text:
    O'CONNOR v. CITY OF DETROIT.
    1. Municipal Corporations — Defective Sidewalks — Contributory Negligence.
    It is not negligence, as a matter of law, for a person who knows of the defective condition in a sidewalk to use the walk, exercising care commensurate with the danger.
    2. Trial — Argument—Improper Statements.
    Argument of counsel concerning evidence which was rejected by the court, cured by the prompt interposition of the trial judge and by his charge to the jury, is not reversible error, in the absence of a request for further instructions on the part of defendant.
    Error to Wayne; Chester, J., presiding.
    Submitted January 13, 1910.
    (Docket No. 46.)
    Decided March 5, 1910.
    Case by Emily H. O’Connor against the city of Detroit for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Edmund Atkinson and Bichard I. Lawson (P. J. M. Hally, of counsel), for appellant.

      Frederic T. Harward, for appellee.
   Moore, J.

On the 9th day of May, 1907, between 7 and 8 o’clock in the evening, the plaintiff, in company with her daughter, 11 years of age, started from her home to call upon a friend. While walking on the west side of Sixteenth street, they reached an alley crosswalk which was in a defective condition. Some of the boards were broken, and there were a number of holes. When plaintiff arrived at the alley crosswalk, she halted and said to her little girl:

“ Stand until I get across, and then you can come behind me. There isn’t room for us both unless we step in that hole.”

She attempted to avoid the hole, and the board upon which she placed her foot gave way, and she claims her knee was injured by coming in contact with either a stringer or one of the broken planks. Later this suit was brought and resulted in a judgment in her favor of $1,750. The case is brought here by writ of error.

There are a great many assignments of error, but the important ones may be discussed under two groups:

(1) Can it be said, as a matter of law, that the plaintiff was so guilty of contributory negligence that she cannot recover ?

(2) Was the conduct and argument of counsel reversible error ?

The assignments of error that do not properly belong in these groups have been examined but will not be discussed.

It is insisted by counsel for the city that a verdict should have been directed in its favor because of the contributory negligence of plaintiff. In addition to the oral evidence, there has been returned a number of photographs of the condition of the walk where the accident happened. These indicate a very defective walk, but they also indicate that the plank upon which plaintiff says she stepped, when she attempted to avoid the hole, looked much better than it proved to be when she put her weight upon it.

The testimony of the plaintiff, as well as the appearance of the photographs, indicated that an ordinarily prudent person might step upon the plank without expecting that it would give way beneath her. Some of the testimony is as follows:

“The boards of the crosswalk ran lengthwise, the same as in all alleys. I was at the north end of the crosswalk just beyond the crosswalk. Right next to the crosswalk there was one or two boards out. A place was out in width so a person could step across it easily. It was not any more than a foot and a half. * * * When I stepped on this board to get the momentum to step across the place where the board was out, of course, I looked to see where my foot was going; I was very particular. I could see no lights near there that night. I think it was a little bit early maybe for the electric lights, although they are generally lighted before dark. The moonlight, I might be able to see, but I don’t think there is any light that shows on there; in fact, there was not that night. It was a very cloudy night, and I had to look very closely to see the holes at all. * * * I had in mind when I came to this particular walk, on this evening in May, 1907, the defective condition of this particular place, and I tried to be exceptionally careful on that account. Before I approached that particular place, I said then: * Marjorie, let me go across here first. There is not room for both of us, unless we step in that hole.’ I made her stand behind me until I got across first. She stood aside and waited for me. We could not both cross together. I said, ‘ Let me cross first.’ * * * It was while I was taking this long step with my right foot that my left foot went through, before I got a chance to step over. I was just stepping over with my right foot forward, and my left foot caved into this board — the board broke with me, because you could hear it break.
“Q. As a matter of fact, that evening you did not pay any particular attention to the particular place you went in, at all, did you ?
“A. Oh, yes, I did. I was very careful in stepping, where I could be careful. After I got up, I went right over to Mrs. Kahn’s. I crawled along on my knees for a minute or two, because I was so afraid of falling into that hole that I had stepped over, the opening in the sidewalk. I crawled along on my knees until I got a little w.ays.”

Marjorie, the daughter, testified, in part, as follows:

My mother and I were walking abreast until we came to the alley nearest to the Boulevard. Then when we came to the alley mamma went ahead and I went back. I drew back as we got near the alley because mamma told me to be careful, and she went ahead, so she could help me over. She went ahead and started to walk over that place where the planks were out in the sidewalk, and she took what she thought was just the best looking board. She went on this board and was going to step across to help me, and the board gave way with her. I heard the board crack, and saw her fall. This was a board of the crosswalk nearest the Boulevard. It was the left-hand side of the crosswalk as we went up, where this board cracked. My mother fell. The ground at that time was all muddy around there; it was damp. We could not go out and walk around handily.”

Mr. Beering, who lived near the crosswalk, testified:

“A. Well, I will tell you, I should say that that walk was very deceiving. It seems to me that the end board of that walk you were possibly thinking you were stepping on the end of a board that might be a little firm, and it might be a little rotted away.”

There was other testimony to the same effect.

Belyea v. City of Port Huron, 136 Mich. 505 (99 N. W. 740), is a case whose facts are very similar. Plaintiff, a man 54 years old, was hurt between 10 and 11 o’clock at night. He knew that the walk was torn up and knew of its condition. The night was dark. The court said:

“ It has been repeatedly held that a man is not precluded from traveling over a highway or sidewalk simply because he knows there is a defect in it. He is bound, however, to exercise such care and diligence as a prudent man would exercise in view of the danger ” — citing many cases.

In Oesterreich v. City of Detroit, 137 Mich. 417 (100 N. W. 593), Montgomery, J., speaking for the court, said:

“Her testimony shows that the walk in question was in bad condition, and that there were numerous holes in it, and was known to be in this condition by the plaintiff; that on the evening in question, about 8:30, she returned from shopping in the city, alighted from a car, and started to travel over the walk in question, having her child, 1£ years old, in her arms, and carrying a half dozen eggs. The plaintiff might have avoided the sidewalk where the injury occurred by going across lots through a path, but she testified that she did not consider it safe to do so at that time in the evening. Surely she cannot be charged with negligence for acting upon such motives as would without doubt influence most women similarly situated. It is not negligence per se for one knowing of defects in a sidewalk to attempt to pass over it. * * * We do not think it can be said that this testimony shows want of due care, as a matter of law. If it be said that she might have seen the holes and avoided them, it does not follow that she was in fault in failing to discover that the plank upon which she stepped would tip up and cause her injury.”

In Lewis v. City of Marshall, 146 Mich. 390 (109 N. W. 663), plaintiff was thrown down and injured while passing over a defective sidewalk. She was, at the time, carrying a few apples in her apron. She had been over the same walk four weeks previously with her husband and had caught her foot and stumbled. Upon the occasion of her injury she was looking for and seeking to avoid the defect. Justice Ostrander, speaking for the court, said:

“It is unnecessary to set out more of the evidence. There is some of it which tends to prove that plaintiff did not exercise the care in the use of the way that conditions there apparent and her previous acquaintance with those conditions enjoined. For the purposes of this case, her testimony and that of her witnesses must be. viewed in the light most favorable to her. It cannot be said, in view of previous decisions of this court, that her want of due care is, as matter of law, established.”

See, also, Vander Velde v. Leroy, 140 Mich. 361 (103 N. W. 812).

The circuit judge rightly held there was a case for the jury.

Was the conduct and argument of counsel for plaintiff such that, because of it, the case should be reversed ? The conduct and manner of the counsel for the city in examining the witnesses for plaintiff was not calculated to result in orderly procedure. It is not surprising that some irritation was manifested on the part of counsel for plaintiff, but as a rule he kept himself well under control. When he did not, Judge Chester, who was the trial judge, at once corrected any possible mischief. The following will illustrate:

^ ^ Mr H&rwsrd ssiicl *
“Why didn’t he bring Dr. Lafferty here? I offered to put his report in and they asked that it be rejected. If they wanted his report, why didn’t they let me read it?
“Mr. Atkinson: I object to this. May it please the court, I think that argument is not proper, on the report.
“Mr. Harward: It was excluded by your request.
The Court: The jurors will take nothing from this argument, from this offer, and exclusion of this report.”

Further, the court, in this connection, charged the jury as follows:

“Regarding the testimony of the doctors, gentlemen, you are instructed that the plaintiff has failed to call Dr. Lafferty and Dr. Mills. The defendant cannot procure the testimony of these witnesses without the consent of the plaintiff. This consent has not appeared of record in this case. You are therefore instructed that you are at liberty to presume that the testimony of such witnesses, if called, would be unfavorable to the plaintiff. That has reference to the condition of the plaintiff, as I understand it, and applied to the doctors.”

Defendant was evidently content with what was done by the trial court, for it did not again call its attention to what occurred and ask for further directions to the jury. See Brown v. Evans, 149 Mich. 430 (112 N. W. 1079); Muncie Wheel & Jobbing Co. v. Finch, 150 Mich. 274 (113 N. W. 1107); Beauerle v. Railroad Co., 152 Mich. 345 (116 N. W. 424); Fillingham v. Railway, 154 Mich. 233 (117 N. W. 635); Scheer v. Railway, 155 Mich. 561 (119 N. W. 1084).

Judgment is affirmed.

