text:
    HIGGINBOTHAM v. PHILLIPS.
    1. Landlord and Tenant — Personal Property — Buildings—Removal.
    Defendant, who purchased of a sublessee a building and saloon business on lands of the complainants, without any arrangement with them, and being in possession of the realty under a lease from month to month from the sublessee, was entitled to remove the structure, which had no foundation except posts and had no cellar, and the right was not lost by a sale of the fee and conveyance to complainants as purchasers, where they knew the facts, and had notice of defendant’s occupancy, and extent of his claim.
    2. Same.
    It is a general rule that a tenant must remove any structure which he has erected upon leased premises, either within his term or in a reasonable time thereafter. The right is not lost to the tenant by renewing his lease without removing it.
    3. Same — Chattel.
    And defendant’s grantor,_ who constructed it and who held a tenancy from month to month, could not be held to have intended that his building should become part of the realty, but must be presumed to have considered and treated the same as personal property in the absence of any evidence tending to show the contrary purpose on his part.
    Appeal from Wayne; Hally, J.
    Submitted April 11, 1916.
    (Docket No. 66.)
    Decided June 1, 1916.
    Bill by William E. Higginbotham and another against Richard Phillips to restrain the removal of a building from complainant’s land. From a decree for complainants, defendant appeals.
    Reversed, and injunction dissolved.

      Jay Fuller (Charles C. Stewart, of counsel), for complainants.

      Philip S. Dickinson {Julian G. Dickinson, of counsel), for defendant.
   Ostrander, J.

The bill is filed to restrain defendant from removing a building from certain land. From the testimony I find the following facts:

The land belongs to complainants, who purchased it in September, 1911. The Detroit Brewing Company is, and for more than ten years has been, lessee of the land, and adjoining land, from the owners. It has a lease from complainants. It had, before complainants purchased the land, sublet some of it, the leases resting in parol, the terms of tenants being from month to month. One Frank Parmenter was such a subtenant, and he erected a one-story building, 16 by 20 feet in size, on the land, and occupied it with a saloon. He sold the business and building to William Matla, who also occupied it with a saloon, and who became the tenant of the brewing company, paying ground rent. In April, or in May, 1911, defendant rented the building from Matla and later, in November, 1911, bought the building from him. Defendant never paid rent to the Detroit Brewing Company, nor did he pay any rent to any one after he bought the. building. The Detroit Brewing Company never recognized him as its tenant. Matla agreed with defendant that he would “protect me up to the 1st day of May to move that building.” The Detroit Brewing Company looked to Matla for the ground rent, and it is inferable that Matla considered himself liable therefor to May 1, 1912. Defendant remained in possession of the building and, of course, of the land upon which it stands until the bill in this cause was filed April 12, 1912.' He made no arrangement with the owners of the land, although in the bill it is charged that he is a tenant of complainants, threatening to remove the building from the land, claiming to be owner of the building.

The building is supported by posts, there is no cellar, no partitions, and its value is stated in the bill to be more than $100. It cost more than that sum. There was no agreement or express understanding with the brewing company for its erection, and that company never claimed to own it.

When complainants purchased the land, they, or one of them, knew the building in question was upon the land and that defendant occupied the building under Matla, who held from the brewing company. After complainants purchased, defendant offered to sell them the building, claiming to own it. Frank Parmenter was a witness, called by the defendant. Over the objection that it was incompetent, being equally within the knowledge of a deceased person, he gave testimony tending to prove that before erecting the building in question he had a written agreement with, or written permission from, not his landlord, but the owner of the land, to remove the building; that he turned it over to Matla when he sold the building to him; that it was mislaid, he had searched for it, and could not find it. Asked to state the contents of the writing, he vaguely said that it was a privilege to move the building when he chose, no certain time being fixed. This testimony the trial court, I think properly, refused to consider.

The court ruled that defendant could not establish his asserted right without the said testimony of Parmenter “because property in dispute, unless an agreement existed to the contrary, would be realty and not personalty, and as realty it would pass with the conveyance of the real estate on which it stands.” The court also ruled that if the proposition just stated is unsound, and if Parmenter’s testimony is considered, it discloses no more than a right which he could not assign to others and have it operate beyond the term of his tenancy.

Somewhat curiously, neither of these propositions is discussed in the brief for complainants. It is the general rule that a tenant must remove erections which he has placed upon the leased premises within his term or within a reasonable time thereafter; not doing so, it is presumed that he has abandoned them. In the following language the rule and the reason for it is discussed by COOLEY, J., in Kerr v. Kingsbury, 39 Mich. 150, 153 (33 Am. Rep. 362):

“The right of a tenant to remove-the erections made by him in furtherance of the purpose for which the premises were leased, is conceded. The principle which permits it is one of public policy, and has its foundation in the'interest which society has that every person shall be encouraged to make the most beneficial use of his property the circumstances will admit of. On the other hand, the requirement that the tenant shall remove during his term whatever he proposes to claim a right to remove at all, is based upon a corresponding rule of public policy, for the protection of the landlord, and which is that the tenant shall not be suffered, .after he has surrendered the premises, to enter upon the possession of the landlord or of a succeeding tenant, to remove fixtures which he might and ought to have taken away before. A regard for the succeeding interests is the only substantial reason for the rule which requires the tenant to remove his fixtures during the term; indeed, the law does not in strictness require of him that he shall remove them during the term, but only before he surrenders possession, and during the time that he has a right to regard himself as occupying in the character of tenant. Penton v. Robart, 2 East, 88; Weeton v. Woodcock, 7 M. & W. 14.
“But why the right should be lost when the tenant, instead of surrendering possession, takes a renewal of his lease, is not very apparent. There is certainly no reason of public policy to sustain such a doctrine; on the contrary, the reasons which saved to the tenant his right to the fixtures in the first place are equally influential to save to him on a renewal what was unquestionably his before. What could possibly be more absurd that a rule of law which should in effect say to the tenant who is about to obtain a renewal: ‘If you will be at the expense and trouble, and incur the loss, of removing your erections during the term, and of afterwards bringing them back again, they shall be yours; otherwise you will be deemed to abandon them to your landlord/ ”

In Osborn v. Potter, 101 Mich. 300 (59 N. W. 606), a tenant had erected a frame building on leased land. He sold it and ,the purchaser went into possession and attorned to the original lessor, who, after a considerable time had elapsed, gave him a lease with a provision therein permitting removal of the building at its expiration. Later the tenant sublet land and building to a third party, and the possession was continued for two years after the expiration of the said lease; rent being paid by the sublessees to the lessee, and by him to the owner, lessor. Then the land was sold and the owner of the building demanded it from his tenant and the purchaser, and asked for permission to remove the building. Permission being refused, he brought trover for the value of the building and recovered. In Hayward v. School District, 139 Mich. 539 (102 N. W. 999), the rule of Kerr v. Kingsbury and Osborn v. Potter is approved. And in Kerr v. Kingsbury it was held that a mortgagee of the premises was bound to take notice of the rights of the tenant owners of buildings.

It cannot be supposed that Parmenter, holding from month to month under a lease resting in parol, intended that the building he erected should become realty. He testified, and, if he had not, the inference would be unavoidable, that the building was a chattel and his property. The man who purchased it attorned to his landlord. There is nq evidence here of his intention to abandon the building to the landlord or to the owner of the land. This purchaser also sold the building, but was himself thereafter treated as a tenant of the original lessor. He was so treated when the land was sold to complainants, and when the bill in this cause was filed. There is no evidence to support the proposition that the original or the successive owners of the building, or the lessee of the owner of the land, or the owner of the land regarded the building as anything but a chattel. The complainants, purchasers of the land, might have learned this by making inquiry. The principles stated in Kerr v. Kingsbury support defendant’s position. I cannot distinguish this case and Osborn v. Potter.

The decree is reversed, and injunction- dissolved, with costs of both courts to appellant.

Stone, C. J., and Kuhn, Bird, Moore, Steere, Brooke, and Person, JJ;, concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    DROUILLARD v. HUIET.
    Landlord and Tenant — Covenant to Repair — Waiver.
    The receipt of rent less an allowance for money expended by the lessee' for repairs upon the leasehold does not necessarily amount to a waiver from thenceforth of the tenant’s covenant in his lease to maintain the premises in good repair, so as to entitle him to a corresponding reduction in the subsequent rental in a suit for use and occupation wherein he sought to recoup for further repairs.

      Error to Monroe; Gilday, J.
    Submitted April 10, 1916.
    (Docket No. 65.)
    Decided June 1, 1916.
    Summary proceedings by M. A. Drouillard against Ira Huiet for the possession of certain real estate. From a judgment for complainant defendant appealed to the circuit court. Judgment for complainant. Defendant brings error.
    Affirmed.

      Golden & Haas, for appellant.

