text:
    MICHAUD v. GRACE HARBOR LUMBER CO.

    1. Docks — Defective Construction — Injury to Vessel — Assumption of Risk..
    Where it is not clear that a shipmaster’s acquaintance with a dock, which he had used on prior occasions, was such that he must have known that the snubbing-post to which he tied up was not properly braced underneath, it was for the jury to say whether or not, in view of the dock-owner’s directions to tie to the particular post, and his assurance that the dock was perfectly safe, he assumed the risk of injury to the vessel occasioned by the post’s canting over in a storm and releasing the boat.
    2. Same — Contributory Negligence of Shipmaster.
    It cannot be said, as a matter of .law, that a shipmaster was guilty of negligence, precluding a recovery against a dock-owner for injury to a vessel caused by the giving way of a snubbing-post improperly braced, although the post gave indications of giving way two hours before the accident, where • the master testifies that it was dark and stormy at the time, that all the lines were out, and that he was unable to get to them after dark.
    3. Damages — Evidence of Value — Witnesses.
    In an action to recover for injuries to a vessel, it was proper, on the question of damages, to show her value before and after the injury; her owner, who had owned other vessels also, being competent to express an opinion as to her original value; but the speculations of persons who had not examined her, as to whether it would be possible to tell the extent of her injuries, were properly excluded..
    4 Same — Nonjoinder of Plaintiffs.
    The nonjoinder of a plaintiff in an action of tort, unless pleaded in abatement, can be taken advantage of by defendant only by way of restricting the plaintiff’s recovery to his apportionable share of the damages.
    Error to Wayne; Waite, J.
    Submitted October 27, 1899.
    Decided December 12, 1899.

      Case by Theophilus Michaud against the Grace Harbor Lumber Company for maintaining a defective dock. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Wilkinson, Post & Oxtoby and Walter E. Oxtoby, for appellant.

      Warner, Codd & Warner, for appellee.

       Rehearing denied January 23, 1900

   Montgomery, J.

The plaintiff is a half owner of the schooner “John Jewett.” The defendant is a corporation doing business at Hammond’s Bay, Presque Isle county. In October, 1898, the defendant, through its officers, chartered the vessel to go to the defendant’s dock at Hammond’s Bay, and take on a load of lumber to be transported to Detroit. The vessel was sent in charge of her master, Capt. Stone, and arrived at the defendant’s dock on Sunday, the 16th of October. In the evening of the following day she broke from her mooring, and was driven ashore. This action is brought to recover for damages sustained, the plaintiff’s claim being that the dock was improperly constructed, in that the “snubbing-posts” were not braced, that the piles under the dock were not braced, and that the flooring of the dock surrounding the snubbing-posts was constructed of short pieces of plank, laid independently of the main flooring of the dock; that by reason of these defects the dock was not a safe place to moor; that the snubbing-post to which the main line was fastened canted over, allowing the line to slip from it; and that this was the cause of the wreck. The defendant contends that the master of the vessel knew all about the dock, having been there and having made use of it on other occasions, and assumed whatever risk there was; that the master was at fault in the manner in which he made fast the vessel, and that the dock was reasonably safe; that the loss was more properly attributable to excessive high wind than to any fault of the defendant’s dock. The learned circuit judge was of the opinion that no case had been made entitling plaintiff to take the judgment of the jury, and directed a verdict for the defendant. The grounds upon which this action was taken were stated by the circuit judge as follows:

“The Grace Harbor Lumber Company constructed the dock apparently for its own use. It would be responsible, I think, for any damages which might occur to those who tied up to the dock relying upon their representations absolutely; but under the circumstances of this case, and from the facts in this ca'se, it appears to me that the master of the vessel was fully cognizant of all the risks taken, except, perchance, the one risk which would be attendant upon the giving way or the moving of this particular spile at the southeast corner of the dock. It is claimed here by the plaintiff that the loss was occasioned by the moving of this spile,— by its canting over, and allowing the bights of the rope to slip off. There is the principal center of interest in this case. It all hinges upon the responsibility resting upon both parties as to that spile. There were other spiles about and in the dock. About 9 o’clock, as I remember the testimony, this spile began to move, and it tore up the planking. This was known to the master of the vessel, and, of course, what was known to him in this case was known to the owner, the plaintiff. For two hours or a little over that was swaying and moving, and finally, after two hours or a little more, these bights slipped off. In the meantime nothing had been done to insure the safety of this vessel. The wind was blowing at about 30 miles an hour or more. The vessel was pitching. The dock still remained after the vessel broke away. I do not think the plaintiff could recover in this case, not having_ done any more, after having received, notice of the giving way of this spile, not having done any more than the testimony shows he did do. I do not think he is in a position to recover in this case, because, in my judgment, he was guilty of contributory negligence, or, rather, did not use that ordinary prudent care which a master of a vessel should, under the circumstances, to preserve the property.”

The question for our determination is, therefore, whether there was any testimony legitimately tending to establish the theory of the plaintiff.

It appeared by the testimony of Capt. Stone that he had on several prior occasions loaded at this dock; that before the Jewett was chartered he had a conversation with Mr. Begle, an officer of defendant, in which he said to Mr. Begle that the dock was not safe to go to. Mr. Begle replied that the harbor was safe enough to stay at all winter; that the dock was all right; that there need be no fear of the dock. Mr. Begle said: “ The dock is strong enough to tear your vessel to pieces.” The witness further testified that Begle told him op Monday that the post at the middle of the southeast end of the dock was .not safe to hold to, but that the outside spile or post near the southeast corner of the dock was sufficient to hold the vessel. This latter was the post to which the vessel was made fast. Another line was also carried from another part of the vessel, and made fast at a point farther towards the shore, on the dock, and another at a so-called “derrick pile” or “crane” in the middle of the dock. Between 11 and 13 o’clock Monday night, the snubbing-post at the southeast corner of the dock canted over, and the lines slipped off, so that a single line held on that snubbing-post, and it parted. The manner in which this line was fastened to this snubbing-post was by first taking a turn with the rope at the post; then two half hitches in the rope, thus making it fast to the post; the line was then taken aboard the vessel, and a turn taken around one of the forward timber-heads; then the line led back to the snubbing-post, where they took a “bight,” so called; then led back to the vessel, where a single turn was taken around the. other forward-port timber-head; then the line was taken back to the snubbing-post, and another bight taken in the line; and so on, until there were five strands of this three-inch line running from the vessel to the snubbing-post. A “bight ” is described as a single turn around the snubbing-post. These bights were placed at about the hitch or place where the line was fastened to the post. It is claimed by the defendant that this method of fastening the vessel was an improper one, and brought an unnecessary strain upon the snubbing-post.

Capt. Boston was called as a witness by tbe plaintiff to show the improper construction of the dock. On cross-examination he was asked about the propriety of the method adopted in making the line fast, and replied that, if he had been making it fast, he would have made the last turn with a lasso hitch, and gave further testimony indicating that good seamanship would require that method. If this testimony were not contradicted, it might he urged with much force that it establishes conclusively that the negligence of the shipmaster, to say the least, contributed to the result; but Capt. Baker testifies that the method employed was proper, as do Capt. Stone and the mate of the vessel. This question was therefore one for the jury.

We are also of the opinion that the question of assumed risk was for the jury. There was testimony tending to show that the snubbing-post which gave way was not properly braced underneath. We are not able to say that the acquaintance of Capt. Stone with the dock was such that he must have known of this defect, particularly in view of the testimony tending to show that Mr. Begle had assured him of the safety of the dock. If his previous knowledge was not such that he must be held to have known of the defect in question, the assurances given him by Mr. Begle are to be taken into account in determining whether he assumed a risk which he ought to have known the extent of. Lake Superior Iron Co. v. Erickson, 39 Mich. 492 (33 Am. Rep. 423); Burnside v. Manufacturing Co., 121 Mich. 115.

Was the captain guilty of contributory negligence in failing to do all that he could to avoid disaster after the dock began to give way, and after the snubbing-post began to cant over ? The circuit judge was of the opinion that he was guilty of such negligence, and appears to have determined the case on that point. We think the question was a proper one for the jury. All the lines were out, and Capt. Stone testifies that he could not get to the lines after dark on Monday. The case is evidently near the line, but we think, as the evidence stood, it was a case for the jury.

As bearing on the question of damages, we think it was competent, if the plaintiff was able to do so by competent witnesses, to show the value of the vessel before the injury, and her value as she was afterwards. We think, however, the court was right in excluding speculation, by any who had made no inspection of the vessel, as to whether it would be possible to tell what the extent of the injuries to her was. The value should be shown by one who knew enough of her condition to speak upon the subject. We think the plaintiff, who owned this vessel and has owned others, showed himself competent to express an opinion as to the value before the damage. Erickson v. Drazkowski, 94 Mich. 551.

The point made by the defendant that there is a nonjoinder of a necessary plaintiff, and that the plaintiff should not recover for this reason,.is without merit. No plea in abatement was filed. In this state of the pleading, the most that the defendant can insist on is that the plaintiff be restricted in his recovery to the damages which he has sustained. 1 Am. & Eng. Enc. Pl. & Prac. 15; Achey v. Hull, 7 Mich. 423.