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


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    VAN DOORN v. HEAP.
    1. Master and Servant — Guarding and Protecting Dangerous Instrumentalities — Contributory Negligenoe — Presumptions.
    It is error, in an action for the negligent death of an employé killed by a piece of timber thrown back by a ripsaw which he was operating, to direct a verdict for the employer on the ground that the evidence failed to show freedom from contributory negligence on the part of the deceased, in a case where no witness saw the accident, and no proof to the contrary is offered by the defendant, the presumption being that he was exercising due care.
    3. Same — Assumed Risk — Statutory Duty of Employer.
    Negleot to guard a ripsaw by a device ordered installed by the State factory inspector, as required by statute, is negligence per se, the risk of which is not assumed by a servant who sustains injuries as a result of the failure. Act No. 113, Pub. Acts 1901.
    3. Same — Negligence—Proximate Cause.
    It is a question for the jury to determine whether the absence of a guard and spreader was the proximate cause of decedent’s injuries, where it appeared that the device ordered by the factory inspector was intended and would be likely to prevent the danger which caused the injury, and where the evidence justified inferences which bring liability within the realm of probability rather than leaving it' a matter of conjecture merely.
    4. Same — Evidence—Previous Accident from Same Cause.
    Testimony concerning other similar occurrences and their cause, was competent to show the proximate cause of the injury.
    5. Same — Partnership—Parties to Actions — Effect of Plea.
    By appearing and filing a plea of the general issue entitled with the firm name of the defendants as alleged in the declaration, the defendants admitted the existence of the partnership as averred in the declaration, at least for the purposes of a case where verdict was directed at the close of plaintiff’s case.

      Error to Ottawa; Padgham, J.
    Submitted January-11, 1910.
    (Docket No. 36.)
    Decided March 5, 1910.
    Case by John M. Yan Doom, administrator of the estate of Dick Gringhuis, against William Heap, Cecil R. Heap, W. Lionel Heap, and John Henley, copartners as William Heap & Sons, for the negligent killing of plaintiff’s intestate. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Edmund Burfoot and Gteorge, Hollway, for appellant.

      Fred L. Vandeveer and Farr & Farr, for appellees.

       As to servant’s assumption of risk of the master’s breach of a statutory duty, see note to Denver, etc., R. Co. v. Norgate (Fed.), 6 L. R. A. (N. S.) 981.

   McAlvay, J.

Plaintiff as administrator brought this suit to recover for damages for personal injuries, which resulted in the death of his intestate, claimed to have been caused by the negligence of defendants. Deceased was a carpenter and cement worker, and as a carpenter was employed by defendants to work for them outside of their factory in Grand Haven on October 23, 1907. He was changed from this work to work inside the factory, operating a combination ripsaw, on October 24 or 25, 1907, and during the forenoon of the latter day, while putting pieces of stock 5 or 6 inches wide and 20 to 24 inches long through this ripsaw, one of the pieces was thrown back by the saw and struck him in the abdomen with great force, from which injury he died October 27, 1907. The suit was commenced by declaration, to which a plea of the general issue was filed. At the close of plaintiff’s case, on motion of the attorney for defendants, the court instructed the jury to return a verdict for defendants. From a judgment duly entered upon such instructed verdict, plaintiff upon a writ of error has brought the case to this court for review.

Errors are assigned upon rulings of the court in excluding evidence, and upon instructing a verdict for defendants. Of the several acts of negligence charged and relied upon by plaintiff in his declaration, but one, for the purposes of the case now presented, need be discussed, and that is, that defendants were guilty of negligence in not properly guarding this ripsaw according to law, and in refusing and neglecting to obey the order of the deputy State factory inspector to guard, protect, and equip this ripsaw with a proper guard and spreader, made and served on defendants September 4, 1907. On behalf of defendants, in presenting the motion for an instructed verdict, it was urged that there was no evidence tending to show how the accident happened, or that it was caused as a result of the failure to comply with that order. The court agreed with this contention, as appears from the reasons given for granting the motion. These, briefly stated, were that there was no evidence to show that, had the guard and spreader been put upon this machine as ordered, it would have prevented the accident, but, on the contrary, that such accident could have happened if the law had been obeyed; that it did not appear that leaving off the device was the proximate cause of the injury, and it also did not appear that plaintiff’s intestate was free from contributory negligence.

The plaintiff’s case shows that his intestate was put at work at this ripsaw on the same day or the day before the injury occurred; that he was ripping and sizing the pieces of stock described; that a piece flew back from the saw and struck him; that the saw was not guarded as ordered by proper authority nor guarded in any other manner; that there were no eyewitnesses to the accident which caused his death.

Upon the question of the contributory negligence of the deceased, the court, under these facts, was in error in holding that it was necessary for the plaintiff to show that he was free from negligence. The court evidently overlooked the line of decisions of this and other courts holding that, in the absence of proof tending to show the contrary, where a person is killed by an accident to which there were no eyewitnesses, the presumption of the law is that he was in the exercise of due care. Adams v. Iron Cliffs Co., 78 Mich. 277 (44 N. W. 270, 18 Am. St. Rep. 441), and cases cited.

The record is undisputed that there was a neglect of duty on the part of defendants in not protecting this ripsaw as required by law, and that the order to put a guard and spreader upon it had been ignored. Such neglect of a statutory duty has been held by the Federal courts negligence per se. Union Pacific R. Co. v. McDonald, 152 U. S. 262 (14 Sup. Ct. 619); Schlemmer v. Railway Co., 205 U. S. 1 (27 Sup. Ct. 407).

This court has held that injury from a neglect of such a duty is not one of the risks assumed by an employé. Sipes v. Starch Co., 137 Mich. 258 (100 N. W. 447); Murphy v. Veneer Works, 142 Mich. 677 (106 N. W. 211); Swick v. Cement Co., 147 Mich. 457 (111 N. W. 110).

Having found from the record that deceased was not negligent, and that defendants were negligent, in order to hold that the case should have gone to the jury, it must be determined whether there was evidence tending to show that the negligence of defendants was the proximate cause of the injury which caused the death of plaintiff’s intestate. The record shows that he was injured while operating this ripsaw, and that two of the defendants admitted that he was injured by a “fly back ” thrown from this saw, and at the same time one of them produced the piece of board which was thrown back and also pointed out the machine at which he worked. It appears that his watch, worn in the right-hand trousers watch pocket, was badly broken.

It was admitted on the trial that complaint had been made by the witness who had operated this saw just before deceased took it, and who had “fly backs” thrown by it, to the defendants about it. It also appears without dispute, from the testimony of the deputy factory inspector, that the purpose of ordering the guard and spreader put upon these saws is to prevent accidents; that the spreader is placed about one inch back of the saw to prevent the stock from pinching and to keep it from flying back, and this device would prevent a fly back when adjusted on a ripsaw; that after the order to protect one of such saws with guard and spreader has been complied with “ it is ordinarily equipped safely.” It appeared from the cross-examination of this witness that with the guard and spreader a fly back could occur, but that they would not be frequent and the appliance would lessen its force. An examination of the piece of board which flew back showed that “ it was ripped a little more than part way, and the rest was broken off.” Giving all of this evidence its full weight, as is required where a verdict is directed, we think it cannot be said that there was no evidence to submit to the jury as to what was the proximate cause of this injury. It would have been a legitimate argument to the jury that the condition of the board which struck deceased, taken together with all the other evidence above stated, might fairly be said to show that the proximate cause of the injury was the absence of the spreader and guard, the neglect to provide which was clearly negligence on the part of defendants. We think that the proof in this case, in the words of this court in another case, “justified inferences which bring liability within the realm of probability, rather than leaving it a matter of conjecture merely.” Parker v. Union Station Ass’n, 155 Mich. 76 (118 N. W. 733), and cases cited. The court was in error in directing a verdict. In view of another trial, it is necessary to refer to some other questions.

The court refused to allow plaintiff to show the cause of other fly backs on this ripsaw during the same month in which plaintiff’s intestate was injured. Such testimony was without doubt offered in good faith, presumably as bearing upon the absence of guard and spreader causing the injury; and, if so, should have been admitted.

Defendants were sued as copartners, naming them, and as doing business under a certain firm name. By appearance and by entering a plea entitled in the same manner and with the same firm name they must be held to have admitted the partnership for the purposes of the case here presented.

For the reasons pointed out, the judgment is reversed, and a new trial ordered.

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


author: Brooke, J.

text:
    RYAN v. CHOWN.
    1. Trover and Conversion — Return of Property — Insufficiency.
    A defendant is liable in trover for the conversion of a turkey and its brood, which she found on the highway and took into her possession in the belief that they were hers, and which the plaintiff demanded but was not able to obtain, where the defendant thereafter took them to the place where she found them and turned them loose, without notice to the owner.
    2. Same — Judsment— Effect— Subsequent Recovery of Property by Plaintiff.
    After a judgment for the value of the turkeys, a notice published by the plaintiff in a local newspaper that certain stray turkeys, not identified as the subject of the litigation, came to plaintiff’s farm on a date subsequent to the judgment, is incompetent to show his recovery of the birds, which would at that time have been the property of the defendant.
    Error to Lapeer; Smith, J.
    Submitted January 10, 1910.
    (Docket No. 14.)
    Decided March 5, 1910.
    Trover by Daniel W. Ryan against Eunice Chown. A judgment for defendant is reviewed by plaintiff on writ of error.
    Reversed.

      William E. Brown, for appellant.
   Brooke, J.

