author: Stone, J.

text:
    BORGMAN v. BULTEMA.
    1. Stipulations — Power of Court to Relieve Feom — Appeal and Error.
    Tlie court lias power to relieve a party from, a stipulation , upon a showing of sufficient cause; and. it is within the discretion of the court to set aside stipulations of attorneys relating to the conduct' of a pending cause where their enforcement would result in injury to one of the parties, and the other party would not be materially prejudiced by their being set aside.

      2. Same — Appeal and Errob — Dismissal—Relief from Stipulation.
    Upon sufficient' showing by affidavit by defendants’ attorneys of proper diligence, and that it was a physical impossibility to prepare the case for presentation to this court at the present term, although it had been, stipulated between counsel for the parties so to do, plaintiffs’ motion for an order placing it upon the docket of this court for the present term or dismissing defendants’ appeal is denied but with permission to renew motion to dismiss if the case is .not seasonably placed in condition for hearing at the nest term of this court.
    Bill by William Borgman and others against Harry Bultema and others for an injunction. On motion of plaintiffs to dismiss an appeal.
    Submitted October 12, 1920.
    (Calendar No. 29,411.)
    Motion denied October 20, 1920.
    Harris E. Galpin (Matt N. Connine, of counsel), for plaintiffs.

      Stephen H. Clink, for defendants.
   Stone, J.

This case is before this court upon motion of the plaintiffs and appellees for an order placing it upon the present October term docket of this court for argument, or for an order dismissing the appeal of the defendants herein for the following reasons:

(1) That said cause is not now upon the docket of this court for the present October term, because of the neglect of the said defendants, appellants, and failure on their part to comply with the terms of certain stipulations entered into by them, and of record in this court.

(2) Because of the fact that under all of the circumstances connected with the cause and its appeal, the plaintiffs are entitled to have this cause promptly tried and determined, or to have this appeal dismissed.

(3) Because of the fact that there has not been paid to the clerk of this court, within the time limited by rule, the necessary filing fee.

The motion is based upon the records and files in the cause, and upon the affidavit of counsel and the certificate of the circuit judge. The motion was made on October 4, 1920, and noticed for hearing upon the 12th day of October. The bill of complaint in the cause was filed in the Muskegon circuit court in chancery, in December, 1919. The final decree was entered and filed on the 12th day of April, 1920; and the claim for appeal was filed by the defendants on the 28th day of April, 1920. The testimony was ordered seasonably by the defendants, and time to settle the case was extended from time to time by the court below until the 15th day of August, 1920.

On the 5th day of August defendants caused to be filed in this court their petition asking for a writ of mandamus to be directed to the circuit judge to enter an order further extending the time within which to prepare a case for settlement in said cause. By order of this court an alternative writ of mandamus was issued commanding the circuit judge to enter an order to extend the time within which to prepare a case for settlement to and including the first day of September, 1920, or that the circuit judge show cause why a peremptory writ of mandamus should not be issued. Time was extended by the circuit judge to September 1, 1920, on August 7, 1920. Thereafter, on the 80th day of August, 1920, the defendants caused to be brought on before the circuit court a motion asking for an order further extending the time within which to prepare a case for settlement. On the argument of this motion counsel for plaintiffs offered to opposing counsel to stipulate a reasonable extension of time upon the conditions that the defendants stipulate that this cause might be brought on for argument at the October (1920) term of this court, and that it be placed on the October term calendar, and waiving notice thereof. Stipulations were thereupon filed to that effect. We quote from the first stipulation, which contains the substance of all of the stipulations. After the title of the court and cause that stipulation reads as follows:

“In this cause the time within which the defendants may procure a settlement and signing of a case in this cause and to take such other steps necessary to complete an appeal therein,- expiring on the first day of September, 1920, it is hereby stipulated and agreed by and between the said parties, by their respective attorneys, that the time within which said defendants may procure a settlement and signing of said case, be extended to and including the 8th day of September, 1920, and that this cause shall be placed upon the calendar of the October term of the Supreme Court ' and shall be brought on for argument at said term, the said defendants waiving notice of argument thereof.” Dated August 30, 1920, and signed by counsel for the respective parties.

The case was finally settled and signed on September 8, 1920. It was filed with the clerk of the circuit court upon the 18th day of September, 1920, and the return made and a manuscript case as settled (together with the pleadings constituting the record in the case) was filed with the clerk of this court on October 1, 1920.

It would seem that the provisions of section 11 of Circuit Court Rule No. 66, and section 24 of chapter 50 of the judicature act (3 Comp. Laws 1915, § 13759) were complied with in perfecting the appeal to this court.

In resisting the present motion in this court one of the attorneys for the defendants filed an affidavit stating that at the time of the settling of said case certain amendments were proposed by the attorney for plaintiffs to the case on appeal, which were agreed to but were not then incorporated into the case, since said amendments were lengthy, and that it was agreed that the said amendments might be inserted in said case, as agreed upon, on deponent’s return to the city of Muskegon from Niles, Michigan, where the case had been settled and signed by Judge White, the circuit judge who heard the case below and entered the decree; that deponent after the settling of said case caused to be inserted the amendments as agreed upon and certified to by the said circuit judge; and filed said case on appeal with the clerk of the circuit court on September 18, 1920, which was within the time required by rule; that deponent did not file said case on appeal at an earlier date because it was necessary to retain the same in his possession for the purpose of completing the amendments therein, and of making copies of certain exhibits therein contained. Counsel gives as a reason for retaining certain of the original files in his possession (which is complained of by plaintiffs’ counsel), the fact that there were necessary to be sent to the printers copies of the pleadings, and that said files were promptly returned to the clerk of the circuit court; that the filing fee for entering the return of this cause in this court was received by the clerk of this court on the first day of October, 1920, as appears by the written acknowledgment received by the attorney for the defendants from said clerk, and that said fee was paid within the time prescribed by rule; that this deponent sent a copy of said record immediately to the ■ Michigan Brief & Record Company of Detroit, Michigan, for printing, which company had for several years printed all of said attorney’s records, and that he especially stated to said company that it was necessary to have said record printed immediately, since the only way an extension of time to settle said case had been procured was by stipulating that said case might be heard in the October term of this court, and that deponent received a communication from said company stating that it would be impossible to print a record within the time prescribed by rule, to have same filed with this court, and that on account of the condition of the labor market and the limited supply of Mergenthaler operators their production had been curtailed; that the said company is able to furnish the printing of records and briefs far more expeditiously than any of the local printers, and that it was with the idea of having said record printed within the shortest time possible and with the greatest care, that said record was sent to said company rather than submitted to any concern in Muskegon; that counsel have acted without any negligence in the taking of the steps connected with the settling of said case and preparation of the same for this court, and have worked diligently upon the same under burdensome circumstances. It is further stated in said affidavit that' the failure to have the said case upon the calendar of this court for this term is not due to any neglect upon the part of the deponent or the attorneys for defendants, but that it is an utter impossibility to have the same placed thereon when sufficient time is not given to have even the record of said case printed; that all steps taken in connection with said case have been diligently and promptly taken and within the rules and statutes prescribed, but that it is a physical impossibility to comply with the terms of said stipulations. The facts stated in said affidavit are substantially uncontradicted.

From an examination of the affidavits on file, we are not prepared to say that the defendants’ counsel have been guilty of any negligence or lack of diligence in preparing this case for a hearing here. We have looked into the record on file in the office of the clerk of this court sufficiently to become satisfied that the case is one of unusual importance to the parties. The record contains about 360 pages of typewritten matter. It appears from the pleadings that a serious schism has arisen in the First Christian Reformed Church of Muskegon. The bill was filed to restrain the defendants from acting, or claiming to act, as the minister and consistory (consisting of the elders and deacons) of the said First Church, and from holding, managing and controlling the real estate, consisting of church property of the value of upwards of $30,000, as such minister and consistory, and from performing the duties of their respective offices, on the theory that they had been duly and legally removed from their respective offices, and consequently have no lawful right to further act in that respect.

It is the claim of the plaintiffs that the defendants have been duly and legally deposed and removed from their offices of minister, deacons and elders of said First Church in accordance with the established usages of the Christian Reformed Church, and that consequently they have no further right to control the property of said First Church, or to exercise the privileges and functions of their respective offices. On the other hand, defendants insist that they were duly elected, and never have been legally deposed from their respective offices, and that consequently they have the legal right to act as the governing body of said First Church and to conduct worship therein, and to perform the duties of their respective offices.

The vital question is whether or not defendants have been legally deposed from their respective offices in accordance with the laws and usages of said Christian Reformed Church. The learned circuit judge who heard the case filed a lengthy opinion therein sustaining the claim of the plaintiffs, and granted the relief prayed for by them. An appeal bond in the sum of $3,000 was approved and filed.

We are unable to say that substantial justice will be done in dismissing the appeal in this case at the present time. To get the case in readiness for hearing at the present term of this court is a physical impossibility. That the stipulations were entered into by counsel for the respective parties in good faith we have no reason to doubt. Are the defendants so bound by the stipulations as to warrant the dismissal of the appeal? As a general proposition it may be said that the court has power to relieve a party from a stipulation upon a showing of sufficient cause; and it is within the discretion of the court to set aside stipulations of attorneys relating to the conduct of a pending cause where their enforcement would, result in injury to one of the parties, and the other party would not be materially prejudiced by their being set aside. They may be set aside where it would be inequitable to enforce them, and where they were entered into under a mistake as to a fact, or circumstances connected with the subject-matter; and where facts subsequently developed show that the stipulations were inadvertently made, relief will be granted. 36 Cyc., p. 1294 et seq. 25 R. C. L., p. 1099.