The judgment will be reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    SELBY v. DETROIT RAILWAY.
    1. Trial — Overruled Objection — Failure to Except — Waiver.
    An objection which is overruled is waived by failure to except to the ruling.
    2. Street Railways — Misjoinder oe Defendants — Objection after Verdict — New Trial.
    Where two street-railway companies appear and plead the general issue to a declaration for personal injuries wherein they are joined as defendants, and both take part in the trial, upon which evidence is introduced tending to establish their liability, it is too late after verdict for one of them to raise the question that its co-defendant, from whose car plaintiff was thrown, was alone connected with the injuries, and that it was improperly joined as a defendant, and should be allowed a new trial.
    8. Same — Duty of Conductors — Assisting Passengers to Alight.
    An instruction, in an action against a street-railway company for personal injuries, that a carrier of passengers “must afford such care as is reasonably necessary to look after women and children in their alighting as well as their passage,” is objectionable, as likely to be understood to mean that the conductor must assist women and children to alight.
    4. Trial — Conduct of Counsel — Contradicting Witness-.
    Counsel should not be allowed to contradict witnesses without themselves being sworn.
    5. Same — Improper Argument — Verdict.
    In an action for personal injuries, it was error to permit plaintiff’s counsel, in commenting upon the verdict to be rendered, to declare to the jury that the defendant, a corporation, always carried its cases to the Supreme Court.
    Error to "Wayne; Donovan, J.
    Submitted October 27, 1899.
    Decided December 12, 1899.
    Case by Marion Selby against the Detroit Railway and the Detroit Electric Railway for personal injuries. From a judgment for plaintiff, defendants bring error.
    Reversed.

      .Corliss, Andrus & Leete, for appellants.

      James H. Pound, for appellee.
   Moore, J.

The plaintiff received injuries while alighting from a street car. She obtained a judgment against defendants, from which judgment the defendants have appealed. We shall decline to pass upon some of the assignments of error, for the reason that no exceptions were taken to the rulings of the circuit judge. Under such circumstances, the objection which was overruled must be deemed waived.

After the judgment was entered, a motion for a new trial was made, which motion was overruled. One of the grounds of the motion on the part of the Detroit Electric Railway was that the verdict against the Detroit Electric Railway is unsupported by the evidence in the cáse, in that the Detroit Electric Railway does not operate, and was not connected, directly or indirectly, with the operation of, the car from which the said plaintiff claims to have been thrown and to have received her injuries. An affidavit was filed in support of this motion. The declaration filed in the case was against both of the defendants. It set up the cause of action in detail. Both defendants appeared, and pleaded the general issue. There was no suggestion that the Detroit Electric Railway had been improperly made a party, either in the pleadings, or by motion, or by a request to charge. It was not until after a verdict had been obtained against both defendants that it was claimed by one of them that it sustained any different relation to the case than did the other defendant. The defendant the Detroit Electric Railway knew just as well before the verdict as after whether it had been improperly joined. There was some evidence tending to show liability on its part. It would be unreasonable to hold that it might remain silent in relation to a defense of which it had knowledge, until after the expenses of a trial were incurred, and a, ver diet by a jury rendered, and then avail itself of its defense. We cannot say that such a showing was made before the circuit judge that he erred in refusing a new trial.

Among other things, the court charged the jury as follows :

“ It is the duty of the common carrier of passengers for hire to safely carry the passengers, and it must afford such care as is reasonably necessary to look after women and children in their alighting as well as their passage; but I will say here, I will leave it to the jury whether they are to look after them except at the regular alighting places; I will leave that to the jury.”

This is said to be error. The language used is not very happily chosen, and some things are left to the jury which it is the province of the judge to decide. It was the claim of the plaintiff that she had informed the conductor she wanted to alight at Park Place, but the conductor failed to stop until the car had got part of the way across Washington avenue, when it was brought to a full stop in response to the signal of the conductor to stop, and that just as.the plaintiff was alighting, and about to step upon the pavement, the car was suddenly started, and she was injured. It was the claim of the defendant that a number of its cars were just ahead of the one in which plaintiff wras riding, all of which proceeded slowly at this particular locality, and that the car was not stopped, but the plaintiff stepped off the car while it was in motion, and was hurt because of her own negligence. If the claim of the plaintiff was true, that she had been carried past the place where she desired to alight, and the car was stopped farther on by the conductor to enable her to alight, then it was negligence on the part of the company to start the car while she was in the act of stepping from the car to the pavement. The plaintiff was entitled to such an instruction. The language used did not convey that idea very clearly, but may have been understood by the jury as meaning that the conductor was not only bound to give women and children an opportunity to alight with safety, but must assist them in so doing.

The remaining question, necessary to be discussed, relates to the conduct of counsel in the examination of witnesses and the argument to the jury. The case seems-to have been conducted with a good deal of bitterness upon both sides. In the cross-examination of witnesses, counsel upon both sides seem to have proceeded upon the theory that the witnesses called by the opposite party were untruthful. This gave rise to colloquies between counsel which ought to hqve ■ been promptly suppressed by the trial court. Counsel upon both sides did not hesitate to-contradict the witnesses without themselves being sworn. This ought not to have been done, and the court should not have allowed it.

When it came to the argument of the case, counsel upon both sides made statements to which opposing counsel took exceptions, while the trial judge remained silent, so far as the record discloses, during the argument. The statement made by the counsel for the plaintiff to which particular objection is made is as follows:

“I do not want you to go to the jury-room to cut down, on the ground there will be a settlement in this case; they will go to the Supreme Court; they always go there.”

This was an ingenious invitation to the jury to include in their verdict, not only the damages to which the plaintiff was entitled under the well-established rules of law, but an amount sufficient to compensate her for he expense of following her .case to the Supreme Court. The record does not disclose what called out this statement. It was an improper one to make. It was not based upon anything in the record. Defeated litigants, whether corporations or individuals, have a right to take their cases to an appellate court without having it the subject of adverse criticism. If, when counsel challenged this argument, the judge had promptly instructed the jury that it was not a proper argument to make, the error might be overlooked;'but, instead of doing so, the judge remained silent, thereby giving the jury the impression that lie approved of the statements of counsel. This court, in the recent case of Britton v. Railroad Co., 118 Mich. 491, expressed its views in relation to what is not allowed in the argument of counsel. It is not necessary to repeat what is there said. The case comes within the reason of the rule as there stated.

Such of the other assignments of error as are properly here have not been overlooked, but we do not deem it necessary to discuss them, as they are not likely to arise again. For the errors indicated, the judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Long, J.

text:
    FERRIS v. BOARD OF EDUCATION OF DETROIT.
    1. Board of Education — Fall of Snow from School Building — Trespass—Personal Injury — Proximate Cause.
    Where a board of education erects a school building in such manner that ice and snow must inevitably slide from the roof onto plaintiff’s premises, there being no sufficient barrier to prevent, and fails, after notice, to remedy the defect, it may be held hable to him for injuries sustained in falling upon ice so precipitated, the trespass being the proximate cause of the injury.
    2. ^ame — Notice of Claim — Statutes.
    The city of Detroit being established by Act No. 233, Laws of 1869, for educational purposes, as a single school district under the control of a board of education, and such school district being an entity distinct from the municipality, except as brought into certain relations with it under special acts, the provision of the general charter (Act No. 463, Local Acts 1895, § 46) requiring notice of claims against the city, or any of its boards or commissions, for negligent injuries, to be given to the city counselor within three months from the time the injury occurs, has no application where injury is caused by the negligence' of the board of education.

      3. Negligence — Election op Counts.
    A count alleging failure to erect sufficient barriers - to prevent the sliding of snow and ice. from a roof, and one alleging failure to keep such barriers in repair, are not so inconsistent as to require an election.
    Error to Wayne; Frazer, J.
    Submitted October 27, 1899.
    Decided December 12, 1899.
    Case by William Ferris against the board of education of the city of Detroit for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Henry B. Graves and George H. Carlisle, for appellant.

      Arthur Webster (Charles Flowers, of counsel), for appellee.
   Long, J.

Plaintiff for a number of years has owned and occupied, with his family, a house and lot on Lysander street, in Detroit. His house stands within three feet of the east line of his lot, and a sidewalk extends along that side, filling the space between his house and the lot line. In 1896 the defendant erected what is called the “Poe School Building” on its lot on the east of plaintiff’s lot. This building stands within six feet six inches of the lot line next adjoining plaintiff’s lot. Its cornice projects four feet from the wall, bringing the edge of the cornice within two feet six inches of the plaintiff’s lot. The school building is much higher that the plaintiff’s house, and has a large amount of slate roof sloping towards plaintiff’s lot. This roof, prior to the accident, had no projections or guards above the edge of the roof to interrupt the falling of snow and ice. • During the winter months large quantities of snow and ice, when melting, slid down from this roof onto plaintiff’s house and lot, and upon the sidewalk and steps which lead into the back part of plaintiff’s house, and on one occasion his roof was injured by this falling ice and snow. Prior to the accident he notified different members of the school board of the injury to his premises by the snow and ice, and his wife also notified the secretary of the school board of the fact. Nothing was done about the matter, however. On February 22, 1898, snow fell during the day, but stopped in the afternoon, and plaintiff’s wife cleaned it off this walk and back steps. Subsequently, and before the accident, large quantities of snow and ice slid from the roof of the school building down upon these steps. Plaintiff, who is a fireman in the employ of the city, came home to his supper in the evening, when his wife informed him of the falling of the snow and ice. He stepped out through the back door, and upon this snow and ice, and claims that by reason of that he fell heavily, breaking a rib and otherwise injuring himself. This action is brought against the board of education to recover damages for such injuries.