The plaintiff in July, 1907, was the owner of a hen turkey and 14 young ones. Defendant, who also owned turkeys, resided about a mile and a half distant from plaintiff’s farm. One of defendant’s hen turkeys had been astray for some weeks. About the middle of July, defendant, while driving along the highway, in the vicinity of plaintiff’s farm, found a hen turkey and chicks in the road. She seems to have believed that the mother bird was the one belonging to her own flock, which was astray. At any rate, she caught the mother and brood of 10, conveyed them to her home and shut them up that night. Upon the same day, she was advised by one Thick, a neighbor of both plaintiff and defendant, who had passed her while she was securing the brood, that he believed she had made a mistake; that he thought the turkey she had taken belonged to plaintiff and that her turkey was on the comer. Plaintiff, missing his brood, and being advised by Thick of the fact that defendant had taken a brood, which he (Thick) believed belonged to Ryan, drove over to defendant’s farm to make inquiries about his property. There, defendant admitted possession of the brood, said she did not know whether it belonged to Ryan or not, but that if he said it did, he might take it. At that time, the brood was in a field of standing oats and it could not be seen or captured. The oats were cut the following week. A few days later, and after the oats were cut, a note was written by plaintiff, demanding a return of the property, and threatening suit if it was not returned. Upon receipt of this note, defendant claims to have taken the turkey and her brood, one night after dark, back to the place in the highway where she had found them, and there liberated them, without notice to plaintiff, and he has never regained possession of them. Plaintiff, knowing nothing of the return (if such return was made), commenced suit in trover on August 29th, which resulted in a judgment in his favor for $22. Defendant appealed from said judgment to the circuit court, where it was reversed. Plaintiff has removed the case to this court for review on writ of error.

The trial court charged the jury, in part, as follows:

“I charge you, further, that in order for defendant to avoid the liability in an action for trover she must have returned the turkeys to plaintiff, before suit, and the fact that the turkeys were in the neighborhood some time after the commencement of the suit would be no defense to this action. Now, counsel ask me to say to you that if she turned the turkeys loose in the highway, that would not be a return, but I decline to give it in that form, and leave it a question for the jury to determine, whether leaving the turkeys where they were found in the highway was a return of the turkeys to the plaintiff. I say to you that if you find, considering the nature of the turkey, in view of all the circumstances in this case, that that was a proper, fair, and reasonable return of the property to Mr. Ryan, if they were his turkeys, and she did that before the suit, and she is sure about the date, then she would not be liable, but if you find that the leaving of them that distance from his house, at that time of day, or evening, or night, without giving him any notice, was not a fair and reasonable return of the property, then there is no question but what she was liable, if the turkeys were Mr. Ryan’s.”

We think error is properly assigned upon this instruction. The record shows that it is the nature of turkeys to wander. The alleged return, the fact of which, as to time, is not clear upon the record, was not such a return as would relieve defendant from liability, because the property was not, in fact, placed in plaintiff’s possession, nor was he notified of defendant’s act. Assuming that defendant did just what she claims, her act indicated rather a desire to avoid liability than a purpose in good faith to repossess plaintiff of his property.

Plaintiff assigns error upon the admission of an advertisement, inserted by plaintiff, in a local newspaper, to the effect that 10 stray turkeys came to his place about October 12th. We think the exception well taken. Plaintiff had recovered judgment against defendant for the value of the property on September 20th. That judgment put an end to his right to reclaim the property, even supposing the property advertised to have been identical with that in litigation, which is not shown. Kenyon v. Woodruff, 33 Mich. 310. But the admission of the advertisement may have led the jury to infer that plaintiff had recovered his property, and was therefore not entitled to relief.

Error is assigned upon other portions of the charge, but as the case must be reversed for the reasons stated, it is unnecessary to give the same consideration, particularly as the question involved therein is not likely to arise upon another trial.

The judgment is reversed, and a new trial granted.

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


author: Blair, J.

text:
    STEVER v. ANN ARBOR RAILROAD CO.
    1. Master and Servant — Fellow-Servants—Railroads—Crossings.
    The operator in charge of a tower at the intersection of two railroads, from which an interlocker and derailer is operated on both roads, each of which pays half the compensation, is a fellow-servant of an engineer on one of the railroads.
    2. Same — Fellow-Servants—Station Agent.
    The joint station agent of two intersecting railroad companies, who employs and discharges the towerman, without any authority to prescribe rules for his conduct, and who was nob the sole and entire manager of the signal system, is not a representative or vice principal of the master.

      Error to Washtenaw; Kinne, J.
    Submitted January 7,1910.
    (Docket No. 12.)
    Decided March 5, 1910.
    Case by Emma C. Stever, administrator of the estate of Charles W. Stever, deceased, against the Ann Arbor Railroad Company and the Wabash Railroad Company for the negligent killing of plaintiff’s intestate. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.
    Charles W. Stever was an engineer in the employ of the Ann Arbor Railroad Company, and was operating the engine of a passenger train on December 9th, 1907. The plaintiff’s proof tended to show that, when the train approached the Wabash crossing, the towerman at the intersection of the Ann Arbor and Wabash Railways, at Milan, Michigan, first gave the train the proper signal to proceed, but after the engine had proceeded too far to stop, changed the signal and opened the derailer. The deceased did what he could to stop the train and then leaped from the cab, receiving injuries from which he died some weeks later. On the part of the defense, evidence was introduced tending to prove that the deceased mistook the signals on account of the fog and darkness prevailing at the time. The derailer on the two tracks was operated by levers in the tower, so arranged that it would be impossible to close the derailer on both intersecting tracks at the same time.

      Benjamin 8. Warren and Codd & Drake, for appellant Ann Arbor R. Co.

      Smith, Baldwin & Alexander, for appellant Wabash R. Co.

      Arthur Brown and A. J. Sawyer, for appellee.
   Blair, J.

Plaintiff brought this action to recover damages for the death of her husband, a locomotive engineer in the employ of the Ann Arbor Road, alleged to have been caused by the negligence of the towerman in operating the interlocking apparatus and signal system at the crossing of the two roads at Milan in this State. Mr. Palmer, the towerman at the time in charge of the semaphore and interlocker, was employed by Mr. Debenham, the station agent for both roads, to whom the two companies had committed the hiring and discharge of the joint employés at Milan; each company paying half of his compensation. The following are stated in plaintiff’s brief to be “the rules formulated by the companies governing the operation of the towerman,” viz.:

“All trains will be governed by the signal to the right of their own track as they approach the crossing.
“ When the distant signal shows the blade in a horizontal position, or a green light, caution is indicated, and an approaching train must be under full control and prepared to stop before passing the home signal.
“ When the distant signal shows the blade in a vertical position by day, or a white light by night, the train may proceed, under control, to the home signal.
“ When the home signal shows the blade in a horizontal position, or a red light, an approaching train must stop before passing the signal.
“When the home signal shows the blade in a vertical position, or a white light, the train may proceed.
“At night each red and white light must be seen in its proper position or the train must stop.
“While a train, or any part of a train, is between the home signals, all traffic will be stopped on the crossing road by the operation of the interlocking apparatus. Trains having work to do, or required to occupy the track within these limits, must, upon the approach of a train of a superior class on the crossing road, move beyond the home signals. Trains of the same class shall not be delayed necessarily. By superior class of trains I mean a passenger train is superior to a freight, and one part of a train is superior to another if they are rated so, first, second, and third class.
“When all required signals indicate proceed, trains may pass over the crossing without coming to a full stop.
* * *
“ Enginemen must be governed by signals. When in a horizontal position, come to a full stop.”

We also quote from plaintiff’s brief as to the power of the towerman:

“Mr. Mills testifies:
l‘Q. Are you compelled on finding, of course the order board turned either way, are you compelled to obey that signal, the signal from that target, I mean ?
“A. If it is wrong you are supposed to stop. It is your duty to obey the target, if it gives us the right we can go through; if it is turned against us we must stop. The same kind of target operates the same way for both roads. There are two of these targets, one south, one north of the depot on the Ann Arbor road, one east, and one west on the Wabash road, and each road is compelled to obey those orders. The man in the tower who operates that controls the operation of the road, of the cars. I have not the slightest doubt in the world that I saw that target turned.
‘ ‘ Claude Edwards testifies: I have tended the target at Milan. I quit in the forenoon of the day Mr. Stever met with his accident; had worked there tending the target for three months, worked for C. M. Debenham, agent at Milan. I worked for both companies, the Ann Arbor and Wabash, and they both paid me half, $20 each a month. I am well acquainted with Mr. Palmer. He took my place. Mr. Debenham hired Mr. Palmer. He is the agent of both roads. He hired me. He hired Mr. Palmer. He hires all the men there.
“ Ansyl P. Palmer testifies:
“Q. Do you know what that red signal is F
“A. It is the danger signal.
“Q. What does it mean ?
“A. It means ‘stop.’
“Q. Has anybody under any circumstances any right to run that flag or the red light ?
“A. No, sir.
“Q. And if he don’t get the white light, and suppose you keep him there six or eight hours, have they any right to run it F
“A, All they have to do is the right to report you for holding them.
“Q. Have they the right to pass until it is taken down ?
“A. No, sir.
“Q. Until it is down have they any right to run it ?
“A. No, sir.
“Defendants’ witness John A. Lisman testifies as follows : When no train has asked for signals or rails it stands at block for both roads, east, west, north, and south. When the train passes, and uses the derail, it should be put back to block. And an engine could not get to the diamond without the towerman doing something to give it to my train. It is not possible with an interlocker to give it to one road without taking it from the other, not in my knowledge.”

Plaintiff recovered a verdict, and to reverse the judgment entered thereon defendants prosecute this writ of error.