The case is not an old one, and the questions involved are of such importance to the parties in interest as to warrant a thorough preparation for its argument and submission. This cause should, by defendants, under the rules of court, be seasonably placed in condition for hearing at the next term of this court, and in default of so doing counsel for plaintiffs may renew their motion to dismiss the appeal. Under the circumstances this motion is denied, but without costs to either party.

MopRE, C. J., and Steere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
      In re SMITH.
    1. Criminal Law — Commitment—Life Term — Recommendation of Judge Surplusage.
    Under a sentence that the accused be confined in prison for a maximum period of his natural life and a minimum period of ten years, the court recommending ten years as . a reasonable maximum, the order should be construed as fixing a maximum sentence at life, and the recommendation of a sentence of'ten years should be treated as surplusage, except as it might be considered by the pardoning power.
    2. Same — Life Term — Indeterminate Sentence Law Not Applicable.
    In the case of a sentence for life the indeterminate sentence law (3 Comp. Laws 1915, § 15859 et seq.) is not applicable.
    Habeas corpus proceedings by Charles Smith to obtain his release from imprisonment in the State prison at Jackson.
    Submitted October 12, 1920.
    (Calendar No. 29,419.)
    Writ denied October 22, 1920.

      Simpson & MoKone (Leland S. Bisbee, of counsel), for plaintiff.

      Alex. J. GroesbecJc, Attorney General, and Clare Retan, Assistant Attorney General, for defendant.
   Per Curiam.

Petitioner was convicted in the Mason circuit court of the crime of rape. On October 11, 1912, sentence was imposed in the following language:

“That the said Charles Smith be confined in the State prison at Jackson at hard labor for a maximum period of his natural life and a minimum period of ten years from and including this day, and recommends ten years as a reasonable maximum sentence from and including this day.”

Petitioner has since been confined in the State prison at Jackson and institutes these proceedings to secure his release. It is admitted that he has earned all his good time under section 1732, 1 Comp. Laws 1915. It is the claim of his counsel that the sentence is one under the indeterminate sentence law (3 Comp. Laws 1915, § 15859 ét seq.) for a maximum of 10 years, and that computing such good time it expired May 7, 1920, and petitioner is now entitled to be discharged upon this writ. It is insisted by the attorney general on behalf of the warden that the sentence is one for life to which the indeterminate sentence law is not applicable, and that the recommendation of a maximum sentence of 10 years is no part of the sentence and should be disregarded by the court.

Section 15211, 3 Comp. Laws 1915, provides:

“If any person shall ravish and carnally know any female of the age of sixteen years, or more, by force and against her will, or shall unlawfully and carnally know and abuse any female under the full age of sixteen years, he shall be punished by imprisonment in the State prison for life, or for any such period as the court in its discretion shall direct.” *' * *

Under this section the sentence may, in the discretion of the trial judge, be for life or for any term of years*. If the sentence be for life.the indeterminate sentence law is not applicable. People v. Vitali, 156 Mich. 370; People v. Dumas, 161 Mich. 45; People v. Blake, 157 Mich. 533.

In Re Hamilton, 188 Mich. 499, the sentence was in the following language:

“That the said George E. Hamilton be confined in the State house of correction and branch of the State prison in the Upper Peninsula, Marquette, Mich., at hard labor, for a period of not less than ten years from and including this day, and the judge thereupon did recommend and state that, in his judgment, the proper maximum penalty would be the term of his natural life as fixed by the statute.”

Considering this sentence, we there held:

“It is therefore manifest that, if in the case at bar the sentence had been for the life of petitioner, it would have been a good sentence in law, and we are confronted with the question: Was it the judgment of the court, as shown by its record, that petitioner be imprisoned for life? To this question I think but one reasonable answer can be given. We cannot hold the recommendation of the court as the sentence, and ignore the positive language of the judgment fixing a period of imprisonment of not less than ten years.”

The effect of our holding in the Hamilton Case was that where the maximum sentence was fixed at the period of 10 years the recommendation (in that case of a life sentence) should be treated as surplusage except as it might be considered by the pardoning power. Here we have the converse of that case. The maximum sentence is here fixed at life. By a parity of reasoning we are constrained to hold that the recommendation of a sentence for a term of years should be treated as surplusage except as it may be considered by the pardoning power. The return of the warden shows that the governor of the State has commuted petitioner’s sentence, so that he is now eligible for parole. He is not entitled to discharge as matter of law.

The writ must be dismissed.


author: Steere, J.

text:
    BEAUBIEN v. DETROIT UNITED RAILWAY.
    1. Street Railways — Negligence—Personal Injuries — Question eor Jury.
    In an action against a street railway company for personal injuries, where defendant had placed its cars in the street in such a way as to cut off plaintiff’s view to the west, and he was struck and injured by one of defendant’s east-bound cars while he was driving his automobile across the tracks to the south between two of the standing cars, there being testimony that no gong was sounded, and that the car was being driven at an excessive rate of speed, the questions of defendant’s negligence and plaintiff’s contributory negligence were properly for the jury.
    2. Sake — Negligence—Contributory Negligence.
    The bare fact that defendant’s motorman in a standing car was in a position where he might have seen the car coming from the west and did not notify plaintiff of its approach was not, as an unqualified proposition of law, negligence on the part of defendant in not so doing, although it might be competent for the jury to consider in connection with other evidence in the case, particularly in relation to the question of plaintiff’s contributory negligence.
    S. Same — Crossing Street — Contributory Negligence.
    The question of plaintiff’s contributory negligence in passing close to or far from the standing car was one of fact for the jury, and it was error for the trial judge to instruct them that plaintiff would not be guilty of contributory negligence if in crossing the street he went to the right and around the center of the intersection, though it brought him within 4 or 5 feet of the standing car.
    4. Same — Prejudicial Error — Excessive Verdict — New Trial.
    "Where prejudicial errors are materially reflected in the verdict, the judgment will be reversed and new trial granted.
    On contributory negligence of driver of automobile at railroad crossing, see note in 46 L. R. A. (N. S.) 702.
    Error to Genesee; Brennan (Fred W.), J.
    Submitted June 16, 1920.
    (Docket No. 51.)
    Decided October 22, 1920.
    Case by Philip- Beaubien against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Carton, Roberts & Stewart, for appellant.

      Farley & Selby (Lombard & Hext, of counsel), for appellee.
   Steere, J.

On January 27, 1919, plaintiff was injured in a collision between the automobile he was driving across defendant’s tracks and one of its street cars. The accident occurred in the outer portion of the city of Flint at a point where Durand street extending from the south connects with but does not cross West Court street, along which defendant’s street cars ran east and west upon a double-track line, the eastbound cars on the south track and the west-bound on the north track. The double tracks extended west from Durand street a short block to where the pavement ended and the line continued with a single track for about a block further west to a “Y” upon which the cars turned for their run back east towards the center portion of the city. At times more cars coming from the east than the “Y” could immediately accommodate rendered it necessary for them to wait on the west end of the north track near Durand street until those using the “Y” preparatory to their return on the south track had started back.

Plaintiff, who was a resident of Flint for many years and about 56 years of age, had at the time of the accident been driving a taxi in the city for over a year, was familiar with and able to describe conditions on West Court street in that locality with reference to defendant’s tracks, use of the “Y” switches, etc. On the occasion of the accident he took a passenger in his taxi out West Court street and stopped to discharge him on its north side, opposite the easterly side of the north end of Durand street. At that time waiting cars filled the west-bound or north track for a block west of Durand street and while he was discharging his passenger some more west-bound cars arrived and stopped, the first near the east line of Durand street, leaving a space between it and the next car west on that track variously estimated by witnesses to be from about 30 to 40 feet. After his passenger had alighted and paid his fare plaintiff started to cross the tracks southerly between the cars standing on the north track each side of Durand street, to return east on the south side of West Court street. He testified that before starting he looked west along Court street to see if there was any danger, turned to look if the motorman in the car just east of Durand was going to start up and ascertaining he was not remarked to the passenger as he started away that it was “clear” and hei was going to turn, held out his hand as a signal and turned south to cross the tracks; that as soon as he passed from between the cars on the north track and turned to look west he saw a car coming at a high rate of speed so close that he could not avoid it by stopping or backing and he instantly put on “full juice” to try and clear it, but it was going about 25 miles an hour and struck his rear right wheel, throwing his jitney to the south and east against a telephone pole and him out upon the ground inflicting injuries, the extent of which is in dispute. The conductor and motorman of the car which struck his auto and his passenger whom he had just left across Court street immediately went to him where he lay upon the ground trying to arise and the conductor helped him to his feet, picked up his “car changer” which lay on the ground and handed it to him. He put it into his pocket, gave the conductor his name and address, directed that he be taken home and declined a suggestion that he be taken to a hospital. The only visible injury any of those present testify to then observing was a cut on his head from which blood was running down his face. His passenger, who was called by him as a witness, testified, “The only injury I could see was the gash on his head.” He was taken home, as he requested, in an automobile, and Dr. O’Neil, defendant’s physician, at once sent to care for him. The doctor testified that when he arrived he found plaintiff in bed with cuts over the right eye and on the back of his head, and he complained of the pain in his head; that the doctor dressed his wounds and made an examination, finding bruises at the right of his shoulder blade but none along his back or spine; that plaintiff was then perfectly rational and only complained of his head. Witness did not see him again as' he was advised plaintiff had called his own physician. Dr. Guile, who was called to attend plaintiff on December 80th, three days after the accident, testified that plaintiff’s wounds had been dressed before he saw him; he thought he found his nose broken and in examining him discovered several black and blue bruises centrally along plaintiff’s spinal column. He did not remember whether plaintiff was in bed when he first called, but he then showed evidence of a nervous shock and complained of anterior pain in his chest and the posterior portion of his spine; that the best relief for him was rest, and the pain continued until he went to bed, where he remained for several days; but after he got up and around again the nervous condition continued; he complained that exercise exhausted him and of having pains through his chest “anteriorly and posteriorly.” Witness made several examinations of his spine and discovered “an inflammatory condition resulting in a complete fixation of certain portions of the vertebra” which “has continued practically since the injury,” and which, in the opinion of the witness, “is permanent.”

