author: Long, J.

text:
    Martin V. Montgomery, Administrator of the Estate of John O. Grinnell, Deceased, v. The Lansing City Electric Railway Company.

      Street railways — Gross negligence — Proximate cause — Pleading— Damages — Evidence.
    1. Plaintiff’s intestate, while engaged with other members of a band in giving a street parade, and while walking near defendant’s track ahead of an approaching oar, was overtaken and struck by the car. The motorman knew that the band was ahead of the car, and that deceased was in close proximity to the track. He heard the band playing, and knew that the noise of the car would be liable to be drowned by the noise of the band, yet, if the testimony of plaintiff’s witnesses be true, he did not slacken his speed, but kept the lever in next to the fastest notch, at least until within a few feet of the members of the band. The car, according to the testimony, ran over 30 feet after striking the deceased. It appeared from the testimony of the motorman that, if he had had the car under control, he could have prevented the injury. And it is held that, notwithstanding the negligence of the deceased, it was a question for the jury to determine whether or not the motorman used that care and caution which, under the circumstances, he was bound to exercise, in view of the danger as he must have seen it.
    3. In a personal injury case the declaration averred that the plaintiff was seriously hurt, wounded, and crippled, and his back and spine seriously hurt, crippled, bruised, sprained, and injured, by his being struck by the defendant’s car, which injuries were permanent and incurable. A physician was allowed to testify that the condition of plaintiff’s lung— chronic inflammation of the lung — and the tenderness of the spine might result from a severe injury to the back and spine. The testimony was objected to on the ground that no injury to the lung was averred in the declaration. And it is held that the declaration is sufficient to admit the evidence, under the rule laid down in Johnson v. McKee, 87 Mich. 471, which does not require the plaintiff to aver all the physical injuries which he sustained, or which may have resulted from or been aggravated by the tort, even though they do not necessarily result from the original injury; that if such injuries can be traced to the act complained of, and are such as would naturally follow from the injury, they need not be specifically averred.
    Error to Ingham. (Person, J.)
    Submitted on briefs October 18, 1894.
    Decided December 18, 1894.
    Negligence case. Defendant brings error.
    Affirmed.
    'The facts are stated in the opinion.

      Moore é Moore and Smith, Lee <& Day, for appellant.

      M. V. & B. A. Montgomery, for plaintiff.

       The suit was commenced in the name of Grinnell. After the rendition of the verdict in the circuit, he died, and the suit was revived in the name of his administrator.

   Long, J.

May 22, 1893, John 0. Grinnell, the deceased, and eight others, constituting the Prank Tucker Theatrical Company, were engaged in giving a street parade in Lansing. They had gone to North Lansing, and had returned on a street car, getting off the car a few blocks below Michigan avenue, where the . car stopped. They passed ahead of this car, four walking on one side of the car track, single file, about six feet apart; the others walking on the other side of the track, in the same order. Mr. Grinnell was on the east side, and near the track. Six were ahead of him, each playing a wind instrument, and two behind him playing snare and bass drums. He wasr playing a cornet. The car from which they alighted followed soon after, and overtook them just as they reached Michigan avenue. The platform of the car passed Grinnell, but the body of the car struck him on the shoulder, knocking him down. Mr. Grinnell on the trial testified:

“I was very near the car track, but not between the rails. I remember something striking me. I heard nothing; heard no bell indicating any warning. I recollect something struck me, and after that the first thing I knew I was on my feet, and people were holding me up, I was struck about at the point of the right shoulder blade. I knew I was hurt as soon as I came to my senses. They took me to the hotel. Two of my teeth were loose, besides one that was knocked out.; After getting to the hotel, and while confined there, I discovered the- injury to my back, my arm, and my right side, and a slight injury to my right hip. I got hurt on Monday, and got out on Friday. Before leaving the hotel, I noticed a sore spot on my right chest, perhaps two or three days after the accident. It was followed by spitting of blood. I never had anything of that kind before. This spitting of blood continued for about two weeks. At the end of two weeks, or perhaps a little longer, I had a dry cough started,— hacking cough, — and I had it ever since up to about five weeks ago, and from that time until now I have been coughing very bad, and it is growing worse all the time. When I was hurt I weighed about 132 pounds; now I weigh about 109 pounds. Aside from whooping cough and scarlet fever, which I had when quite small, I have never-been sick.-”

He was asked:

State to the jury whether you were thinking about or looking out for any indication that a car was coming.

“A. Yes, sir; I always did, because I always had to walk so close to the track. I was playing at the moment I was hurt. I thought I was far enough from the track to be out of the way. I was looking out for the car, and was positive that I would hear the signal, if there was any near.-”

On further examination, Grinnell testified that he knew the car could not pass without hitting him, but that he was looking out for it, and had no doubt that he could hear the bell and get out of the way.

Some considerable testimony was given tending to show that no bell was rung or other warning given when the car approached Michigan avenue, where the accident happened, and there was testimony also that the car was running at a rate of speed greater than usual, and that it did not slow down when it reached Michigan avenue. Just what rate of speed it was going plaintiff’s witnesses do not state, but many of them say that it was faster than the ear usually ran, and some say it was running rapidly. One witness testified that he had been in the employ of the defendant company before that time; that he noticed the car approaching the band, and, when within half a car length of Grinnell, he noticed the lever in the fourth notch, — that is, next to the last notch,— the last notch giving the car the fastest speed it could attain, and that no bell was sounded. Both the motorman and the conductor, as well as others, testified that the bell was sounded, and that they were going slow, the motorman saying, “Not more than three miles an hour.”1 The conductor testified, further, that his orders were to slow down at the Michigan avenue crossing. The motorman testified that a high wind was blowing from the west, and, as he saw the members of the band ahead of him, his attention was directed to the man carrying the bass drum, as he feared he would be blown upon the track; that he saw Grinnell; saw him brace up against the wind, but did not pay so much attention to those on the east side, as he was afraid the wind would carry those on the west side onto the track. He says that when about five or six feet from Grinnell he saw him; that he was walking along blowing his horn, and as the wind came down Michigan avenue he leaned over to protect himself against it, and that was the reason the car struck him; that, if Grinnell had continued to walk the same distance from the track, the car would not have struck him. The motorman denies that the lever was in the fourth notch, and says that he did not have any current on when he crossed Michigan avenue, but that he ran about 34 feet after he struck Grinnell. On his cross-examination he was asked:

“ Suppose you had run up behind these people carefully and slowly, until you had attracted their attention by your bell, that would not have been a difficult job?

“A. Oh, no.”

Under this testimony, the court directed the jury:

1. That Grinnell was guilty of negligence, and “under some circumstances this would prevent a recovery, but in this case it may or may not, as you may determine regarding certain other facts to which I shall call your attention.”

2. “ The car which struck the plaintiff had that same forenoon carried the band to North Lansing. The same conductor and motorman were in charge. They knew that the band paraded Franklin street. They had brought this band from the Franklin-street parade down Washington avenue to Ionia street, and there let the band off. The band from that point’ had proceeded down Washington avenue, to the knowledge of the street-car men, had passed the street car in front of the bank, was in plain view of the motorman when the car started, and 'the motorman knew what the purpose of the plaintiff and the other members of the band was in being on the street. It was not a case where the injured party was supposed to be crossing the street, but it is a case where the motorman in charge of the car knew that the band was parading the street, knew that their hacks were towards him, knew the positions of the members of the band, and. knew the noise they were making with their instruments.

“It is sometimes very correctly said that if one discovers another to have been negligent he must take precaution accordingly, omitting which, he is liable to the other for the damages which follow from his own want of care; for, however nearly related two separate negligencies may be, the one cannot bar an action for the other unless it is contributory, and, though an unseen position might contribute to an accident, a discovered one cannot.

“ The plaintiff, Grinnell, was not a trespasser upon the street-car tracks in any sense. The right of the street railway in the street is only to use the street in common with the public. It has no exclusive right of travel, even upon its track; and it is bound to use the same care in preventing a collision as is the driver of a wagon or other vehicle. Street cars have precedence necessarily in the portion of the way designated for their use. This superior right must be exercised, however, with proper caution and due regard for the rights of others; and the fact that if has a prescribed route does not alter the duty of the defendant to the public, who have a right to travel upon its track until met or overtaken by its cars. There is no question made in this case but that the motorman saw this band. He says that he saw the plaintiff, and he says that because of the wind he was watching the man with the bass drum, on the west side of the track.