      Willis Baldwin and Clifton Kolb, for appellee.
    Plaintiff is owner and lessor of certain premises described as a hotel, barn, and outbuildings on lot No. 12 in the village of Erie. Defendant was lessee of the premises. Action was brought under the statute by the lessor to recover possession of the premises, in which action the circuit court commissioner gave a judgment for the plaintiff, finding there was due complainant for rent the sum of $40. On appeal to the circuit court, the cause came on for trial before the court and a jury, at the conclusion of which, upon motion of the plaintiff (complainant), the court directed a verdict in his favor, finding due complainant for rent $98.63. Judgment was entered on the verdict. Defendant assigns errors as follows:
    “ (1) The court erred in refusing to give defendant’s request to charge to the jury.
    “ (2) The court erred in directing a verdict for the complainant, in that the testimony raised an issue of fact, exclusively within the province of. the jury to determine.
    “ (3) That the court erred in directing a verdict for the complainant, in that he invaded the province of the jury in -determining as a matter of law that there was no waiver of the conditions of the written contract.”
    There was a written lease; one of the covenants therein being:

      “That said party of the second part will, at his own expense, during the continuance of this lease, keep the said premises and every part thereof in as good repair and at the expiration of the term yield and deliver up the same in like condition as when taken, reasonable use and wear thereof and damage by the elements excepted.”
    It seems to be agreed that, unless this covenant was abrogated or the keeping of it waived by the landlord by his conduct, the judgment was right, but it is the claim of defendant that performance was waived; at least that whether it was or not was a question of fact for the jury. It is not claimed that the landlord was bound, or that the tenant was not bound, to make the repairs hereinafter referred to.
    It is not the contention of defendant, appellant, that there was no rent due under the lease when the proceeding was instituted (the rent was payable monthly at the end of each month), but that he tendered the landlord for the $20 monthly rent that was due a receipted bill for $7 for repairs which the tenant had made upon a pump upon the premises and $13 in money, which the landlord refused to accept, but which appellant claims he was bound to accept because he had previously, during the three years that appellant occupied the premises under the lease, allowed the tenant the cost of certain repairs of the premises, the total of the five items allowed amounting to $16.65. Appellant says in his brief, without, however, making reference to the record in verification of the statements :
    “During the occupancy of the premises in question by defendant, defendant made various repairs to the premises, and each and every repair so made by the defendant was by him deducted from the rent due the plaintiff. The plaintiff for three years accepted the rent from the defendant, less the deductions made by the defendant for repairs. Defendant held up the rent due plaintiff from May 19 to September 19, 1913, to compel plaintiff to put a roof on the hotel. /That plaintiff finally complied and did put a roof on the hotel, after which defendant paid the rent so held back. Defendant held back rent due plaintiff for July, August, September, and October, 1914, to compel plaintiff to repair stable on the premises in question, and that plaintiff finally did make said repairs and received the rent.
    “That in December, 1914, defendant presented plaintiff with a bill for $7 for repairing a pump on the premises in question, together with the balance of the rent due plaintiff, which plaintiff refused to accept, and without further notice, on January 8,1915, served notice on the defendant to vacate the premises. * * *
    “It is the claim of the defendant that during his occupancy of the premises arid up to the time he was served with notice to quit, January 8, 1915, he had made various repairs on the premises, and that the plaintiff had always accepted the rent, less the deductions made by defendant for said repairs. That the plaintiff never made objection to this action on the part of the defendant, and that the only dispute that defendant and plaintiff ever had relative to the deductions for repairs related to the amount of the deduction and not to the fact of deduction.”
    And in argument:
    “The only issue involved in this case is whether or not the plaintiff, by his conduct for three years, waived a known and definite right under the contract of lease with the defendant, so as to estop him from declaring a breach of that contract lease.”
    This is not a complete, but is a sufficient, statement of the contention and of the facts.

      For authorities on the question of effect of tenant’s obligation under express covenant in, lease to keep premises in good repair, see note in 64 L. R. A. 652.

   Ostrander, J.

(after stating the facts). Assuming that the landlord upon successive occasions waived the right to insist upon performance of the covenant to repair, or, not being obligated to do so, consented to accept the stipulated rent less the cost of certain repairs made by the tenant, it does not follow that he was bound thereafter to continue to waive performance by the lessee or to continue to make repairs. It is evident that he did not waive payment of the rent, for the nonpayment oí which this proceeding was instituted. There is involved no question of the mutual construction of doubtful terms of the contract by the contracting parties. The lessee’s obligation was to pay monthly rent at the rate of $20 a month. This obligation he did not perform, and the landlord had his remedy.

The judgment is affirmed.

Stone, C. J., and Kuhn, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


text:
    STURTEVANT v. CITY OF OWOSSO.
    Municipal Corporations — Streets—Adjoining Property.
    In a suit against a city to restrain it from taking gravel from the streets in front of real property owned by complainants which was part of a plat that had been dedicated and accepted though not graveled or otherwise improved and on the plat of which the streets were designated by the word private, the trial court rightly dismissed the bill for the reason that no threatened injury to property abutting on the street appeared and there was evidence that the removal of gravel was intended as and operated as an improvement to the same and other streets without injuring the lots which lay adjacent.

      Appeal from Shiawassee; Dodds, J., presiding.
    Submitted April 18, 1916.
    (Docket No. 95.)
    Decided June 1, 1916.
    Bill by Hernán B. Sturtevant and others against the city of Owosso and another to restrain the removal of gravel from certain premises. From a decree for defendants, complainants appeal.
    Affirmed.

      George E. Pardee (A. E. Richards, of counsel), for complainants.

      Leon F. Miner, for defendants.

      As to effect of conveyance of lots laid down on plats when description is by reference to plat, see note in 14 L. R. A. (N. S.) 881. And as to effect of conveyance of lots laid down on plats to prevent a change in the use or form of the property, see note in 14 L. R. A. (N. S.) 1067.

   Ostrander, J.

Complainants seek an injunction to restrain the defendants from taking gravel out of their premises and out of adjoining streets, and for damages. The evidence of the title of complainants Sturtevant and Blood, which is a warranty deed from complainant Kinne, and the evidence of the title of complainant Kinne, which is an executory contract for the purchase of the premises from his said grantees, were objected to upon the ground that cross-examination developed the fact that the deed was intended as security merely, and was a mortgage, and that upon neither this mortgage nor the land contract had the taxes been paid. Thereafter, at some time before the decree was made, the court was moved to permit an amendment to the bill of complaint, which charged the fact to be according to the import of said conveyances, by adding to paragraph 7 of the bill the following:

“That should the court ■ find, under the testimony that the said Sturtevant & Blood are not the owners in fee of the real estate herein described, and that the said Leslie J. Kinne, one of said complainants, is the owner in fee of all of said described real estate, and who is entitled to all the relief and to recover all the benefits herein prayed for, and your orators aver that the said Leslie J. Kinne is (and was at the time of the commencement of this suit) the owner of the fee in and to all of said real estate and entitled to recover as prayed for in this bill”

—and by correspondingly amending the prayer for relief. The court entered a decree, dismissing the bill upon the merits, and denied the motion to amend, saying that no amendment was necessary to support the decree. The point is without particular significance since, in my opinion, if the bill was amended as desired, the decree would nevertheless be affirmed.

The testimony does not support the charge that the defendants have made, or threaten to make, repeated trespasses upon the property complainants claim to own, unless the taking of gravel out of Haven street constitutes a trespass. There is some evidence of casual trespasses upon lots owned by complainants, or upon some of them. Now, Haven street is the south boundary of a plat of land known as George T. Abrey’s Woodlawn Park addition to the city of Owosso, which lies on the south side of the city. The plat is recorded and bears formal evidence of a dedication of the streets and.alleys shown thereon to the public use. It was made July 27, 1890. There is evidence of very little supervision by the city of the streets and alleys, little, if any, evidence of the improvement of any of them at public cost. Lots have been sold, described as in the plat, and in complainants’ muniments of title the. property conveyed is described by lot and block numbers corresponding with and by a direct reference to the said addition and the said plat.

Complainants conceive themselves to be owners of the streets upon which their lots abut. Their contention in this behalf is based in part upon the fact that upon the said plat as recorded in each street and alley there is written in red ink the word, “Private.” The streets are in fact so laid out upon the plat as to be, as to the north and south streets, continuations of city streets, none of those in the plat being otherwise named. Thus there are five north and south streets running across the plat in exact continuation of named city streets, and the ends and names of these streets appear in the copy of the plat found in the record. The contention is also based upon the fact that public authorities have neglected, or have refrained from, improving the streets and alleys in the addition for a period of time exceeding the statutory limit for bringing actions to recover title to real estate. It does not appear that the city has ever adopted any plan for grading or otherwise improving any of the streets and alleys in the addition. It does appear that a survey of the premises, or of some portions, has been made by the city engineer, and that the work of removing gravel from within the limits of Haven street, complained of in this suit, has been conducted with reference to a convenient level for the street and in the general direction of making a way for travel where none in fact exists or has existed. The gravel removed was used in betterment of city streets outside of the addition.

The principal, and a sufficient, reason for affirming the decree is that none of the complainants has shown any threatened injury to property abutting upon the street, nor any such title to the land in the street as will support a decree in his favor; this, independent ♦of objections to the competency of the evidence of title to these lots. Whether the city of Owosso has any jurisdiction over the streets in this addition is a question not considered.

The decree is affirmed, with costs to appellees.

Stone, C. J., and Kuhn, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


author: Kuhn, J.

text:
    DETROIT TRUST CO. v. ENGEL.
    1. Evidence — Written Contract — Parol Proof — Sales.
    Under a clause in a written contract for the sale of a number of automobiles providing that no oral agreement not included in the writing should be permitted to vary or modify its terms, which could be changed only by a writing indorsed on or attached to it, no evidence was admissible to explain or vary a clause in the instrument that the cars were models of 1912 and were to stand sold as they were of the date of sale in consideration of the special price.

    2. Same — Warrant—Ambiguity.
    And a warranty of fitness could not be imported into the agreement in the face of the explicit declaration of the parties, nor was the language ambiguous so as to require extraneous testimony to explain it.

    Error to Kent; McDonald, J.
    Submitted April 11, 1916.
    (Docket No. 88.)
    Decided June 1, 1916.
    Assumpsit by the Detroit Trust Company, trustee in bankruptcy of the Michigan Buggy Company, against George Engel for goods sold and delivered. Judgment for plaintiff on a verdict directed by the court. Defendant brings error.
    Affirmed.

      Holmes & Holmes (Frank J. Powers, of counsel), for appellant.

      Kleinhans, Knappen & Uhl, for appellee.

      Generally as to admissibility of parol evidence to vary terms of written contract, see note in 17 L. R. A. 273.

      For authorities passing on the question of implied warranty of fitness ‘of property bought for special purpose, see notes on the different phases of the question in 22 L. R. A. 189; 15 L. R. A. (N. S.) 868; 31 L. R. A. (N. S.) 783; 34 L. R. A. (N. S.) 737.