On October 1, 1919, plaintiff began this action in the circuit court of Genesee county to recover damagesi for personal injuries sustained in said accident, and upon trial thereof was awarded a verdict and judgment against defendant in the sum of $16,832.55. Upon trial defendant moved for a directed verdict when plaintiff rested, and renewed the request at conclusion of all the testimony, moved for a judgment non obstante after verdict and thereafter for a new trial on various grounds, saving for review by objections and exceptions adverse rulings thereon.

The grounds of negligence charged in plaintiff’s declaration and urged at the trial are, so filling its north track in that locality with accumulated cars standing along the center of the street as to cut off the view of approaching cars on the south track to persons lawfully operating vehicles in the street on the north side of the tracks, negligently running the car which struck plaintiff’s auto at a reckless and excessive rate of speed in violation of the limit provided by city ordinance, failure to sound any warning or give notice of its approach, failure to employ and have in charge of its cars at that time and place competent persons to control their movement and operation with requisite regard for the safety of plaintiff and others there lawfully operating vehicles upon the street. In that connection it was contended in substance for plaintiff and the court charged that—

“if the motorman of the car which stopped at the east side of Durand street could, by the exercise of reasonable care and caution, have discovered and known of the approach of the car from the west in time to have warned the plaintiff of such approach, it was negligence on the part of the defendant in not doing so.”

Under its various assignments of error it was urged for defendant that a verdict should have been directed in its favor because no actionable negligence by-it was prima facie shown, while contributory negligence on plaintiff’s part conclusively appeared; that the court ■ erroneously and prejudicially charged the jury favorably to plaintiff in certain particulars, and the verdict was grossly excessive.

We are unable to find as a conclusion of law that there was no testimony to' carry the question of defendant’s negligence to the jury. Plaintiff, who from where he stopped had driven but a short distance to where he was struck, testified that he started slowly, turning to his left on an angle with his right door open listening and looking if there was, any car coming on the south track from the west and could have heard the bell had it been ringing, but he heard none and just as he passed from back of the car on the north track he saw the car which struck him about 40 feet away coming at so high a rate of speed that his only chance to get away was to increase his own speed and try to get across, which he promptly did, but the car was coming dowh grade “about 25 miles an hour” when it struck his hind wheel. Miss McCloud, who was waiting by the track for a car and saw the accident, testified that she first noticed this car coming from the “Y” and watched it “because it was coming so fast,” that it did not sound any gong and was in her opinion traveling 25 or 30 miles an hour; that she worked two years at the Buick auto factory and drove their cars, upon which there were speedometers, had observed speed rates and was familiar with the speed of moving objects. The passenger whom plaintiff had just discharged had been a mail carrier on the street for six years and lived in that locality. He stood within 15 feet of the accident at the time and testified that he judged the car was going 20 miles an hour when it struck the jitney, thought that if the car had sounded a gong he would have heard it and said, “There was no gong sounded that I can refer to.” These facts were disputed by defendant’s witnesses, but it cannot be said as a conclusion of law that there was no issue of fact as to defendant’s negligence.

Neither can we hold that in contemplation of law. it so clearly appears under the undisputed testimony that there was such conclusively shown contributory negligence on plaintiif’s part as to bar him from the judgment of a jury upon that issue. It is urged in defendant’s brief that plaintiif’s own testimony shows him negligent in proceeding to cross those double tracks immediately behind a car standing upon the one nearest to him without having at the last clear chance stopped, looked and listened where looking and listening would be effectual; that he did not, in fact, stop anywhere for that purpose and admitted that where he stopped to discharge his passenger his view to the west was obstructed by cars on the north track and he did not stop again, which it is contended precludes recovery under the rules of contributory negligence stated and applied in Colborne v. Railway, 177 Mich. 139, and Sanford v. Railway Co., 190 Mich. 390. In each of those cases there was a safety zone near the track on the side plaintiffs were approaching where there was an unobstructed view of the cars or train with which they collided. Here defendant had so placed its standing cars in the street as to obstruct plaintiif’s view from north of the tracks at or near the crossing it had left clear for travel and which he desired to use. He had stopped at the best point of view opposite this crossing, from the side of the tracks on which he was driving. The narrow strip of 4 feet 8 inches between the tracks was not a safety zone fon an automobile. It was but a few feet from where he stopped at the north curb to the tracks upon which he turned. He was facing west and testified that from there he looked and listened before starting, that the land was a little higher to the west and from where he was he could see cars backing on the “Y,” that he did not hear or see any car coming, and said to his passenger “I am clear, I am going to turn,” started up and turned southerly to cross indicating his purpose by extending his hand, observed the motorman in the vestibule of the car east of the crossing, had the right door of his taxi on the west side open to better look and listen, which he continued, heard no gong sounded and, if his testimony is true,, would have gotten safely across after he saw the car had it not been running at an excessive rate of speed. His discharged passenger, standing within 15 feet of the accident, said he heard no gong sounded and did not know there was a car approaching until he saw it strike the auto, while Miss McCloud, who stood on the south side of the track, was watching the car “because it was coming so fast” and testified “it did not sound any gong as it approached.” The attending conditions and controlling facts in this case, according to plaintiff’s version, which is the test under defendant’s motion for a directed verdict, are more closely analogous to those in Nichols v. Railway Co., 203 Mich. 372, and Fillingham v. Railway Co., 207 Mich. 644, than in the Colborne and Sanford Cases. The question of plaintiff’s negligence was by the conflicting testimony carried into the domain of disputed facts, the truth of which was for the jury to determine under proper instructions.

Various errors are assigned against the court’s charge to the jury, defendant’s counsel summing up its grievances in the fifth assignment as follows:

“because in no place in th'e charge does the court give the defendant’s theory of the case nor does said charge admit of any possibility of contributory negligence on the part of the plaintiff. The jury is repeatedly told that what the plaintiff did was not contributory negligence. It is a practical direction of a verdict in favor of the plaintiff.”

While the omnibus arraignment of the charge in this assignment is in the extreme, not borne out by the charge considered in its entirely and too general for direct consideration, specific portions of the charge against which error is assigned are not entirely free from such imputation. The bare fact that the motorman of the car which stopped on the east side of Du-rand street was. in a position where he might have seen a car coming from the west and did not notify plaintiff of its approach was not as an unqualified proposition of law “negligence on the part of the defendant in not so doing,” as. the court instructed the jury, although it might be competent testimony for the jury to consider in connection with other evidence in the case, particularly in relation to the question of plaintiff’s contributory negligence. It was error to instruct the jury that it could be taken as a conclusive test of defendant’s negligence.

The court also instructed the jury as follows:

“I further charge you that if the said defendant failed to sound the gong or give warning of the approach of the car in question at Durand street and other intersections with West Court street, it was guilty of negligence.”

Durand street joined West Court street on the south and there ended. Other streets intersecting West Court street were not involved in this controversy. The jury was given free range by this instruction to base a verdict of negligence against defendant for failure of its motorman to sound the gong and give warning of his car approaching “other intersections with West Court street.”

On the subject of plaintiff’s contributory negligence the jury was instructed:

“I further charge you, gentlemen of the jury, that a person turning at the intersection of public streets is required by the law of this State to pass to the right and around the center of such intersection, and if you find in this case that the plaintiff, in making the crossing, went to the right and around the center of the intersection, he would not be guilty of contributory negligence, though it brought him within 4 or 5 feet of the standing car.”

Durand street and West Court street are not intersecting highways in the sense that they cross each other. Plaintiff was crossing from the north to the south side of Court street to get on the proper side for his return east along it. Just where he was crossing defendant’s tracks on Court street with relation to Durand cannot be taken as the test of whether or not he was guilty of contributory negligence. Even assuming it was not so intended or understood, to whatever incident the instruction may have been directed in the connection used, the question of plaintiff’s contributory negligence in passing close to or far from the standing car was one of fact for the jury to decide.