The first count of the declaration charges the defendant with so constructing the building that the accumulations of rain, snow, and ice in the winter time would inevitably he precipitated upon plaintiff’s premises; that the defendant failed to keep the roof clear from such accumulations; and that the defendant failed to provide sufficient gutters, eaves-troughs, screens, and combings, which would have prevented such precipitations. The second count, charges the construction of the school building with gutters, eaves-troughs, screens, and combings, which were permitted to become and remain out of repair, and the falling of the snow and ice because of the lack of repair. Before any evidence was introduced, on motion of defendant’s counsel, plaintiff was compelled to elect which count to proceed under. Plaintiff took an exception to the order, and elected to proceed under the first count. All evidence under the second count was rejected. The trial court held that the two counts were inconsistent. There was hut little, if any, controversy over the facts ás above set forth. The court below directed the verdict in favor of the defendant.

Apparently this direction of the verdict for defendant was based upon the fact that no written notice was given to the corporation counsel, or to his chief assistant, as provided by section 46, Act No.-463, Local Acts 1895; and also for the reason that the plaintiff had no right of action against the defendant, as it could not be held liable for the manner of the construction of the building. It is contended by counsel for plaintiff that the court was in error (1) in holding that no sufficient notice was given, and also in holding that notice was required; (2) in compelling the plaintiff to elect under' which count he would proceed; (3) in directing the verdict for the defendant.

The trial court was of the opinion that the defendant, being a municipal corporation, could not be held liable for negligent injuries under the common law, and, there being no liability created by statute, the plaintiff could not recover. It is conceded by counsel for plaintiff that municipal corporations are not generally held liable, under the common law, for negligent injuries to individuals arising from defective plans of construction of public works or failure to keep the same in repair; but it is contended that, where the injury is the result of the direct act or trespass of the municipality, it is liable,- no matter whether acting in a public or private capacity. We are satisfied that counsel for plaintiff are right in this contention. The plaintiff had the right to the exclusive use and enjoyment of his property, and the defendant had no more right to erect a building in such a manner that the ice and snow would inevitably slide from the roof, and be precipitated upon the plaintiff’s premises, than it would have to accumulate water upon its own premises, and then permit it to flow in a body upon his premises. It has been many times held in this court that a city has no more right to invade, or cause the invasion of, private property, than an individual. In Rice v. City of Flint, 67 Mich. 401, it was said :

“For a direct act which causes water to flow upon the premises of another, to his injury, a municipality is respon-
sible. A city has no more right to invade, or cause the invasion of, private property, than an individual,” — citing 2 Dill. Mun. Corp. §§ 1042, 1043; Byrnes v. City of Cohoes, 67 N. Y. 204; Noonan v. City of Albany, 79 N. Y. 470 (21 Alb. Law J. 174, 35 Am. Rep. 540); Inman v. Tripp, 11 R. I. 520 (23 Am. Rep. 520); Boss v. City of Clinton, 46 Iowa, 606 (26 Am. Rep. 169); Ashley v. City of Port Huron, 35 Mich. 296 (24 Am. Rep. 552); Pennoyer v. City of Saginaw, 8 Mich. 534.

If this action had been commenced for damages to the plaintiff’s freehold, had any resulted, there could arise no doubt of his right to recover. The declaration alleges the damages to haver accrued to the plaintiff by his slipping upon the ice which fell from the roof of the defendant’s building upon plaintiff’s premises, and that the defendant had had notice of the fact that snow and ice had from time to time been so precipitated upon the premises, and defendant had neglected, and continued to neglect, to take the steps necessary to prevent the same. The declaration, therefore, counts upon an actionable wrong. The cause •of action is not a neglect in the performance of a corporate duty rendering a public work unfit for the purposes for which it was intended, but the doing of a wrongful act, •causing a direct injury to the person of the plaintiff, while outside the limits of the defendant’s premises. We think it must be said that the erection of the building without these barriers was the proximate cause of the injury. An injury has happened by the defendant’s wrongful act, and it cannot be set up as a defense that there was a more immediate cause of injury. To entitle a party to exemption, he must show, not only that such injury might have happened, but that it must have happened, if the act com plained of had not been done. Davis v. Garrett, 6 Bing. 716. Judge Cooley, in his work on Torts, at page 71, gives some illustrations from cases cited by him. He says:

“We may pause here to give some illustrations of this proposition, beginning with the leading case of Scott v. Shepherd, 3 Wils. 403, 2 W. Bl. 892, where the facts were that the defendant threw a lightéd squib into a crowd of people, one after another of whom, in self-protection, threw it from him, until it exploded near the plaintiff’s eye, and blinded him. Here was but a single wrong, the original act of throwing the dangerous missile; and, though the plaintiff would not have been harmed by it but for the subsequent acts of others throwing it in his direction, yet, as these were instinctive and innocent, it is the same as if a cracker had been flung, which had bounded and rebounded again and again before it struck out the plaintiff’s eye, and the injury is therefore a natural and proximate result of the original act. It is an injury that should have been foreseen by ordinary forecast, and, the circumstances conjoined with it to produce the injury being perfectly natural, these circumstances should have been anticipated.”

In the present case it appeared that snow and ice must inevitably slide from this slate roof, as there were no barriers to prevent it. The school board had notice of it. It should have anticipated that the plaintiff or his family might receive an injury by the falling of the snow and ice, or that, by attempting to travel or go over it, they might be injured in that way. The defendant cannot now say that the injury must have happened the plaintiff if the snow and ice had not been thrown upon these premises.

But it is contended by the defendant, and so. held by the court below, that the plaintiff cannot maintain this action, because he has not complied with the provisions of Act No. 463, Local Acts 1895, § 46, which provides:

“ No action shall be brought against said city, nor any of its boards, commissions, or officers, for any negligent injury, unless it be commenced within one year from the time when the injury was received, nor unless notice shall be given in writing, within three months from the time of such-injury, to the head of the law department, or to his chief assistant, of the time, place, and cause of such injury, and of the nature thereof.”

Plaintiff’s counsel contend (1) that a sufficient notice was given; (2) that this statute has no reference to the board of education of Detroit.

We need not discuss the question of whether there was a proper notice, as we are satisfied that this statute has no reference to the defendant here.

By Act No. 233, Laws of 1869, free schools were established in the city of Detroit. The whole city was by the act established one school district. The act provided for a board of education, and clothed said board with certain powers, among which was the right to purchase lands for school purposes, erect school buildings, and appropriate moneys therefor. The recorder’s court was given jurisdiction of all suits which the board might be a party to, and of all prosecutions for the violation of the ordinances and by-laws of the board. This act is no part of the city charter. While the act has been several times amended, the school district remains a distinct entity, and has no connection with the city government as such, except as the act provides, by the amendment of 1891, that the common council of the city shall cause to be levied a sum not exceeding in any one year five mills on the dollar of all the property of the city, and the moneys thus raised to be paid to the treasurer of the board of education. Act No. 397, Local Acts 1891. By the amendment of 1893, it is provided that the board of education shall transmit to the common council of the city an estimate of the amount of money it may deem necessary for the purchase of lots, etc. Act No. 394, Local Acts 1893. By Act No. 233 of the Laws of 1869, the mayor of the city was made ex officio member of the board, but given no vote therein; and in 1893 an amendment to the act provided that “every resolution or proceeding of the said board of education whereby any liability or debt may be created, or originating the disposal or expenditure of property or money, shall, before it takes effect, be presented by the secretary of said board to the mayor of said city of Detroit. If the mayor approve thereof, he shall thereon write his approval; * * * and such as he shall not so approve and sign he shall return to the board, with his objections thereto,” etc. Act No. 394, Local Acts 1893, § 26. The same section, however, provides that the board of education may, by a two-thirds vote of its members, pass the same over the mayor’s veto. It is evident, from these provisions of the statute, that the school-district board is not one of'the boards mentioned in the act referred to, and no notice to the corporation counsel was required before action could be commenced. In Pingree v. Detroit Board of Education, 99 Mich. 404, the provision of the statute making the mayor of Detroit ex officio member of the board, and his right to veto certain measures of the board, were under discussion. It was not then intimated that the school district was not a separate entity from the city, but the question was whether the legislature might provide in a school district for such an officer with such powers, and it was held that the legislature had power to do so.

It is further contended that the court was in error in requiring counsel for plaintiff to elect which of the two counts of his declaration he would proceed under. We have stated that the substance of the two counts was— First, a failure to erect sufficient barriers to prevent the snow and ice from sliding from the roof; and, second,, a failure to keep such barriers in repair. There is no such variance between these two counts as warranted the court in ruling that an election must be made.

The judgment below must be reversed, and a new trial - awarded.