   Kuhn, J.

This action is brought on a contract for the sale of ten automobiles to the defendant in consideration of an undertaking to ship to the vendor a quantity of lumber. The defendant refused to complete performance of the contract on his part, because of an alleged breach of warranty by the vendor. The automobiles were sold on the defendant’s order, which contained the following clauses:

“It is understood that no verbal or other agreement or promise not clearly specified in this order will be recognized. * * *
“The cars are 1912 models, and are to stand sold as they are of this 'date in consideration of the special price. * * *
“It is further understood and agreed that this paper, writing, and printing constitutes the entire agreement and understanding as between the parties hereto, and it is expressly understood and agreed that it may not be varied, changed or modified by any verbal understanding or agreement or in any way except in writing by the parties hereto attached or indorsed hereon, and no agent or salesman has any right or authority to alter this agreement in any particular except by written authority from some officer of the Michigan Motorcar Company.”

The order was accepted' by the Michigan Motorcar Company, designated in the contract as “owned by the owners of Michigan Buggy Company,” of which company the plaintiff is the trustee in bankruptcy. Shortly after delivery the automobiles performed unsatisfactorily, and the defendant complained of defects. The first response to his complaints appearing of record is a letter by the vendor to him, which begins as follows:

“Gentlemen: We acknowledge receipt of your letter of the 18th, which is very carefully noted. As you no doubt are aware, the machines were purchased as they stood, without any guaranty whatsoever. We are, however, disposed to do what is fair and right.”

The vendor thereafter made efforts to render the automobiles satisfactory to the defendant, and wrote him frequently, assuring him of continued attention to the matter and eventual adjustment of the difficulty, and requesting him to continue performance on his part. But the defects were not corrected, and defendant finally refused any further shipments of lumber.

On the trial the defendant attempted to put in evidence so much of the conversation accompanying the placing and acceptance of the order as. tended to show what was meant by the second clause quoted above from the order. He contended that the clause meant only that ho accessories went with the cars; that it neither was intended to, nor did, negative an implied warranty that the cars were reasonably fit for the use intended. He also took the position that this clause was ambiguous, and that the situation called for parol evidence of its true meaning in the minds of the parties. All such evidence was rejected by the court. The court also ruled out evidence of the vendor’s conduct and letters after the making of the contract, offered for the same purpose. He then directed a verdict for the plaintiff in the sum of $3,430.69, and entered judgment upon it. These rulings of the court are assigned as errors.

A discussion of the parol evidence rule and the doctrine of implied warranty, as applied to the facts in this case, is unnecessary. Strong and explicit language was used in the clauses above quoted to confine the agreement to the written words. A substantially similar provision in the contract involved in Union Trust Co. v. Transit Co., 162 Mich. 670 (127 N. W. 780), was held to forbid the implication of a warranty, and the exclusion of testimony offered to explain the terms used was approved.

We are of the opinion that the situation here pre« sented is clearly ruled by the case just referred to, and the judgment of the lower court must be, and therefore is, hereby affirmed.

Stone, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


text:
    CITY OF SAULT STE. MARIE v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY CO.
    1. Taxation — Certificate of Assessor — Sault Ste. Marie Charter.
    A certificate of the city assessor annexed to the assessment roll of a special assessment for • a sewer that the roll was made according to benefits, being also indorsed “Local Tax Roll No. 60-R. M. Street sewer system as approved by the board of review,” was a compliance with the charter of the city of Sault Ste. Marie, and, though the certificate of the board of review did not contain the word approved, it amounted to a substantial compliance with the charter (Act No. 418, Local Acts 1903).
    2. Same — Indorsement—Requirements.
    It was also correct without a statement that the tax equaled the amount of cost, as by the charters in certain cases required.
    3. Same — Actions—Evidence.
    Under a charter providing that at any time after a special assessment had become payable it might be collected by suit in an action of assumpsit (Act No. 533, Local Acts 1887), the appellant had no ground for complaining that the lower court excluded evidence as to whether or not a return had been made of the defendant’s land as delinquent.

      4. Same — Evidence—Special Assessment — Benefits.
    Testimony of the tax assessor who succeeded in office to the assessor that levied the assessment that it was made according to frontage instead of benefits was mere opinion, not entitled to be received, and objectionable as hearsay.
    Error to Chippewa; O’Brien, J., presiding.
    Submitted April 17, 1916.
    (Docket No. 69.)
    Decided June 1, 1916.
    Assumpsit by the city of Sault Ste. Marie against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company for a special sewer tax. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      E. S. B. Sutton (J. L. Erdall, of counsel), for appellant.

      F. T. McDonoM (Herbert W. Runnels, of counsel), for appellee.
   Kuhn, J.

A statement of the history of the tax involved in this controversy may be found in the opinion of this court reported in 184 Mich. 681 (151 N. W. 649), when the case was here before. The plea' in abatement having been overruled, the case was tried upon its merits before the court without a jury. The trial judge filed his findings of fact and conclusions of law, and a judgment was entered for the plaintiff and against the defendant in the sum of $592.96. The defendant appeals.

A considerable part of the brief of counsel for the defendant is taken up with a discussion of the questions involved in the previous appeal. No application for a rehearing of that decision was made by counsel, and we must now decline to consider them again, as the questions were definitely settled adversely to the contentions of the defendant. The opinion of this court became the law of the case, which the trial court rightly followed.

The validity of th§ proceedings are, however, again attacked on the ground that the proper certificates were not attached to the tax roll, as required by the provisions of the plaintiff’s charter (being section 6 of chapter 21, Act No. 418, Local Acts 1903), which are:

“After the said board of review shall have reviewed and approved said assessment roll, the assessor shall indorse thereon the words ‘Local Tax Roll * * * as approved by the board of review.’ ”

The record shows that the following certificates were attached to the roll:

“State of Michigan, )
“County of Chippewa \ ss-:
“I hereby certify that the foregoing special assessment roll was made by me according to benefits, and made in accordance with a resolution adopted by the common council of the city of Sault Ste. Marie, at a regular meeting thereof on the 12th day of July, 1909.
“Dated April 29, 1910.
“E. S. Royce, City Assessor.
“We the undersigned members of the board of review, duly appointed by the common council of the city of Sault Ste. Marie, at a regular meeting thereof, on the 9th day of May, 1910, for the purpose of reviewing the foregoing special assessment roll; hereby certify, that we have reviewed the said roll, as assessed by the city assessor, and that assessments therein fixed by us are according to benefits; and in accordance with a resolution passed by the common council of the city of Sault Ste. Marie, on the 12th day of July, 1909.
“Dated May 31, 1910.
“John Metzger,
“P. McEvoy,
“E. S. Royce,
“Board of Review.
“Local Tax Roll No. 60-R.
“Meridian street sewer system as approved by tiie board of review, constituted for the review of said roll the 31st day of May, A. D. 1910.
“E. S. Royce, City Assessor.
“Received the above roll the 1st day of June, A. D. 1910.
“F. L. Everling, City Comptroller.”

It is the claim of counsel that these certificates do not show that the board of review actually approved the rolls. But we find no merit in this contention, as the roll contains the certificate required by law, viz., that of the assessor, that the roll was approved by the board of review. But, even if it were necessary, the certificate of the board of review, while it does not use the word “approved,” cannot be read or construed in any other way than as an approval of the roll.

It is next contended that there should be a specific indorsement that the tax only equals the amount of the cost of the improvement, and in support thereof the case of Adams v. City of Bay City, 78 Mich. 215 (44 N. W. 138), is principally relied upon. There is no requirement in the plaintiff’s charter requiring the specific indorsement urged as necessary. In the previous opinion of this court, we said:

“The proceedings to assess the defendant’s property in the instant case were in accordance with the requirements of the plaintiff’s charter.”

The trial court specifically so found upon the trial from which the present appeal is taken, and we find support in this record for his conclusions. In the Adams Case the comptroller was charged by the charter provision with the duty of fixing the district and determining the benefits, and was required to assess the property which he should determine would be specifically benefited by the construction of the sewer. He was charged with certain charter duties, which in the case at bar are required to be performed by the council. As to the performance of these acts he made no record or certificate, and the court said:

“In the record before us, however, we find nowhere any finding by anybody of the benefits arising from the making and maintenance of this sewer, nor any certificate that the assessment was made upon the lots taxed in proportion to the benefits they would respectively receive from the same. * * * Nowhere, then, does it appear, unless taken for granted, that the benefits of this work equaled the tax laid by the comptroller, or that the lands were assessed in proportion to the benefits specially derived by them from such work.
“We think that this cannot be taken as granted; that this roll should show expressly that the assessment was made on the basis which the charter lays down.”

In the case at bar, the record shows affirmatively every requirement of the charter was fulfilled by the council, the board of public works, the assessor, and the board of review. There is no failure of proper certification by the proper charter officers in this case that the “assessments were according to benefits,” as in the Adams Case. The situation here presented is thus distinguishable from that presented in that case.

Plaintiff’s charter provides that:

“At any time after a special assessment has become payable, the same may be collected by suit * * * in an action of assumpsit.” Act No. 533, Local Acts 1887, chap. 21, § 20.

It is the contention of counsel for appellant that error was committed in not permitting proofs to be introduced as to whether any delinquent return was made of the defendant’s land. The court held that it was immaterial. It was not claimed that the tax was paid or otherwise satisfied. The plaintiff had a right to bring suit when it did, and we are satisfied that the court ruled properly in the exclusion of the testimony for the reason given.

It is further claimed that an attempt was made to show that the assessments were in fact made according to frontage, instead of according to benefits, while witness Ripley was on the stand. He testified as follows:

“I am the assessing officer who would make the assessments in this roll, if it came to my period of office; I am that officer in the city, but am not the officer that made that roll.
“Q. Your attention is called to this roll, and the various names upon the pages, especially upon the one that the leaf is turned down; and you are asked to state if the assessed valuation is according to frontage —are uniform or not.
“Mr. McDonald: That is asking for opinion evidence. This witness didn’t make the roll, and was not assessor at that time.
“The Court: Well, I sustain that objection. I don’t think that is in the case at all.
“Mr. Sutton: The charter says it must be according to benefits.”