Upon this record we are constrained to conclude that the errors noted were prejudicial and are materially reflected in the verdict, entitling defendant to a retrial. As other claimed errors urged by defendant are not of .such character as to necessarily occur upon re-trial of the case they are not discussed.

The judgment is reversed, with costs to defendant, and a new trial granted.

Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. Moore, C. J., did not sit.


author: Sharpe, J.

text:
    HUMPHREY v. DETROIT, MONROE & TOLEDO SHORT LINE RAILWAY.
    1. Carriers — Electric Railways — Action to Recover Penalty , fob Excessive Charge in State — Interstate Commerce Act— Materiality.
    In an action by a passenger against an interurban electric railway company, engaged in interstate as well as intrastate commerce, to recover tbe penalty provided by tbe State statute (2 Comp. Laws 1915, § 8244), for excessive charge for fare between Monroe and Detroit, in violation of an ordinance of the city of Monroe, agreed to by defendant, fixing tbe rate between said cities, held, unnecessary- to decide whether defendant is so engaged in interstate commerce as to bring it within the provisions of the interstate commerce act (U. S. Comp. Stat. 1916, § 8569, subd. 7), where it does not affirmatively appear in the record that the interstate commerce commission made any order affecting the rates to be charged by defendant, although, it does appear that application for permission to change the rate of fare was filed in the office of the commission.
    2. Same — Evidence—Sufficiency.
    Even if the statement of defendant’s general traffic manager that the commission acted upon the application should be held sufficient to establish the fact that approval of the increase in rates asked for was given, it cannot be inferred that it affected the rates on defendant’s intrastate lines.
    ,3. Same — Powers of Interstate Commerce Commission to Change Intrastate Rates.
    As to whether the interstate commerce commission has power to interfere with intrastate rates when established by statute of the State or fixed by ordinance of a municipality — gucere.

      i. Same — Piling Rate with State Railroad Commission — Evidence — Sufficiency.
    Testimony by defendant’s general traffic manager that deiendant had. a receipt issued by the Michigan railroad commission acknowledging that the proposed increase in rates had been filed with said commission, held, insufficient to establish the fact of said filing; said receipt not being in the record.
    5. Same — Proofs—Sufficiency—Directed Veedict.
    Under the proofs submitted, held, that the trial judge was justified in directing a verdict for plaintiff.
    Error to Monroe; Root (Jesse H.), J.
    Submitted April 7, 1920.
    (Docket No. 2.)
    Decided December 21, 1920.
    Rehearing denied March 30, 1921 (213 Mich. 113).
    Assumpsit in justice’s court by Ira G. Humphrey against the Detroit, Monroe & Toledo Short Line Railway, for the statutory penalty for collecting an excessive fare. There was. judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      Bernard F. Weadock (Thornton Dixon and DonnellyHally, Lyster & Munro, of counsel), for appellant.

      Willis Baldwin, for appellee.
   Sharpe, J.

The defendant is a Michigan corporation, organized under the general railroad law of the State, It operates an electric railway between the city of Detroit and the city of Toledo in the State of Ohio. It secured the right to occupy the streets of the city of Monroe, through which it passes, under an ordinance enacted September 22, 1902, and duly accepted by it. Under the terms of this ordinance the defendant agreed not to “charge a higher rate of fare or for freight carriage from any point on their said lines, to the city of Monroe, than they shall charge from thé city of Monroe to such points.” The fare over the through line from Monroe to Toledo was fixed at not to exceed 30 cents, and from Monroe to Detroit at not to exceed 50 cents.

The plaintiff, a resident of Monroe, made four round trips from Monroe to Detroit in November, 1918, and was charged by the conductor on each car upon which he traveled the sum of 65 cents, including war tax, this being in excess of the rate so fixed. He brought suit to recover the penalty provided for in section 8244, 2 Comp. Laws 1915, for excessive charge. The defendant contended that it was engaged in interstate commerce, that it had filed tariff schedules with the interstate commerce commission as required by the Federal act regulating the transportation of passengers and freight, and also with the Michigan railroad commission, and was thereby relieved from the provisions of the ordinance. The trial judge directed a verdict for the plaintiff for $800, on which judgment was rendered, and from which defendant appeals.

Defendant is unquestionably engaged in interstate commerce. It transports both passengers and freight from points in Michigan to points in Ohio. We are not on this record called upon to determine whether the defendant is so engaged as to bring it within the provisions of the interstate commerce act (U. S. Comp. St. 1916, § 8569, subd. 7), it not appearing affirmatively in this record that the commission made any order affecting the rates to be charged by defendant. It does appear in the proofs that the defendant company, in July, 1918, filed in the office of the commission an application for permission to change the rate of fare theretofore charged by it. The request for permission reads:

“Detroit, Monroe & Toledo Short Line Railway, between stations as indicated in G. P. D. 34, I. C. C. A. 34, supply of which is exhausted, five copies being submitted with application of May 5. Commissioners No. 5856. Through fares to be based on five (5) cents in Detroit, to and from D. U. R. Junction, and in Toledo to and from Toledo Limits, plus two (2) cents per mile for mileage outside of these cities.”

The only evidence tending to show any action on this request on the part of the commission is the statement of Mr. Rodger, general traffic manager of defendant, that “the commission acted upon my application.” If it made any order, it does not appear in the record. Under the law as it existed before the amendment in 1917—

“Provided further, until January first, nineteen hundred and twenty, no increased rate, fare, charge or classification shall be filed except after approval thereof hás been secured from the commission. Such approval may, in the discretion of the commission, be given without formal hearing, and in such case shall not affect any subsequent proceeding relative to such rate, fare, charge or classification,”

■ — no order was necessary. Even if the statement of Mr. Rodgbr should be held sufficient to establish the fact that approval of the increase of rates asked for was given, we cannot infer that it affected the rates on the defendant line which were intrastate, as was that between Monroe and Detroit, nor are we required to decide whether the commission has the power to interfere with such intrastate rate when established by statute of the State or fixed by the ordinance in question.

Neither do we find that there is any sufficient proof in the record to establish the fact that the proposed increase was filed with the Michigan railroad commission. Mr. Rodger testified:

“I am familiar with the report of the Detroit, Monroe & Toledo Railway filed with the Michigan railroad commission; a tariff similar to the one just referred to (that filed with the interstate commerce commission) was filed with the Michigan railroad commission, and this is the receipt by the commission of the tariff which we received from them. * * * I can’t swear that it was filed, except that we have their receipt for it and that describes this tariff. (Exhibit ‘D’ offered and admitted in evidence.)”

We have carefully examined the record and do not find this exhibit therein. We, therefore, do not feel called upon to discuss or decide the legal effect of the filing of such proposed schedule of rates with the State commission, as we must hold that there is no sufficient proof that one was filed or of the contents thereof.

Under the proofs submitted, we are of the opinion that the trial judge was justified in directing a verdict for the plaintiff. Judgment is therefore affirmed.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Bird, JJ., concurred.


text:
    KELLOGG v. KELLOGG TOASTED CORN FLAKE CO.
    1. Trade-Names — Injunction—Right to Use Trade-Name.
    Ia proceedings to enjoin defendant corporations and individual defendants, officers of defendant companies, from using the trade-name "Kellogg” in connection with prepared food products and goods of a similar character other than toasted corn flakes, where the evidence clearly shows that defendant corporation had used said trade-name and had spent large sums of money in advertising same previous to the organization of plaintiff corporation, the court be- . low properly dismissed plaintiffs’ hill and granted relief to defendants on their cross-hill.
    On limitation of right to use one’s own name as trade-name, see notes in 1 L. R. A. (N. S.) 660; 28 L. R. A. (N. S.) 934; L. R. A. 1916C, 255.
    On use of trade-name on articles other than those to which it is applied by the owner, see notes in 30 L. R. A. (N. S.) 167; 47' L. R. A. (N. S.) 1002; L. R. A. 1918C, 1044.

      2. Same — Injunctive Relief — Estoppel.
    The action of the individual plaintiff in participating as an officer of defendant corporation in creating and strengthening its trade rights in the name “Kellogg” previous to the organization of plaintiff corporation, field, to estop him from claiming, primary rights in said trade-name.
    3. Contracts — Construction—Intent.
    A contract should he construed so as to effectuate the intent of the parties when it was made.
    4. Same — Surrounding Circumstances to Be Considered.
    To ascertain the intent of the parties a contract should be construed in the light of the circumstances existing at the time it was made.
    5. Same — Construction—Trade-Name.
    A contract between plaintiff corporation and defendant corporation, ending litigation between them over their 'respective rights in the trade-name “Kellogg,” construed, and field, to concede to plaintiff corporation the right to use said name in the restricted manner specified in the contract, and other than this the unrestricted use was conceded to defendant corporation.
    6. Res Judicata — Court oe Appeals op District op Columbia— Trade-Names.
    Plaintiffs’ contention that their right to the use of the trade-name “Kellogg” was adjudicated by a recent decision in the Court of Appeals of the District of Columbia (Kellogg Food Co. v. Kellogg Toasted Corn Flake Co., 46 App. Cas. D. C. 521), field, not sustained by the record, which presented a question of pleading only, the question not having been disposed of upon its merits.
    7. Appeal and Error — Party not Appealing.
    On appeal from a decree in chancery, no modification or change will be made in favor of a party who does not appeal.
    Appeal from Calhoun; North (Walter H.), J.
    Submitted June 8, 1920.
    (Docket No. 12.)
    Decided December 21, 1920.
    Rehearing denied March 31, 1921.
    Bill by John Harvey Kellogg and others against the Kellogg Toasted Corn Flake Company and others to enjoin the use of a trade-name, and for an accounting. Defendants filed a cross-bill claiming affirmative relief. From a decree dismissing the bill and granting in part the prayer of the cross-bill, plaintiffs appeal.
    Affirmed.