The other Justices concurred.


author: Montgomery, J.

text:
    CARPENTER v. ST. CLAIR CIRCUIT JUDGE.
    1. Partnership — Bill for Accounting — Parties—Administrator of Deceased Partner.
    The rule that the administrator of a deceased partner is a necessary party to a bill for an accounting applies where the firm is composed of an individual and another firm, one of whose members is deceased.
    2. Mandamus — Order Overruling Plea in Abatement.

      Mandamus will lie to compel a circuit judge to vacate an erroneous order overruling a plea in abatement.

      Mandamus by Angus M. Carpenter to compel Samuel W. Vance, circuit judge of St. Clair county, to vacate an order overruling a plea in abatement.
    Submitted November 7, 1899.
    Writ granted December 12, 1899.

      Atkinson, Wolcott & Moore, for relator.

      Frank Whipple, for respondent.
   Montgomery, J.

One Otis Joslyn filed a bill for an accounting in the St. Clair circuit court, in chancery. The bill alleged that a copartnership existed, consisting of Angus M. Carpenter and Brooks, Joslyn & Co.; that the firm of Brooks, Joslyn & Co. was composed of Otis Joslyn and George Brooks, deceased. The defendant filed a plea setting up that one John Jenkinson had been duly appointed administrator of the estate of George Brooks. This plea came on to be heard, and was overruled. The question presented is whether the administrator is a necessary party. The rule is stated to be that the administrator of a deceased partner is a necessary party to a bill for an accounting. 2 Bates, Partn. § 931, and cases cited; Jenness v. Smith, 58 Mich. 280. The fact that the bill alleges that Brooks, Joslyn .Sc Co. was one member of the firm, and Carpenter the other, cannot affect this rule. The most that can be said is that such averment affects tbe extent of the interest of the representatives of George Brooks.

Mandamus is a proper proceeding. Chapin v. Montcalm Circuit Judge, 104 Mich. 232; O'Brien v. Alpena Circuit Judge, 106 Mich. 42.

The writ will issue, directing the respondent to vacate the order overruling the plea, and to take such further action as may be deemed proper.

The other Justices concurred.


author: Grant, C. J.

text:
    ALLEN v. BOARD OF STATE AUDITORS.
    1. Constitutional Law — Investing Board with Functions op Appellate Court.
    A joint resolution of the legislature authorizing the board of state auditors to investigate the claim of innocence of one who was legally convicted of a crime, and who served in prison a part of the sentence imposed upon him, and to allow him, if it find his innocence established, a money compensation, is void as creating, in effect, a court of appeals other than the judicial ones authorized by the Constitution.
    2. Same — Appropriations by Legislature — Two-Thirds Vote-Joint Resolutions.
    The two-thirds vote of the legislature, essential under article 4, § 45, of the Constitution, to the validity of any “bill appropriating the public money or property for local or private purposes,” is equally requisite where such an appropriation is attempted by joint resolution.
    3. Same —Board op State Auditors — Adjusting Claims — Extent op Powers.
    A petition for compensation by a citizen who served a term in prison for a crime of which, it is alleged, he was innocent, is not a “claim” which the board of state auditors may be authorized to pass upon under article 8, § 4, of the Constitution, creating such board “to examine and adjust all claims against the State;” claims, within the meaning of such provision, embracing only demands based on legal grounds.

      Mandamus by Thomas Allen to compel the board of state auditors to pass upon a claim.
    Submitted November 7, 1899.
    Writ denied December 12, 1899.

      Edward 8. Grece (Lewis M. Miller, of counsel), for relator.

      Horace M. Oren, Attorney General, for respondent.
   Grant, C. J.

The following joint resolution was passed by the legislature of 1899:

‘ ‘ Joint Resolution to provide for the Relief of Thomas Allen.
Whereas, it satisfactorily appears that Thomas Allen, now of the city of Detroit, was, on or about the twentieth day of August, eighteen hundred and ninety, arrested at the city of Grand Rapids upon the charge of ‘assault with the intent to do great bodily harm, ’ and taken a prisoner to the county jail of Mecosta county, and there confined until the fourteenth day of November following, and then tried and convicted upon said charge, of which he was entirely innocent, he being at the time of the commission of the supposed crime in the city of San Francisco, California, and was sentenced upon such conviction to imprisonment in the state prison at Jackson for the term of five and one-half years; and Whereas, he served upon such sentence over a year and one month before it was demonstrated that he was innocent of such offense, and received a full and unconditional pardon by the late Governor Winans; and Whereas, great injustice was done said Allen by reason of such arrest and imprisonment in the county jail of Mecosta county, trial, sentence, and imprisonment in the state prison, for which he should receive compensation: Therefore be it Resolved by the senate and house of representatives of the State of Michigan, that the board of state auditors shall investigate the claim of said Thomas Allen as set forth in the above preamble, and if, in the judgment of the board, the facts set forth are true, the board of state auditors are hereby authorized and empowered to audit and allow the said Thomas Allen, his heirs or assigns, a sum not to exceed ten dollars per month for a period not to exceed ten years from and after the passage of this joint resolution; and the board of state auditors are hereby authorized to draw their warrant on the state treasurer for the payment of the same.
“This joint resolution is ordered to take immediate effect
“Approved May 10, 1899.”

On June 21st the above resolution was presented to the board of state auditors, and the board refused to consider the claim. Petitioner then presented to this court his petition for the writ of mandamus to compel action on the part of the board.

This resolution is a most remarkable one. Nine years after conviction and sentence, the legislature, without an investigation, asserts in the preamble that the petitioner was" entirely innocent of the crime for which he was convicted ; that, instead of being in Michigan at the time of the commission of the crime, he was in California; that it was demonstrated, after serving a year and one month, that he was innocent; and then authorizes the board to allow him $10 per month for a period not exceeding 10 years.

1. The first and most important question presented is, Has the legislature the power and authority to establish a court of appeals, aside from constitutional courts, to determine thee guilt or innocence of a convicted criminal ? Petitioner had his day in court, was defended by counsel, was given an opportunity to introduce testimony, and, in brief, was furnished all the safeguards which the Constitution throws around one charged with crime. He was convicted. He did not appeal. Presumably, there was no error upon the trial. Nine years afterwards the legislature makes the board of state auditors an appellate court to determine whether he was guilty or innocent, and, if hey should find him innocent, to allow him damages for the wrongful conviction and imprisonment. The preamble recites that his innocence was demonstrated, but to whom or how it was demonstrated is not stated. It is not stated that the governor pardoned him because he believed him innocent. The executive of the State is not made an appellate tribunal to determine that question. When one has been convicted and sentenced by a court of competent jurisdiction, from which he tabes no appeal, and has not been granted a new trial, the only method provided by our Constitution by which he can be relieved from the penalty imposed is by a pardon by the governor. The governor may pardon with or without good reason, with or without investigation. He is not limited by the Constitution to any reason for exercising the pardoning power. Consequently his act in pardoning and his reasons therefor have no bearing whatever upon guilt or innocence. The legislature possesses no authority to organize any tribunal for the trial of persons charged with crime other than the judicial ones authorized by the Constitution. The payment by the board is conditioned upon the establishment of his innocence, which means-nothing less than a determination by this board that the court which tried him erred in its judgment, and that 12 men found him guilty upon false testimony, or for some reason erred in their conclusion. It is a violation of the plain provisions of the Constitution establishing courts, and conferring the exclusive jurisdiction upon them to try civil and criminal cases. New criminals confess their guilt. The result of sustaining the validity of this resolution would be an open door for raids upon the public funds.

As already shown, the pardon is not essential to the maintenance of such claims, for the executive is not vested with power to review the judgment of courts. It would, therefore, result that, after a convict has served his sentence, 5, 10, 15, or 20 years after his conviction, he may go to the legislature, assert that he was innocent, that he can prove it, and it may be referred to the board of state auditors, or any other number of men, public officers or private citizens, to determine whether he had a fair trial and was properly convicted. Nor is this all, but every person who is arrested and acquitted may also make his claim against the State for the wrongful arrest and detention. If such persons, when the testimony in behalf of the people is gone, will pass upon and believe the testimony which an ex-convict can introduce, he may be awarded such a sum out of the state treasury as the legislature may see fit to allow, or the persons to whom such power is delegated may allow. The bare statement of the ■proposition is enough to condemn ,it as unconstitutional, and bad in law,, morals, and equity. It is unnecessary to hunt for authorities which condemn it.

2. The resolution authorizes the expenditure of the public moneys of the State for a purely private purpose. It is a mere gratuity, for which the State received nothing, but, on the contrary, incurred expense, by reason of his arrest, trial, and imprisonment. Bourn v. Hart, 93 Cal. 321 (15 L. R. A. 431, 27 Am. St. Rep. 203); Conlin v. Board of Supervisors, 99 Cal. 17 (21 L. R. A. 474) 37 Am. St. Rep. 17). Section 45, art. 4, of the Constitution, is as follows: “The assent of two-thirds of the members elected to each house of the legislature shall be requisite to every bill appropriating the public money or property for local or private purposes.” The resolution did not receive a two-thirds vote of the members of the senate. This provision is mandatory, and cannot be evaded by calling a bill a “joint resolution.” The above provision of the Constitution is too clear and too valuable to be thus frittered away. Burritt v. Commissioners of State Contracts, 120 Ill. 322; Cush. Law & Pr. Leg. Assem. 930.