The proceedings show affirmatively that the assessments were according to benefits, and it is clear that the witness could not say of his own knowledge how the assessments were made, not having made them himself, and it not being shown that he had any knowledge of how they were made. His opinion would therefore be of no evidentiary value, and how defendant was harmed by the exclusion of this testimony is not apparent.

The other assignments of error have been examined, but are found to be without merit.

Being satisfied that the findings of fact of the trial judge find support in the evidence, and that no prejudicial errors were committed in the exclusion of testimony, we are of the opinion that the judgment should be, and it is hereby, affirmed.

Stone, C. J., and Ostrander, Moore, Brooke, and Person, JJ., concurred. Bird and Steere, JJ., did not sit. .


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    HALPIN v. GARMAN.
    1. Mechanic’s Liens — Amount Due — Claim of Lien — Good Faith.
    Because he included in the claim for a mechanic’s lien amounts due to certain subcontractors, who had been paid by the owner, the claimant was not deprived of his right to a lien, if he did not, as he claimed, know that their accounts, for which he was primarily liable, had been paid.

    2. Same — Extras.
    It is not required by the lien law to name the persons who have been, but are no longer, in the employ of claimant, or to give the names of persons who have furnished materials, unless there is some amount due them.
    S. Same — Defects—Recoupment.
    The failure of the contractor to complete the house in a workmanlike manner entitled the owner to an allowance for the defects, and on examination of the evidence for and against this contention, the decree of the trial court was modified by granting an additional allowance for the claimed omissions and defects.
    Appeal from Wayne; Van Zile, J.
    Submitted April 20, 1916.
    (Docket No. 59.)
    Decided June 1, 1916.
    Bill by Edward F. Halpin against Emery L. Gar-man and another to enforce a mechanic’s lien. From a decree for complainant, defendants appeal.
    Modified and affirmed.

      Atkinson & Northmore (Frank W. Atkinson, of counsel), for complainant.

      George W. John (William, Van Zile, of counsel), for defendants.
    The plaintiff filed a bill to enforce a mechanic’s lien. On the 15th of October, 1912, he contracted to build a two-family flat for the defendants in the city of Detroit, the consideration being $4,600. Work was commenced on October 21, 1912, and was to be completed in 16 weeks from that date. On April 12, 1913, the defendants discharged the plaintiff, claiming defective workmanship. At that time the building was practically completed, with the exception of the exterior painting, and $4,000 had been paid to the plaintiff, leaving due on April 12, 1913, the sum of $600, on the original contract price of $4,600, and $87.45 for extras which it is claimed were ordered by the defendants. Included in the $600 were certain amounts due to subcontractors from the plaintiff.
    On April 23, 1913, the plaintiff filed a statement of account and claim of lien in the office of the register of deeds of Wayne county and on April 28, 1913, a true copy thereof was served on the defendants. At or about the time of the filing of the said lien, the defendants paid all the subcontractors with the exception of Farr, who was the painter and had not finished his job. The defendants filed an answer and cross-bill, setting up various claimed defects in material and workmanship, and asked for -affirmative relief. The case was heard on the bill of complaint, the cross-bill, and answer thereto, and the testimony was taken in open court. At the conclusion thereof, the court made an allowance of $90 to cover the cost of the exterior painting unfinished when the plaintiff was discharged, and to remedy other defects, and a decree was entered in favor of the plaintiff for $320.89, the amount due on the contract, and for extras and accrued interest, less the allowance of $90. The defendants have appealed.

      Generally upon the question of effect of filing excessive mechanics’ liens, see comprehensive note in 29 L. R. A. (N. S.) 305.

   Kuhn, J.

(after stating the facts). It is the contention of the defendants’ counsel that the lien as filed, and the bill to foreclose the same, did not contain “a just and true statement or account of the demand due him,” as is required by section 5 of chapter 296 (§ 10714, 3 Comp. Laws; § 14800, 3 Comp. Laws 1915). This contention is based on the fact that the amount set up by the plaintiff included the amount due from him to subcontractors, and that, some of the subcontractors having been paid by the defendants before the filing of the lien, the inclusion of the amount due them was a careless and negligent claiming of an excessive amount.'

The contract price agreed upon in the contract.between the parties hereto included the amount due the subcontractors, and the plaintiff clearly had a legal obligation to pay these amounts to the subcontractors. The fact that the lien law gave the defendants the right to retain from the amount due the plaintiff the amounts due to the subcontractors does not discharge the legal obligation created by the contract between the plaintiff and the defendants, nor does it discharge the legal obligation of the contractor to pay his subcontractors the amounts due them. The contractor, for his own protection, it seems to us, has the right to include in the amount he claims the amounts due from him to his subcontractors. In case the contractor should file his lien for the amount due under the contract, less the amounts due the subcontractors, he would be bound by that amount, and if the defendants paid him that amount, it would release their property from the lien attached. If the subcontractors did not file a lien, the owners would not have to pay. The contractor would not be able to assert a further lien for these amounts against the owner’s property, and would thus have lost the benefit of the lien statutes for the amount he was obliged to pay the subcontractors. The amount claimed by the plaintiff in his statement of lien included, it is true, amounts which had been paid to certain of the subcontractors by the owner. The proofs here are convincing, however, that the plaintiff was honestly mistaken, and at the time the statement was prepared did not know that these subcontractors had been paid.

Counsel cite the following cases: Gibbs v. Hanchette, 90 Mich. 657 (51 N. W. 691); Brennan v. Miller, 97 Mich. 182 (56 N. W. 354); Scheibner v. Cohnen, 108 Mich. 165 (65 N. W. 760); J. E. Greilick Co. v. Taylor, 143 Mich. 704 (107 N. W. 712); Griff v. Clark, 155 Mich. 611 (119 N. W. 1076, 29 L. R. A. (N. S.) 305, 130 Am. St. Rep. 582). The facts in this case are easily distinguished from the facts in the cases cited, because it clearly appears that in those cases the claimant included amounts to-which he was not entitled under any circumstances. But in the case at bar the amount stated was the balance actually due under the terms of the contract itself. We think this case is governed by Lamont v. Le Fevre, 96 Mich. 175 (55 N. W. 687).

The next contention involves the claimed lien for extras which it is urged were not ordered in writing, whereas the contract provided that all extras should be ordered in writing. It appears that the contract itself does not provide that the extras should be ordered in writing, but the specifications for the building do contain such a provision. An examination of this record shows that on the hearing in the court below it was strongly urged that the extras were not furnished at the request of the defendants, and were not worth the amount claimed for them. But we have been unable to find that the claim now urged' — that they could not recover for extras because they had not been ordered in writing — was raised in the court below, or relied upon until the case reached this court. We have said that under these circumstances we will not consider this question. See Jeup v. State Fire Marshal, 182 Mich. 231 (148 N. W. 340).

It is the next contention of the defendants’ counsel that the contractor’s statement of the amount due did not give the number and name of each subcontractor and laborer in his employ, and that therefore it is not such a statement as complies with the lien law. In our opinion, the only reasonable construction to be given to the statute is that it is not necessary to include in the statement the names of the persons who have been, but who are no longer, in the employ of the claimant, or the names of the persons who have furnished materials unless there is some amount due them.

The remaining contention of the appellant is that the court did not allow the owners anything for the cost of finishing the building in accordance with the plans, after the contractor had ceased working, and that there was no testimony on which to base the allowance made by the court below of $90 for the cost of painting the exterior of the house (which had not been done by the contractor), and for defects in the house. This contention involves a review of all the testimony in the record, which it would not be profitable to attempt to do in an opinion. In a general way it was the defendants’ contention that the house was not completed in a workmanlike manner, and this contention is largely supported by the testimony of the defendant Emery Garman himself, who was a carpenter, and the testimony of Mr. John Pagganetti, a contractor of some years of experience, who examined the house and discovered a number of defects. The testimony is controverted by the testimony of the plaintiff and an architect, Thulin, who was a witness for the plaintiff.

It is conceded that the exterior painting of the house was not completed, and the defendant Emery Garman testified that he had obtained an estimate from a Mr. Billings that it would cost $125 to complete it according to the specifications. It is endeavored to meet this testimony by the testimony of the painter Ffirr, who did the work, which the record is convincing was not first-class work. He stated, “I imagine it would take $15 to finish up this job. This includes the inside and outside.”

In this class of cases it is often difficult for an appellate court, without the advantage of seeing and hearing the witnesses, to weigh the testimony and get at the truth. But it does seem that the estimate of the defendants with reference to the cost of the painting is nearer the amount required than that of the plaintiff.' A careful reading of the testimony satisfies us that the defendants should be allowed $125 for painting the exterior and the interior to bring it up to the specifications.

Considerable criticism is also made, among other things, of the way in which the plate rail was put up in the dining room, and the rail on the porch. In the amount fixed by the trial judge, counsel for plaintiff is of the opinion that $15 was allowed to complete the painting, and the balance of $75 for these defects, and is of the opinion that this was an ample allowance. The best that can be done under the testimony in this case is an approximation, but that this construction was defective the record is convincing, and we think that $75 should be allowed for these defects. We are therefore of the opinion that instead of $90, there should be subtracted $200 from the amount due.

The decree thus modified will be affirmed. Neither party will recover costs of this appeal. The cost of printing the record will be equally divided between them.

Stone, C. J., and Bird, Moore, Steere, Brooke, and Person, JJ., concurred with Kuhn, J. Ostrander, J., concurred in the result.