Plaintiff’s counsel contend that under the evidence—

“The towerman, in discharging the duties assigned him, was the representative of both defendants. His duties in this case were not the duties of a telegraph operator, but the duties of a train dispatcher. No train could cross the interlocker without his permission, he would hold any train he saw fit, or send any train over the diamond h© saw fit, and if any train attempted to pass across the diamond without his consent it would be derailed, and if he saw' fit to retain a train the only relief the trainmen had was to report him to the companies. His acts, therefore, were the acts of the defendants, and if he was negligent it was the negligence of the defendants.”

We are unable to assent to this conclusion. The same view was adopted by the circuit court in the case of Lake Shore, etc., R. Co. v. Burtscher, 8 Ohio Cir. Ct. R. (N. S.) 137. This view was rejected by the supreme court on appeal, and it was held that the towerman was the fellow-servant of the engineer. Lake Shore, etc., R. Co. v. Burtscher, 74 Ohio St. 523 (78 N. E. 1129). See, also, Hydell v. Railway Co., 74 Ohio St. 138 (77 N. E. 1066). In our opinion, the duties of the towerman are more analogous to those of the local telegraph operator than to those of the train dispatcher, and the difference between him and a crossing switchman operating upon the ground and turning the switch lights by hand or giving signals with a lantern is one of degree and not of kind. The tower-man, therefore, is ordinarily a fellow-servant of the engineer. Graham v. Railway Co., 151 Mich. 629 (115 N. W. 993); Dixon v. Railway Co., 147 Mich. 667 (111 N. W. 200); Pearsall v. Railroad Co., 189 N. Y. 474 (82 N. E. 752); Tillson v. Railroad Co., 102 Me. 463 (67 Atl. 407); Cleveland, etc., R. Co. v. Lawler, 94 Ill. App. 36.

It is further contended by counsel for plaintiff, however, that, whatever the rule may be as to the relation between a towerman and an engineer in the employ of the same company, this case falls within the rule of Kastl v. Railroad Co., 114 Mich. 53 (72 N. W. 28), where it was held that a switchman in the employ of a board composed of representatives of three railroad companies, to whose general control of a union depot, tracks, and yard the individual companies were subject, was not a fellow-servant of a car inspector employed by one of the companies. So far as this record discloses, the station agent was the joint agent of the two companies, employed to perform for them the usual duties of station agents, with no general powers or authority to prescribe rules for or direct or control the performance of the duties of the towerman other than as the power to discharge might incidentally affect such performance. The rules for the guidance of the towerman were prescribed by the companies and not by the station agent, and he was the employe of the companies and each of them, through the contract of hiring by the station agent for them. The mere power to hire and discharge employes does not constitute one a master or even the vice principal of the master. Lepan v. Hall, 128 Mich. 523 (87 N. W. 619); Page v. Food Co., 142 Mich. 17 (105 N. W. 72). There was no such entire surrender of the management and control of the interlocker and signal system to the station agent as to render him the master of the towerman and bring this case within the principle of the Kastl Case.

The judgment is reversed, and a new trial ordered.

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


author: Stone, J.

text:
    WELLS v. UNITED STATES FIDELITY & GUARANTY CO. OF BALTIMORE, MARYLAND.
    1. Justices op the Peace — Summons —Nonresidents —Foreign Corporations.
    A foreign surety company engaged in business in Michigan must be served with a short summons in order to give jurisdiction to a justice of the peace.
    2. Same — Foreign Corporations — Residence — Service op Process.
    A surety company licensed by the commissioner of insurance to do business in Michigan is not a resident of every county in which it transacts business, for the purpose of instituting suit under 3 Comp. Laws, § 10442, Act No. 206, Pub. Acts 1901, Act No. 34, Pub. Acts 1903, and Act No. 310, Pub. Acts 1907.
    3. Same — Process—Evidence op Authority — Commissioner op Insurance.
    Service of .process on the commissioner of insurance is insufficient to confer jurisdiction over a foreign insurance company; without evidence of the due appointment in writing of the insurance commissioner to receive service of process under Act No. 321, Pub. Acts 1907.
    4. Same — Appeals—Record.
    Affidavits of the proper appointment of the insurance commissioner as the lawful agent for service of process, are not admissible in circuit court after a special appeal raising the objection of insufficiency of service.
    5. Same — Jurisdiction.
    The jurisdiction of the justice must appear affirmatively on the face of the proceedings.
    6. Same — Amendment.
    Where a judgment is void on its face for want of jurisdiction over the defendant, no authority subsists in the circuit court to allow an amendment, on a special appeal, to show authority for the service of process on the insurance commissioner, by proof which was not presented in justice’s court.
    Error to Hillsdale; Chester, J.
    Submitted February 9, 1910.
    (Docket No. 19.)
    Decided March 5, 1910.

      Assumpsit in justice’s court by Russell O. Wells against the United States Fidelity & Guaranty Company of Baltimore, Maryland, on an indemnity bond. .There was judgment for plaintiff, and defendant took a special appeal to the circuit court. A judgment for defendant is reviewed by plaintiff on writ of error.
    Affirmed.

      Merton Fitzpatrick and Wilbur D. Orommon, for appellant.

      F. A. Lyon, for appellee.
   Stone, J.

This is an action of assumpsit brought by plaintiff, a resident of Hillsdale county, against the United States Fidelity & Guaranty Company of Baltimore, Maryland, a foreign corporation. The suit originated in justice’s court by summons dated December 16, 1907, and returnable December 28, 1907. The service was had upon the defendant by sending the original summons and two copies thereof, by mail, to the commissioner of insurance, and upon the original summons that officer made the following return:

. “ I hereby certify that I received through the mail December 19, 1907, two copies of the within justice’s summons ; one copy has been mailed to defendant company, and the other copy placed on file in this department.
“James Y. Barry,
“ Commissioner of Insurance.”

The defendant did not appear before the justice. Judgment was rendered by the justice on December 28, 1907, for $13.46 damages and $2.35 costs of suit against the defendant. On January 2,1908, the defendant by its attorney took a special appeal to the circuit court.

In the affidavit for appeal numerous errors were alleged, among them being the following:

(1) That the summons should have been a short summons for the reason that the defendant was a nonresident of Hillsdale county and State of Michigan.

(9) There was no such service or proof of service of the summons by which such suit was commenced as gave the court jurisdiction to hear, try, and determine said cause.

(10) The court had no jurisdiction to hear, try, or determine said cause.

The return of the commissioner of insurance, above set forth, was the only proof of service, or authority of such officer to receive service, produced before the justice. In the circuit court, it was held by the circuit judge that the proceedings before the justice were without jurisdiction, for the reasons that a long summons was issued, and because there was no authority shown, before the justice, for service upon the commissioner of insurance, and judgment was entered for the defendant. The plaintiff excepted to the ruling, and the case is here upon writ of error, error having been assigned upon the rulings and judgment aforesaid.

The statute relating to surety companies (sections 5196 to 5205, 2 Comp. Laws), so far as is material here, provides in section 5198 as follows:

“And if such company be organized under the laws of any other State than this State * * * it must appoint an attorney in this State on whom process of law can be served, and file in the office of the insurance commissioner a written statement, duly signed and sealed, certifying such appointment and which shall continue until another attorney is substituted.”

Section i provides:

“ That upon production of proof to the insurance commissioner by such company that it possesses the qualifications by this act required and has complied therewith, he shall issue to such company and such of its agents in this State, his certificate that such company is for the ensuing year authorized to become and be accepted as sole surety on all bonds, undertakings and obligations, required or permitted by law, or by the charter, ordinances, rules and regulations of any municipality, board, body, organization or public officer, which said certificate shall be conclusive proof of the solvency and credit of such company for all purposes, and of its right to be accepted as such sole surety and its sufficiency as such.”

Section 5200 provides that annual reports of such company shall be filed with the commissioner of insurance, and that he shall thereupon issue a certificate that such company is for the ensuing year authorized to do business.

By Act No. 321 of the Public Acts of 1907, section 5196, 2 Comp. Laws, was amended, and among other amendments the following proviso was added:

“ That suits may be commenced in the circuit court in any county where the plaintiff resides, by declaration or writ, and service shall be made in such cases only upon the commissioner of insurance in like manner and with like effect as is provided for the service of process upon societies, orders or associations organized under the laws of any other State, Province or Territory and doing business in this State, and not having its principal office within this State, and for the purpose of service of process as herein provided such surety company shall appoint in writing the commissioner of insurance, or his successor in office, to he its true and lawful attorney.”

Is the defendant a nonresident of Hillsdale county and State of Michigan ? It is concededly a foreign corporation, and to ask the above question is to answer it in the affirmative. The language of our statute (section 719, 1 Comp. Laws) is imperative that where the defendant is a nonresident the summons shall be a short summons. In this case the defendant is a foreign corporation, and is therefore a nonresident, not only of the county, but of the State as well. The summons should therefore have been a short summons.

It is the contention of the appellant that the defendant, under the law of this State, is a resident of every county in which it does business, for the purposes of litigation. We have looked in vain for such a statute applicable to surety companies, and counsel has not cited us to any. Our attention has been called to the case of Showen v. J. L. Owens Co., 158 Mich. 321 (122 N. W. 640), and the provisions of the statutes there considered, being section 10442, 3 Comp. Laws, Act No. 206 of the Public Acts of 1901, and the amendments of 1903 (Act No. 34, Pub. Acts 1903) and 1907 (Act No. 310, Pub. Acts 1907). An examination of the statutes referred to will show that they do not apply to surety companies.