“If the plaintiff, Grinnell, and other members of the band, were, or if the plaintiff, Grinnell, alone was, when viewed from the motorman’s position on the car, in a place of danger, either on or near the track, it was the ■duty of the motorman, taking into consideration his knowledge of the situation and of the purpose and intention of the band, — it was the duty of the motorman to run his car with corresponding care, and in a manner reasonably safe under the circumstances, both as to speed and control; and if, under these circumstances and such duty, the motorman intentionally ran his car at what he lenew was a high and dangerous rate of speed, not, indeed, intending to injure any one, nor wishing to injure any one, but in reckless disregard of the consequences to the plaintiff and members of the band, and if because thereof the plaintiff was injured, then the company was to blame, and the defendant railway company is liable to the plaintiff for'whatever injury it so caused him.

“If the plaintiff, Grinnell, was not in a place of danger, as viewed from the motorman's position, then the railway company is not liable.

“ If the car was not running at a rate of speed which the motorman knew, or a reasonable man ought to have known, dangerous and improper under the circumstances, the company is not liable.

“If the company, through its agents and servants, was not wanton and reckless under the circumstances, it is not liable. Whether the company is or is not liable you are to determine. In other words, you are to determine whether or not the plaintiff has shown, by a preponderance of the evidence, that, under the facts and circumstances known to the motorman, and in view of things as they appeared to him, this car was run at a high and dangerous rate of speed, with a reckless or wanton disregard of consequences, and whether the injury was caused thereby. If these things have not been so shown, the defendant is not liable; if they have been so shown, it is liable.”

We think this charge justified by the evidence. The motorman knew that the band was ahead of the car. He recognized the danger of those on the west side being blown upon the track. He saw Grinnell, and knew he was in close proximity to the track; heard the band playing, and knew that the noise of the approaching car would be liable to be drowned by the noise of the band; yet, if the testimony of the plaintiff's witnesses be true, he did not slacken his speed. He kept the lever in next to the fastest notch, at least until within a few feet of these parties; and the testimony shows the car must have been under considerable speed, as it ran over 30 feet after causing the injury, though the motorman claims to have stopped it as soon as he could after it struck; while, if he had had it under control, it is plain, from his own testimony, he could have prevented the injury, and if going at the usual speed he could have stopped it within 10 or 15 feet. It was a question for the jury to determine whether he used that care and caution which, under the ■circumstances, he was bound to exercise, in view of the danger as he must have seen it.

Defendant’s counsel contend that the evidence establishes the fact that Grinnell’s negligence alone caused the accident. We do not think this can be said as a matter of law. There was evidence from which the jury might well find that the motorman was guilty of reckless and wanton conduct in driving his car at a high rate of speed as he approached these people on Michigan avenue.

Counsel for defendant cite a long line of cases, holding that one may be guilty of such gross carelessness as to bar recovery; such as driving upon a track in front of an approaching car without looking around until the car runs into the vehicle. Wood v. Railway Co., 52 Mich. 402; Kelly v. Hendrie, 26 Id. 255. In Michigan Central R. R. Co. v. Campau, 35 Mich. 468, the deceased, walking on a railroad track, stepped out of the way of an approaching train, and was struck by another train from behind; and in Graf v. Railway Co., 94 Mich. 579, cars were being shunted onto a siding, and the deceased attempted to pass in front, and was killed. Other cases of like character are cited, but each case cited depended upon its own peculiar facts. It is settled that, when one attempts to cross in front of an .approaching train in plain view, he takes his chances of being injured, and cannot complain. In the late case of McGee v. Railway Co., 102 Mich. 107, the plaintiff attempted to cross the street in front of an electric car, .and was injured. It was held that he was bound to look for the approach of the car, and, not having looked, he was guilty of such carelessness that he could not recover. In the present case it is conceded that Grinnell was careless, and, but for the gross carelessness of defendant’s servants charged in the declaration and proved on the trial, he could not recover. It is quite a different case than where one attempts to cross in front of the car. Here the motorman saw the situation. He apprehended the danger to those in the street, and yet, if plaintiff’s testimony be true, he did nothing to avoid the accident.

The court, in directing the attention of the jury to this branch of the case, stated the rule as to gross negligence as laid down in Richter v. Harper, 95 Mich. 221. In that case it was said:

“It is true that the contributory negligence of the plaintiff does not prevent recovery in a case where the defendant, who knows, or ought, by the exercise of the most ordinary care, to know, of the precedent negligence of the plaintiff, by his subsequent negligence does plaintiff an injury.”

As stated by Mr. Justice Cooley, in his work on Torts (page 674):

“In such cases it may be said that the negligence of the plaintiff only put him in position of danger, and was, therefore, only the remote cause of the injury, while the subsequently intervening negligence of the defendant was the proximate cause.”

In Hanlon v. Railway Co., 104 Mo. 388, the court, after stating that one going upon the track of a railroad should observe all such precautions for his own safety as reason and prudence dictate, and if disaster comes upon Trim by reason of a failure to do so he must -bear the consequences, say:

“ This rule has, however, a qualification which is founded upon principles of humanity, and is universally recognized. This qualification enjoins upon the railroad company the duty of using all reasonable efforts to avoid injury to one who has negligently placed himself in a position of danger, if the peril is known, or, under certain circumstances, by reasonable care might have been known. A failure to observe this requirement renders the company liable, notwithstanding the previous negligence of the person injured.”

In Hicks v. Railway Co., decided in July, 1894, by the Missouri supreme court, and reported in 124 Mo. 115, this, case in 104 Mo. 388, was cited and approved; and it was; there said, substantially, that the court could not say, as; matter of law, that the plaintiffs were not guilty of contributory negligence; but defendant’s gripman saw plaintiffs in their dangerous and exposed situation, and the question was whether after that he acted with due care towards them.

The cases do not attempt to define these acts as gross negligence, but place the right of recovery upon the ground that the proximate cause of the injury is the act of the defendant. In the present case the testimony shows that the motorman saw the danger Grinnell was in. It is common knowledge, and not disputed on this record, that when the electric car and its appliances are in proper condition the motorman has perfect control over it. He may run it at so slow a rate of speed that it can be stopped at once, — almost in an instant. Here the motorman saw the danger. He should have slowed down, and, if necessary to avoid danger, stopped his car. In any view which may be taken of the case, we think there was testimony to warrant the charge, and that the charge as given is within the well-recognized rules, and that it fairly left to the jury the question as to the proximate cause of the injury.

We think there is but one other question that merits discussion. In the opening of counsel for plaintiff, he stated to the jury that the accident caused an injury to Grinnell’s lung. When one of the witnesses was called to testify to the injuries which Grinnell had sustained, defendant’s counsel objected to any evidence of injury to the lung, as such injury was not alleged in the declaration, and that it was not alleged in the declaration that Grinnell had a disease of a lingering character. Some comment was made by the court upon the declaration, and a suggestion was made to amend, but finally counsel for plaintiff insisted that the declaration was sufficient to admit the proofs offered in regard to the condition of the lung. These proofs were admitted under objection and ■exception of defendant's counsel. Two physicians were ■called who had examined Mr. Grinnell a few days before the trial, and who testified to his then condition; that they found tenderness of the spine, depression of the right chest, and dulness and tenderness showing a solidification or hepatized condition of the right lung. They also testified to some other conditions. One of the physicians was then asked to state—

“If either, and which, of the conditions which you now find and describe would naturally result from a severe injury to the back and spine occurring the latter part of May last.

“A. The condition of the lung, — chronic inflammation of the lung, — and the condition of his spine, I think, might result. It is fair to suppose that it did."

Their testimony tended further to show that by reason ■of the injury his lung was affected, and consumption had resulted. The court, in its instruction to the jury, stated substantially that if they found for the plaintiff he was entitled to recover for the injury to his lungs.

It is insisted by counsel that this was error; that, if this claim was insisted upon, the defendant had the right to look up Grinnell’s past history, and they had no opportunity to do so, as the trial was then in progress. It does not appear that after the court concluded to admit this class of testimony the defendant asked for a continuance. When it was proposed to amend the declaration, the oourt stated that, if the amendment were- allowed, he should grant a continuance. The proposition to amend was withdrawn, and the proofs taken under the declaration as it stood. When the court announced this ruling, no motion was made for continuance, and no further claim made that defendant was taken by surprise. The only question, therefore, which arises is whether the declaration was sufficient to admit this proof. Counsel for defendant contend that it has been settled by many cases in this Court that the plaintiff cannot recover for injury to his lung, and for consumption resulting from the injury, without an allegation to that effect in the declaration. The declaration alleges:

“That, when said car so struck said plaintiff as aforesaid, the blow and collision resulting therefrom seriously hurt, wounded, and crippled said plaintiff; his eyes were badly bruised and discolored; his face and head badly bruised, and some of his teeth loosened, and his lips cut and lacerated; his arms seriously bruised and strained thereby; his back and spine seriously hurt, crippled, bruised, and sprained, and injured; and he was by said blow and collision rendered immediately insensible, in which insensible condition he continued for a long space of time next thereafter, to wit, for the space of one day. That said injuries so inflicted upon his head, face, lips, teeth, arm, back, and spine were permanent and lasting, and each and all are incurable.”