      Fred L. Chappell and Ira A. Beck (John J. Carton, of counsel), for plaintiffs.

      W. H. Cla/rke and John W. Bailey, for defendants.
   Stone, J.

The bill of complaint herein was filed by Dr. John H. Kellogg, head of the Battle Creek Sanitarium, and by the companies under his control. The case presents questions involving trade-names and claimed unfair competition. The plaintiff complains against the Kellogg Toasted Corn Flake Company, Will K. Kellogg, a brother of Dr. Kellogg, and other defendant companies controlled by him, and John L. Kellogg, son of Will K. Kellogg, said Will K. Kellogg and John L. Kellogg being officers in control of defendant companies. An injunction is sought by plaintiffs to restrain the defendants from the use of the name Kellogg in connection with any business other than the business in toasted corn flakes (including biscuits) within the United States, and also to restrain the claimed unwarranted use of the name “Kellogg” as a part of the corporate name of the defendants W. K. Kellogg Cereal Company, the Kellogg Laboratories, Incorporated, and the Kellogg Candy Company, such companies having been organized subsequently to the incorporation of the plaintiff The Kellogg Food Company; also to restrain the use of the name “Kellogg” by Will K. Kellogg and John L. Kellogg in such business; and also to restrain the threatened use of the secret formulae and processes of Dr. Kellogg; and also to account for the profits derived from the business;’ and also the damages.

The defendants by their answer and cross-bill claim exclusive ownership of the trade-mark “Kellogg’s” through prior user, through Dr. Kellogg’s participation in and profiting by the action of the Corn Flake Company in adopting said trade-mark or name, ' through the action of the Sanitas Nut Food Company, Ltd., in dropping the Will K. Kellogg signature, and through the fact that as the Kellogg Toasted Corn Flake Company owns the trade-mark on some prod<ucts, the plaintiffs can have no right to deceive the public by its use on other products. There was prayer for injunction and accounting. The hearing below was mainly on evidence taken in open court, largely documentary, and on depositions as to certain claimed confusion. The bill of complaint was dismissed. The cross-bill of defendants was substantially sustained and the relief sought, in the main, granted. The plaintiffs have appealed. The defendants have not appealed. It is important to keep in mind the fact that defendants have not appealed from the decree below, in view of certain claims of defendants that the decree should be broadened in their interest or favor.

The decree below not only dismissed the bill of complaint, but it found and adjudicated that the defendant Kellogg Toasted Corn Flake Company, formerly known as Battle Creek Toasted Corn Flake Company, and also as Toasted Corn Flake Company, was, and ever since May, 1907, had been, the sole and exclusive owner of the trade-name or mark “Kellogg’s” on prepared food products and goods of a similar character, but that the plaintiff Kellogg Food Company on February 15,1911, was permitted by the defendant Kellogg Toasted Corn Flake Company to use within the United States the name of Kellogg Food Company on flaked cereal foods, as the manufacturer of such goods, so long as said name should occupy space not exceeding three-quarters of an inch in. height, and be located at the bottom of the carton, with the word “Kellogg” in such name in the same style and type and printed in the same colored ink, and no more conspicuous than the other words in said company name; and that said plaintiff Kellogg Food Company was further permitted to use within the United States the fac-simile signature of John Harvey Kellogg on its flaked cereal food cartons, so long as it is of the same size and form as appearing on the toasted rice flakes on February 15, 1911, and so long as it is used once only on each carton, and not on either face of the carton, but only on the side or end. i

It was further decreed that the use by the plaintiffs on the labels or containers of their goods or advertising matter of the word “Kellogg’s,” as part or all of the name or title, or designating words of any food products, candies, health products, health beverages or the like, was, and from the beginning has been, in violation of the rights of the defendant Kellogg Toasted Corn Flake Company. That the defendant Kellogg Toasted Corn Flake .Company do have and recover from the plaintiffs John Harvey Kellogg and The Kellogg Food Company the profits, gains or advantages which the said plaintiffs or either of them have received, or made, or which have arisen or accrued to them, or either of them, from the infringement of said trade-name “Kellogg’s,” by the making and using or selling of any food products, candies, health products, health beverages, or the like, within the United States, having placed thereon, as' part of the name or title, or designating words thereof, the said trade-name “Kellogg’s.” And that the defendant Kellogg Toasted1 Corn Flake Company do have and recover from said plaintiffs the full amount of any damages suffered by the defendants, by reason of the infringing acts of the plaintiffs, within the United States, and reference was made to a commissioner to ascertain and take and state and report to said court an account of the said matters.

We have spent weeks in the examination of the immense record, the numerous exhibits, and the lengthy briefs in the case. It would be idle to attempt to set out in this opinion even an abstract of the pleadings or evidence, within any reasonable limit. Without here reviewing the evidence at length it may be said that it goes to prove that it was the defendant the Kellogg Toasted Corn Flake Company and its predecessors that first adopted and established as a trade-name the word “Kellogg” or “Kellogg’s”; and it is a necessary conclusion from the evidence that the commercial term “Kellogg,” as applied to food products, not only originated with said defendant company or its predecessors, but that it now belongs to said company, subject only to the rights obtained by two of the plaintiffs under the contract of February 15, 1911, hereafter referred to.

Upon a review of the entire case we are led to the conclusion that the claim of the plaintiffs, in their bill of complaint, has not been established; that they have' not sustained the burden of proof, and that neither upon the law nor the facts are the plaintiffs entitled to the relief prayed for in their bill of complaint. In this court the defendants in their main brief, after quoting at large from 26 Ruling Case Law, pp. 869-871, on the subject of the “Infringement of TradeMarks,” state their claims under their cross-bill as follows :

“Appellees rely on four facts and four rules of law .•applicable thereto.
“First Fact: Appellee Corn Flake Company first adopted, advertised and registered the trade-mark '‘Kellogg’s.’
“First Rule of Law: The trade-mark or trade-name is the property of those who made it valuable, and its use by others than those who earned a reputation thereunder would be a fraud upon the public.
“Second Fact: Dr. Kellogg participated in, and made large profits and capital returns from the adoption, commercialization and wide advertising of the trade-mark ‘Kellogg’s’ by appellee Corn Flake Company.
“Second Rule of Law: One who participates in and profits by the adoption of a trade-mark is estopped to injure or appropriate it.
“Third Fact: Appellee Corn Flake Company never, at any time, by the 1911 contract, or otherwise, transferred to Dr. Kellogg or his company any business or any right to use, infringe or trail on its registered trade-mark ‘Kellogg’s,’ and appellants do not claim that any such right was ever granted to or settled upon them.
“Third Rule of Law: A trade-mark cannot exist as an extrinsic thing and cannot be licensed apart from the business in which it is used. Appellee Corn Flake Company, even if it had desired to do so, could not have transferred, granted or otherwise alienated any right to Dr. Kellogg to defraud and deceive the public by trailing spurious products on its registered trademark, and Dr. Kellogg had no such right as an extrinsic thing, and could grant no such right to the Kellogg Food Company.
“Fourth Fact: Appellants are trailing their Kellogg’s Bran and other Kellogg’s products on the trade-mark, advertising, good will, trade guarantees, selling helps, name and reputation of appellee Com Flake Company by deceiving and confusing the trade and public.
“Fourth Rule of Law: Equity will not permit a rival manufacturer to trail his different products on the established trade-mark and reputation of another.”

Counsel cite many cases upon the questions of trade-mark and unfair competition in support of their position.