Section 8 of Act No. 310, Pub. Acts 1907, above referred to, expressly provides that:

“ The provisions of this act shall not be applicable to such foreign corporations as are permitted to do business in this State by license issued by the commissioner of insurance, or by the State treasurer according to the provisions of law.”

We have already quoted the statute requiring the surety companies to procure certificate of license from the commissioner of insurance. The Supreme Court of the United States has on many occasions held that a foreign corporation, admitted to do business in a sister State, is conclusively presumed to be a citizen and resident of the State under which it is incorporated. This question has frequently arisen on a consideration of the right of such corporation to bring suit in the Federal court, or its right to remove a cause from a State court to the Federal court, because of nonresidence. New York, etc., R. Co. v. Estill, 147 U. S. 591 (13 Sup. Ct. 444); 19 Cyc. p. 1206 et seq., and cases cited; 13 Am. & Eng. Enc. Law (2d Ed.), p. 884, and cases cited. This summons, being a long summons, was void, and gave the justice no jurisdiction.

There was no proof before the justice that the commissioner of insurance had any authority to receive service of the summons. If it were to be held that the amendatory act of 1907, referring to suits in the circuit court, applies to suits before a justice, it will be borne in mind that that provision makes it the duty of the surety company to “appoint in writing the commissioner of insurance, or his successor in office, to be its true and lawful attorney,” before that officer can accept service of process. It must be held that such an appointment is an essential prerequisite to such authority. It should also be borne in mind that this was a special appeal. In the circuit court the plaintiff offered proof of the appointment and authority of the commissioner of insurance to accept or receive service of process. This being a special appeal, the hearing in the circuit court, upon the question of jurisdiction of the justice, must be had upon the case as it appeared in justice’s court. The jurisdiction of the justice must appear affirmatively upon the face of the proceedings. Davison v. Davison, 99 Mich. 625 (58 N. W. 637).

The judgment was void on its face, and the circuit court had no right to allow an amendment of the return, or show authority which was not presented in justice’s court. E. S. Knowles & Son v. Cavanaugh, 144 Mich. 260 (107 N. W. 1073).

The judgment of the circuit court was correct, and will be affirmed.

Montgomery, C. J., and McAlvay, Brooke, and Blair, JJ., concurred.


text:
    HUNTER v. HUNTER.
    Wills — Devises—Executors and Administrators —Construction and Interpretation — Income and Principal — Estates oe Decedents.
    Deceased provided by her will that the income of her estate be used to support, educate and maintain her children, and that each child, on reaching thirty years of age, be paid a third of the estate and an equal proportion of the share of any deceased child who "might die without issue; the sole survivor at the time appointed for distribution to take the entire property if the others left no issue; it was provided that surviving children of any child should receive the parent’s share in equal parts, which should be paid on their attaining majority, and that the executors should, in the exercise of their discretion, pay over to any child at its attaining twenty-one years of age such portion of its share as they might deem proper. All of the children died before reaching the age of thirty. Held, that the son of the last surviving daughter, the other children having left no issue, took the entire estate under the will and her husband obtained no interest in the property, although she died after becoming twenty-one years of age, and that the intent of the testator was not to vest an absolute estate in any of her children who ^failed to reach the age of thirty years.
    Appeal from Kalamazoo; Adams, J.
    Submitted January IB, 1910.
    (Docket No. 21.)
    Decided March 5, 1910.
    Bill by John B. Hunter against William L. Hunter, guardian of Charles Bates Hunter, a minor, Benjamin A. Bush, and others, for a construction of the last will and testament of Elizabeth A. Bates, deceased. Defendant Bush and others filed an answer in the nature of a cross-bill for the correction of a probate order. Prom a decree dismissing the bill and cross-bill, complainant and cross-complainants appeal.
    Affirmed.

      A. M. & O. H. Stearns, for complainant.

      N. H. Stewart, for defendant Hunter.

      E. M. Irish, for other defendants.
   Blair, J.

On the 37th day of November, 1878, Elizabeth A. Bates died, leaving a last will and testament containing, among other provisions, the following:

“Third. Out of the income of my said estate using the body of it only in case of necessity, my said executors are authorized and required to appropriate so much as may be necessary to the suitable maintenance and education of my said children and to support them until the bulk of my estate shall be -divided among them as hereinafter directed.
“Fourth. My said executors are required to distribute and pay over to each of my said children, upon his or her arriving at the age of thirty years, one-third part of what shall then remain of my said property, or in case of the death of any of my said children without issue living then my said property is to be divided among the survivors, or the whole shall be divided equally between such survivors and the issue of such child, if then deceased leaving living issue. And if it shall happen that but one of my said children should live to the time when distribution is to take place, as herein directed, and the others should die without leaving issue, then the whole is to go to such survivor. In case of distribution between my said children so surviving and the representatives of deceased children, such representatives shall receive the share that their parent would take if living and such share shall be paid proportionately to the said representatives on their arriving at the age of twenty-one.
“Fifth. My executors are, however, authorized, if in their discretion and sound judgment it should be prudent and for the interest of my said children to pay over to each or any of my said children after he or she shall have arrived at the age of twenty-one years, from time to time, as they shall deem proper, the share of my said property designated in the fourth article of this my will as intended for each of my said children, it being my intention to leave the determination of the prudence and propriety of anticipating the distribution of the shares of each of my several children before their arriving at the age of thirty to the discretion and judgment of my said executors in the light of the facts and circumstances as they shall then exist and as shall appear to them to be for the best interest of my said children and each of them.
“Sixth. In case it should happen that all of my said children should die before my said property should be distributed to them, as aforesaid, without leaving children living, then it is my desire that the property remaining in the hands of my executors should go to the lawful heirs of my late husband, Charles R. Bates, in such manner and proportion as the law provides in the case of intestate estates.”

The children of Elizabeth A. Bates surviving her were George, Helen, and Mary; Mary being Mary Bates Hunter, the deceased wife of John R. Hunter, the complainant. April 6, 1879, George Bates died, aged 19 years, without issue, never having married. November 8,1884, Helen Bates died, aged 21 years, without issue, never having married. In 1891 Mary Bates Hunter married complainant. On July 8, 1895, Mary Bates Hunter died intestate, aged 27 years, leaving one child, Charles Bates Hunter, born March 18, 1892. Her husband, the complainant, also survives her. May 27, 1892, John R. Hunter, the complainant, was appointed administrator de bonis non with the will annexed of Elizabeth A. Bates. December 30, 1895, John R. Hunter was appointed administrator of the estate of Mary Bates Hunter. December 30, 1895, John R. Hunter was appointed guardian of Charles Bates Hunter. June 2, 1896, John R. Hunter, as guardian of Charles Bates Hunter, receipted to John R. Hunter (the same individual), administrator of Elizabeth A. Bates, for all the property belonging to her estate. October 19, 1896, John R. Hunter, as guardian of Charles Bates Hunter, receipted to John R. Hunter (again the same individual), administrator of Mary Bates Hunter, for one-half the property belonging to her estate; Mary Bates Hunter having left some property not connected with her mother’s estate. January 2, 1896, the order of the probate court was made, which distributed all the property of Elizabeth A. Bates to Charles Bates Hunter. December 30, 1895, the defendant Benjamin A. Bush, and Heber C. Reed, now deceased, signed a bond for John R. Hunter, as guardian of Charles Bates Hunter, in the sum of $50,000. Some time later, the defendants Samuel Eolz and Justin W. Woodworth signed a bond in the guardianship matter in the sum of $3,500 on sale of real estate. The will of Charles R. Bates, husband of Elizabeth A. Bates, simply left all his property to her as his wife. The estate that was so receipted for by John R. Hunter, as guardian of Charles Bates Hunter, was inventoried at upwards of $50,000. The property of John R. Hunter receipted for as guardian of Charles Bates Hunter included all the property which then belonged to the estate of Elizabeth A. Bates and one-half that of Mary Bates Hunter.

The bill in this ease is filed to obtain a construction of the will and for the reformation of the order of the probate court of January 2, 1896, assigning the residue of the property of Elizabeth A. Bates to defendant Charles Bates Hunter, praying for a decree determining that the estate of said Elizabeth vested in Mary Bates Hunter prior to her death,—

“And that upon the death of said Mary B. Hunter, .your orator, as her surviving husband, was entitled to the undivided one-half of her personal estate, and that the order of the probate court made as to the distribution of the estate of Elizabeth A. Bates on the 2d day of Januuary, A. D. 1896, be reformed and the mistake made therein corrected, so that your orator’s right to a distributive share in one-half of the personal property of said estate may be recognized therein.”

The bondsmen filed an answer in the nature of a cross-bill, setting up that when they signed the bonds they supposed that they were only becoming responsible for one-half the assets of the estate of said Mary Bates Hunter, and concluding as follows:

“All the defendants jointly state that the said complainant has never made any accounting in the probate court, and that they are unable to state what their liability upon said bonds is, but they have reason to believe that, unless the mistake in the probate orders are corrected, that the said complainant will not be able to account for all the property that appears to be in his hands as guardian, and on information and belief they state that he is financially irresponsible. They, therefore, pray as follows:
“(1) That said probate orders may be corrected in such manner as to relieve them as bondsmen from responsibility further than they would be responsible if said orders had been properly made.
“(2) That they may have such other and such further relief as may be agreeble to equity and good conscience.”

A decree was entered dismissing the original bill and the cross-bill, and the complainants therein appeal to this court.