3. Section 4, art. 8, of the Constitution, provides that the secretary of state, state treasurer, and commissioner of the state land office shall constitute a board of state auditors to examine and adjust all claims against the State not otherwise provided for by general law.” The jurisdiction conferred upon this board by this provision of the Constitution clearly means claims resting upon some legal basis. “Claim” is defined to be “a demand of a right or alleged right; a calling on another for something due or asserted to be due; as, a claim of wages for services.” Cent. Diet. The legislature can only authorize this board to pass upon claims such as are contemplated by the Constitution. It cannot authorize the board to consider requests, petitions, or claims for appropriations which are merely gratuities, or which may be based upon sentimental or moral grounds. It is conceded by counsel for petitioner that he has not the semblance of any legal claim. The sole apology offered for such resolution is that it is based upon sentimental or moral grounds. Fortunately, the people, through their Constitution, have closed the door to such ■ sentimental and unjust claims. The people, through their Constitution, have committed to the courts the sole j urisdiction to try persons charged with crime, and have made their judgments final, and have also prohibited their public funds to be squandered in mere gratuities of this character.

The writ is denied.

The other Justices concurred.


text:
    MASON v. HOWES.
    1. Landlord and Tenant — Covenant to Repair — Lease from Month to Month.
    That a lessee from month to month continues to occupy the premises for more than one month after the landlord’s refusal or neglect to make promised repairs does not make his holding a new one, independent of the terms of the original tenancy, so as to relieve the landlord from liability for damages thereafter arising from the defective condition of the premises.
    ?. Same — Contributory Negligence. '
    A tenant who remained in leased premises after knowledge that the plastering was defective, and that some of it had fallen, was not guilty of contributory negligence, precluding a recovery,1 from the landlord of damages resulting from falling plaster after he had promised to make all necessary repairs where she had had no previous experience with defective plaster, and was acting in the belief that the landlord would tear off the defective plastering if it was dangerous.
    3. Same — Breach oe Covenant — Damages.
    A landlord who agrees to make necessary repairs for the tenant, and afterwards knowingly leaves the plastering in a defective condition, is liable for damages to her stock of goods caused by fire from a lamp upset by falling plaster.
    Error to Calhoun; Smith, J.
    Submitted November 14, 1899.
    Decided December 12, 1899.

      Assumpsit by Alice Mason against George E. Howes, trustee of the estate of Clement Wakelee, deceased, for the breach of a covenant to repair leased premises. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.

      Hulbert & Mechem, for appellant.

      Howard W. Cavanagh, for appellee.
   Moore, J.

Plaintiff was for some years the tenant of defendant, occupying as a millinery shop and residence a suite of rooms in the Wakelee Block. The arrangement was made through Mr. Wakelee, the agent of defendant. It was her claim that defendant was to keep the premises in repair, that he failed to do so after his attention was called to the necessity of making repairs, and that because of his negligence a quantity of plaster fell from the ceiling, injuring her goods, and upon another occasion upsetting a lamp and setting fire to her goods. Her declaration has several counts, in which she claimed, not only general damages, but special damages. The counts set up* in great detail her claims. Her rent was payable monthly. The defendant denied any promise to keep the premises in repair. From a judgment obtained by the plaintiff in a trial before a jury, defendant has brought the case here by writ of error. There are 22 assignments of error in the case. We do not deem it necessary to discuss all of them.

It was claimed in the court below, and is claimed here, as follows:

“Even if Mr. Wakelee, as the agent of defendant, in April, 1889, agreed to make repairs, that agreement could not be carried along and held operative for any period longer than a month from the time when he had been requested to make repairs, and refused or neglected so to do. By continuing to occupy the premises after such refusal or neglect on the part of the landlord, a new holding and agreement is made between the parties. The term of the lease at any one time cannot be considered as extending more than one month- The duties and obligations of the parties that they have in contemplation when they enter into such an agreement cannot be considered as extending for a longer time than that term. ”

No authority is cited in support of this proposition, and it would be very strange if one could be found. The parties had a right to make such a contract as they saw fit, and it would be anomalous indeed if one of the parties, by breaking his contract, could by that act make a new and different one, more favorable to himself.

It is urged, because plaintiff knew of the defective condition of the plaster, that by remaining in the premises she was guilty of contributory negligence, and assumed the risk, and cannot recover; citing Town v. Armstrong, 75 Mich. 580, and other cases. In the case of Town v. Armstrong, by the showing made by the plaintiff she went into a dangerous place, fully aware of the risk she was taking, and for a trifle. The court very properly held that she could not recover. In this case the plaintiff claimed that, while she knew the plaster was defective, she did not know it was dangerous. She gave testimony tending to show that the trouble with the plaster was that no hair was used in the making of it, and that it was rotten and would not cling to the lath. She testified, among other things:

“I never had any experience with plaster before this time; never had anything of the-kind to contend with. I thought I would draw his attention to it, if he thought it was necessary. He was the judge. He was the landlord, and I rented of him, and paid my rent, and I left it to his knowledge as to whether it was best to tear it off or not. * * * I left it to Mr. Wakelee’s judgment. If I had known this plaster was in a dangerous condition, I would not have stayed there. * * * I supposed it was safe when I called his attention to it.”

And again:

“Q. I will ask you whether at the time you say you noticed something about this plastering, and called Mr. Wakelee’s attention to it, whether or not the statement and act of Mr. Wakelee in permitting it to remain as it was allayed your suspicions, and "threw you off your guard, as to the plaster being dangerous.
“A. It did; it threw me off my guard. I thought if it was dangerous he would have it taken off, as he attended to all such business.
“Q. I will ask you whether, relying on his statement of what he said about it, and his action in the matter, you went on believing you were safe in so doing. * * *
“A. I did; I thought I was safe in doing so; we allowed him to be the judge.”

Under such circumstances, we do not think it can be said that, because plaintiff remained in the building after she knew that some of the plaster had fallen, she was guilty of contributory negligence, so that she cannot recover from her landlord for a breach of his agreement to repair.

The remaining question calling for attention relates to the question of damages. The court was requested to charge the jury as follows:

“The only damages which can be recovered by the plaintiff are such as the parties are presumed to have contemplated from the agreement they made. The tenancy being at will, the parties cannot be presumed to have assumed any risk for a longer period than one month; and the plaintiff, if dissatisfied with the condition, could repair the plastering herself, and charge the expense to the landlord, or could terminate the tenancy; and she could do the latter at any time, if in fact the condition of the premises was such as .to render them dangerous. The damages which the plaintiff can recover, if entitled to any, are to be determined by ascertaining how much less the rental value of the premises was with the plastering in an unsafe condition than it would be if the repairs had been made as agreed. These damages cannot exceed one month’s rent, unless the jury should find that the rental value of the premises in good condition would actually exceed the rent charged and paid.”

He refused to so charge, and instructed the jury as follows:

“ I instruct you that the measure of damages, which is one for a breach of the covenants of this lease, that the plaintiff, if you find that she is entitled to recover, can recover such damages as are shown to be the legal and approximate consequence of the breach complained of, and such damages as can be presumed to have been anticipated by the parties at the time of making the contract. But these damages can be no more than are shown to have directly and immediately followed from the acts of the defendant complained of. Loss of profits which the plaintiff might have made except for the interference with her business are too remote and speculative, and you should not consider them in determining the amount of the damage.”

I do not see how this contract differs from any other. It is not a case where the tenant has agreed to make repairs. Here the landlord has agreed to do so, and has failed. I do not see why the landlord should not be liable for a breach of his contract, just as any other person who was a party to a contract would be. Where he has violated his contract, he should be liable for all the injuries resulting therefrom. Stevens v. Pantlind, 95 Mich. 145; Culver v. Hill, 68 Ala. 66 (44 Am. Rep. 134); Watson v. Hooton, 4 Ill. App. 294; 2 Wood, Landl. & Ten. (2d Ed.) § 400. See Maywood v. Logan, 78 Mich. 135 (18 Am. St. Rep. 431).

The judgment is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    MOUAT v. MONTAGUE.
    Written Contracts — Terms—Parol Evidence.
    A contract in writing, complete upon its face, for the installation of a heating apparatus, guaranteed to warm a dwelling to a specified temperature, cannot be varied by parol evidence that it was based on the owner’s statement and understanding that he would build a stone wall under the building to be heated.
    Error to Wayne; Hosmer, J.
    Submitted November 15, 1899.
    Decided December 12, 1899.

      Assumpsit by John D. Mouat against Charles Montague to recover a balance claimed to be due upon a contract to install a heating apparatus. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Wisner & Harvey, for appellant.

      Stevenson, Merriam, Eldredge & Butzel, for appellee.
   Hooker, J.

The parties to this action negotiated a contract, which they attempted to put in writing, in the form of a proposal and acceptance, whereby the plaintiff promised “to erect in a building located at Caro, Michigan, a hot-water heating apparatus,” according to specifications which followed. It contained the following guaranty:

“We hereby guarantee the heating apparatus, when completed, to warm the rooms as mentioned in accompanying schedule to 70 degrees at zero weather.”