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    LARDIE v. MANISTEE & NORTHEASTERN RAILROAD CO.
    1. Carriers — Negligence—Limitation of Liability.
    The consignor of a carload of potatoes, who accepted a box car for his shipment, ’ rather than to wait for a refrigerator car, assuming the risk of freezing, by special agreement in the form of an indorsement on the shipping order to that efEect, could not recover damages for breach of the contract of carriage because of the freezing of the potatoes, where there was no proof of delay, though under the Michigan statute the carrier may insert only such conditions as do not impair his obligation to exercise that degree of care which a reasonably careful man would exercise in regard to similar goods of his own. 2 Comp. Laws 1915, § 8176, subd. 6.
    2. Same — Due Cabe.
    The statute cannot be construed to require the carrier to take precautions which the owner himself does not deem it necessary to take. i
    3. Same — Act of God.
    Where the immediate cause of injury is a sudden of unforeseen event after a delay in shipment, the carrier has in numerous cases been excused from liability to the shipper on the ground that it was an act of God, and a similar rule prevails in Michigan, though the accident occurs during a delay in transit caused by the fault of the railway company.
    Error to Grand Traverse; Mayne, J.
    Submitted April 18, 1916.
    (Docket No. 80.)
    Decided June 1, 1916.
    Assumpsit by George W. Lardie and another, co-partners as George W. Lardie & Son, against the Manistee & Northeastern Railroad Company for breach of a contract to deliver certain goods. Judgment for plaintiffs on a verdict directed by the court. Defendant brings error.
    Reversed.

      Wilson & Johnson (Pdrm C. Gilbert, of counsel), for appellant.

      John J. Tweddle, for appellee.
    The plaintiffs, through their agent at Kaleva, bought a car of potatoes at Chief Lake for shipment to Chicago. Their agent ordered a refrigerator car from the defendant’s agent at Kaleva, but was unable to get one. He then told the latter that a box car would be all right. A box car was placed and loaded, and the plaintiffs’ agent wrote on the shipping order and bill of lading “Owner’s Risk Freezing,” and, “Box car loaded with perishable freight at shipper’s request and shipper’s risk.” He testified that he did this because he could not get a refrigerator car. The car was taken by the defendant to Kaleva on April 3,1914, and turned over to the Pere Marquette Railroad Company some time between that date and April 7th. It left Kaleva April 7th. On April 5th the agent of the defendant at Kaleva told the plaintiffs’ agent that the potatoes were freezing, and that he should put a stove in the car. The' latter testified:
    “I didn’t do it because the night before was cold * * * I knew that they were frozen some, and I was not going to do anything to them. I called up Mr. Lardie, and he told me not to put any stove in.”
    The shipment amounted to 648 bushels, and about 100 bushels were frozen when the car reached Chicago. The consignee refused to accept them, and the plaintiffs telegraphed the consignee to turn them over to the railroad company to be sold to the account of the defendant. The plaintiffs now bring this action for a breach of the contract of carriage to recover the damages sustained. The court directed a verdict in their favor on the ground that the loss was caused by an unreasonable delay at Kaleva. The principal error assigned by the defendant is the refusal of the trial judge to direct a verdict in its favor.
   Kuhn, J.

(after stating the facts). Counsel contend that it is the settled rule in this State that a carrier, is not liable for damages to freight caused directly by an act of God, notwithstanding a negligent act or omission of the carrier concurred to cause the damage. Such has been the decision in numerous cases where the immediate cause of the injury was a sudden and unforeseen event, occurring after a delay in transportation. See McLane, Swift & Co. v. Elevator Co., 136 Mich. 664 (99 N. W. 875, 112 Am. St. Rep. 384); Rodgers v. Railway Co., 75 Kan. 222 (88 Pac. 885, 10 L. R. A. [N. S.] 658, 121 Am. St. Rep. 416, 12 Am. & Eng. Ann. Cas. 441); Daniels v. Ballantine, 23 Ohio St. 532 (13 Am. Rep. 264); Hoadley v. Transportation Co., 115 Mass. 304 (15 Am. Rep. 106); Herring v. Railroad Co., 101 Va. 778 (45 S. E. 322). Plaintiffs’ counsel contends that these cases are not in point, because the danger of freezing in this case was known to the defendant and contemplated by the parties. He cites cases from other States where the rule has been adopted that where^|carrier receives goods for transportation and an unreasonable delay ensues, during which they are injured by an unavoidable accident, the carrier is liable. But it appears from the case of McLane, Swift & Co. v. Elevator Co., supra, that the rule is otherwise in Michigan; and the question here presented was passed upon in this State in the case of Michigan Cent. R. Co. v. Burrows, 33 Mich. 6, where a shipment of apples in November was delayed and damaged by the frost in transit. This court held that, even if the delay were unreasonable, the carrier is not liable for damages caused by the freezing of the goods, though it be concurrent with a delay in transit so unreasonable as to constitute a breach of the contract of carriage. It was said:

“The only breach of this agreement complained of was the failure to deliver within a reasonable time. Are, then, the damages claimed the natural and proximate consequence of such breach? We think not. * * * Cold, freezing weather does not, * * * in the ordinary course of events, follow from mere delay; such is not the natural and direct result of the delay.”

The court quoted from Clark v. Moore, 3 Mich. 62:

“No damages are ever recoverable in actions ex contractu, unless they are shown by the party claiming them to be the natural and proximate consequence of the breach complained of.”

It is apparent that because of the indorsement on the bill of lading, the present case is a much stronger one for the defendant than the Burrows Case. The plaintiffs contend that this indorsement did not relieve the carrier of the' duty to use ordinary care, and assert that it failed in this duty by its delay and (by implication) its failure to put a fire in the car. It is the general rule that a carrier may not exempt himself wholly from liability for his negligence, but can limit his liability only by stipulations which are in themselves just and reasonable. See 4 R. C. L. p. 768; 5 Am. & Eng. Enc. Law (2d Ed.), pp. 293, 308, 319; 5 Thompson on Negligence, §§ 6507, 6508; 6 Cyc. p. 409, and notes on page 410. But the stipulation in this contract does not attempt to relieve from liability for negligence. It relieves from liability for a loss which the parties contemplated might be caused by an element beyond the control of both parties, wholly unrelated to any act or omission of the carrier. Indeed, it is not established by any evidence that the potatoes did not freeze before the delay at Kaleva had become unreasonable. It appears that on the 5th, two days after the placing of the car, the defendant’s agent advised the plaintiffs’ agent to put a fire in the car and the latter did not do so . because “the night before was cold,” and he “knew they were frozen.” Section 6761, 3 How. Stat. (2d Ed.); § 8176, subd. b, 2 Comp. Laws 1915, permits the carrier to insert in the bill of lading only such conditions as do not impair his obligation to exercise the—

“degree of care in the transportation and safe-keeping of the goods intrusted to him which a reasonably careful man would exercise in regard to similar goods of his own.” Uniform Bills of Lading Act (Act No. 165, Pub. Acts 1911).

But this can hardly be intended to require the carrier to take precautions with goods which the owner himself deems it unnecessary or undesirable to take. The owners were equally aware of the danger of freezing, -anticipated it, yet relied upon chance by their failure to put a stove in the car.

The right of the carrier to limit his liability has been restricted on the ground that he might otherwise place the shipper in the plight of either not being able to ship his goods or having to accept an unreasonable limitation of the carrier’s liability for negligence. But the plaintiffs were-subjected to no such choice. They might have waited for a refrigerator car, but preferred to use a box car and excuse the carrier from liability for the danger to which the shipment would be subject under those conditions. They were not obliged to accept this car or none.

Though the parties contemplated the possibility of a freezing, that fact did not make it the natural consequence of the breach of the contract by unreasonable delay. Even if it had, the plaintiffs have expressly absolved the carrier from liability for the consequences of freezing. There being no evidence that the plaintiffs suffered any damage as the natural and proximate result of the defendant’s alleged breach of the contract, a verdict should have been directed in favor of the defendant.

Judgment is reversed and a new trial ordered, with costs to appellant.

Stone, C. J., and Ostrander, Moore, Steere, Brooke, and Person, JJ., concurred. Bird, J., did not sit.


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    SCHNEIDER v. SHEPHERD.
    1. False Imprisonment — Probable Cause — Directed Verdict.
    In raiding a number of houses of prostitution, the prosecutor of Wayne county ordered plaintiff’s home to be entered and tbe inmates placed under arrest. Tbe prosecuting attorney bad no knowledge of any crime committed by plaintiff or information that be was chargeable with keeping a disorderly bouse, but relied upon tbe report of an investigator employed by tbe department, which did not contain tbe name of tbe owner but described tbe bouse by number. Officers entered tbe bouse and took plaintiff into custody, and they entered tbe room of plaintiff’s wife and daughter, who were allowed to remain at borne. Discovering or learning of tbe probable mistake, defendant released plaintiff before be was brought to jail. Held, that tbe question, of want of probable cause was one of law, and that tbe trial court should not have submitted tbe issue to tbe jury; that tbe error was immaterial on defendant’s appeal from a verdict against him, and that no probable cause for arresting plaintiff was established by tbe evidence.
    2. Same — Want of Cause — Disorderly House.
    Evidence that tbe defendant at no time bad any informa* tion in bis possession or was notified that plaintiff bad been connected with tbe commission of the crime in question, and tbe only knowledge be bad was tbe report of the investigator who gave merely the number of the place, not the name of its proprietor, did not justify taking plaintiff into custody without a warrant.
    Error to Wayne; Murphy, J.
    Submitted April 6, 1916.
    (Docket No. 28.)
    Decided June 1, 1916.
    Case by John H. Schneider against Hugh Shepherd, John Gillespie, and Frank A. Heig for illegal arrest. Verdict directed by the court in favor of defendants Gillespie and Heig. Judgment against defendant Shepherd who brings error.
    Affirmed.

      Robert M. Toms, for appellant.

      Cullen, Casgrain & Wurzer, for appellee.
   Kuhn, J.