The cases relied upon by defendant’s counsel, showing these proofs inadmissible under this declaration, are: Fuller v. City of Jackson, 92 Mich. 197; Kuhn v. Freund, 87 Id. 545; Shaw v. Hoffman, 21 Id. 151; Brink v. Freoff, 44 Id. 69; Allen v. Kinyon, 41 Id. 281; Krueger v. Le Blanc, 62 Id. 70; Hatt v. Association, 94 Id. 119; Bateman v. Blake, 81 Id. 227; Wilkinson v. Spring Works, 73 Id. 405; Shadock v. Plank Road Co., 79 Id. 7; McDuff v. Journal Co., 84 Id. 1.

We think none of these cases support this contention. The case of Johnson v. McKee, 27 Mich. 471, lays down the true rule, and has never been overturned. Some language has been used in later decisions which, upon a casual reading, might seem to have modified the former ruling; but, upon an examination of the exact questions involved in each instance, the distinction will be observed-The declaration in Johnson v. McKee is substantially that, defendant assaulted plaintiff, and struck him a great many-violent blows on and about the face, nose, head, and body,, thereby severely wounding the plaintiff upon the face,, head, and body, breaking the cartilage of the nose, and inflicting great and permanent injury upon and to his. face, head, and body; “by means of which said several premises said plaintiff was then and there greatly hurt, bruised, and wounded, and became and was sick, sore, and disordered, and so remained for a long space of time, to wit, from the time of said assault to the present;”' whereby the said plaintiff was obliged to and did necessarily pay, lay out, and expend $500 in an endeavor to-be cured of the bruises, wounds, sickness, soreness, and. disorder aforesaid, occasioned as aforesaid.

Mr. Justice Campbell for the Court said:

“ The battery consisted in striking McKee with a chair, whereby certain injuries were inflicted on his face and head, and in consequence of ’which he was seriously, and, as is claimed, permanently, affected. Among other results, there-was evidence that he suffered from a urinary difficulty caused or aggravated by the blow. It is claimed this injury was not within the terms of the declaration, and could not be shown without express averment. If the evidence-showed any such resulting injury, it showed it to have-been as closely connected with the blow as any of the other-evil consequences. It was a sickness produced by it in the-same way as the swelling and soreness in the head and eyes, and the other grievances about which no question was. made on the trial. The declaration charges sickness and pain to have been among the sufferings caused by means-of. the assault, and we do not think the rules of ■ pleading require any more specific description than was given. We-need not inquire how far it was requisite to go in declaring for consequences not necessarily following such an injury, because these consequences are very clearly set forth. When the defendant was informed that damages were sought for sickness and disorder, and their attendant expenses, as well as for wounds and bruises, he was bound to expect evidence of any sickness the origin or aggravation of which could be traced to the act complained of.”

It will be seen that the rule thus laid down does not require plaintiff to aver all the physical injuries which he sustained, or which may have resulted from or have been aggravated by the tort, even though they do not necessarily result from the original injury. If such injuries can be traced to the act complained of, and are such as would naturally follow from the injury, they need not be specifically averred. The testimony in the present case shows that the injury to the spine and back might, and probably would, result in injury to the lungs. Johnson v. McKee was cited and followed in Welch v. Ware, 32 Mich. 77. In Elliott v. Van Buren, 33 Mich. 52, the Court, in speaking of the objection to the evidence tending to prove the continued results of the assault in bodily weakness and malady, and the fact of the plaintiffs suffering from • fits, said:

“Upon the first of these points the case is covered entirely by the decision in Johnson v. McKee, 27 Mich. 471.”

Again, in Keyser v. Railway Co., 66 Mich. 400, the case of Johnson v. McKee is cited and approved.

The rule of the case of Johnson v. McKee is but the reiteration of the rule laid down by the law writers upon this subject, and adopted by other courts as well as this. Sutherland, in his work on Damages (volume 3 [2d ed.] pp. 2661-2863), says:

“The general rule in tort is that the party who commits a trespass or other wrongful act is liable for all the direct injury resulting, although such injury could not have been contemplated as the probable result of the act done. The plaintiff may show specific, direct effects of the injury, without specially alleging them, as that he was thereby made subject to fits. If they were a part of the result of the injury, the plaintiff may recover for such damage without specially alleging it, as well as the pain and disability which followed. The obviously probable effects of the injury may be given in evidence, though not laid in the declaration."

In this connection Judge Sutherland cites Johnson v. McKee. This rule has been followed in the following cases: Railroad Co. v. Hecht, 115 Ind. 443; Ehrgott v. Mayor, 96 N. Y. 264; Delie v. Railway Co., 51 Wis. 400; Schmidt v. Pfeil, 24 Id. 452; Birchard v. Booth, 4 Id. 67; Morgan v. Kendall, 124 Ind. 462; Sloan v. Edwards, 61 Md. 99; Hussey v. Ryan, 64 Id. 426; Railway Co. v. Harris, 122 U. S. 597. In this last case it appeared that the plaintiff was injured by a gunshot wound in the hip. Among other things he was allowed to and did prove that one of the consequences of the wound was the loss of procreative power, resulting directly and proximately from the nature of the wound. Mr. Justice Harlan, speaking for the Court, said:

“ Because of the fact that the loss did result directly . and proximately from the nature of the wound, evidence of this fact was admissible, although the declaration does not in terms specify such loss as one of the results of the wound." See, also, Tyson v. Booth, 100 Mass. 258; Blake v. Lord, 16 Gray, 387.

This rule does not in any sense overturn the well-established one, that where damages are special they must be specially averred in the declaration. In the case of Heiser v. Loomis, 47 Mich. 18, the declaration averred that “ plaintiff was greatly hindered and prevented from doing and performing his work and business, and looking after and attending his necessary affairs and avocations." He attempted to recover because “he was bothered some about help, and the cutting of his hay was delayed because of his injury, and his crop damaged." This was held by the Court to be in the nature of special damages, and not recoverable without special averments.

If we turn, now, to the cases cited by defendant’s connsel, which they claim uphold their conteutiou as to the injury to the lung, we shall find that it was never intended to overrule Johnson v. McKee. In Fuller v. City of Jackson the declaration did not aver that plaintiff had any difficulty with her breast which was aggravated by the injury. Plaintiff testified to having had such injury, and that after her fall her breast broke out again. She sought to show that this breaking out was caused by the fall. Defendant offered proof tending to show that the fall would not produce this particular infirmity. The court below instructed the jury that plaintiff could not recover for the injury to the breast, unless such injury might have been aggravated by the acts which resulted from defendant’s neglect. This instruction was held to be erroneous, the Court saying that, defendant’s theory having been brought into the case for the purpose of accounting for some other trouble, it did not warrant the plaintiff to use it in aggravation of her damages, when there was no averment of any such claim of damages in her declaration. The case of Shadock v. Plank Road Co., 79 Mich. 7, was cited in support of that ruling. But the Shadock case was written by Mr. Justice Campbell, who also wrote Johnson v. McKeej and the declaration in the Shadock case, it was said, contained nothing more specific than that the plaintiff was hurt, bruised, and wounded; that the word “hurt” was so general as to give no information, while the word “bruised” did not indicate generally more than a temporary contusion; and that the word “wounded” was any injury breaking or cutting the skin. It is true that the learned Justice cited the rule laid down in 1 Chit. Pl. 386 (4th ed. 347), that —

“ Whenever the damages sustained do not necessarily arise from the act complained of, and consequently are not implied by law, in order to prevent surprise of the defendant, which otherwise might ensue on the trial, the plaintiff must, in general, state the particular damage which he has sustained, or he will not be permitted to give evidence of it."

But this had especial reference to special damages, for the learned Justice, in connection with the statement of this rule, says:

The rule which requires special damages to be alleged would be useless, unless so alleged as to give definite information."

In Kuhn v. Freund none of the counts of the declaration contained any allegation of permanent injuries.

It will therefore be seen that it was not intended to overrule Johnson v. McKee, and that it has not in fact been overruled.