Also the following provision:

“Upon notification from us that the work herein specified is completed, it shall be inspected by owner or his agent, and accepted or rejected, so that the work, if unsatisfactory, can be changed and finished at once; and written acceptance is requested when work is complete. I hereby agree to furnish the herein-specified heating apparatus for the sum of $625.00, payable as follows: Cash 30 days from completion of job. We respectfully submit this proposal subject to your acceptance 30 days from date.”

To this proposal was appended an acceptance, viz.:

“Gentlemen: We hereby accept and agree to the terms and conditions of your proposal as above specified and submitted, and you are hereby authorized to commence work on or before December 5, 1892.
“Charles Montague.”

A schedule was attached, giving names and dimensions •of rooms, indicating that the building was designed for a dwelling, and sizes of radiators.

The work was done about January 1st, and was partially paid for, $125 only of the contract price being unpaid. This action was brought to recover such sum, with interest; the declaration being the common counts, to which a plea of the general issue and a notice of recoupment were interposed. A bill of particulars filed by plaintiff consisted of a claim for the contract price, less payments. Upon the trial the plaintiff sought to show that the proposal was based upon defendant’s statement and understanding that he should build a stone wall under the house. This was excluded upon the ground that the writing could not be varied by parol testimony. A verdict for the defendant was rendered by direction of the court. These two rulings are the errors relied upon. The case is ruled by McCray Refrigerator Co. v. Woods & Zent, 99 Mich. 269 (41 Am. St. Rep. 599), and does not fall within the rule of Stahelin v. Sowle, 87 Mich. 124, which followed a doctrine well established, viz., that, where a writing shows upon its face that it does not contain the entire agreement, parol evidence is admissible to prove the contract.

The judgment is affirmed.

The other Justices concurred.


author: Per Curiam.

text:
    RICABY v. GENTLE.
    Limitations — Removal of Bar — Negligence of Officer.
    When, through a sheriff’s failure to make return of a summons in due season, a suit is abated, the plaintiff may commence anew at any time within a year, though the statute of limitations has in the meantime run against the claim; 3 Comp. Laws 1897, § 9738, giving a plaintiff such' right where the original writ fails, of a sufficient return “ by any default or neglect of the officer to whom it is committed.”
    Error to Berrien; Coolidge, J.
    Submitted November 15, 1899.
    Decided December 12, 1899.

      Assumpsit by Robert Ricaby against Samuel Gentle upon a justice’s judgment. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    This case was tried before the court without a jury, and the following findings made:
    “ Facts.
    “A valid judgment was obtained by the plaintiff against the defendant, before Alonzo Plummer, a justice of the peace, on September 7, 1888, for the sum of $290.36 and costs of suit, taxed at $3.20. On August 23, 1894, a summons was issued out' of this court in favor of the plaintiff and against the defendant, returnable October 9, 1894, and placed in the hands of the sheriff for service on the day of issue. In July, 1894, Gentle went to Europe on business matters, and did not return to this country till October 11, 1894. He was gone less than three months. His residence has been in Benton Harbor, in this county, since July, 1872. The return of the sheriff to the first summons was made November 27, 1894. This return recites that he was unable to obtain service of the summons on the defendant, Gentle, within the lifetime of the summons. The return was filed with the clerk of this court November 27, 1894. On the same day, November 27, 1894, a new summons, purporting to be an alias summons in favor of the plaintiff and against the defendant, was issued out of this court, and personally served hy the sheriff on the defendant, Gentle, December 3, 1894. The declaration was filed on December 11, 1894, and plea subsequently entered. Nothing has ever been paid on the judgment. *
    “Law.
    “ I find as conclusions of law:
    “ 1. That it was .the duty of the sheriff to make return of the original summons on its return day, October 9, 1894, and that as he did not make return till November 27, 1894, he was guilty of neglect, within the meaning of section 8723, 2 How. Stat.
    “2. I find that, as 47 days elapsed between the return day of the original summons and the issuing of the alleged ‘ alias ’ summons, that the continuity of action was broken, and that the first action was abated.
    “3. I find that, as the plaintiff commenced his new action immediately upon the return of the original summons, he was not guilty of neglect; that he did all that the law required of him; and that the original action abated, not because of any neglect or delay on his part, but on account of neglect of the sheriff in not making his return.
    “4. I find that the service of the ‘alias’ summons was the commencement of a new action within one year after the abatement of the first action; that such abatement was caused by insufficient- return of the sheriff to the original summons, by negligent failure to make return thereof before November 27, 1894, and on account of ‘matter of form.’
    “5. I find that the plaintiff is entitled to recover judgment against defendant, Gentle, for the amount of the original judgment rendered September 7, 1888, with interest at 7 per cent, thereon, amounting in all to $516.60, with costs of suit.”

      >.Andrews & Murdoch (N. A. Hamilton, of counsel), for appellant.

      George W. Bridgman, for appellee.
   Per Curiam.

The provisions of the statute are as follows (3 Comp. Laws 1897, § 9738) :

“If, in any action duly commenced within the time limited in this chapter and allowed therefor, the writ or declaration shall fail of a sufficient service or return by any unavoidable accident, or by any default or neglect of the officer to whom it is committed, or if the writ be abated or the action otherwise avoided or defeated by the death of any party thereto, or for any matter of form, or if, after a verdict for the plaintiff, the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on a writ of error, the plaintiff may commence a new action for the same cause at any time within one' year after the abatement or other determination of the original suit, or after the reversal of the judgment, therein; and if the cause of action does by law survive, his executor or administrator may, in case of his death, commence such new action within the said one year.”

The court found that the officer was guilty of negligence in not returning the original summons. This being so, the statute would be meaningless unless- the judgment were sustained. We think the court arrived at the correct conclusion, and the judgment is affirmed.


text:
    HULL v. HULL.
    1. Wills — Construction—Duty op Executors.
    Under a -will devising property to testator’s .wife “ during her natural life; that is to say, that she shall have it as needed for her support and comfort,” with remainder to testator’s heirs, and nominating the wife and a nephew as executors, the nephew being requested to “continue right along as executor,” to see that the will is carried out, and to settle the business after the death of the wife, and requiring each to give bonds, the wife to the amount of one-half, the nephew to the full amount, of the estate, — the wife is not entitled to the exclusive possession of the property during her lifetime, but only to a joint possession with her co-executor, with the duty resting on them to transfer to her such of the principal as may be needed for her support and comfort, should the income from the estate at any time prove insufficient for that purpose.
    2. Same — Jurisdiction of Probate Court.
    Under such a will the probate court has no jurisdiction, unless the executors disagree, tó assume the function delegated to them of determining the amount to be paid to the wife.
    Appeal from Eaton; Smith, J.
    Submitted November 15, 1899.
    Decided December 12, 1899.
    Bill by Margarett A. Hull, executrix of the last will and testament of Tyler Hull, deceased, against John Hull, her co-executor, Whitman Hull, and others, for a construction of said will. From the decree rendered, complainant appeals.
    Modified.
    The purpose of this bill is to obtain a construction of the last will and testament of Tyler Hull, deceased. Mr. Hull left a widow, but no children. The provisions of the will necessary to state are these:
    “My will is that, after my debts shall be paid and a monument purchased, as above provided, that the remainder of my property shall go to my wife, Margarett A. Hull, during her natural life; that is to say, that she shall have it as needed for her support and comfort; and this to include all my property, both personal and real, of whatever kind or nature. After the death of my wife, the remainder of my property shall be divided among the heirs of my blood as follows: * * * I do hereby nominate and appoint my wife, Margarett A. Hull, and my nephew John Hull, son of my deceased brother, John Hull, to execute this will; and I request the said John Hull, my nephew, to continue right along as executor, and that he shall see that the whole of this will is carried out to the letter, and that he. shall settle the whole business after the death of my wife. My will is that my wife shall give bonds to the one-half of the amount of the estate, and that John Hull shall give bonds as executor to the full amount of the assets of the estate.”
    The monument was erected and-the debts paid.
    Complainant contends that she is entitled to the possession and control of the remainder of the estate during her life, to be used by her, principal and income, for her support and comfort, and that at her death the remainder will go to the other legatees. Defendants contend that she is only entitled to what is reasonably necessary for her support and comfort, and that the executors should retain possession and control of the estate. The court below decreed that:
    “It is further decreed that the testator, by his said will, did not intend to give to Margarett A. Hull, his widow, the absolute control of his property, but intended that she should be so well cared for as to have her support and live in comfort; and that the probate court for the county of Eaton is the best and proper tribunal to fix the amount necessary to carry out the testator’s intention in this regard.”
    We quote further from the decree:
    “That the estate shall be handled by the executrix and executor named in the will, who shall file their annual accounts from time to time with the probate court, and that the probate judge make an order as to the payment, by the executor and executrix, to the widow, of a certain amount per year, payable either quarterly, half-yearly, or yearly, as, in the judgment of the probate court, seems best; and that in that way this allowance to the widow can be increased or decreased by the probate court as exigencies may require.”
    The court further decreed:
    “That the testator intended that the house and personal property in it and around it should go to his wife, to use in such a way that it would aid her in her support and comfort.”
    No contest is made over this provision of the decree.

      John M. Gorhin, for complainant.

      Huggett & Smith, for defendants.
   Grant, C. J.