After as thorough examination of the case, and of the questions involved, as we are able to make, we find ourselves so much in accord with the opinion and findings of the learned circuit judge who heard the case at the circuit, that we are disposed to adopt the same, and affirm the decree below. In his history of the case, and of the matters leading up to it, he presents so clearly and thoroughly the salient questions involved and decided, that we cannot do better than quote therefrom. Among other things he said:

“It appears from the record in this case that the Battle Creek Toasted Corn Flake Company, 'which was a predecessor of the Kellogg Toasted Corn Flake Company, was incorporated on the 19th day of February, 1906. For many years prior to this date Dr. John H. Kellogg and Will K. Kellogg, who are brothers, had been engaged in the manufacture and sale of various food articles. During the early years of their activities in these lines, the business was, more or less, closely associated with and carried on in connection with the Battle Creek Sanitarium. Dr. John H. Kellogg has been the superintendent and acknowledged head of this institution for upwards of 40 years. He has made extensive studies and gained a wide repute as a dietitian; and it was his efforts along these lines which was the primary cause of these brothers developing and in a limited way marketing many so-called health food products.
“On the 21st day of January, 1899, Dr. Kellogg caused the organization of the Sanitas Nut Food Company, Ltd. He became the holder of all the stock in this association with the exception of two shares, one of which was held by W. K. Kellogg. At the time of the organization of this company a contract was entered into between it and W. K. Kellogg and also a contract was entered into between Dr. Kellogg and W. K. Kellogg. By the terms of these contracts W. K. Kellogg became the general manager of the affairs of this company for a period of 20 years and in consideration thereof obtained the one-fourth interest in the profits of the business of said company. The food propositions in which these men were interested were developed from time to time. Ultimately one portion of the food became known, as the Sanitarium line, while another portion, which was manufactured by the Sanitas Nut Food Company, Ltd., was known as the Sanitas line. This line of demarcation, however, seems to have been comprehended only by those who were in close touch with the management of the food business of these parties. All of these foods (or at least for the most part) were placed upon the market under the trade-name of ‘Sanitas.’ One portion of the foods manufactured by the Sanitas Nut Food Company, Ltd., was made from nuts; and somewhere about the year 1903 there was placed on this line of products the expression, ‘None genuine without the signature of Will K. Kellogg.’ This was done by an arrangement which was mutually satisfactory to all parties concerned; but just why it was done does not very clearly appear from the records in this case. It does appear without dispute from the testimony that Dr. John H. Kellogg, at this time and for some years thereafter, insisted that his name should not be used in connection with the manufacture and sale of food products; giving as his reasons therefor that his standing as a physician would be impaired, and he would be charged with unprofessional conduct if he allowed his name to be commercialized. In any event the name of Dr. John H. Kellogg, as such, was never intentionally developed along commercial lines in connection with the affairs of the Sanitas Nut Food Company, Ltd. The only way in which the name ‘Kellogg’ appeared in direct connection with the commercial affairs of this company prior to 1902 or 1903 was by the use of the individual name Will K. Kellogg, and in the most part by the rather inconspicuous use of the facsimile signature of Will K. Kellogg upon the labels applied to the nut foods, as above indicated. At no time was this facsimile signature of Will K. Kellogg applied to the flaked cereal foods marketed by the Sanitas Nut Food Company, Ltd., prior to the development of the business of the Battle Creek Toasted Corn Flake Company.
“In 1905 or early in 1906 it became evident that the toasted corn flakes, which had been developed and marketed by the Sanitas Nut Food Company, Ltd., was very probably a success as a commercial product. On the 22d day of January, 1906, Dr. John H. Kellogg executed a proposition in writing (Exhibit C attached to defendants’ cross-bill) whereby he proposed for a specified consideration to transfer to a corporation to be organized the secret formulae and processes relative to and the exclusive right to manufacture and sell ‘toasted corn flakes’ and ‘toasted com flake biscuits,’ together with the general business and good-will incident thereto. On the 8th day of February, 1906, the proposition of Dr. Kellogg was duly accepted by Chas. D. Bolin and Will K. Kellogg. Thereafter and on the 19th day of February, 1906, the Battle Creek Toasted Com Flake Company was incorporated substantially in accordance with the provisions contained in the proposition above referred to; and on the 5th day of March, 1906, Dr. Kellogg executed a bill of sale (Exhibit E attached to cross-bill) which in effect carried out the terms of the propositions of sale theretofore made by Dr. Kellogg, limiting, however, the business to the United States — a provision which was not embodied in the original proposal.
N “The Battle Creek Toasted Corn Flake Company immediately began to manufacture and sell toasted com flakes. The trade-name by which the product was known on the market was ‘Sanitas,’ the same as it had been known before the transfer of this portion of the business by the Sanitas Food Company, Ltd., through Dr. Kellogg’s contract. The only way in which the word Kellogg was used at this time in connection with the manufacture and sale of toasted corn flakes was by using the expression — ‘None genuine without the signature of W. K. Kellogg.’ The product was marketed under the trade-name ‘Sanitas’ until 1907. While the facsimile signature ‘W. K. Kellogg’ was placed upon the cartons of the Battle Creek Toasted Corn Flake Company practically at the beginning of its business, the food manufactured and sold by it was not known or designated under the trade-name ‘Kellogg’ or ‘Kellogg’s’ until May or June, 1907. At that time the name ‘Kellogg’ as a trade-name was conspicuously placed upon the cartons of the Toasted Corn Flake Company (to which the name of the Battle Creek Toasted Com Flake Company had been changed, May 16, 1907). And from that time on ‘Kellogg’ or ‘Kellogg’s’ was continuously and extensively used as the designating name of the com flakes manufactured and sold by the Toasted Com Flake Company.
“If Dr. Kellogg expected to claim commercial rights from the prestige of the name Kellogg which, had arisen incident to the Battle Creek Sanitarium and from the doctor’s reputation as the head of that institution, it seems passing strange that he never attached his name to any of the various food products or to the advertising matter incident thereto in such a way as to identify him and his product with Dr. John H. Kellogg of the Battle Creek Sanitarium. In other words, the fact that Dr. Kellogg did not before 1908 identify himself as Dr. Kellogg with any of his commercial products is inconsistent with his present claim that the word ‘Kellogg’ as used incident to these manufactured products necessarily means ‘Dr. John H. Kellogg.’ In coming to this conclusion I have not overlooked the fact that in a very small way Dr. Kellogg’s name may have been published in France or Germany in connection with the manufacture of certain food products.
“The case at bar is not like the Sebastian Kneipp case (82 Fed. 321), because there the Rev. Kneipp had not only gained notoriety in connection with a sanitarium and relative to his system of dietetics, his writing, etc., but ‘the plaintiffs under his approval and supervision prepared and put on the market a malt coffee and obtained the right from him to use his name, portrait or signature. The word “Kneipp” and his portrait and signature were registered in the United States and other countries.’ In other words, this case presents a situation where the man whose name was involved was not only famous as a dietitian, etc., but a business was actually organized and developed around that name, even going so far as to register the name.
“Letters by Dr. Kellogg,' as well as other items of evidence in this case, show quite conclusively that the name Kellogg was commercialized not by Dr. Kellogg, but in spite of him. Exhibit P-226 is a letter written by Dr. Kellogg on the 17th day of July, 1908, in which he stated, ‘while my reluctance to allow my name to be used in a commercial way is just as strong as it ever was, the fact that it has to all intent and purposes been so widely used, has finally led me to make up my mind to accept the situation and to in some way identify my name with all my food products as the only way by which they may be protected/ Also in another letter dated July 23, 1908 (Exhibit D-325), Dr. Kellogg stated, relative to the use of ‘Kellogg’s’ by himself and his associates: ‘At the' present time the action that has been taken by the Kellogg Food Company has not gone far enough to work any mischief whatever to the Toasted Corn Flake Company and might be recalled if circumstances justify such action/ It should be borne in mind that this letter was written at a time when the Toasted Corn Flake Company or its immediate predecessors had already spent millions of dollars in a consistent and persistent effort to commercialize the name ‘Kellogg’ and to make it a distinguishing name by which the products of that company should be known to the trade.
“On this phase of the case it is worthy of note that in all of the negotiations, propositions or contracts (so far as the same appear in writing), which refer to the sale of the product toasted com flakes, the word ‘Kellogg’ or ‘Kellogg’s’ as á trade term or asset was not mentioned. Nothing was said as to the vendor reserving the right to use these words on account of their commercial value, nor anything said by which the right to use the .name was granted to the vendees, nor was such right denied to them. The trade-name feature of these transactions seems to .have been embodied in the word ‘Sanitas/ If at that time the word ‘Kellogg’s’ had any trade significance or value it seems certain to me that the rights which were granted or withheld relative thereto would have been specified, or at least referred to in some' way in the documents which were then being promulgated between these parties and having to do with rights of this very character. The bill of sale executed at the time by Dr. Kellogg recites that said toasted corn flakes were known ‘under the trade-name “Sanitas”/ Surely if this comparatively new product of the Sanitas Company was thus known to the trade, its older products which had been marketed for years ‘under the trade- ■ name “Sanitas” ’ must have also been known to the trade as ‘Sanitas’; and if this is true it is evident that the products in the manufacturing and marketing of which Dr. Kellogg was interested were not at that time known to the trade as ‘Kellogg’s/ * * *
“It would be useless to enumerate here all of the things developed at the hearing of this case which go to prove quite conclusively that it was the Kellogg Toasted Com Flake Company and its predecessors that first adopted and established as a trade-name the word ‘Kellogg’ or ‘Kellogg’s/ but I am convinced that this is a fact which has been established in this record beyond any reasonable question.
“If, however, it is to be conceded that there is some question as to the priority of rights in this trade-name, still I am of the opinion that there is another phase of this controversy which may- necessarily bring one to a conclusion adverse to the plaintiffs’ claim upon the theory that Dr. John H. Kellogg has conducted himself in such a way relative to the commercial use of this name by the Kellogg Toasted Corn Flake Company that he is now estopped from assuming a contrary position; or to say the least, he should be denied equitable relief of the character which he is now seeking for himself and his companies.
“As- bearing upon this phase of the case one cannot overlook the fact that at the time of the original sale of the Toasted Corn Flake interests, the Battle Creek Toasted Corn Flake Company was organized with a capital stock of two hundred twenty-five thousand dollars ($225,000). Dr. Kellogg became the owner of more than one-third of the stock and for a considerable time continued to have the largest holdings of any individual in this company. Immediately after its incorporation in 1906 this company began to use the signature of W. K. Kellogg upon packages and has always continued to do so. While I am of the opinion that using this name in this way while the packages bore the name ‘Sanitas’ as a trade-name,'would not vest in the company a commercial right in the name ‘Kellogg’; still it is quite evident that such a use of the name ‘Kellogg’ by the newly organized company (in which Dr. Kellogg was a director and the largest stockholder) without protest by Dr. Kellogg ought at least to create in that company rights equal to any which could be claimed by the Sanitas Food Company, or Dr, Kellogg growing out of a similar use.
“But following this use, and within a very few .months the word ‘Sanitas’ was entirely supplanted by the word ‘Kellogg’s’ as a designating name of the products of the Toasted Corn Flake Company. Dr. Kellogg was an officer of this company and still a very large stockholder at a time when the company was spending hundreds of thousands and perhaps millions of dollars in creating and strengthening its trade rights in this name. Dr. Kellogg never made anything like a genuine protest in regard to such action on the part of this company. It will not do for him to claim that he was helpless in this regard; because, if he had the rights in this name at that time which he now claims, he had his remedy in the court which was equally as available to him at that time as it was when this suit was started. The record discloses that Dr. Kellogg was not unfamiliar with court proceedings of this character at that time, but on the contrary he knew that courts could and would protect such rights.
“Instead of protesting as to this use and development of the name ‘Kellogg’ by the Toasted Corn Flake Company, or instituting legal proceedings, Dr. Kellogg’s conduct was all to the contrary. On the 8th day of July, 1908, Dr. Kellogg, as a director of the Toasted Corn Flake Company, offered a resolution relative to starting certain litigation, the’ purpose of which was to protect and preserve in that company the right to use the name ‘Kellogg’ as a trade-name. In September of that same year he offered a resolution whereby the authorized capital stock of the Toasted Corn Flake Company was increased to a million dollars, and a stock dividend was declared, in which Dr. Kellogg participated, to the extent of many thousands of dollars. This stock as well as all of his other holdings in the Toasted Com Flake Company was disposed of by Dr. Kellogg; and from such sales he realized upwards of a quarter of a million dollars. By this litigation Dr. Kellogg seeks to take from the purchasers of his stock and the other defendants herein practically all of the benefits which have accrued to them from the course of conduct in which Dr. Kellogg acquiesced and which, made it possible for him to reap large benefits by disposing of his stock in the manner indicated.
“To me it seems so plain as to need no argument, that Dr. Kellogg’s conduct, in the particulars just above recited, has been such that after he has wholly disposed of his own interests in the Toasted Corn Flake Company he cannot be heard to say that he is entitled to equitable relief to the extent and character sought in this case, regardless of who, in some limited way, may have had the prior commercial rights in the name ‘Kellogg.’
“It may be a question if what is between the lines in the case does not convince one that the first use of the signature W. K. Kellogg was an attempt by all parties concerned to get the benefit of Dr. Kellogg’s reputation as a dietitian and as the well-known head of the Battle Creek Sanitarium, but at the same time avoid actually using his name so as to save Dr. Kellogg from a charge of unprofessional conduct. But even if that is true the conduct of Dr. Kellogg above recited should now estop him from claiming that he developed the trade-name ‘Kellogg’ and has the primary rights therein.
“The consideration of the case thus far has been principally on the basis of matters as they had developed on or before the 18th day of July, 1908, at which time the business of Dr. Kellogg and his associates was transferred to a newly incorporated company which bore the name ‘Kellogg Food Company/On the 17th day of December following, this name was changed to ‘The Kellogg Food Company/ It is the claim of the plaintiffs that this new organization was created under this name for the purpose of enabling them to secure and preserve to themselves the commercial rights which they claim to have had in the name ‘Kellogg/ Among other things, this new company placed upon the market toasted rice flakes; and the containers in which this product was sold (after some changes) bore the name ‘Kellogg’ as a distinguishing feature. Evidently in an effort to meet this situation the Toasted Corn Flake Company, on the 16th day of May, 1909, changed its name to ‘Kellogg Toasted Corn Flake Company/ Confusion in trade naturally re-suited, and, in 1910 the Kellogg Toasted Corn Flake Company instituted a suit against The Kellogg Food Company, et al., whereby it was sought to adjudicate the conflicting trade rights of the parties. While this suit was pending the parties entered into a contract on the 15th day of February, 1911, and the construction to be given'this contract is a matter of controversy in this suit. However, what has been heretofore said in this finding practically disposes of this question. In other words, it is a necessary conclusion arising from the testimony in this case, in my judgment, that the commercial term ‘Kellogg,5 as applied to food products, originated with the Kellogg Toasted Corn Flake Company or its predecessors, and now belongs to the Kellogg Toasted Com Flake Company, subject only to the rights obtained by two of the plaintiffs under the contract of February 15, 1911. (The contract of February 15, 1911, will be found in the margin.)