The judgment must be affirmed.

McGrath, .0. J., Montgomery and Hooker, JJ., concurred. Grant, J., did not sit.


source: Caselaw Access Project

author: McGrath, 0. J.

license: Public Domain

text:
    Polly Pierce v. Merritt W. Underwood.

      Trover — Estoppel—Set-off—Attorney and client — Lien upon moneys.

    1. A husband secreted in his house a sum of money, a portion of which was taken by his wife, and deposited in a bank in her own name. The wife afterwards returned to her husband a portion of the deposit, and, pending divorce proceedings, let her solicitor have $170, which she drew from the bank in which she had made the deposit. The solicitor gave her a receipt for the money, to be returned on demand. In an action of trover brought by the wife against the solicitor to recover the $170, she testified that her husband consented to her retention of the remainder of the deposit not returned to him, and he denied giving such consent. The solicitor was conversant with all of the facts when he received the $170. And it is held that he cannot he heard to say that the $170 was not plaintiff’s money.
    2. The defendant is entitled to set off his claim for services in the divorce suit, or show the extent of such claim in reduction of plaintiff’s damages, and thereby avoid circuity of action.
    Error to Newaygo. (Palmer, J.)
    Argued October 12, 1894.
    Decided December 18, 1894.
    Trover. Defendant brings error.
    Keversed.
    The facts are stated in the opinion.

      A. F. Tibbitts, for appellant.

      F. L. Gray, for plaintiff.
   McGrath, 0. J.

Defendant, an attorney, was in February, 1890, employed by plaintiff in certain litigation then pending between herself and her husband, relating to a divorce, and also respecting a conveyance of land which was alleged to have been made in fraud of her rights. In June, 1890, he received from her $170, for which he gave her a receipt, as follows:

“This is to show that on the 9th day of June, 1890, I received from Polly Pierce $170, to be returned to her ■on demand.

“M. W. Underwood.”

.In December, 1891, plaintiff brought trover for the •aforesaid moneys, claiming a conversion of the fund. Defendant pleaded the general issue, and gave notice of set-off, and, upon the trial, claimed the right to show title in the husband.

It seems that in September, 1888, plaintiff's husband had secreted in the house in which the husband and wife lived some $1,200 or $1,400, to which plaintiff had access, and from which she had from time to time taken small sums, as needed. In September, aforesaid, she took from such place of deposit $1,000, and made a general deposit of the same in a bank in her own name. She and her husband had considerable controversy over the matter, but finally, according to plaintiff’s testimony, she turned over to her husband $600 of the amount, and her husband agreed that she could retain the balance. The husband admits the payment back of the $600, but denies that he agreed that she could keep the balance; and the defendant testified that the husband had stated to him that he (the husband) claimed that the money in defendant’s hands belonged to the husband. It is not claimed that the money placed in defendant’s keeping was a part of the identical money taken from the husband by plaintiff, but it is conceded that the money received by defendant was drawn from the bank in which plaintiff had made the deposit At the time that defendant received the money, he knew all the facts respecting it, and that she claimed the right and title to it by virtue of her husband’s consent. He induced her to part with the possession of it, promising to return it to her, and he cannot now be heard to say that it was not her money.

The only other question is whether defendant can be allowed to set off his claim for services, or show the extent of such claim in reduction of plaintiff’s damages. We think he can. The money in question came into his hands in the course of his employment. That employment continued for one year, during which time she made no-demand for the money. It was not until after the litigation had been disposed of that she applied for the money. In the'meantime he had expended, in the course of the litigation, various sums in her behalf, and had performed professional services for her without demand for further payments. It is well settled that an attorney has a lien upon the money of his client, in his possession, to secure payment for his professional services, not only in the suit to which it pertains, bnt in other suits. Robinson v. Hawes, 56 Mich. 135. That was an action of trover, and it was there held that the recovery was subject to the lien. In Rall v. Cook, 77 Mich. 681, it was held that a mortgagee who obtained a bill of sale of the mortgaged property by fraud might, in an action of trover brought by the mortgagor, show the extent of his mortgage lien in reduction of damages; citing Brink v. Freoff, 40 Mich. 610, 44 Id. 69; Daggett v. McClintock, 56 Id. 51.

The action of trover has been termed an equitable action.” As is said in Rall v. Cook, the damages awarded in such action should only be such as the party is entitled to under .the circumstances of the case. If plaintiff is allowed to recover the full amount claimed, defendant may immediately sue her, and recover as damages the amount of his fees and expenditures. There is no valid reason why the whole matter may not he disposed of in the first suit, and circuity of action be thereby avoided.

The judgment is reversed, and a new trial granted.

The other Justices concurred.


author: Hooker, J.

text:
    George M. Dayton v. The Estate of John B. Dakin, Deceased.

      Estates of deceased persons — Claims—Appeal—Amendment—Interest —Mortgage foreclosure — Growing crops — Parol contract — Evidence.
    1. On appeal from the disallowance by commissioners on claims of a claim against the estate of a deceased person, the claim ■ as heard by the commissioners cannot be enlarged in the circuit court by amendment; citing Patrick v. Howard, 47 Mich. 40.

      2. Where, in such a case, nothing appears ■ in the record tending to show that certain amendments enlarging the claim as heard by the commissioners were considered by the jury or cut any figure on the trial, the allowance of such amendments is error without prejudice.
    8. A mortgagor filed a claim against the estate of the mortgagee for one-half of certain crops grown upon the mortgaged premises, and which the mortgagee, after bidding in the land on foreclosure, had sold to the tenant of the mortgagor. And it is held that the claimant is entitled to interest on his claim, if allowed, though not specifically mentioned in the claim, upon the principle that interest may be allowed on money illegally withheld, or property converted, without proof of special damages.
    4. A claim for 900 bushels of corn, at 25 cents per bushel, being one-half of the com grown on 47 acres, was filed against the estate of a deceased person. On appeal the claim was amended so as to call for 1,000 bushels of corn, at 35 cents per bushel, grown on several parcels, aggregating about 47 acres. And it is held that the original claim would have justified an allowance of one-half of the corn grown upon the 47 acres; that as this was all tliat was claimed on the trial of the appeal, as disclosed by the evidence and charge, it may be said that the identical claims were tried on both occasions, and that all that was tried upon the amended claim might have been allowed by the commissioners under the original claim.
    5. A sale under a decree of foreclosure carries with it the unharvested crops on the mortgaged premises.
    6. Annual crops may be sold and conveyed by parol contract.
    7. The agreement of a mortgagor under which the mortgagee is allowed to enter upon the mortgaged premises prior to their sale under a foreclosure decree, and put in a crop of wheat, is a sufficient consideration for the promise of the mortgagee to allow the mortgagor to take his share of the growing crops, which had been put in by a tenant, and the subsequent purchase of the premises by the mortgagee at said sale will not affect the right of the mortgagor to his share of the crops.
    8. It is competent in such a case, as showing the conversion by the mortgagee of the mortgagor’s share of said crops, for the tenant to testify that he did work for the mortgagee in payment for such share.

      . 8. On the trial of an appeal from the disallowance of a claim filed by a mortgagor against the estate of the mortgagee for the value of certain crops growing on the mortgaged premises at the time of their sale to the mortgagee on the foreclosure of the mortgage, and which he afterwards converted to his own use, the mortgagor claimed and sought to show that an agreement was made between him and the mortgagee, under which the mortgagee was allowed to take possession of the land, shortly prior to the sale, for the purpose of sowing wheat, in consideration of which the mortgagor was to be allowed to harvest his share of the growing crops, which had been put in on shares by a tenant. This agreement was attempted to be proved by showing negotiations by letter between counsel for the respective parties, during the lifetime of the mortgagee, and by the conduct of the parties. The letters tended to prove that negotiations relative to such an agreement were had; that at the time the mortgagor was informed of that fact; that later his counsel brought home to the mortgagee the claim that such a contract was made; and that the mortgagee communicated with his counsel, and asked for his version of a talk he had with the counsel for the mortgagor on the subject. This was followed by testimony tending to show that the mortgagee came upon the land 15 days prior to the sale, and arranged with the tenant to put in wheat, stating that he and the mortgagor had made arrangements about putting in the wheat crop on the farm; and that wheat was put in accordingly. And it is held that the letters related to pertinent facts, and would have been admissible had the mortgagee been defending in person; that they are consistent with and corroborative of such a contract (though they fall short of establishing it), and are therefore admissible; that, unless witnesses were present, the testimony of the tenant, that the mortgagee stated that he and the mortgagor had arranged about putting in the wheat, is the only kind of evidence admissible of such meeting and talk; that such testimony was clearly competent, and warranted an inference that the talk alluded to the matters referred to in the letters.
    Error to Ingham. (Person, J.)
    Submitted on briefs October 12, 1894.
    Decided December 18, 1894.
    Appeal from the disallowance of a claim against the «state of a deceased person by commissioners on claims. Defendant brings error from a judgment of allowance in the circuit court.
    Affirmed.
    The facts are stated in the opinion.