The plaintiff has recovered a judgment against the defendant because of an illegal arrest claimed to have been instigated by the appellant. It appears that in March, 1914, the plaintiff resided with his wife and 12-year-old daughter at 291 Brush street, in the city of Detroit, and that he had occupied this place as owner in fee for over 30 years. The defendant Shepherd was at that time the prosecuting attorney of Wayne county, and defendants Gillespie and Heig were, respectively, commissioner and detective sergeant of the Detroit police department. It was the claim of the defendant Shepherd that previous to March 6, 1914, he had received many complaints from citizens that, in spite of an order of the police department of the previous October that all houses of prostitution be closed in the city, many disorderly houses were still operating. He thereupon, without any knowledge or aid "of the police department, secured from Chicago two private investigators, who had been recommended to him by the chairman of the committee of 50 of that city as experienced and reliable men. They were kept at work for about six weeks, and at the end of each day turned over to the defendant Shepherd written ' reports of their investigations. There were four reports, two of date of February 12, 1914, and the other two' of date March 2, 1914, which referred to 291 Brush street but did not give the name of the owner. The character and tenor of these reports may be obtained from the first one, which was as follows:

“Report of Investigator No. 1 for Thursday, the 12th day of February, A. D. 1914.
“Place: 291 Brush St., H. I. F. Owner of' record —Alma, inmate.
“Gentlemen: I submit the following report for the day and place as*above. At about 4:00 o’clock p. m. I visited this place with Investigator No. 2, and found one girl in here at this time. She solicited the both of us for immoral purposes. Prices here, $3.00 and $1.00 for the room. $2.00 and $1.00 for the room for a short while. Keeper was in a room entertaining a man.
“Respectfully submitted,
“Wm. J. Carrignan, Investigator.”

At about 10 o’clock on the night of March 5th, the defendant Shepherd called on the defendant Gillespie at his office, and told him of the work of the investigators and of the results obtained, and asked the defendant Gillespie to have 100 police officers assembled at the police headquarters at about midnight, for the purpose of raiding the disorderly houses concerning which he had been furnished information by the investigators. But Shepherd did not show Gillespie at this time his written reports, nor did he give him the addresses of'the different houses he desired to have raided. At about lí:30 o’clock on the same night, Shepherd returned to the police headquarters, and at the request of the defendant Gillespie Exhibit 1 was drawn up and signed by Shepherd, which is as follows:

“Detroit, Mich., March 5,1914,11:25 p. m.

“John Gillespie, Police Commissioner,

“City of Detroit, Mich.

“Dear Sir: Inclosed find fifty (.50) addresses of houses or buildings which I desire raided and all persons found therein brought to police headquarters, registered, and immediately forwarded to the prosecuting attorney’s office in the county building. Also bring all liquors, beer, etc., found in these places to police headquarters.

“I believe that this office has sufficient evidence to bring these people in and would order you to use all force necessary to gain admittance to these places. I would ask you to instruct your men on entering these houses to immediately put the telephones out of commission.

“It will be necessary to secure the services of at least 100 police officers to do this work at as near one time as. possible. You will, therefore, have these men available at the central police station on March 6, at 12:30 a. m.

“Sincerely yours,

“Hugh Shepherd, Prosecuting Attorney.”

At the same time, slips of. instructions were prepared and given to the officers who were there asseim bled, and they were then sent out in squads to execute the orders given them. . Among them was the following order:

“291 Brush Street, 2nd floor.
“First. Cut all telephone wires.
“Second. Bring all persons present to the prosecutor’s ofiice.”

This slip was given to a squad comprising the defendant Heig and two uniformed police officers, and bore the plaintiff’s address, and' they thereupon proceeded to his home. Upon arriving there, the officers aroused the inmates by calling and knocking at the door, and were admitted by the plaintiff. The defendant Heig told the plaintiff that he had orders to take all the persons in the house to police headquarters, and directed him to be prepared to leave at once. The plaintiff informed the officers of his ñame and business, and objected to leaving his home. Among those who were admitted to the house was a newspaper reporter, who accompanied the officers. He telephoned Shepherd, and suggested that a mistake had been made. Shepherd thereupon telephoned to the defendant Gillespie to recall at once the officers sent to 291 Brush street. In the meantime the officers went through the house, going into the room where the plaintiff’s, wife and child were. The plaintiff dressed himself, prepared to leave the house with the officers, and did so, leaving his wife and child in the house. When they had proceeded about 10 or 15 feet from the front of the house, an officer who had been dispatched to the scene by the commissioner arrived in a police automobile and ordered the plaintiff released.

On the trial of the case, at the conclusion of the proofs by the plaintiff, the trial court, upon motion, directed a verdict in-favor of the defendants Gillespie and Heig, on the ground that “they had a right to rely on the information imparted to them by the prosecutor acting in a quasi judicial capacity,” and that “it must be said they acted upon probable cause.” Counsel for the defendant Shepherd then moved the court to direct a verdict in his favor on the grounds:

(1) That, the facts being undisputed, as a matter of law he had probable cause to believe that a felony had been committed on the plaintiff’s premises; and

(2) That his acts had been within the scope of his authority as a quasi judicial officer.

This motion was later renewed and denied, and exception taken, and this action of the court is made the basis of appellant’s first assignment of error. A verdict of $500 against the defendant was had, and thereupon a motion for a new trial was made, the refusal of which is also made the basis of an assignment of error.

The learned trial judge submitted to the jury the question whether or not there was probable cause for making the arrest of the plaintiff and prosecuting the search of his house. It is urged by counsel for the appellant, that the facts here in question being without dispute, a question of law was presented for the court to decide, and that it should not have been submitted to the jury, and we are of the opinion that this contention of counsel is sound; for what facts and circumstances amount to probable cause is a pure question of law. A careful examination of the record discloses that all the essential facts involved here are undisputed, and under the well-settled rule of law the question of a want of probable cause thereupon became a question of law, to be determined by the court upon a consideration of the facts involved in the particular case. This question has recently had the consideration of this court in the case of Gilecki v. Dolemba, 189 Mich. 107 (155 N. W. 437), in which previous decisions of the court are cited. Huntington v. Gault, 81 Mich. 144 (45 N. W. 970); Perry v. Sulier, 92 Mich. 72 (52 N. W. 801); White v. McQueen, 96 Mich. 249 (55 N. W. 843); Filer v. Smith, 96 Mich. 347 (55 N. W. 999, 35 Am. St. Rep. 603); People v. Kilvington, 104 Cal. 86 (37 Pac. 799, 43 Am. St. Rep. 73); Burk v. Howley, 179 Pa. 539 (36 Atl. 327, 67 Am. St. Rep. 607); Diers v. Mallon, 46 Neb. 121 (64 N. W. 722, 50 Am. St. Rep. 598). However, in view of the conclusion we have reached with reference to the question whether or not the defendant Shepherd had probable cause to instigate the arrest of the plaintiff, we do not think that this error on the part of the court was prejudicial to the rights of the appellant.

It is true that a prosecuting officer, in acting within the line of his public duty, has been held to be a quasi judicial officer. Meister v. People, 31 Mich. 99; Sneed v. People, 38 Mich. 248; People v. Bemis, 51 Mich. 422 (16 N. W. 794). But we are of the opinion that in this, case the prosecutor, in doing what he did in instigating the arrest of the plaintiff, was not entitled to the immunity of a quasi judicial officer. The learned trial judge, in denying a motion for a new trial, very aptly and correctly said the following with reference thereto:

“The prosecuting attorney is a constitutional officer. The Constitution, however, leaves the duties and powers of the office to be prescribed by the legislature. Constitution of 1909, art. 8, § 3. So far as here germane, these powers and duties have been defined as follows:
“ ‘The prosecuting attorneys shall, in their respective counties, appear for the State or county, and prosecute or defend in all the courts of the county, all prosecutions, .suits, applications and motions, whether civil or criminal, in which the State or county mw be a party, or interested.’ Section 1152, 1 How. Stat. (2d Ed.); 1 Comp. Laws 1915,. § 2405.
“Nothing in this provision can by any construction be made to comprehend the acts involved in this controversy. The investigation of alleged crimes by the prosecuting attorney, through private individuals, the acceptance of their reports as basic information upon which is issued a peremptory order to the police to arrest, without warrant, the suspected criminals, finds no' statutory sanction in the prescribed powers and duties of a prosecuting attorney. If he proceed upon such a course of action, he does so at the same peril as does the unofficial citizen. His office is not a cloak to protect him from liability for a wrong thereby resulting to an innocent person subjected to a false arrest. The statute affords no such robe of immunity, for it neither delegates any such duty nor grants any such power.”

The principles of law applicable to the situation were, in my judgment, correctly given in the charge to the jury. We see no escape from the conclusion that the prosecuting officer, under the facts .in this case, placed himself in no different situation than that of any private informer, and the question therefore resolves itself into a query whether or not the facts which he had before him were sufficient to warrant an ordinarily cautious person in believing thát the person who was arrested was guilty of the offense charged.

Before there can be probable cause which would warrant the arrest of a person, there must be at least some information connecting that person with the commission of the alleged offense. It conclusively appears that the defendant Shepherd at no time had any information in his possession, nor was he informed, that the plaintiff was in any way connected with or suspected of the commission of the crime for which the arrest was made. The only information that he had before him was the reports of the investigators, two made on February 12th and the others on March 2d, in which the investigators reported they had visited a place at 291 Brush street and concluded from what they saw that the house was used for immoral purposes. But the owner of the place was not specified in either report. It is conceded that these reports were unreliable, because it appears without question that 291 Brush street had been the home of Mr. Schneider for more than 30 years. The defendant Shepherd testified that he had no evidence against Schneider, and he relied entirely on the reports of the investigators. The office of prosecuting attorney is one of the most important which the people are called upon to fill, and the person selected becomes by virtue of his duties the legal adviser of the law enforcing officers of the county. Unquestionably the defendant was actuated by the best motives in attempting by the methods he adopted to secure a better enforcement of the law than had theretofore obtained. Nevertheless, because of his very position, responsibility rested upon his shoulders to see that the safety of the ordinary citizen from illegal arrest be secured. The reports he received indicated to him the location of the house which it was alleged was being used for illegal purposes. He had from February 12th to March 5th to make inquiries as to who the proprietor of the house in question was. He saw fit to make no further inquiry, and to obtain no legal process.