We think it clear that it was the intention of the testatrix, as manifested by the terms of her will, to give to the issue of any of her children the share which the parent would have received at the period of distribution, to be paid over to such issue on arriving at the age of 21; that, since Mary Bates Hunter would have taken the entire residue of the estate if she had lived to be 30 years of age, her son, Charles Bates Hunter, upon her death within that age, became entitled under the will to have the entire residue paid over to him on reaching the age of 21 years. We do not think there can reasonably be deduced from the terms of the will an intent to vest the property absolutely in any of the testatrix’s children prior to their attaining the age of 30 years. Either the attainment of the required age was a condition precedent so that the vesting was postponed Until the period of distribution, or survival to such period was a condition subsequent, so that the estate which had vested conditionally was divested by failure to satisfy the terms of the condition. In either event, the complainant would take no interest in the property.

The decree of the circuit court is affirmed, with costs to appellees.

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


text:
    JULIUS HERMANN & CO. v. PEOPLE'S DEPARTMENT STORE.
    1. Pleading — Amendment—Practice—Noticie of Defense.
    In an action for the purchase price of goods, it was not error to refuse leave to amend a notice of defense which admits the delivery and acceptance of the property, and sets up a right, under the contract of purchase, if the goods could not be sold, to return them to the seller and have the account canceled, by changing the notice so as to set up the inconsistent defense that the contract of purchase was invalid.
    3. Same — Inconsistent Defenses — Appeal and Error.
    Where plaintiff established its case and the defendant failed to prove such defense, so that a verdict for the amount recovered should have been directed upon the admissions in the plea and notice, the consideration of other assignments of error alleged by the defendant becomes unnecessary.
    Error to Bay; Collins, J.
    Submitted January 11, 1910.
    (Docket No. 27.)
    Decided March 5, 1910.
    Assumpsit by Julius Hermann & Company against the People’s Department Store for goods sold and delivered. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      James Donnelly and John W. Leahy, for appellant.

      Lee E. Joslyn, for appellee.
   Blair, J.

Plaintiff brought suit against defendant on the common counts iin assumpsit to recover the amount of two invoices of merchandise shipped to defendant October 16 and 33, 1908, respectively. Defendant pleaded the general issue, with the following notice of special defense:

Please take notice that on the trial of said cause defendant will give evidence of and show that the goods and personal property for the price of which said plaintiff has brought suit against defendant was purchased by defendant from plaintiff and accepted upon the express condition, as a part of the contract of purchase between the parties, that said goods and personal property, if the same could not be sold within a reasonable time after purchase, could be returned to the said plaintiff, and if in proper condition would be credited defendant with the goods returned at the purchase price thereof. And that defendant did return to said plaintiff sufficient of the goods purchased for which said action is brought to cancel and adjust the account between plaintiff and defendant if credited thereon according to the contract, except a balance of sixty-three ($63.00) dollars; and that defendant tendered and offered to pay and still offers to pay said balance of sixty-three-dollars ($63.00), admitted to be due plaintiff. That defendant further tenders and offers to pay to plaintiff the further sum of sixteen and ten one-hundredths ($16.10) dollars, to cover all taxable costs in said action up to the date of filing this plea.”

At the close of the testimony, defendant, having utterly failed to prove the alleged agreement for the return of the goods set up in its notice, applied to the court for leave to withdraw the notice and to make the defense that there was not a valid contract of purchase. This application was denied, exception taken, and error is assigned thereon. Plaintiff recovered judgment upon the verdict of the jury, to whom the case was submitted, and defendant brings error.

It was not error for the court to decline, at the close of the case, to permit the withdrawal of the notice and the substitution of an entirely different and inconsistent defense from that made by the pleadings.

The effect of the defendant’s plea, under Circuit Court Rule 7 e, was to admit the purchase and acceptance of the goods, and, the defendant having failed to prove any condition or qualification connected with or a part of that contract of purchase, plaintiff, on the undisputed facts, was entitled to an instructed verdict. We therefore do not find it necessary to consider the assignments of error.

The judgment is affirmed.

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


author: Moore, J.

text:
    ST. LOUIS HOOP & STAVE CO. v. DANFORTH.
    1. Equity Pleading and Practice — Default — Effect óf Taking Bills as Confessed — Necessity of Proof — Creditors’ Suits — Judgment Creditors’ Bill.
    The effect of permitting a judgment creditor to take a bill of complaint as confessed for want of an answer, is to admit every averment in the pleading and to authorize a decree based thereon without requiring supporting proofs.
    2. Same — Pro Confesso Decrees — Defaults — Judgment Creditors’ Bills.
    A bill of complaint which avers that the defendant, a judgment debtor, caused certain of his property to be taken in the name of his wife although he furnished at least half of the consideration, merely warrants a decree upon the bill taken as confessed for the sale of half the property, without some evidence that a larger proportion of the consideration was furnished.
    Appeal from Wayne; Donovan, J.
    Submitted January 20, 1910.
    (Docket No. 99.)
    Decided March 5, 1910.
    Judgment creditor’s bill and bill in aid of execution by the St. Louis Hoop & Stave Company against Elmer M. Danforth and Annettie Danforth. From a decree for complainant, defendants appeal.
    Modified and affirmed.

      Harry M. Lau (George M. Sayles, of counsel), for complainant.

      Jonas B. Houck, for defendants.
   Moore, J.

November 14, 1902, the complainant sued the defendant Elmer M. Danforth, in the circuit court for Wayne county. Personal service was had, and on November 15, 1905, judgment was rendered in favor of the plaintiff for $792.67. January 16, 1903, complainant instituted another suit in said court against the said defendant. Personal service was had, and on November 15, 1905, judgment was rendered in favor of the plaintiff for $689.01. Executions were issued on said judgments November 17, 1905, directed to the sheriff of Wayne county, Mich., in which said judgment debtor then resided; both executions were returned nulla bona December 9, 1905. December 11, 1905, alias executions were issued to the said sheriff of Wayne county, who on the same day levied both executions on certain real estate situated in Detroit, Mich., the record title to which stood in Elmer M. Danforth and Annettie Danforth. Notice of said levies was filed in the office of the register of deeds for Wayne county. Both of said alias executions remain in the hands of the sheriff unsatisfied. December 21, 1905, the complainant filed its bill of complaint in the above-entitled cause to reach equitable assets of defendant and appellant, Elmer M. Dan-forth, and to aid the levies aforesaid. Process was issued, and both defendants were duly served, and they respectively appeared through their solicitors, who were served with a copy of the bill of complaint January 25, 1906. Later both defendants were regularly defaulted for want of plea, answer, disclaimer, or demurrer. Later a decree was entered for the complainant, subjecting the property levied upon to the payment of the complainant’s executions. September 16, 1908, defendants filed a petition to have said decree vacated and their default entered set aside, which was granted September 21,1908. September 22, 1908, complainant moved to vacate the order of September 21,1908, which motion was denied October 3, 1908, and on January 4, 1909, said order of September 21,1908, was vacated by writ of mandamus issued from the Supreme Court of the State of Michigan. See St. Louis Hoop & Stave Co. v. Wayne Circuit Judge, 155 Mich. 311 (118 N. W. 989). January 12, 1909, the decree of the court was enrolled. The case is brought here by appeal.

The contention of defendant, as stated in the briefs, is:

“The complainant seems to think that the defendants are asking to be allowed to reopen the case and allow them to defend, but such is not our claim. The defendants claim that the decree of the circuit court should be reversed, and a decree entered in this court dismissing the bill of complaint, because:
“ (1) The bill is not one in aid of execution, but a judgment creditor’s bill, and the complainant has offered no proof to sustain the decree.
“(2) The bill not being one in aid of execution, and the burden of proof being upon the complainant, it must therefore establish its case by sufficient pleadings and evidence to sustain the decree, and this it has not done because : * * * ”

The trouble with this contention is that complainant sets out in its bill of complaint all the facts above stated, and many others, among them being the averment:

“Fourteenth. Your orator further shows that after the indebtedness upon which the said several judgments were rendered had accrued, to wit, on the 6th day of December, 1900, said Elmer M. Danforth purchased from Henry A. Macomb and William Stanton, executors of the last will and testament of Mary E. Macomb, deceased, and Stephen K. Stanton, William Stanton and Louise Stanton, his wife, Robert L. Stanton and Grace Stanton, his wife, and De Lagnel Berier the premises described in paragraph 7 herein for the consideration of $2,375; that with the purpose and intention of defrauding your orator and his other creditors^ and for the purpose of hindering and delaying your orator in the collection of its just claims, and to prevent a levy and sale of said premises under and by virtue of said writs of fieri facias, the said Elmer M. Danforth procured and obtained a deed of said premises to be made and delivered to himself and his wife, Annettie Danforth, defendant herein, and that the consideration therein mentioned, or at least one-half of said consideration, was paid by the said Elmer M. Danforth, and that the said Elmer M. Danforth is the owner of at least one-half of said premises.”

Among the things asked for in the prayer was the following :

Eighteenth. That the said conveyance of the said described property, namely, lot 915, being a part of the Stanton farm so-called ‘Private Claim 473,’ and being so numbered and described by and according to the recorded plat of a portion of said farm recorded in the register’s office of the county of Wayne in Liber six of plats, p. 26, to the said Elmer M. Danforth and Annettie Danforth may be held and decreed subject to the said levies of your orator, and that the same, or the title and interest of the said Elmer M. Danforth therein, may be sold to satisfy said judgments, costs, and the interests thereof, and the costs of this suit.”