      Smith, Lee & Day, for appellant.

      M. V. Montgomery, for claimant.
   Hooker, J.

In August, 1888, the claimant owned a farm, which he had previously bought subject to a mortgage held by one Dakin, since deceased, and which was in August, 1888, in process of foreclosure in chancery, the sale being advertised for September 15. At this time, i. e., August, 1888, the claimant owned an undivided half of the crops upon the premises; the other half being owned by one Palmer, who put them in upon shares. The land was bought by Dakin upon the sale, and he thereafter sold Dayton’s share of the crop, including some corn which is claimed to have been cut and shocked before the sale. After Dakin’s death the claimant filed a claim against the estate, which was disallowed; and an appeal was taken to the circuit court, where he recovered a verdict for $326.70, from which the administrators appealed. The claim which appears to have been relied upon in the circuit court was that the portion of the crop that was severed before September 15 belonged to the claimant, and, further, that an agreement was made, under which Dakin was allowed to enter and take possession for certain purposes on September 1, in consideration of a promise to allow the claimant to take his share of the growing crops.

The -first question to be noticed arises over an amendment to the claim permitted by the circuit judge. The return of the commissioners showed the names of claimants, the amount claimed, and the amounts allowed. Opposite claimant’s name, under the word “ Claimed,” was placed the sum of $432.56, followed in the column for Amount Disallowed ” by the same sum. The printed record (and presumably the original) contains an exemplification of the record of two claims, one of wbicb is for •1432.56, over the certificate of the probate court. They have no place in the record, unless they are parts of the proceeding, although there is nothing upon them to show that they were filed separately in the circuit court; but "they appear under the same certificate of the probate .judge, as a part of the exemplification, and we think that they should be so considered.

It is further contended that the amendment enlarged the claim as heard by the commissioners. If it did, the amendment is improper, under repeated decisions, of which the case of Patrick v. Howard, 47 Mich. 40, cited by counsel, only need be mentioned. We may profitably •eliminate one of the claims mentioned, as the commissioners appear not to have passed upon it. The other'was as follows:

“Estate of John B. Dakin, Deceased, in account with George M. Dayton, Dr.

To 900 bushels of corn, one-half grown on 47 acres,

25 cents per bushel..............................$225 00

To 20 bushels potatoes at 35 cents per bushel_____ 7 00

To 17-J barrels of apples at $2 per barrel.......... 35 00

To interest for three years........................ 48 06

$315 06

To one-half of the corn fodder grown on the 47 acres above named, at $5 per acre, and interest at the legal rate upon the item of $117.50 for three years......................................$117 50

$432 56”

The claim, as amended, was as follows:

“Now comes said claimant, and by leave of court, first ■obtained, amends his claim so that the same shall read as follows: •

To 1,000 bushels of corn grown in several parcels, aggregating about 47 acres, in the year and cropping season of A. D. 1888, upon the farm then occupied by one George Palmer, described as all of the south-west quarter1 of section No. 24, and the north-west quarter of the north-west quarter of section 25, except five acres off from the south-west corner, and also the north 46 acres of east half of south-west quarter of section 25, all in town 4 north, of range 2 east,

Ingham county, Michigan, at 35 cts. per bushel.- $350 00

To 20 bushels of potatoes grown on said farm during said season, at .35 per bushel............ 7 00

To 17£ barrels of apples grown on said farm during said season, at $2.00 per barrel............. 35 00'

To one-half of the cornstalks and fodder from which said corn above mentioned was husked and gathered, at $5.00 per acre; that is, one-half of $235..................................... 117 50

Total principal................................$509 50

To interest on said total at 7 per cent, per annum since September 15, 1888 (from September 16, 1888, to March 16, 1893)........................ 160 50

Total principal and interest................... $670 00”

If these claims are to be measured by dollars and cents-only, it must be conceded that the amendment enlarged the amount of the original claim. The 900 bushels of corn was increased to 1,000, and its value from $225 to $350. To this also was added the sum of $160.50 for interest from the date of the conversion. The claim was stated in various ways, in addition, viz.: A claim was made for the money received by Dakin upon a sale of claimant’s half of the property, and for interest thereon. He charged for rental of the farm from September 1 to September 16 the crops alleged to have been promised to claimant, and interest. He made a claim for the rental value of the farm for a year, from September 1, 1888, to September 1, 1889, with interest. Our attention is not called to anything in the evidence or charge tending to show that the last three forms of stating claimant’s demand were considered by the jury, or cut any figure upon the trial. They may, therefore, be disregarded, as, at most, they were error without injury.

Turning our attention1 to the first amended claim, we' may pass the interest question with the remark that the: claimant would have been entitled to interest upon his/ claim, if allowed, though it had not been specifically mentioned in the claim, upon the principle that interest may be allowed on money illegally withheld, or property converted, without proof of special damage. Edwards v. Sanborn, 6 Mich. 348; McCreery v. Green, 38 Id. 172; Davis v. Strobridge, 44 Id. 157; McGuire v. Galligan, 53 Id. 453; Ripley v. Davis, 15 Id. 75; Northrup v. McGill, 27 Id. 234, 238; Burk v. Webb, 32 Id. 173; Winchester v. Craig, 33 Id. 205; Allen v. Kinyon, 41 Id. 281; Symes v. Oliver, 13 Id. 9; Chapman v. Dease, 39 Id. 333. It is the common practice, in actions for breach of contract, to allow interest without a special averment. Whether it be said that Dakin was liable for an unlawful conversion or for breach of contract, the same is true.

This brings us to the corn. In the original claim the amount was mentioned at 900 bushels; in the amended account, at 1,000 bushels. In the former, however, it was alleged to be one-half of the product of 47 acres of land. Doubtless this would have justified an allowance of one-half of the corn grown upon the 47 acres, which is all that was claimed upon the trial, as the evidence and charge disclose. It can therefore be truly said that in this respect the identical claims were tried on both occasions, and that all that was tried upon the amended claim might have been allowed by the commissioners under the claim as first filed.

The next question of importance is the proof of the alleged contract. Dakin was dead, and the claimant under the statutory disability. Counsel attempted to prove the contract by shoeing negotiations between counsel for the respective parties by letter, and possibly otherwise, and by the conduct of the parties. These letters were:

1. A letter dated August 30, 1888, from Mr. Smith to his client, Dakin, containing an offer of an arrangement such as is now claimed.

2. A letter of August 29, 1888, from Mr. Montgomery to his client, Dayton, stating that he had had an interview ivith Mr. Smith, and asking him to come in and talk it over.

3. A letter from Mr. Montgomery to Dakin, claiming Dayton’s right to the crop under such arrangement.

4. A letter from Mr. Smith to Mr. Dakin upon the same subject, apparently in answer to a letter inclosing the letter from Mr. Montgomery to him, and asking information in regard to the facts.

This was followed by testimony tending to show that Mr. Dakin came upon the farm September 1, and arranged with the tenant to put in wheat, stating that he and Dayton had made arrangements about putting in the wheat crop on the farm, and that wheat was put in accordingly. Subsequently, on September 15, Mr. Dakin again came on the farm, and wanted to sell Dayton’s share of the crops •.to the tenant, and finally did so.

Objection was made to the admission of these letters. They tended to prove that negotiations were had, of the character claimed, between counsel; that at the time Dayton was informed of that fact; that later Dayton’s counsel brought home the claim that such contract was made to Mr. Dakin, who communicated with Mr. Smith about it, asking for his version of the talk with Mr. Montgomery. All of these were pertinent facts, and would have been admissible had Dakin been defending in person. They are by no means conclusive, however. They are consistent with and corroborative of such a contract, though they fall short of establishing it. They were therefore admissible.

It is said, however, that there was no further evidence to support the claim of a contract; that nothing shows that Dayton and Dakin ever met, or agreed upon anything. But this overlooks the statement made by Palmer, that Dakin said that hé and Dayton had arranged about putting in the wheat. Unless there were witnesses present, that is the only kind of evidence admissible of such meeting and talk, as Dakin was dead and Dayton could not testify. It was clearly competent, and there is room for an inference that the talk alluded to the matters referred to in the letters.