The right of the citizen to freedom from illegal arrest, and the immunity of his home from unlawful search, should not hang upon as slender a thread as is made out by the defendant’s effort to show probable cause. We are of the opinion that the facts in this case conclusively show, as a matter of law, that there was a want of probable cause on the part of the defendant Shepherd in instigating the arrest of the plaintiff, and therefore there was no reversible error on the part of the trial judge in submitting this case to the jury.

The judgment of the court below must therefore be affirmed.

Stone, C. J., and Osteandee, Bied, Mooee, Steeee, Beooke, and PEESON, JJ., concurred.


text:
    BELL v. HAYES-IONIA CO.
    1. Master and Servant — Compensation—Accident.
    In lifting a window that stuck claimant caused a hernia, which he afterwards aggravated by lifting automobile bodies in the course of his employment. An operation was performed, and his condition became better. There was evidence that hernia is a disease and does not result from an accident; also, that claimant had suffered pain in the groin before. Held, that the presence of weakness or pain preceding the injury was not conclusive of defendant’s contention that the hernia resulted from, disease conditions.

    2. Same — Evidence—Appeal and Error — Certiorari—Industrial Accident Board.
    In certiorari to the Industrial Accident Board to. review an award of compensation for hernia, the exclusion of testimony which could not have substantially affected the result did not require a reversal of the judgment or award.
    3. Same — Review of Findings — Jurisdiction—Essentials.
    The finding of the hoard that there was an accident is ’ conclusive on the court, if there were facts shown to support it; the legal conclusions, based upon findings of fact are subject to the supervision of the court, and are not conclusive.
    Certiorari to the Industrial Accident Board.
    Submitted April 10, 1916.
    (Docket No. 45.)
    Decided June 1, 1916.
    Josiah V. Bell presented his claim for compensation against the Hayes-Ionia Company and the Michigan Workmen’s Mutual Insurance Company for injuries received while in first defendant’s employ. From an order awarding compensation, defendants bring certiorari.
    Affirmed.

      Beaumont, Smith & Harris, for appellants.

      R. A. Colwell, for appellee.

      As to whether hernia is an accident or personal injury within the meaning of the workmen’s compensation act, see comprehensive note in L. R. A. 1916A, 365.
      For authorities on workmen’s compensation acts, generally, see note in L. R. A. 1916A, 23.

   Kuhn, J.

The claimant has been awarded compensation under Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 542B et seq.). The award was made in the first instance by a committee of arbitration, and was approved by the Industrial Accident Board, and that decision is brought to this court by certiorari, for a review of the findings.

The substance of the testimony which bears on the alleged accident is that the claimant was employed by the respondent in work on automobile bodies ’ which required frequent lifting of them; that on May 29, 1914, the window of the room where he was working had been put down during a storm, and had swollen enough to make it stick; after the storm had ceased Bell put it up again, and it required considerable exertion. He testified:

That after lifting the window he “felt something come down that felt quite painful”; that “when I felt the pain after lifting the window I went to the toilet, and found a lump there. * * * The lump was about like an egg. It was on my right groin. I never noticed the lump before.”

This happened at 4 o’clock. He continued to work, lifting bodies, until 5:30 o’clock, closing time. On/ his way home he felt faint, and complained to his wife of an inclination to vomit. When asked whether he noticed any condition that made him think he had hernia, he said:

“It came down Friday night. I got it back Saturday, and Sunday it stayed in place. On Monday when I went to work it came out again.”

He did not work Saturday and Sunday, but returned to his usual work on Monday, and suffered pain all day. When he reached home that night, the doctor was called, and after some effort reduced the hernia. An operation proved necessary, and was performed, and the claimant was disabled for ten weeks. Compensation was awarded him for that period at $6.92 per week, in addition to medical and hospital expenses for three weeks, the period of his confinement.

Among the several points relied upon by respondents for disallowance of the claim the one most extensively discussed is that the injury did not result from an accident. The argument goes upon the theory that a hernia is the result, “not of a single fortuitous event, but either of the anatomical defect of the claimant or of the long-continued lifting for a number of months”; that hernia is the result of a very gradual process; that it is not an accident, but a disease. Medical authorities are quoted from, and the testimony of expert witnesses presented, to substantiate the theory. But, whether this theory is correct or not, the argument is disposed of by the decision in the recent case of Robbins v. Engine Co., 191 Mich. 122 (157 N. W. 437).

There is evidence that the claimant felt a pain in the groin after raising the window, and discovered a hernial protuberance immediately afterward. He continued to work, and “both lifting the window and lifting the body caused this pain. I was pulling up the window when the pain came on, and also when I lifted the body.” The work on Monday, after he had “got the hernia back,” caused more pain, and brought it down again, so that the physician had difficulty reducing it. It is clear that the committee and the board were justified in finding that the hernia was pushed through and made so acute by the lifting of the window as to disable the claimant. See La Veck v. Parke, Davis & Co., 190 Mich. 604 (157 N. W. 72). Such an injury entitled the claimant to compensation. See Skinner v. Accident Ass’n, 190 Mich. 353 (157 N. W. 105); Robbins v. Engine Co., supra.

The respondents offered in evidence the report of Dr. Knapp, who attended the claimant, in which it was stated:

“Patient says for two or three weeks been having pain in groin, and that while closing a window at factory felt strain which in two or three days resulted in strangulated hernia.”

It was presented in connection with the following testimony of Dr. Knapp:

“I would call it a perfectly fresh puncture. It was evident to me that the hernia was caused as claimed. Indications are to the effect that the act of putting up the window and lifting the body from the work bench caused the bowel to go through and form a sac. * * * I believe, as near as. I can tell, he had no rupture before, and he had it afterwards. The preponderance of evidence seems to show that it came on at that time as the result of his work.
“Mr. Smith: Dr. Knapp, did he say anything to you about having had a p'ain in his side previous to this?
“Dr. Knapp: Afterwards I asked him how long he had had it, and he said he did not know anything about it; on Saturday he lifted the window and the body, and felt it come on him then.
“Mr. Smith: You reported to the insurance company, ‘Patient says for two or three weeks been having pain in groin’; is that so, Mr. Bell?
“Mr. Bell: I don’t remember saying that.
“Mr. Smith: The report was made June 9th; where do you suppose the doctor got that idea?
“Mr. Bell: I might have told him that. I have tried to be honorable and truthful, and always have. I don’t remember saying that, although I might have said it at that time.
“Mr. Smith: How do you account for this report?
“Dr. Knapp: He must have told me that he had had previous pain there, or I would not have made such report. It might be that this condition arose before if that is the same pain, or it might have been a pain in the abdomen lower down.”

The board rejected the report. This evidence might properly have been received, since it contradicted a part of Dr. Knapp’s testimony. But the error is not of sufficient importance to invalidate the findings. The presence of a structural weakness or actual pain, antedating the injury alleged, in the region where the injury occurred, does not preclude a recovery if the injury itself is distinct and the result of a particular strain causing a sudden protrusion of the intestine. As in Robbins v. Engine Co., supra, there was testimony to support a finding 'that the claimant made a distinct and unusual exertion, that he immediately felt unusual pain, and presently discovered a protrusion through the abdominal wall about the size of an egg. And it may be appropriately said here also that:

“It is assumed that it was the first time the sac had been forced through the abdominal wall. If it is also assumed that there was a certain lack of physical integrity in the parts where the injury was manifested, still I think claimant may have compensation for the injury he suffered.” Robbins v. Engine Co., supra.

See, also, La Veck v. Parke, Davis & Co., supra, and recent decisions of the Massachusetts court, Madden’s Case, 222 Mass. 487 (111 N. E. 379), and Crowley’s Case, 223 Mass. 288 (111 N. E. 786), for an application of the same principle. The rejected evidence could be given its due weight and accorded belief without requiring a finding of no accidental injury on May 29th resulting from the opening of the window.

Complaint is made of the action of the board in excluding the extracts from medical text-books offered by the respondents as evidence of the true nature of hernia. As the only object of offering such evidence could have been to prove that hernia is not an accidental injury, in view of what has been said on this subject it is unnecessary to discuss this question.

It is contended that the finding of the board that there was an accident is not conclusive on this court, under a- correct construction of the provision that the “findings of fact made, by the Industrial Accident Board acting within its powers, shall, in the absence of fraud, be conclusive.” Act No. 10, Extra Session 1912, § 12, pt. 3 (2 Comp. Laws 1915, § 5465). Fraud is not averred or shown. But respondents’ counsel, treating this as a finding of fact, contend that the board acts within its power only when it deals with an accident to an employee arising out of the employment, and that, since such facts (viz., that the injury was an accident, the injured person an employee, and the accident one arising out of the employment) are jurisdictional, the board’s finding of them is not conclusive on this court.

“Unless it has before it an accidental injury arising out of and in the course of the employment, it is beyond its power and authority.”

If counsel mean that the board’s findings of fact are conclusive only when the board is dealing with an accidental injury arising in the course of the employment, it is equivalent to saying that such findings of fact are conclusive only when made after the facts justifying an award have already been established. From this point of view it is difficult to see what facts are to be found or what the purpose of the findings could be. Manifestly something else was intended by the words “acting within its powers.”

Undoubtedly the board has no jurisdiction to make an award until it has decided upon the facts found by it that the injured person was an employee, that the injury was the result of an accident, and that the accident arose in the course of the employment, and counsel doubtless means to assert only that the conclusions of the board on these points are not binding on this court. Perhaps it is sufficient to say that, since we agree with the conclusion of the board on these points, any discussion of the question is unnecessary. However, an apparent confusion in the recent decisions deserves some attention.