As before stated, the defendants, though personally served, did not answer, but allowed orders pro confesso to be entered. See Chancery Rule 7, subd. 6. The rule has been stated as follows:

“ Instead of answering the bill, the defendant let it be taken as confessed. This was an admission on his part of every material fact stated in it. If he had wished to controvert the truth of any of the allegations of the bill, he should have put them in issue by plea or answer; and, not having done so, he was precluded from introducing evidence for that purpose before the master.” Ward v. Jewett, Walk. Ch. (Mich.) 45.

The decree authorized the sale of the entire property. The averment of the bill of complaint which we have quoted avers that at least one-half of the consideration paid for the real estate was paid by defendant Elmer M. Danforth, and that he is the owner of at least one-half of the premises. This averment and the prayer for relief is not broad enough to warrant a decree for the sale of all the property. It must be modified so as to provide for a sale of an undivided one-half of the property.

Defendants will recover costs of this court.

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


author: Ostrander, J.

text:
      In re EATON'S ESTATE.
    Wills — Effect of Changes in Circumstances — Impossibility of Execution.
    Testator executed a will by which he provided that three-fourths of his estate be held by his executors as a trust fund for his son, who, if he should become confirmed in temperate habits and of sufficient prudence, should be entitled to receive the entire fund. The remaining fourth of the estate was bequeathed to the children of a deceased daughter. Provision was made in the instrument for testator’s wife, who, however, died before testator. The son referred to also died before the testator. Held, that the cessation of the reason for any trust, and the impossibility of executing the related provisions of the will for the distribution of the estate rendered the instrument invalid and the property should be divided among the testator’s grandchildren in accordance with statute.
    Error to Saginaw; Gage (William G.), J.
    Submitted January 20, 1910.
    (Docket No. 103.)
    Decided March 5, 1910.
    Charles E. Brenner and S. B. Borland, executors of the last will and testament of Daniel L. C. Eaton, deceased, petitioned for a distribution of said estate. The petition was granted in the probate court, and Emma C. Eaton, guardian of Lesla K. Eaton, appealed to the circuit court. A judgment sustaining the order of the probate court is reviewed by contestant on writ of error.
    Reversed, and judgment entered for contestant.

      William F. Paine, for appellant.

      A. Flwood Snow, for appellees.
    The facts are that the testator, Daniel L. C. Eaton, made his will April 17, 1900. The wife of testator died in May, 1902. His son, George B. Eaton, died in January, 1905, leaving a widow and one child, both of whom survived the testator, as did children of testator’s deceased daughter, Marie P. Pendleton. Testator died November 18, 1906. His will was admitted to probate. Two of the three executors named in the fifth clause of the will qualified. Upon the petition of these executors, the probate court, March 14, 1908, made an order authorizing said executors to pay over to the children of Marie P. Pendleton one-fourth of the amount of the personal estate in their hands, being $4,678.44. On April 10, 1909, upon petition of said executors, the probate court made an order assigning the residue of said estate. This order, after reciting various descriptions of real estate owned by the testator at the time he died, proceeds as follows:
    “ To be assigned to the heirs of the said deceased according to said will now on file in said probate office, in the following proportions, to the heirs of George Eaton, deceased, interested in said real estate, three-eighths part thereof, and to the heirs of Pendleton, deceased, interested in said real estate, five-eighths part thereof, with the exception of a trust fund of fifteen thousand ($15,000.00) dollars, which is retained by the trustees appointed by the direction of said will of said deceased, which said fund is to be maintained out of said estate, and the income of which is to be applied on the annuity created by said will; and that the heirs of Marie Pendleton, deceased, and the heir of George Eaton, deceased, are sole heirs of said deceased. It is therefore ordered, adjudged, and decreed by the court that after deducting the sum of fifteen thousand ($15,000.00) dollars, retained by said trustees, the residue of the personal estate, and the residue of the - proceeds of the sale of the real estate, as set forth in the final account of said executors, reference thereto being had, and which said final account is made a part of this decree for the purposes hereinbefore set forth, and said pieces and parcels of land be and the same are hereby assigned to the heirs according to law and the will of said deceased.”
    On the same day an order was made discharging, exonerating, and acquitting the executors from all liability in the premises excepting with respect to certain lands sold upon contract, as to which said lands administration is to continue. The bonds of the executors were reduced, and, except as stated, administration of the estate was declared to be closed. The will of Daniel L. C. Eaton, so far as it is important here, is as follows:
    “Second. I devise and bequeath to my wife, Mary Eaton, in case she survive me, all the estate, real and personal, of every kind, which shall belong to me at my decease to have, use, enjoy and control during her life. I also grant to her full power, for the purpose of its care, control and management, to sell and convey any part of it, either real or personal, and to invest, reinvest and change as she may see fit and it is the intention to give her, in said property, in the manner above stated, and with the power above stated to enable her to use and care for it, only a life estate. It is my direction that she shall not be required to execute any bond whatever, as executrix of this will.

      “Third. All that shall remain of my estate, both real and personal, and also of the proceeds thereof, at the decease of my wife, or in case I shall survive her, then all of my estate, both real and personal, I devise and bequeath as follows: One-quarter thereof in equal parts to the children then living of my deceased daughter Marie P. Pendleton. The other three-quarters, in trust to my executors and trustees hereinafter named, to be held, managed, cared for and disposed of under the following trust, viz.:
    “(1) Out of the income, and the proceeds thereof to furnish from time to time to my son, George B. Eaton, during his life, such amounts of money as in their judgment they may deem proper for the uses of living and support of himself and family, and having in view the property which he may be possessed of, and of the income thereof, which he may be receiving therefrom from time to time, and which property I have and shall have furnished him, my executors will provide him so that at all times he shall have ample means for the comfortable and proper support of himself and family.

      “ (2) The reason for placing such property in my executors and trustees, in trust, arises from the personal habits of my son George and to provide against my estate being wasted, dissipated and unwisely disposed of by his indiscretion and inconsiderateness. My executors are therefore authorized, when, in their judgment they regard it prudent and for the best interests of my son, and of said estate, so to do, to turn over to him and in trust to his use and management as his own such parts of the property of the trust as they think proper, and to do this from time to time as they shall find expedient to be warranted for the best interests of himself and family and the proper management of the property placed in said trust. If it shall appear to my trustees that the property intrusted to him is not properly cared for, managed or preserved, they shall not intrust to him any additional portions of such property beyond the portion of the income or proceeds thereof, which are to be applied for the support of himself and his family, as above provided.
    “(3) If, at any time, in the judgment of my executors my son George should become permanently confirmed in good and temperate habits and danger shall be finally and fully removed of his wasting or misusing the property of the trust, and that he can be safely and wisely intrusted with the full care, management and preservation therefore, they in that case, are authorized to transfer to him the entire property, which is held in said trust but such transfer of the property, and my son’s right thereto, do and shall expressly depend upon the precedent condition of the fact that he shall in the judgment of any executors and trustees become permanently confirmed in good and temperate habits; that danger of his wasting or misusing and not properly preserving the property shall not in their judgment exist, and that he can in their judgments safely and wisely be intrusted with the full care, management and preservation of the property.
    “(4) Upon the decease of my son George, the property then remaining in said trust held by my executors and trustees shall be disposed of as follows: In case his wife, Emma E. Eaton, shall survive him, she shall be paid out of such property the sum of three hundred dollars annually so long as she shall remain the widow of my son George. In case of her remarriage such payment shall cease. A sufficient amount of such property shall continue to be paid in such trust, so that the income therefrom will provide for the payment annually of said sum of three hundred dollars to said Emma. The remainder of such trust property after that which may be required to provide for the payment of said three hundred dollars annually to said Emma as above stated and the fund in trust for her at the termination of the trust shall go and be transferred, one half thereof to the child or children then living of my son George, in case there shall be more than one such child then living they shall take in equal shares; and the other half of such property shall go and be transferred in equal shares to the children then living of my deceased daughter, Marie P. Pendleton.”
    The widow of George B. Eaton, describing herself as guardian of his and her infant daughter, appealed from the orders of April 10,1909, to the circuit court, assigning as reasons the following:
    “ That said probate court failed to take into consideration, either in the final account or in the order distributing the estate, certain items of interest which should have been computed. That said probate court erred in the interpretation which was given to the will as to the respective shares belonging to the'heirs, and allowed to Lesla K. Eaton, said minor, less than the share to which the said minor was entitled. That the order of said probate court dismissing the executors and releasing their bond was prematurely made for the reason that the funds of said estate were then and are yet in the hands of said executors, who refuse to pay over any part of the same to the said minor or to her guardian.”
   Ostrander, J.

(after stating the facts). It is the contention of the appellant that one-half of the estate of the testator should have been assigned to the heir of George B. Eaton, the other one-half to the heirs of Marie P. Pendleton, subject to the continuance, during her life, or widowhood, of the trust fund created to secure her annuity. The theory of appellant is that the will contains no provision for the distribution of the estate, under the circumstances which existed at the time the testator died, and, therefore, the estate must be assigned, subject to said fund, to the children of his deceased children as representatives of their parents.

It is clear that the reason for creating a trust estate embracing three-fourths of decedent’s property did not exist at the time of his death. The trust created by the will could not be executed, and the division of the property in accordance with the third subdivision of the will could not be made. The provision of the will which postponed the immediate devolution of the estate was wholly-ineffective. It is equally clear that the testator contemplated that his son George might earn — beeome entitled to take —the whole of the trust fund, or three-fourths of the estate. If he did, there would then be no fund in the hands of the trustees to be disposed of under the provisions of the fourth subdivision of the third clause of the will. The will cannot be given effect according to its terms.