Defendant’s next contention is that such agreement would not have been effectual to prevent the crops passing to Dakin upon his becoming the purchaser at the foreclosure sale two weeks later. A number of cases are cited in support of this claim. All of them support the proposition that a sale under a decree of foreclosure carries unharvested crops, which is undisputable. But annual crops may be sold 'and conveyed by parol contract. Vanderkarr v. Thompson, 19 Mich. 86; Tripp v. Hasceig, 20 Id. 261; Crapo v. Seybold, 35 Id. 169, 36 Id. 444; Austin v. Sawyer, 9 Cow. 39; 3 Pars. Cont. 31, and cases cited. Had Dakin been the absolute owner of such crops at the time, he could have sold them to Dayton, and yielding possession to the premises, and permission to sow wheat, two weeks before Dayton’s exclusive < right to the premises could be divested, would have been sufficient consideration to support the sale. It was no less a consideration for an executory agreement that Dayton should have and might take off the crop, if indeed such agreement did not at the time amount to a sale of his interest in the crop, whatever it was. We think of no reason why Dakin could not make an executory contract to sell these crops, though he did not at the time have any title to or interest in them; and we find nothing in the cases cited to the contrary. If it should be admitted, in accordance with the case of Ledyard v. Phillips, 47 Mich. 305, that any other purchaser at the foreclosure sale would have taken the crop, and further that Dakin, in case of a purchase by him, would take the same, and did so, his executory contract, made upon a distinct consideration at a different time, would be binding upon him. It cannot be said that he was paying for the property twice. Assuming that he bought and paid for it at the sale, and obtained the title to the crops thereby, the consideration for parting with them was already received.

Error is assigned upon the testimony of Palmer, showing that he did work for Dakin, and its value, as a consideration for Dayton's share of the crop. Had he said he bargained for these crops, and paid Dakin a given sum of money for them, it would have been proper, as showing the conversion. But, as he did not pay money, he stated what he did pay, which we think competent.

The other questions raised by the record present no_ legal questions of interest, and are therefore not discussed, further than to say that we find no error in them.

The judgment will be affirmed.

The other Justices concurred.


author: Grant, J.

text:
    David D. Buick and William Sherwood v. The Mechanics’ Insurance Company.

      Fire insurance — Broker—Authority to act for insured — Cancellation of policy.

    1. Authority on the part of an insurance agent to procure insurance does not imply authority to consent to cancellation, so as to bind the insured.
    2. An insurance agent who was in the habit of receiving orders for insurance, and placing the same, for a certain percentage of the premiums paid him by the company or insurance agency which filled the application, and to whom a manufacturing firm had for nine years intrusted the entire subject of their insurance, except as to amount, secured $1,000 of insurance for them in a Michigan company, and delivered the policy to the insured. Fifteen days after the issuance of the policy, the secretary of the insurance company telephoned the agent that the company desired to cancel the policy. The agent assented, and at once replaced the insurance in a Pennsylvania company. The new policy was at once mailed to the insured, with a letter informing them of the cancellation of the first policy, and requesting its return to the agent. The letter was burned, before being opened, by the same fire which destroyed the insured property. Thirty-seven days after the fire the agent paid the premium on the new policy. At the time of the fire the first policy was in the safe of the insured. They were ignorant of this fact, until they found it, with other policies, after the fire. No premium was ever paid on the first policy. And it is held that the agent had authority to consent to the cancellation of the first policy; citing Insurance Co. v. Reynolds, 36 Mich. 502, 507.

    8. The Michigan policy provided for cancellation upon five days’ notice. And it is held that this provision was waived by the assent of both parties to the contract, and that such waiver did not affect the liability of the Pennsylvania company upon its policy.

      Error to Wayne. (Hosmer, J.)
    Argued October 23, 1894.
    Decided December 18, 1894.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Shaw & Wright (D. J. Schuyler, of counsel), for appellant.

      Hoyt Post, for plaintiffs.

       The question when an insurance agent can be considered the agent of the insured is the subject of an extensive note in 20 L. R. A. 277, with the Michigan case of Michigan Pipe Co. v. Insurance Co.

   Grant, J.

The- court made the following findings of fact and law:

“1. The Mechanics’ Insurance Company, defendant herein, and the Michigan Eire & Marine Insurance Company were both authorized and doing business in the State of Michigan at the time of the occurrence hereinafter mentioned, and had agencies in the city of Detroit. Bierce & Sage were local agents of the defendant company, with authority to place insurance and issue policies in that company.

“2. E. 0. Davenport is in the insurance business in the city of Detroit, receiving orders and applications for insurance from whomsoever might apply to him, placing such orders or applications with various insurance companies, among which was the Michigan Eire & Marine Insurance Company, for a certain percentage of the ■premium paid, which was allowed and paid him by the company or insurance agency with whom the application for insurance was placed. There was a system of debits and credits kept both by him and the companies or agencies' with whom he dealt, which were balanced on the 10th of each month. The said Davenport had entire charge of plaintiffs’ insurance business continuously from the time they first went into business, a little over nine years ago. The plaintiffs were mechanics when they went into the business, green out of the factory, and knew nothing of business, especially of insurance business; and on the recommendation of Mr. Green, of the Wesson estate, they went to Mr. Davenport, and engaged him to look after their insurance. They simply notified him of the amount of insurance they wanted. They never told him what company to put it into, but he selected the companies to suit himself; and they never asked him, and never knew, what company he was going to put it in, and never paid any attention to the companies in which their insurance was placed. The matter was left entirely to Mr. Davenport’s judgment and discretion. The policies were always sent to plaintiffs. Mr. Davenport paid the premiums, and collected them of the plaintiffs afterwards. At the time of the fire, plaintiffs did not know the names of any of the companies that insured them, or what policies they had.

“3. On or prior to the 16th day of August, 1892, said Davenport received an order from Buick & Sherwood, the plaintiffs, to place $4,000 insurance on the contents of their building in the city of Detroit, leased and occupied by them; and, in fulfillment of such order, Davenport prepared the typewritten slips describing the property to be insured, and procured the same to be insured in several companies, and, among others, procured a policy of the Michigan Fire & Marine Insurance Company for $1,000, being in form a Michigan standard fire policy, and which said Davenport afterwards delivered to the plaintiffs with the other policies for the remaining $3,000, in fulfillment of such order. The Michigan Fire & Marine Insurance Company dealt with reference to this policy only with said Davenport, and had no communication with the plaintiffs, or either of them. No premium was ever paid to it for this policy.

“4. On or about September 1, 1892, the secretary of the Michigan Fire & Marine Insurance Company telephoned to Mr. Davenport that it desired to cancel its said policy, and for him to replace it, to which Mr. Davenport replied, cYery well.’ Within an hour, Mr. Davenport had the forms prepared, and went with them to the office of Bierce & Sage, which was' in the same building as his own office, and at once replaced the said policy with the policy in suit, and later, in the same day, in response to a second telephone inquiring from the secretary of said Michigan Fire & Marine Insurance Company, notified said secretary that he had replaced their policy, It is the usual custom of insurance offices in Detroit, when requested to cancel policies which they have procured, to cancel them at once, and replace the insurance, and that custom had before been acted upon between the said Michigan Fire & Marine Insurance Company and said Davenport. Mr. Davenport had not then paid the insurance premium on said policy of said Michigan Fire & Marine Insurance Company, and none was thereafter paid. No written or formal notice of cancellation was ever given to Davenport or plaintiffs.

“5. The policy in the suit, properly executed, was delivered to Davenport on September 1, 1892, and was the usual Michigan standard fire policy, covering and insuring the same property in the sum of $1,000 for the term of one year. It was examined and inspected by Miss Raymond, clerk in Davenport’s office, and sent by her by mail to plaintiffs, the same day or the next, with a note inclosed, stating, in substance: CI inclose the Mechanics’ policy No. 402,279, for $1,000, to replace the Michigan Fire & Marine Insurance Company policy, which has been canceled. Please return the Michigan Fire & Marine policy.’ It was in an envelope, having a return stamp printed on it, and was never returned. Plaintiffs, owing to pressure of other business, did not fully examine their mail received on September 3; and it lay unopened on the desk in their office, and the fire hereinafter mentioned destroyed the office and desk and all contents. Plaintiffs never received the policy, unless it was among said mail and destroyed by said fire.

“6. On the evening of Saturday, September 3, 1892, the property described in said policy was wholly destroyed by fire. Proofs of loss were prepared, and sent to Pellett & Hunter, general agents of defendant, at Chicago, 111., and were received by them on September 22, 1892. They were not accepted by them, but were returned to plaintiffs, and ■ were afterwards returned by plaintiffs to defendant. They were at no time accepted by defendant.