(after stating the facts). Counsel do not disagree about what the complainant is entitled to receive from the estate. They concede that the word “comfort” means more than “support,” and includes “whatever is requisite to give security from want, and furnish reasonable physical, mental,'and spiritual enjoyment.” They concede that she is not limited to the income from the estate, but is entitled to encroach upon the principal in so fqr as it may be needed for her support and comfort. The sole question of dispute is, How, when, and by whom shall it be determined what is “needed for her support and comfort ? ” There is no express provision in the will upon this point. The learned counsel for complainant contends that when the executors had erected the monument, and paid the debts and expenses of administration, the remainder should be turned over absolutely to the possession of the widow, to'be used by her for her support and comfort, without distinction as to the use of principal and income, and that she is the sole judge of her needs. If this be so, then the duty and authority of the complainant as executrix would cease from the time that she and her co-executor thus turned the property over to her and filed their account with the probate court. It would also follow that the duty and authority of her co-executor was suspended from that time until her death, when it would be his duty to take possession of what property she had left, and see to its distribution. This, clearly, would be in direct violation of the will, which makes it the duty of her co-executor “to continue right along as executor, and to see that the whole of this will is carried out to the letter.” Counsel for complainant asserts that she and her bondsmen would be liable for any misuse of the property during that period. This amounts to a concession that she is still acting as executrix, for her bondsmen are only liable for her acts as executrix, and not for her acts as legatee. If she be liable as executrix, then her co-executor is also liable, for he is required to act right along with her. The fair construction of this will is that the testator placed this property under the control of his executors and trustees during the lifetime of the complainant, to see that its provisions, made for her support and comfort, be carried out. The will neither expressly nor impliedly requires her to apply, to the probate court for the authority to use any of the principal for her support and comfort, nor does it confer upon that tribunal the authority to determine her needs. The probate court has no jurisdiction over such matters, unless it is conferred by the will. She is only authorized to have it as needed for that purpose. There must be some authority to determine when it is needed. This authority is not conferred upon her. The clause appointing his executors is, we think, sufficiently clear to show the intention of the testator upon this point. He appointed his wife and nephew his executors, directing them to carry out his will to the letter, and clearly contemplates their continuance in that capacity until the death of his widow. One of the duties imposed upon them by the will is to transfer to her, at any time when the income is not sufficient, such of the principal as, in their judgment, may be needed for her support and comfort. Both have given bonds for that purpose, and are liable only for an abuse of the trust reposed in them. They should from time to time, as required by law, file their accounts for allowance by the probate court. Should the executors disagree as to the amount needed, undoubtedly either party might apply to the proper court to determine the question. It seems highly improbable, however, that any such exigencies will arise, for all the parties interested are evidently disposed to act in a spirit of fairness and good will, and to carry out the wishes of the testator as expressed in his will.

The decree will be modified in accordance with this opinion. No costs will be allowed to either party.

The other Justices concurred.


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    PATTERSON v. KENNEDY.
    1. Law of Foreign Jurisdiction — Summons—Seryioe by Infant —Legality—How Shown.
    In the absence of reported cases showing the law of a foreign jurisdiction respecting the validity of a service' of summons by an infant, such service may be upheld in our courts, in an action on a judgment rendered in such jurisdiction, upon the testimony of an attorney there residing that it accords with the common practice.
    2. Same — Directing Verdict — Appeal—Reversal.
    On plaintiff’s appeal from a judgment for defendant on verdict directed by the court, where it appears that there was testimony entitling him to go to the jury, on the main point in controversy, the court will not feel constrained to affirm the judgment because of a defect in the proofs which might have been supplied had attention been called to it at the trial. So held where the action was on a foreign judgment, the entry of which was signed by a person a “clerk,” when the rule of practice in the foreign jurisdiction required such entries to be signed by a register, local register, deputy register, or deputy clerk of the crown, and the variance was first suggested on appeal.
    Error to Wayne; Aldrich, J., presiding.
    Submitted November 16, 1899.
    Decided December 12, 1899.

      Assumpsit by James C. Patterson and others against Thomas J. Kennedy upon a foreign judgment. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Reversed.

      Walters, Humphrey & Walters, for appellants.

      Edwin Henderson, for appellee.
   Montgomery, J.

This was an action on a judgment entered in the county court of the county of Essex, in the province of Ontario. The judgment was entered by the clerk under authority of rules of practice obtaining in Ontario, which were adopted by statutory authority. The plaintiffs gave in evidence this judgment, and also called as a witness John Angus Campbell, who testified that he served the summons in the original case, and made affidavit of service, and that at the time of such service he was of the age of 19 years. The defendant testified that no such service was made upon him, and that he was not at the time of the purported service a resident of or in Essex county. The circuit judge withdrew all questions of fact from the jury, and directed a verdict for the defendant, on the ground that the service of the summons in the original case by a minor was invalid, and that the Canadian court obtained no jurisdiction of the defendant.

Plaintiffs called as a witness Mr. John L. Murphy, a barrister and solicitor engaged in practice in Windsor, who testified that, under the practice in Ontario, a service of a summons may be made by any literate person of sufficient discretion, and that there is no requirement, either by statute or in practice, that the service of process be by one above the age of 21. A criticism is made of this testimony on the ground that no reported Canadian case is introduced or cited showing that the practice is as stated. We are not prepared to say, however, that a continued practice may not he considered as establishing the rule in a particular jurisdiction, in the absence of any adverse holding. The testimony of the witness at least tended to show that the service of this writ was within the practice, and no Canadian case is cited condemning such practice. The rule of the common law has been differently interpreted in the various courts of the United States. In Connecticut and Vermont the courts have adopted the rule contended for by the defendant. Tyler v. Tyler, 2 Root, 519; Harvey v. Hall, 22 Vt. 211. In New Hampshire, Kansas, and South Carolina the rule contended for by plaintiffs prevails. McCracken v. Todd, 1 Kan. 169; Moore v. Graves, 3 N. H. 408; Bell v. Pruit, 51 S. C. 347. See, also, 1 Tidd, Prac. 168. Without deciding which rule should be adopted in this case, we hold that the testimony tending to show a course of practice in the Canadian courts which recognizes the validity of a service by an infant is competent, and that the present case should have gone to the jury. j

The point is made by the appellee that the judgment was not attested by the proper officer. The rule of practice obtaining in Ontario provides that the judgment shall be drawn up and signed by a register, local register, deputy register, or deputy clerk of the crown. The entry in this case is signed by “Frank E. Marcon, Clerk.” Mr. Marcon was called as a witness, and testified that he was, at the time of testifying, a deputy clerk of the crown, clerk of the county court, etc. It is, perhaps, not an unfair inference that, as deputy clerk of the crown, he is ex officio clerk of the county court. However this may be, it does not appear that this criticism of the judgment was made on the trial, and we are not disposed to deprive the plaintiffs of their opportunity to be heard in the circuit on this question. If there be a defect in proof simply, it can be supplied on a new trial, as might have been done on the first trial if attention had been called to the alleged defect. Findlay v. Railway Co., 106 Mich. 700.

Judgment is reversed, and a new trial ordered.

The other Justices concurred.


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    HUME v. MASON & HOGE CO.
    1. Trial — Order of Proof — Declarations of Agent — Authority — Error Without Prejudice.
    While the practice of permitting testimony of acts and. 'directions of a supposed agent, before proving the authority, is to be condemned, a judgment will not be set aside because such testimony was admitted and the authority not shown, where, in view of instructions to the jury to disregard the testimony, there is no reason to believe that it was prejudicial.
    2. Same — Conduct of Counsel — Improper Remarks.
    A judgment will not be reversed for improper remarks of counsel, where it appears that they were promptly ruled out by the court, and the counsel reprimanded for making them.
    Error to Chippewa; Steere, J.
    Submitted November 17, 1899.
    Decided December 12, 1899.
    Case by Samuel Hume against the Mason & Hoge Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    The defendant is a corporation, and was engaged as contractor in digging a canal for the American Lake Superior Power Company at' Sault Ste. Marie. Plaintiff was a common laborer, engaged with others in shoveling the dirt from the sides of the canal onto dump cars. He commenced work on the 12th day of January, 1899, and was injured on- the 14th. The ground was frozen to a depth of about two feet. This frozen surface had previously been blown to pieces with dynamite. The sides of the bank underneath the frozen top were not frozen. The bottom was very muddy, and, the soil being part clay, their feet stuck in it. It waá customary to blast down the frozen top of one bank while the men were at work upon the other. On the day of the accident, the defendant had abandoned the use of dynamite, and had placed laborers where plaintiff was at work, with picks, sledges, and wedges, to wedge off the frozen crust. While they were engaged in this work, a portion of the bank underneath the frozen top came down, and, before the plaintiff could escape, fell upon him and broke his leg. The claim of the plaintiff is that it was negligent to place men above to work upon the frozen ground while the shovelers were at work underneath; that the jar thus caused would tend to cause the dirt underneath to cave off. The testimony on the part of the plaintiff also tends to show that he had no knowledge that any one was at work above. One White-man was the foreman of the working gang, and one Hanger was the. defendant’s superintendent. There was a sharp conflict of testimony on all the material points. Plaintiff recovered a verdict of $1,000.

