for which claim is made in the suit at bar; that plaintiff, upon a balance due it upon this account, brought suit and recovered judgment against him in justice’s court in the city of Detroit, January 25, 1907, for $500 and costs, which judgment included the charges made for all of the lumber claimed in this suit to have been sold and delivered to defendant. On that judgment an execution issued and was returned unsatisfied. ' John -Cleff afterwards was adjudicated a bankrupt, and this judgment was filed by defendant as a claim, and proven against him, in bankruptcy. Afterwards this suit was instituted by plaintiff in justice’s court, and from a judgment of no cause of action it appealed to the circuit court, with a result in its favor, as already stated.

Upon the trial, in addition to the facts already stated, it appeared that none of the agents of plaintiff corporation knew defendant, or ever extended any credit to her, or to John Cleff on her account; that the account and dealings with John Cleff extended over a term of several years, covering quite a number of contracts. Plaintiff’s ledger contained a statement of lumber charged to John Cleff as being used upon various buildings which he was erecting in different parts of the city; but no lumber was charged under the head of the “ Maybury Grand” buildings, which were the buildings erected on defendant’s lots. For the purpose of showing delivery of this lumber, the judgment and files of the case against John Cleff were offered and received in evidence over the objection of defendant, upon the ground, as claimed by plaintiff, that it was res adjudicata, of that fact. On being asked by the court whether delivery of this lumber on this “ Maybury Grand ” job was controverted, defendant’s counsel asserted that it was denied that any of the lumber was ever so delivered. To further show delivery, plaintiff’s salesman was allowed to testify that on a former trial he had compared delivery tickets with the bill, of particulars, and checked off all of the items on it, and identified it by the check marks. The delivery tickets were not 'offered, produced, or accounted for, and witness had no personal knowledge of the deliveries. The bill of particulars was then received in evidence, subject to objection and exception of defendant. One witness, a teamster, testified that four years before he remembered that he had delivered some lumber for plaintiff at “ Maybury Grand” job, but not all of it, and did not know how much he had delivered.

Plaintiff called defendant as its witness, who testified that she owned this property; that the houses were built by her husband on her property with her knowledge; that she furnished him money, and he owed her other money at the time. She had nothing to do with the building. Her husband did not consult her as to how the houses should be built, and she never ordered or inspected any materials which went into the buildings. Defendant offered no testimony, claiming that plaintiff had made no case against her.

Plaintiff relies upon the relation of agent and principal, claimed by it to have existed between the husband and wife, which relation was not disclosed at the time, and in fact not ascertained until after its judgment was proved in bankruptcy. Upon this theory of the case a verdict was directed by the court. This would not be warranted, unless clearly supported by the record; and we do not find that it is. No agency is made out by plaintiff from the testimony of the defendant, who was its witness, and upon which it relies for recovery. On the contrary, her testimony negatives that theory, and from such testimony it may be reasonably inferred that he was not acting as her agent. In Fechheimer v. Peirce, 70 Mich., at page 441 (38 N. W. 326), this court said:

“It is the law of this State that a married woman can make no obligation except on account of her own property, and that any one seeking to hold her must make out an affirmative case. It is also well settled that there can be no presumption of a husband’s authority to act for his wife, and that a person seeking to hold her for acts done by another must show affirmatively full authority to bind her.”

In support of this rule the court cites many Michigan cases, from two of which we quote briefly:

“ A married woman is not liable for the cost of improvements put into her own house, where the work is done in reliance on the responsibility of her husband and by his directions.” Holmes v. Bronson, 43 Mich. 562 (6 N. W. 89).
‘ ‘ It has been decided on several occasions by this court that a married woman is not responsible in person, and that her land is not bound, for improvements and expenditures made on it by her husband, where no credit has been given to her, and where he has contracted on her behalf.” Morrison v. Berry, 42 Mich. 393 (4 N. W. 733, 36 Am. Rep. 446).

The case made by plaintiff did not warrant the direction of a verdict by the court in its favor. This conclusion makes it unnecessary to consider other questions.

The judgment is reversed, and a new trial ordered.

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


author: Brooke, J.

text:
    GOW v. McFARREN.
    1. Taxation — Logs and Logging — Lessee.
    Logs piled on ground that is leased are assessable to the lessee, though the seller of the logs under contract with such lessee necessarily had temporary control of the premises in order to do the loading on cars, as provided by agreement. Act No. 32, Pub. Acts 1899. Gow v. McFarren, 156 Mich. 362 (120 N. W. 800), overruled on rehearing.
    2. Same — Replevin.
    Replevin does not lie for logs levied on for taxes which were partly valid and partly invalid.
    Error to Kalkaska; Chittenden, J.
    Submitted January 19, 1909.
    (Docket No. 121.)
    Decided April 24, 1909.
    Reargued April 5, 1910.
    Former opinion reversed February 1, 1911.
    Replevin by James Gow and John Campbell, copartners as Gow & Campbell against J. Marvin McFarren. A judgment for defendant on a verdict directed by the court is reviewed by plaintiffs on writ of error.
    Affirmed.

      William Carpenter and J. L. Boyd, for appellants.

      Ernest C. Smith, for appellee.
   Brooke, J.

The opinion of the court upon the original hearing of this case will be found reported at 156 Mich. 362 (120 N. W. 800). We there determined that the plaintiffs were entitled to a directed verdict, upon the ground that the title to the logs assessed had not passed to plaintiffs at time of assessment. Emphasis is now placed upon the fact that, at two of the sidings where the logs were found and assessed, plaintiffs’ agent had rented for a nominal sum grounds upon which, as well as upon the railroad right of way, the logs were stored awaiting loading by the vendors or their agents. It is defendant’s contention, therefore, as to these two lots, that, independent of the question of title, they were properly assessed to plaintiffs under the provisions of section 8 of Act No. 32 of the Public Acts of 1899, which reads as follows:

“Personal property of nonresidents of the State and all forest products owned by residents or nonresidents, or estates of deceased persons, shall be assessed in the township or ward where the same may be, to the person having control of the premises, store, mill, dock, yard, piling ground, place of storage, or warehouse where such property is situated in such township, on the second Monday in April of the year when the assessment is made.”

The important question raised by this contention is whether or not, at the Barnes and Liphart sidings, the grounds upon which, in part, the logs were piled, were under the control of plaintiffs within the meaning of the statute. It is urged by plaintiffs that, though their agent hired additional ground at a nominal rental at each of the two sidings named, it should be held, inasmuch as the contracts required the vendors of the logs to do the loading, in doing which, control of the lands in question was necessary, that the owners of the logs were really in control of the grounds within the meaning of that term as used in the statute.

While there is force in the argument that the sole use made of the grounds was to permit their occupancy by the vendors of the logs in loading and delivery, we think it should not be held that for that reason the lessees were not in control. It must be remembered that the statute was intended to enable forest products to be assessed without reference to ownership, in order to avoid the necessity on the part of the assessing officer of determining the identity of the owner. It follows that the assessments of the logs at the Barnes and Liphart sidings, so far as they related to logs upon piling grounds controlled by plaintiffs, were proper.

While the assessments for the year 1905, and those for 1907, at the other sidings, were invalid, yet, as a portion of the tax for which the levy was made was valid, replevin will not lie. Boyce v. Stevens, 86 Mich. 549 (49 N. W. 577); Scott v. Whelan, 96 Mich. 624 (55 N. W. 1025); Forster v. Brown, 119 Mich. 86 (77 N. W. 646).

The judgment must be affirmed.

Ostrander, O. J., and Bird, Hooker, Moore, Mc-Alvay, Blair, and Stone, JJ., concurred.