“¶. On October 10, 1892, said Bierce & Sage presented a bill to said Davenport, in which the item, c policy No. 402,279, Mechanics’, Buick & Sherwood, premium, $52.50; was for the premium on the policy in suit; and the same was on that day paid by check of said Davenport.

8. At the time of the fire, said Michigan Fire & Marine Insurance policy was in plaintiffs’ safe, at their factory, but they did not know what policies they had. They found it with other policies in their safe after the fire. ■ They had no notice or knowledge of the cancellation of that policy until after the fire, nor of the issue of the policy in suit to replace it. They delivered said Michigan Fire & Marine policy to said Davenport after a second request from him by telephone, on his assurance that the policy in suit was a just claim, some seven or eight days after the fire, and he thereupon delivered the same to said company. The first time said Davenport saw plaintiffs after the fire, he reported to them the whole transaction of the replacing of the Michigan Fire & Marine policy with that in suit.

“ 9. On November 5, 1892, Mr. Bierce tendered back to plaintiffs the sum of $52.50, received by Bierce & Sage as premium on the policy in suit, and plaintiffs refused to accept the same. »

“ 10. From the course of business between plaintiffs and Davenport, I find that Davenport was authorized to replace the Michigan Fire & Marine policy as he did, with the policy in suit, without notice to plaintiffs, and that the secretary of the Michigan Fire & Marine Insurance Company had the right, under the circumstances, to rely on Davenport’s undertaking to so replace it, and his assurance that he had so replaced it.

“11. I also find that plaintiffs ratified the acts of said Davenport as soon as knowledge of the facts was communicated to them by said Davenport.

“12. The policy in suit was, at the time of the fire, a valid and subsisting policy of insurance, in favor of the plaintiffs, covering the property described in it.’’

The liability of the defendant depends upon the extent of the authority of plaintiffs’ agent, Mr. Davenport.' It is insisted by defendant that his authority was limited to procuring insurance, and that he had no authority to assent to a cancellation of a policy when once issued. It is unnecessary to cite authorities to the proposition that authority to procure insurance does not imply authority to consent to cancellation, so as to bind the insured. The court has found as a fact that Davenport had the authority to do both. An examination of the record convinces us there is evidence to sustain the finding. They intrusted the whole subject of their insurance to Davenport, and had done so for years. They did not even know in what companies they were insured. The Michigan company dealt with the broker, Davenport, alone. He assented to the' cancellation, obtained the new policy now in suit to take the place of the Michigan policy, and delivered it to the plaintiffs before the fire, with notice of the cancellation and the substitution. Plaintiffs received it, but did not open the envelope containing it, and it was consumed in the fire. No premium had been paid to the Michigan company. We think this case is clearly within Hartford Fire Ins. Co. v. Reynolds, 36 Mich. 502, in which it is said, at page 507:

“It is certainly not necessary to give notice to a principal who deals through a broker who is notified.”

See, also, Dibble v. Assurance Co., 70 Mich. 1.

The Michigan policy provided for cancellation upon five days’ notice. This provision, however, can be, and in the present case was, waived by the assent of both parties to-the contract. Such waiver did not affect or change the defendant’s liability. If the parties to the Michigan company’s policy saw fit to waive this provision, the defendant cannot question it.

Judgment affirmed.

The other Justices concurred.


text:
    The People v. David Thomson.

      Criminal law — Peddlers—License—Evidence—Statements of counsel.

    In a prosecution for the violation of a city ordinance requiring hawkers and peddlers to procure a license, it appeared that the defendant, with two others, was employed by one who was claimed to be an agent of the manufacturer, to sell an article manufactured in another state, but which was not sold in original packages. The officer who made the arrest testified that the defendant admitted making the sale set up in the complaint, whereupon the defendant’s attorney remarked, “We don’t dispute the sale; we admit,” and then proceeded to state as an admission what was apparently his opening of defense in the case, and upon the strength of which he claimed in the appellate court that the evidence failed to show that the defendant was a hawker and a peddler. And it is held that said statement of counsel cannot, in the absence of both oath and assent by counsel for the people to its truth, be treated as evidence or as admissions.

      Oertiorari to the recorder’s court of Detroit. (Chapin, J.)
    Submitted on briefs October 25, 1894.
    Decided December 18, 1894.
    Respondent was convicted of a violation of an ordinance of the city of Detroit prohibiting peddling and hawking without a license, and sentenced to pay a fine of $26.
    Judgment affirmed.
    The facts are stated in the opinion.

      Oscar M. Springer, for respondent.

      Frank A. Easch, city attorney, for the people.
   Hooker, J.

The defendant was convicted of the violation of an ordinance of the city of Detroit requiring hawkers and peddlers to procure a license.

The defendant was engaged to work with two others in selling an article manufactured in Rhode Island, called “Soapine.” He was employed and paid weekly by a Mr. Sullivan, who is claimed to be an agent of the manufacturer. They traveled about the city with a horse and cart, selling the boxes from door to door, delivering the goods and receiving pay. There is no claim that the goods were in “ original packages.” Counsel for the defendant contends:

1. That the evidence fails to show that defendant was a hawker and a peddler.

2. That the ordinance is void under the Constitution and laws of this State.

3. That it is void because in conflict with the Federal Constitution and laws.

The first proposition is based on testimony showing that/ this was an advertising scheme. The" only evidence returned (judging from the printed record) is that of the officer who madg the arrest and the defendant. The officer testified that the defendant admitted the sale. Mr. Springer (who was apparently counsel for the defendant) thereupon remarked: “We don’t dispute the sale; we

admit,” and he thereupon proceeded to state as' an admission what was apparently his opening of defense in the case. It finally took the form of a colloquy between the court and Mr. Springer. The record contains nothing to show that counsel for the people conceded the truth of this unique admission of a defense. We presume, however, that the word “admit” was mistakenly used by the stenographer or printer. At all events, the statement cannot be treated as evidence or admissions, in the absence of both oath and assent -by counsel for the city. In answer to the question by the court, “How about the profits?” Mr. Springer said, “Here is a profit voucher that I will offer in evidence.” This was a blank, unfilled, and its admission was excepted to. The defendant did not testify about the method of doing business, ownership, division of profits, etc. If the evidence is all printed (which is nowhere stated, so far as we discover), it rests on Mr. Springer’s opening, which is dubbed an “admission.” It is not stated that the voucher was admitted, unless it is implied by the statement that “ counsel for the city excepts to the admission of the voucher in evidence.” We think, therefore,' that we shall be compelled to say that the evidence shows’the defendant to have been engaged in peddling soapine from a wagon upon which was the name “Kendall Manufacturing Co.,” and that he represented that he was one of the manufacturers, who lived in Indiana, or somewhere, the witness being unable to remember Where. The last was merely hearsay, and did not prove the fact.

There is nothing tangible in the record upon which to raise a question involving the Federal Constitution. We ■shall therefore discuss only the question of the validity of the ordinance under Michigan statutes. The point made upon this claim is that under the general law of Michigan (3 How. Stat. §§ 1262, 1263) the manufacturer was not, by anything contained in that chapter, to be prevented from •selling his production without license. As there is no evidence tending to show that the defendant was the manufacturer, or his agent, but to our minds the evidence conclusively shows the' contrary, there is no occasion to consider the question further. For a case closely resembling this, see Com. v. Gardner, 133 Penn. St. 284.

The judgment will be affirmed.

The other Justices concurred.


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    The People v. Ulysses Grant Keefer.
    [See 91 Mich. 611; 100 Id. 272.]

      Criminal law — Preliminary deposition — Evidence—Bastardy.
    1. Where the preliminary deposition of the complaining witness in a bastardy case is admitted in evidence, it is unnecessary to have her detail its contents, or to ask her if she remembers the same, and the court exercises a proper discretion in rejecting the question.

    2. In preserving an exception to a ruling refusing to strike out a portion of the testimony in a bastardy case, the court remarked, “ Exceptions don’t amount to anything in this case, I suppose you understand.” And it is held that there is no force in the contention of counsel for the respondent that, while the remark was technically correct, yet its tendency was to prejudice the rights of the respondent with the jury.
    8. In a prosecution for bastardy the court refused to strike out the testimony of a witness for the people that, after the first trial of a seduction case based upon the same facts, the respondent told him that he wished he had won the case, because, if he had, he had $500 in his pocket that he proposed to present to the complaining witness, because he felt sorry for her. And it is held that, if any error was committed, it was cured by a subsequent ruling striking the testimony from the case.
    4. In a prosecution for bastardy, evidence of previous acts of intimacy and sexual intercourse between the parties is competent.