While the board's findings of fact are undoubtedly conclusive on this court (see Rayner v. Furniture Co., 180 Mich. 168 [146 N. W. 665, L. R. A. 1916A, 22, Am. & Eng. Ann. Cas. 1916A, 386]; Lindsteadt v. Lumber Co., 190 Mich. 451 [157 N. W. 64]), it is clear that the legal conclusions of the Industrial Accident Board, when based upon findings of fact, are subject to the supervision of this court. See recent cases, Bischoff v. Foundry Co., 190 Mich. 229 (157 N. W. 34); Robbins v. Engine Co., supra. If it is clear upon the facts found by the board that, as a legal conclusion, an injury was not accidental, or that it did not arise in the course of the employment, a contrary conclusion awarding compensation will not be allowed to stand. The act does not make the board’s legal conclusions binding on this court. It was said in La Veck v. Parke, Davis & Co., supra, that “where there is testimony upon which the accident board can base its conclusion, we will not review its action,” and cases were cited to support this rule. But we were referring them to a conclusion of fact. In Redfield v. Insurance Co., 183 Mich. 633 (150 N. W. 362), the findings of the board which were treated as final when supported by any evidence were matters purely of fact. In Bayne v. Cartage Co., 181 Mich. 378 (148 N. W. 412), the question whether the pneumonia which caused the death was caused by a particular straining was one purely of fact, and, since the testimony was conflicting, it was a matter for the determination of the Accident Board. It was not intended to hold that whether that which caused the pneumonia was an accident, and whether the accident, if it was one, arose in the course of the employment, were purely questions of fact for the board.

Since it has not been shown that the board exceeded its power or acted fraudulently, we must conclude that the hernia was caused by the strain on the 29th of May, and the order allowing compensation is affirmed.

Stone, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


text:
    McGAVOCK v. DUCHARME.
    1. Constitutional Law — Brokers — Contracts — Commissions— Statute of Frauds.
    The provisions of Act No. 238, Pub. Acts 1913, rendering void contracts between brokers and owners of real property which are not in writing, affect the validity of the agreement and, hence, could not be held to invalidate preexisting contracts which were not expressly included by the terms of the statute (3 Comp. Laws 1915, § 11981), which must be construed in the light of the limitation of the Federal Constitution relating to laws that impair the obligation of contracts.

    2. Same — Evidence—Void Contract.
    The statute, providing that every agreement, promise or contract to pay any commisison, etc., shall be void, is not a rule of evidence merely, but goes to the basis of the contract itself, and renders it absolutely void.
    3. Same — Statute of Frauds.
    The statute of frauds (3 Comp. Laws 1915, §§ 11975, 11977) does not apply to a contract for .the exclusive agency to sell real estate for the period of one year on the theory that it creates an interest in the real estate.
    4. Brokers — Exclusive Agency — Trial.
    Where the evidence of a broker, in an action for commissions, was met and Contradicted by defendant, who denied that he had given -an exclusive agency, the question was one for the jury.
    Error to Wayne; Lamb, J., presiding.
    Submitted April 10, 1916.
    (Docket No. 64.)
    Decided June 1, 1916.

      Assumpsit by James E. McGavock against George A. Ducharme for broker’s commissions. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Jay Fuller (Charles C. Fuller, of counsel), for appellant.

      Dohany & Dohany, for appellee.

      As to power of legislature to require contracts for commissions for finding purchaser for real estate to be in writing, see note in 33 L. R. A. (N. S.) 973. And as to necessity that agent’s authority to purchase or sell real property be in writing to enable him to recover compensation for his services, see notes in 44 L. R. A. 601, 9 L. R. A. (N. S.) 933, 46 L. R. A. (N. S.) 129.

   Kuhn, J.

The plaintiff in this action sues the defendant for commissions on the sale of real property. It is claimed' that the defendant had given him the exclusive sale for one year on a 3 per cent, commission, and had sold the property within the year directly to a customer secured by the plaintiff. The defendant requested the court to charge that the contract was void under Act No. 238, Pub. Acts 1913, which amends section 9515, 2 Comp. Laws (section 11399, 4 How. Stat. [2d Ed.] [3 Comp. Laws 1915, § 11981]), by adding the clause, “Every agreement, promise, or contract to pay any commission for or upon the sale of any interest in real estate,” with the result that such agreements are void unless they, or a memorandum thereof, are in writing and signed by the party to be charged. It is conceded that the contract sued on in' this case was oral. This act was approved May 7, 1913, and by section 21 of article 5 of the Constitution took effect in August, 1913. The contract was entered into, if at all, in June, 1913. The trial court refused the request, on the ground that the act became a law subsequent to the making of the contract, and there-, fore did not govern the contract, and that, if it were given the effect asked for, it would impair the obligation of the contract, in violation of the Federal Constitution. The case was submitted to the jury as unaffected by the act, and a verdict was rendered for the plaintiff in the sum of $5,092.63.

The principal ground relied upon for reversal of the judgment is the refusal to allow Act No. 238, Pub. Acts 1913, to affect the contract. Defendant’s counsel contends that the act states a rule of evidence merely, and is applicablé to all contracts sued on after it took effect. No distinction is made between those statutes which read, “No action shall be brought upon any agreement,” etc., not in writing, and those which read, as does this one, “Every agreement, contract, or promise shall be void,” etc., unless in writing. Decisions are cited from the Massachusetts and Ohio courts, and the case of Third National Bank v. Steel, 129 Mich. 434 (88 N. W. 1050, 64 L. R. A. 119), is relied upon. In this case the statute involved forbade the bringing of an action on verbal contracts of a designated class, but did not in terms make such contracts void. In the case of Emery v. Burbank, 163 Mass. 326 (39 N. E. 1026, 28 L. R. A. 57, 47 Am. St. Rep. 456), Justice Holmes recognizes the logical difference between statutes which are “addressed to the necessary constituent elements, or legality, of the contract on the one hand” (such as the statute involved in the instant case), and those addressed “to the evidence by which it shall be proved on the other.” Nevertheless, in many jurisdictions, including Massachusetts and Ohio, contracts not evidenced by writing are held to be merely voidable, whether in the class declared by statute to be invalid when not in writing or in the class upon which no action may be brought. Quoting from 29 Am. & Eng. Enc. Law (2d Ed.), p. 814:

“In most cases the ground of the decision is that the statute merely declares that 'no action shall be brought’ upon an oral contract, and that the effect of such a statutory provision is simply to preclude the bringing of an action to enforce, or to prevent the introduction of parol evidence to prove, the contract. In some jurisdictions a similar effect is given to statutory declarations that oral contracts shall be ‘void’ or shall not ‘be allowed to be good.’ On the other hand, it has been held that, where the statute provides that contracts shall be ‘void’ unless evidenced by writing, such contracts must be considered in all respects as nullities.”

See note appended.

The statute under consideration is one of'the latter kind, and in the early case of Abell v. Munson, 18 Mich. 306 (100 Am. Dec. 165), such a statute was held to render contracts coming within its provisions absolutely void. This rule has not been departed from in Michigan. See Ball v. Harpham, 140 Mich. 661 (104 N. W. 353), and the many cases cited in the note appended to section 11399, 4 How. Stat. (2d Ed.).

Act No. 238, Pub. Acts 1913 (3 Comp. Laws 1915, § 11981), had no force as law until the time it took effect in August, 1913, and therefore did not affect this contract. See Rice v. Ruddiman, 10 Mich. 125; Price v. Hopkin, 13 Mich. 318; 36 Cyc. p. 1192. When it did acquire the force of law, it did more than state a rule of evidence, as is contended. It deprived all contracts within its purview of legality, and impaired their obligation. But it could only have this effect on contracts made subsequently; for to affect contracts made previously would impair their obligation, and thus violate the Federal Constitution.

“The rule that statutes are not to be construed retrospectively unless such construction was plainly intended by the legislature applies with peculiar force to those statutes the retroactive operation of which would impair or destroy vested rights.” 36 Cyc. p. 1210.
“The statute of frauds has no retrospective force. It does not apply to agreements entered into before its adoption as a law.” 29 Am. & Eng. Enc. Law (2d Ed.), p. 814.

See, also, Cargill v. Power, 1 Mich. 369; Price v. Hopkin, 13 Mich. 318; Board of Supervisors of Arenac County v. Board of Supervisors, 158 Mich. 344; 15 Am. & Eng. Enc. Law (2d Ed.), pp. 1047, 1051; 20 Cyc. p. 281.

The defendant contends that, if Act No. 238, Pub. Acts 1913, does not affect the contract, it was invalidated by sections 9509 and 9511, 3 Comp. Laws (3 Comp. Laws 1915, §§ 11975, 11977), on the theory that the contract set up by the plaintiff was not one for services, but one creating an interest in the land or power over it. But this theory was held untenable in Brittson v. Smith, 165 Mich. 222 (130 N. W. 599).

The third contention of the defendant is that the verdict was contrary to the great weight of the evidence. The record shows that the plaintiff testified on the trial that the defendant gave him the exclusive sale of the entire lot or a portion of it at their first meeting, in June, 1913, which occurred before Act No. 238 took effect. The defendant denied this, testifying:

“I always told him that he didn’t have the sale of the property, and he understood that, but I told him, if he would bring me in a customer, I would consider it. That was the only understanding we had.”

This conflict in the testimony presented a direct issue of fact, which it was the province of the jury to deside. They decided it in favor of the plaintiff, and an examination of the record does not satisfy up that the trial court erred in denying the motion for a new trial on the ground that the verdict was not against the great weight of the evidence. See Druck v. Lime Co., 177 Mich. 364 (143 N. W. 59), and cases therein cited.

The judgment is affirmed.

Stone, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.