      Lawson C. Holden {M. F. McDonald and John W. Shine, of counsel), for appellant.

      John P. Conrick (Warner & Sullivan, of counsel), for appellee.
   Grant, C. J.

(after stating the facts). 1. Plaintiff was permitted, under objection and exception, to introduce testimony of statements made by Foreman Whiteman tending to show that he knew of the danger in putting the men to work in this place before the 'frozen earth was caved off. Plaintiff’s counsel was permitted to introduce this testimony upon the statement that he would show that Whiteman had authority to bind the defendant, and was not a mere fellow-workman of the plaintiff. Plaintiff failed to show this, and the court instructed the jury that Whiteman was a fellow-servant, and that defendant was not responsible for his conduct or statements. It is now’ urged that this testimony was prejudicial notwithstanding the instruction. The case was submitted to the jury upon the theory that Mr. Hanger had authorized the work upon the frozen ground above, and that this caused the dirt underneath to cave. There was testimony to sustain this .theory. A motion for a new trial was made, and, in disposing of it, the circuit judge said that the jury was composed of very intelligent men, and that, in view of the small amount of the verdict, the jury, in his opinion, were not prejudiced by the testimony. In this view we concur. There is no possible ground for believing that the jury did not follow his instructions as to nonliability for the acts of White-man. Besides, one of the conversations testified to took place in the presence of Hanger, and was apparently ratified by him. The practice of permitting testimony of acts and directions of the supposed agent, before proving the authority, is to be condemned. The authority ought first to be shown. But verdicts will not be set aside by appellate courts for this reason unless there is reason to believe that the jury were prejudiced thereby.

2. Complaint is made of the conduct of counsel for the plaintiff upon the trial, in offering testimony, and the remarks made during the argument. What these remarks were, only appears in an affidavit made by counsel for defendant in the motion for a new trial. The judge certified that the testimony offered was promptly ruled out, and counsel promptly stopped in his argument, and repri-. manded for the use of the language complained of. Under this state of facts, the judgment will not be reversed.

We find no reversible error in the record. Judgment affirmed.

The other Justices concurred.


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    FOLEY v. COMSTOCK.

    1. Interest — Methods op Computation — Partial Payments.
    In an action to recover an alleged overcharge of interest upon notes on which partial payments were made from time to time, error in permitting plaintiff’s witness to place before the jury, over defendant’s objection, a computation made on a basis not approved in this State, will be held prejudicial, though the court, in its final instructions, correctly stated the Michigan rule, unless it clearly appears from the verdict that it was not affected thereby.
    2. Same — Special Agreement.
    An agreement to allow interest on payments on a note until fully paid means only that interest shall cease from date of payment.
    3. Contracts — Duress—Evidence.
    Under a claim that plaintiff’s contract to pay a certain amount for sawing lumber was made under duress, he should not be allowed to testify that he could have had it sawed for a certain less amount, there being no evidence tending to show legal duress.
    4. Trial — Exceptions—Impeachment op ■Witnesses'.
    Where defendant objected to impeaching testimony’s being received unless his witness should be recalled, and his attention directed to the conversation by which he was sought to be impeached, and plaintiff’s counsel thereupon stated that, if necessary, he would recall the witness, which the court said might be done after the impeaching witness was through, and defendant accordingly held his exception until, by plaintiff’s calling a third witness, it was evident that the omission was not to be supplied, his exception then taken should be treated as covering the original ruling.
    Error to Alpena; Kelley, J.
    Submitted November 17, 1899.
    Decided December 12, 1899.

      Assumpsit by Nicholas J. Foley against Andrew W. Comstock and another for the breach of a lumber contract. From a judgment for plaintiff, defendants bring error.
    Reversed.

      Joseph H. Cobb, for appellants.

      J. D. Turnbull (L. G. Dafoe and A. E. Sharpe, of counsel), for appellee.

       Rehearing denied February 7, 1900.

   Montgomery, J.

This action was in assumpsit for breach of a contract. The declaration contains a special count averring that the defendants undertook to manufacture and pile certain lumber for the plaintiff in proper manner; that defendants, in performing such undertaking, destroyed large portions of the lumber by cutting the same into slabs and worthless lumber; and that it was improperly piled, so as to become stained. The declaration also' contains the common counts in assumpsit. It appeared by the testimony of the plaintiff that the defendants, beginning in 1892, loaned him money from time to time on the security, in part, of a real-estate mortgage dated December 12,1892, consideration of which was $30,-000, which recited that it was given to secure the payment of money then owing to the defendants, and also to secure the repayment of such further advances as defendants should make, up to the amount stated. It provided that “all money so advanced shall be evidenced by certain promissory notes bearing interest at seven per cent, per annum, and all said notes shall be made payable within one year from the date thereof.” Notes were given after this date for advances, running, one two months, one three months, one five months, and one six months. Payments were made upon these notes from time to time. One of the plaintiff’s claims was for the alleged overcharge of interest on these notes. The plaintiff recovered a verdict of $8,040.33, and defendants bring error.

The rulings complained of are of two classes: (1) Such as affect the plaintiff’s claim to recover interest money claimed to have been improperly exacted from him; and { 2) such rulings as affect his right to recover damages for the improper manufacture and piling of the lumber.

1. The court, in the final charge to the jury, appears to have correctly stated the rule as to the computation of interest laid down by this court in Wallace v. Glaser, 82 Mich. 190 (21 Am. St. Rep. 556); but evidence had been admitted of a computation made on an entirely •different basis, and the court had stated in the presence of the jury that the defendants were not entitled to charge plaintiff “interest on 90-day installments,— short interest.” This ruling was based on a construction of the original security contract, by which it was provided that the money advanced should be evidenced by promissory notes bearing interest at 7 per cent, per annum, and all of said notes, with the renewals thereof, should be made payable within one year from the date thereof. "We think this ruling was erroneous. The parties themselves, by the giving by the plaintiff and acceptance by the defendants of notes running a less time than one year, placed their own construction upon the phrase “payable within one year from the date thereof,” descriptive of the notes to be given. The injustice of the method of computation adopted by plaintiff’s witness may be illustrated by an example: One of the notes made by plaintiff was dated November 22, 1893, due six months after date, and was for $11,900, with interest at 7 per cent. On June 27,1894, a payment of $499.28 was made, which, it will be seen, was the amount of interest due. By the computation given to the jury by this witness, plaintiff was allowed interest on this payment of interest up to the date of final adjustment, which amounted to $120.60, yet he had not paid the interest on his note a day earlier than he had agreed to do. The injustice of this method is apparent. It is true, plaintiff testified to an agreement to allow him interest on payments on a note that was not all paid, but this would mean no more than that interest would cease from the date of payment. As it is not clear that ihe ruling above referred to did not affect the verdict, we must regard the error as mischievous. Plaintiff’s counsel, however, state that, rather than suffer a reversal on this ground, they are willing to consent to a reduction of the judgment. It becomes necessary, therefore, to consider whether there was error affecting the other branch of the case.

2. It appears that the contract between the parties for the manufacture of the lumber in question was written, and provided for payment by plaintiff of a saw-bill of $2.50 per 1,000, and in 1894 of $2.75 per 1,000. Plaintiff, under a claim that the contract was made under duress, was permitted to testify that he could have had the lumber sawed for $2.35. There was no testimony offered which tended to show legal duress. No attempt has ever been made to rescind. On the contrary, this contract has been fully performed, and the saw-bill paid by plaintiff’s notes from time to time. The circuit judge, in his charge, instructed the jury that the defendants were entitled to the contract price. The testimony had undoubtedly served another purpose, however, and what the purpose was is too plain to require extended remark. The testimony should not have been received.

One Eales had been a witness for the defendants. Plaintiff called in rebuttal Robert Brabant, who was asked as to a conversation with Eales, and to state what it was. Defendants’ counsel objected on the ground that Eales’ attention had not been called to the subject. The court said, “ I don’t think it was. ” Plaintiff’s counsel then said: “Well, if it is necessary, I can call him back. The Court: You may call him after you get through with this witness.” The witness then detailed an alleged conversation with Eales, which would indicate that Eales was attempting to influence the witness in the matter of giving his testimony. After the witness left the stand, plaintiff’s counsel called another witness, when the defendants’ counsel interposed, and the following colloquy occurred:

“Mr. Cobb: Your honor, before you put Mr. Foley on the stand, I insist on Mr. Eales being called back, in reference to this conversation with Brabant.
“The Court: Do you want to call him? Better wait until he gets through.
“Mr. Cobb: No; I made my objection that Mr. Eales’ attention had not been called to that, and the court said that—
“The Court: Proceed with the examination of this witness. ■
“Mr. Cobb: Give me an exception.”

Counsel for the plaintiff say that there was no exception to the giving of Brabant’s evidence. We think it is but fair to defendants’ counsel to treat the exception which he noted as covering the ruling. On assurance that the omission would be supplied, he held his exception in abeyance until it was manifest that the omission to call Eales’ attention to the subject was not to be supplied, and then noted his exception. The necessity for calling Eales’ attention to the subject is clear. People v. Gallagher, 75 Mich. 512; Koehler v. Buhl, 94 Mich. 496.

None of the other questions presented are likely to arise on a new trial, and do not call- for discussion.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.