MEMORANDUM OF AGREEMENT made this fifteenth day of February, 1911, between JOHN HARVEY KELLOGG, THE KELLOGG FOOD COMPANY, and the KELLOGG TOASTED RICE FLAKE AND BISCUIT COMPANY, all of Battle Creek, Michigan, of the first part, and the KELLOGG TOASTED CORN FLAKE COMPANY, of the same place, of the second part.

FIRST.

The parties of the first part, and each of them covenant and agree to and with the party of the second part that they will not from and after thirty days from this date, use the word “Kellogg” as a part of the name or title or designating words of >any flaked cereal foods, made or sold by them, or any of them. Flaked cereal food to include biscuits made from flaked cereals. ‘This covenant shall cover such use not only on containers, but :in advertising matter, circulars and all other uses of the name ■in the trade or business of making or selling such flaked cereal ■foods.

“It seems to me that the construction of this contract contended for by the plaintiffs is entirely unwarranted in view of the wording of the contract and the circumstances under which it was executed; and such a construction would greatly broaden the scope of this contract which was prepared under the supervision of able counsel who is not at all in accord with the plaintiffs in this case as to what this contract was intended to do. In the litigation which was then pending and which was to be terminated by this contract the parties on each side claimed to be the originators of the word‘Kellogg’ as a trade-name and each claimed the exclusive right thereto. If it had been the Intent of either party by this instrument to concede that the other party would have such rights, it would have been easily and. plainly so stated; and it could have been, and probably would have been, set forth that the other party in his use of such trade-name was a mere licensee. The construction that this agreement should receive is that it was a commendable effort on the part of these brothers to dispose of the pending litigation in which each, as just stated, was claiming the exclusive right to the name ‘Kellogg’ as a trade-name used in connection with cereal foods. Concessions were made by each. The Kellogg Toasted Corn Flake Company conceded the right to Dr. Kellogg to use the name in the restricted manner specified in the contract; and other than this the unrestricted use was conceded to the Kellogg Toasted Corn Flake Company, which paid Dr. Kellogg ten thousand dollars ($10,000) for this concession, and the suit was thereupon dismissed without costs to either parties. That this was the intent of all parties is clearly shown by their immediate subsequent conduct in their business affairs. And further, even before the suit was instituted, as is stated in plaintiffs’ reply brief, — ‘it will be remembered that at that time (1908, 1909, and 1910) the directors of the Kellogg Toasted Corn Flake Company were meeting at frequent intervals and passing resolutions to pay Dr. Kellogg anywhere from ten thousand ($10,000) to fifty thousand ($50,000) dollars for exclusive rights in his name’; and this and the suit brought to settle the same questions resulted in the agreement of February 15, 1911.

It is understood that on cartons or containers of such, food the parties of the first part may, continue to use the name "Kellogg Food Company,” or the name, "The Kellogg Toasted Rice Flake and Biscuit Company,” as the manufacturer of such food, hut it is covenanted and agreed that the name of the company so putting out such food shall occupy, space on the carton not exceeding three-fourths of an inch in height, and at the bottom of the carton, and that the word "Kellogg” in such name, is to he in the same type and style, printed in the same colored ink, and to he no more conspicuous than the other words in the name of the company.

It is understood and agreed that the facsimile signature of John Harvey Kellogg, as now appearing on the end of the cartons of Toasted Rice Flakes, may he used, hut the parties of the first part covenant and agree that such facsimile signature shall not he of a larger size than that now appearing on the Toasted Rice Flake carton, and that it shall appear once only on each carton and not on either face of the carton, hut only on the side or end. The above restrictions relating to the use of the name “Kellogg” refer to such use in the United States only.

second!

The matter of furnishing by the second party to The Kellogg Pood Company of toasted corn flakes as provided in the proposition made by John Harvey Kellogg to the Battle Creek Toasted Corn Flake Company, dated the 24th day of February, 1906, wherein it is provided that said Battle Creek Toasted Corn Flake Company “is to furnish the Sanitas Nut Food Company, Limited, of Battle Creek, with sufficient quantity of said food products at five per cent, above the cost of. production, with which to supply its trade to consumers only.”