It is said that because the testator omitted to make changes therein, or to make a new will, after the death of his son George, it must be assumed that he intended that one-fourth of the estate should, in any event, pass to the children of his daughter, together with one-half of the remainder, while the child of his son should take one-half the remainder or only three-eighths of his estate, and that out of the three-fourths interest there should be carved a life estate for the widow of the son. The will, however, provides for no such thing, and no such result can be arrived at by construction. The language employed by the testator is not ambiguous. His meaning is not doubtful. But his clear intention, as expressed in the will, cannot be carried out. It would be pure assumption to say that he intended that if his son George did not survive him his (George’s) daughter should have but three-eighths of his estate. We are of opinion that the executors, as trustees, acquired title to no part of the property, and that the estate was one which, subject to debts of the testator and to expenses of administration, devolved upon his death upon the children of his children, respectively, by right of representation. This should have been the order and decree of the probate court.

The judgment of the circuit court is reversed, and the record will be remanded, with directions to the probate court to vacate its orders in the premises and to assign the estate in the manner herein indicated. Appellant will recover her costs of the circuit court and of this appeal out of the general estate.

Montgomery, O. J., Hooker, Moore, and Stone, JJ., concurred.


text:
    LAFRANCE v. GRIFFIN.
    1. Equity — Pleading and Practice — Replication—Hearing on Pleadings.
    Unless a replication is filed to an answer in equity or is waived, the complainant who brings the cause to a hearing cannot help out his case by proofs.
    2. Same.
    At the hearing on pleadings, the effect of the answer is the same whether verified or not if a sworn answer is waived in the bill.
    3. Same.
    The answer admits every material averment of the bill which it does not deny. Chancery Rule Wd.

    4. Same — Appeal and Error — Contents op Record — Omissions op Evidence.
    In a suit to enjoin an action at law to recover possession of lands sold under contract which the vendor claimed was discharged by default in the stipulated payments, where the complainant brought the injunction proceedings on for hearing on pleadings, and where an order was entered by the circuit judge referring the case to a commissioner to take proofs, the defendant not consenting to the order, the record on appeal is sufficient as against a motion to dismiss, if it contains merely the pleadings without the evidence which was im-properly received by the trial court.
    5. Vendor and Purchaser — In junction Against Action op Ejectment — Default in Payments — Forfeiture.
    After a default in the terms of a land contract by the vendee, the service of a notice of forfeiture terminates the contract relations of the parties.
    Appeal from Bay; Collins, J.
    Submitted January 20, 1910.
    (Docket No. 96.)
    Decided March. 5, 1910.
    Bill by Peter Lafrance against Albert A. Griffin and Gertrude L. Griffin for the specific performance of a land contract, and to enjoin an action of ejectment. From the decree rendered, defendants appeal.
    Reversed, and bill dismissed.

      Weadock & Duffy (H. A. La Berge, of counsel), for complainant.

      Albert McGlatchey, for defendants.
    The defendants were vendors and the complainant was the vendee in an executory contract for the sale and purchase of certain lands. Claiming that the vendee was in default, the vendors served upon him a notice of forfeiture, and thereafter began an action of ejectment to recover the possession of the land, into which the vendee had entered. The vendee thereupon filed the bill in this cause, praying that defendants specifically perform the contract, that an accounting be had, and that the defendants be enjoined from further prosecution of the action of ejectment. The bill was verified. Answer on oath was waived. We assume that a temporary injunction issued, but the fact is not disclosed by the printed record. The defendants answered the bill, but not upon oath. No replication was filed. About a year and eight months after the bill was filed, an opinion was handed down, reciting that the case had been submitted on bill and answer, and a finding of facts, with the conclusion that the defendants were entitled to a decree dismissing the bill, and that such a decree would be made unless the complainant on or before the 26th of “ this month ” (July) pays or causes to be paid the full amount due upon the contract, the taxable costs of the ejectment suit and the taxable costs of this suit, and providing that, unless the parties agree upon the amounts due on or before the 17th of the month (July),—
    “The court will make an order of reference requiring an immediate report showing the amounts due from the complainant to the defendants as indicated by this decision, which will be followed by a decree pursuant thereto.”
    There was an order of reference made August 4, 1909, to a commissioner to take an accounting and report the amount due upon the contract, and the commissioner was directed to examine the bill and answer and such statements and accounts as the parties should furnish and such testimony as should be taken. Each party was directed to file an account, and each authorized to take testimony on notice. It is disclosed by the brief for appellants that their solicitor, although having notice of the order of reference, did not attend, nor did the appellants attend, before the commissioner. The next thing appearing in the record is the notice of settlement of a decree on September 1, 1909. Objections to the proposed decree seem to have been presented, but under what date or how does not appear, and on the 7th of September, 1909, the proposed decree was signed. The decree recites that the cause came on to be heard upon the bill, answer, and the proofs, oral, documentary, and written, taken and filed in said cause by the commissioner. It is adjudged that complainant pay into court in 60 days $537.84, being the amount found due by the commissioner, costs of $33, and costs of the ejectment suit, $35. It is further adjudged that, if an appeal to the Supreme Court is taken, the said sums shall be paid by complainant on or before 30 days from the determination of that court. If complainant makes the payment, defendants are ordered to desist and refrain from prosecuting the ejectment suit and complainant shall have title to the land. If he does not pay, “the bill will be dismissed, the injunction dissolved, and the defendants permitted to prosecute their ejectment suit.” From this decree the defendants have appealed. The printed record appears to have been received by the clerk of this court December 17, 1909. On January 11, 1910, a motion to dismiss the appeal was made. The grounds of the motion are that no case on appeal had been settled and no agreed statement of facts had been made, because the testimony taken before the commissioner and offered upon the hearing was not included in the record, because the case was certified by neither the circuit judge that heard the cause nor a circuit court commissioner. We are-asked by appellants to make such a decree as should be made upon a consideration of the averments found in the bill and answer, and that decree, it is claimed by the appellants, should be one either dismissing the bill of complaint or modifying the decree of the court below with respect to the amount found due, and in other respects.
   Ostrander, J.

(after stating the facts). If the court below should have considered only the bill and answer, this court may proceed, on this appeal, to consider what decree is warranted by those pleadings. If the court below properly considered the report of the commissioner, the motion to dismiss the appeal must be granted. It is the general rule that, unless a replication is filed, the complainant, if he brings the cause to a hearing, cannot help out his case by proof. Nothing is taken as. true without proof unless admitted by the answer. Morris v. Morris, 5 Mich. 171; Hardwick v. Bassett, 25 Mich. 149. Whether the answer is or is not sworn to, if answer on oath is waived, the rule is the same. Chancery Rule 10, subd. a; Fields v. Highway Commissioner, 102 Mich. 449 (60 N. W. 1048). Under the present practice in this State, every material allegation in the bill to which the defendant shall not make answer is taken as admitted by defendant. Chancery Rule 10, subd. d. There is no claim that the failure to file replication was an inadvertence. It is said in the brief for appellee that *c the reason why complainant filed no replication is none of defendant’s concern. They are affected only by the fact of whether or not one was filed.” The failure to file one was not waived. We conclude, therefore, that the motion to dismiss the appeal should be denied, with costs, and that the cause must stand for hearing in this court upon the record presented.

Examination of the bill and answer discloses that admitted allegations of the bill are that the contract was executed, the purchase price was $1,300, payments $25 down and $25 on the 21st of each month until the whole sum and interest at 5 per cent, had been paid, a total of $795 paid before contract relations were ended by notice, and that contract relations were ended by notice. A computation supplies the fact that, when the notice was given, complainant was in default. Affirmative averments in the answer, to be accepted as true, are that on April 4, 1907, complainant was requested to pay on or before April 11, 1907, and paid no attention to the request. The notice terminating contract relations was given April 80, 1907. Nothing was thereafter paid, although a tender of #25, made in July, 1907, after suit had been begun, was refused. Indeed, on July 8, 1909, one year and eight months after the bill was filed, the court below found that at the time of giving the notice, and ever since, complainant was in default, that defendants were entitled to a decree dismissing the bill, and that such a decree would be made unless complainant, on or before July 26th, paid or caused to be paid the full amount due on the contract (it was all due), and, in addition, the taxable costs of the ejectment suit and of this suit. This finding gave complainant credit for $142.75, which the answer did not admit, but expressly denied, as a payment on the contract. The decision proceeds with the statement that, unless the parties agreed before July 17th upon the sum due, an order of reference would be made. The order of reference was not made until August 4, 1909. It is apparent that the commissioner allowed to complainant payments in excess of those admitted and of the #142.75 allowed by the court. It is patent that no reference was required to enable complainant to compute the amount due in accordance with the finding of the court. Costs the court offered to tax summarily, and the taxable costs were ascertainable. So far as is disclosed, complainant has not, up to this time, produced any money in or out of court to discharge the indebtedness.

We find that the complainant was in default when the notice of April 30, 1907, was given; that the notice terminated the contract relations of the parties; that the bill is not filed to set aside the forfeiture or to relieve from the default. Indeed, the practice pursued strongly indicates that the bill was filed for delay merely.

Appellants, having asked for no affirmative relief, may take a decree dismissing the bill, with costs of both courts.

Montgomery, O. J., and Hooker, Moore, and Stone, JJ., concurred.