The said “Kellogg Food Company” representing itself to be the successor in interest of the Sanitas Nut Food Company, Limited, and entitled to the benefits, if any, thereof, it is agreed:

The second party shall furnish such toasted corn flakes for consumers trade, only in containers to be furnished by The Kel logg Food Company, which containers shall not bear the word “Kellogg” in any form or connection and which containers shall not resemble in style or appearance the containers used by the second party for toasted corn flakes as furnished to their regular trade.

“In their briefs filed plaintiffs’ counsel have taken the position that the recent decision in the court of appeals of the District of Columbia is an adjudication establishing the correctness of their contention as to the construction which should be placed upon this contract. I do not so understand the decision rendered, but, on the other hand, it appears to me to be simply a determination that the papers filed by the opposers in the trade-mark opposition proceedings in the patent office are sufficient in form. In any event, I am of the opinion that under the facts and circumstances shown in this record, the plaintiffs have not established their claim as to the correctness of the construction sought to be given to this contract by them.

Second party will give The Kellogg Food Company plates they have for printing cartons with the name “Sanitas Corn Flakes.”

As The Kellogg Food Company claims that the change in the style of the containers to be used for toasted corn flakes, so to be furnished for their consumers trade, may diminish their trade, the second party hereby guarantees them against any loss resulting. To determine whether there is such a loss, the business of The Kellogg Food Company in such toasted corn flakes for consumers trade for the year ending July 31, 1910, shall be taken to represent the average business done, and yearly after the second party begins to furnish such toasted corn flakes in such containers to be furnished by The Kellogg Food Company, an adjustment shall be had, and the second party will pay any damage resulting from decrease in the business over that for the year ending July 31, 1910, and this guarantee shall continue for the period of fifteen years. Such corn flakes for consumers trade shall be furnished by the second party at cost of production, plus five per cent. Any and all claims for damages on account of not having furnished toasted corn flakes for such consumers

“In addition to the foregoing finding, it will be only necessary to briefly call attention to some particular phases of the case.” * * *

We agree with the circuit judge in his findings upon the subjects of Secret Processes and Formulse; Surgical Devices, etc.; Foreign Trade; Bran; Cero-Vita; Candy, Drinket, etc.; and Deception in Trade, but owing to their length do not insert them here. The opinion concludes as follows:

“It follows from the finding already made that the plaintiffs are not entitled to the relief sought in the bill of complaint and same should be dismissed, with costs to be taxed. The defendants may take a decree granting them relief in accordance with these findings; and it would follow that they are entitled to an accounting. However, this litigation is of such a character that I think the accounting should be withheld until an opportunity has been had to secure a final adjudication of the main case; and also that the injunctive relief to which the defendants are entitled should be.held in abeyance for a sufficient time after settling the decree to enable the plaintiffs to perfect an appeal, and in the event of an appeal until such time as a determination is made by the Supreme Court.”

trad© are hereby waived and relinquished. But the party of the second part agrees to reimburse the parties of the first part for the loss sustained by them, for being obliged to buy in the open market. The amount of loss to be determined by the number of cases purchased during the six months preceding the beginning of the suit. '

THIRD. ■ .

The parties of the first part covenant they will not nor shall either of them make toasted corn flakes within the United States, and they shall not, nor shall either of them, put out toasted corn flakes in containers resembling in general appearance those used by the second party. The second party agrees to make toasted corn flakes for the export trade of said John Harvey Kellogg at actual cost, plus twenty-five cents per case of thirty-six packages of substantially the size now used; the containers therefor, to be furnished by said John Harvey Kellogg, provided:

(a) The second party shall not be required hereunder to furnish more than two hundred and fifty cases per day.

It is the claim of appellants that the contract of February 15, 1911, was a settlement of all controversies to that date, and that it contains matters by inference which it does not state in detail.

The Kellogg Toasted Corn Flake Company insists that it never intended to, and did not, by said contract convey to appellants any rights whatever to use the trade-mark “Kellogg’s” as a distinguishing name in the United States or any foreign country. The “situation” at that date has been clearly stated by the circuit judge in his opinion. The contract of February 15, 1911, should be construed so as to effectuate the intent of the parties when it was made. To ascertain the intent of the parties a contract should be construed in the light of the circumstances existing at the time it was made. Ferris v. Wilcox, 51 Mich. 105; Kunzie v. Nibbelink, 199 Mich. 308, 314; Ardis v. Railway Co., 200 Mich. 400, 411; Michigan Crown Fender Co. v. Welch, 211 Mich. 148, 161.

(5) The second party shall not be required to put said flakes in other than ordinary paper cartons and shall not be required to use parafine or other special arrangement for the protection of such flakes for shipment.

(c) Such corn flakes so furnished for export trade shall be so disposed of as to insure their not coming into the market in the United States.

(<J) In case the said party of the second part shall fail to furnish said flakes as above specified the party of the first part Shall be at liberty to manufacture the same in the United States for export only.

In the last cited case this court said:

“The language employed, subject-matter, and surrounding circumstances under which the parties entered into the agreement are all proper subjects for consideration as aids in determining their intent and mutual understanding.”

Applying the above rule it should be borne in mind that the defendant Kellogg Toasted Corn Flake Company and its immediate predecessors had already spent a large sum of money in a consistent and persistent effort to commercialize the name “Kellogg,” and to make it a distinguishing name, by which the product of that company should be known to the trade. That right was not surrendered by the contract. It did not transfer to Dr. Kellogg, or The Kellogg Food Company, any business, or any right to use its registered trade-mark “Kellogg’s,” and no such inference can be drawn from the agreement. Said agreement by defining certain rights, and by excluding or failing to define other rights, shows that the parties were unable to agree on the rights outside of those that were specified and settled.

■ The defendant Kellogg Toasted Corn Flake Company urges, we think with much force, that neither by the contract of February^ 15, 1911, nor by any other act has it given the plaintiffs, or any of them, any right of trailing their products under the trade-mark “Kellogg’s,” and that defendants could not have done so had they wanted to, as such a trade-mark license is void and unlawful. Detroit Creamery Co. v. Ice Cream Co., 187 Mich. 312.

FOURTH.

The first parties and each of them hereby covenant and agree not to divulge to others any formula for the manufacture of flaked cereal foods, except:

(cs) As the same is divulged to their own employees, with an agreement with the employees not to divulge the same, or—

(6) As the same is divulged in connection with the actual sale of the good-will of the business of manufacturing some specific food other than corn flakes, and then only on the express agreement with the vendee, that such formula shall be used only In the manufacture of such specified food.

Referring to the opposition proceedings in Washington, the record presents a question of pleading' only. In the patent office The Kellogg Food Company and Dr. Kellogg filed opposition to the application of the Kellogg Toasted Corn Flake Company for the registration of the trade-mark signature “Kellogg’s.” The attorney for the Kellogg Toasted Corn Flake Company was of the opinion that the allegations in the opposition were too vague and indefinite to constitute issues for the trial. A motion was filed in the patent office to dismiss the opposition on the ground principally that it failed clearly to allege that the food products of the opposers were distinguished as Kellogg’s foods, at a date prior to the first adoption and use of the name “Kellogg’s” by the applicant.

It appears that opposition proceedings in the patent office are conducted under United States Equity Rules, and this motion to dismiss was filed under Equity Rule 29. The examiner of interferences sustained the motion to dismiss the opposition. The opposers then appealed to the assistant commissioner of patents. After an amendment of the opposition the assistant commissioner sustained the motion to dismiss, thereby holding in effect that the opposition, even after being amended, did not properly and definitely state a case sufficient to go to trial. The opposers then appealed to the court of appeals of the District of Columbia (Kellogg Food Co. v. Kellogg Toasted Corn Flake Co., 46 App. Cas. D. C. 521), and that court reversed the decisions below. The gist of the court of appeals’ decision is in the following statement quoted from that opinion:

FIFTH.

The certain suit now pending in the circuit court for the •county of Calhoun, in chancery, wherein the second party is complainant and the first parties are defendants, together with the cross suit or bill, wherein the first parties are cross-complainants and the second party and Will K. Kellogg are cross-defendants, shall be dismissed without costs to. either party.

SIXTH.

In consideration hereof the second parties pay to the parties of the first part TEN THOUSAND DOLLARS, receipt of which is acknowledged.

SEVENTH.

This agreement shall bind and be for the benefit of the parties-hereto, and their respective heirs, representatives, successors or assigns.

(Duly signed by the respective parties.)

“It is clearly averred that the opposer’s products of the same general descriptive properties were known as ‘Kellogg’s Foods’ before applicants’ entry into the field.”

The motion to dismiss having been overruled, the applicant has filed in the patent office an answer to the opposition, and testimony in opposition and on behalf of applicant will later be taken. Proceedings have been stayed until the instant case has been decided. Thus it appears that the question has not been disposed of on its merits.

As to the claim of the defendants that the decree below should be enlarged and broadened in their interest, it is sufficient to say that on appeal from a decree in chancery no modification or change will be made in favor of a party who does not appeal. Herpel v. Herpel, 162 Mich. 606; Proctor v. Robinson, 35 Mich. 284, and note.

The decree below is affirmed, with costs.to the defendants.

Moore, C. J., and Steere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ., concurred.