      Certiorari to Ionia. (Smith, J.)
    Submitted on briefs October 26, 1894.
    Decided December 18, 1894.
    Despondent was convicted of the crime of bastardy.
    Conviction' affirmed.
    The facts are stated in the opinion, and in 91 Mich. 611, 100 Id. 272.

      F. C. Miller and George F. Nichols, for respondent.

      B. A. Haivley, Prosecuting Attorney, for the people.

      See People v. Butler, 55 Mich. 408.

   Grant, J.

This is a proceeding for bastardy, and is the counterpart of the seduction case reported in 91 Mich. 611, 100 Id. 272, where a sufficient statement of facts will be found. Some of the questions raised wei-e disposed of in those decisions, and will not be here referred to.

1. Miss Badder, the complaining witness, upon cross-examination was shown her signature to a deposition taken before a justice of the peace, which was admitted. Despondent's counsel then asked her if she then testified that she could not tell the place. This was excluded by the court, on the ground that the deposition was admitted, and showed that she did so testify, and counsel could use it against her upon the argument. Counsel took exception, with the remark that perhaps she would like to give some explanation. It was unnecessary to have the witness detail the contents of her former deposition, or ask her if she remembered what its contents were. The court exercised a proper discretion in rejecting the question.

%. In preserving an exception to the ruling of the court in refusing to strike out some testimony the court remarked, i! Exceptions don’t amount to anything in this case, I suppose you understand.” While counsel admit that the remark is technically correct, yet they contend that its tendency was to prejudice the rights of respondent with the jury. We see no force in the contention.

3. A witness had testified that after the first trial of the case respondent told him that he wished he had won the case, because, if he had, he had $500 in his pocket that he proposed to make her a present of, because he felt sorry for her. Error is alleged in the refusal of the court to strike out this testimony. The error, if it was error, was cured by the subsequent ruling of the court striking it out.

4. Miss Badder had fixed the time when she was begotten with the child as February 10, while returning from a party at one Perrett’s. On the former trial the respondent had testified that he had intercourse with her about February 10, while taking her home from a party at one' Garrett’s. This testimony was admitted under objection. It is claimed -that it is shown that the dance at Perrett’s was not in February, and that the prosecution was limited to the act of intercourse while returning from that party. There was evidence of frequent acts of intercourse between the parties .about that time. It was immaterial whether the dance was at Garrett’s or Perrett’s. The clear weight of the evidence shows that it was at Garrett’s, but the jury were justified, in finding that she was mistaken as to the place, but they ■could not well be mistaken as to the act and the time.

5. Previous acts of intimacy and sexual intercourse were competent evidence. Walker v. State, 92 Ind. 474; Ramey v. State, 127 Id. 243.

6. Complaint is made that the judge, in his charge, in> referring to the time, once used the expression, “on or about February 10,” and that this left the jury to find some other date than that fixed by the complaint and the evidence. At six other places in the charge the jury are-expressly and specifically confined to the 10th of February. Once he said, “ The question is, is he the father, and did. he beget the child February 10, 1889?” There is no room for even a suspicion that the jury were misled as to the. date.

We find no error, and the conviction is affirmed.

The other Justices concurred.


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    George Christler v. Orson E. Locke.

      Summary proceedings — Restitution—Issuance of writ.

    Under a circuit court judgment for restitution in summary proceedings to recover the possession of land, a writ of restitution may be issued by the clerk in vacation as well as in. term.
    Error to Kent. (Adsit, J.)
    Argued November 21, 1894.
    Decided December 18, 1894.
    Trespass. Defendant brings error.
    Beversed, and no new trial granted.
    The facts are stated in the opinion.

      Henry J. Felker, for appellant.
   Grant, J.

The defendant was the mortgagee of a mortgage upon the lands described in the declaration in this case. The land was owned by one Gates, who was also the mortgagor. Plaintiff was lessee under Gates. Default having been made in the mortgage, it was foreclosed by advertisement. The time of redemption expired without payment, and the sheriff’s deed became absolute. Locke thereupon instituted proceedings to recover possession under How. Stat. § 8295. Gates and Christler were both made defendants. The case was tried before the commissioner by a jury, and verdict and judgment rendered for Mr. Locke. Gates and Christler appealed the case to the circuit court, where it was again tried with a jury, and Mr. Locke again recovered. Execution upon this judgment was twice stayed by the order of the circuit court in order to give them time to settle a bill of exceptions, and bring the case to this Court by a writ of error. The stay expired January 18, and on the following day Mr. Locke took out an execution, being in form a writ of restitution, and placed it in the hands of the sheriff, who executed it as he was therein commanded, by removing Mr. Christler and placing Mr. Locke in possession. Mr. Christler thereupon instituted this suit to recover damages for a wrongful eviction, and recovered judgment.

The court directed a verdict for the plaintiff, upon the ground that the issuance of the writ by the clerk in vacation time was void, and afforded, therefore, no legal justification to the sheriff or the defendant. In this the court was in error. It is, and always has been, the common practice to issue executions in vacation upon the request of the prevailing party or his attorney. Upon the expiration of the time limited by law for the stay of an execution, it may be issued as a matter of course. Circuit Court Rule No. 13; Herm. Ex’ns, § 75; Carpenter v. Vanscoten, 20 Ind. 50; Little v. Cook, 1 Aiken, 363; People v. Clerk of Circuit Court, 14 Mich. 169. We are not favored with the brief on the part of the appellee, nor does the charge of the court state the reason for the holding. How. Stat. § 8309, provides that, if the complainant shall recover judgment in the circuit court, that court may issue a writ of possession. Judgment under this statute stands upon the same basis as other judgments rendered upon appeal ■or upon suits commenced in the circuit court. Chapter 286, How. Stat., provides a summary remedy to recover possession of lands. In some counties six months elapse between terms of court. Under certain provisions of the statute, no writ can issue within five days after final judgment. Under the plaintiffs construction of the law, many cases might arise wherein execution could not issue in from four to six months. The judgment entered upon the verdict provided that said Locke have restitution of the premises, and that he recover his costs, and that he have execution therefor. We think this judgment authorized the issuance of the writ of restitution as well as the writ of fieri facias for costs, and in this view there was a direct authority for the issuance of the writ in vacation as well ns in term.

The judgment must be reversed, and no new trial ordered, with the costs of both courts.

The other Justices concurred.


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    Thomas J. Ramsdell, Trustee, v. The Citizens’ Electric Light & Power Company. Cornelius A. Waal, Sheriff, v. Walter R. Faben, Receiver.

      Chattel mortgage — Record—Notice—Description of property — Marshaling securities — Statute of frauds — Promise to pay the debt of another.

    1. The record in the office of the register of deeds of a mortgage of land is not constructive notice to the world of the mortgage of chattels included in the same instrument.
    2. Such a mortgage is void as to said chattels, as against the claim of execution creditors of the mortgagor who had no knowledge of its existence at the time the credit to the mortgagor was given.

    3. An electric light and power company mortgaged certain of its real estate, together with all buildings, constructions, and improvements upon said premises or elsewhere situated, belonging to said company, and all dynamos, engines, boilers, pumps, wells, machinery, tools, instruments, apparatus, and lines of poles, and its business of producing, renting, selling, distributing, and using electricity. And it is held that the term “ apparatus” is broad enough to include carbon lamps, stored in the buildings of the mortgagor, and not in use.
    4. The verbal promise of the president of a corporation, that if a lumber company which had been furnishing the corporation with slabs for fuel would continue to deliver the slabs he would see that they were paid for, is void under the statute of frauds, and imposes no duty upon the lumber company, as between the corporation and its bondholders, to attempt first to collect of said president its claim for slabs afterwards furnished.
    Appeal from Manistee. (McMahon, J.)
    Argued October 26, 1894.
    Decided December 18, 1894.

      Petition to compel the receiver of the Citizens’ Electric Light & Power Company to turn over to the sheriff certain property claimed by virtue of an attachment levy. The receiver appeals from an order granting the relief' prayed.
    Affirmed.
    The facts are stated in the opinion.

      George L. Hilliher, for appellant.

      Smurthwaite. & Fowler, for petitioner.

       For cases bearing upon the construction of How. Stat. § 6193, which provides for the filing of chattel mortgages, see Watson v. Mead, 98 Mich. 331, and note; Williams v. Hyde, Id. 152; Damm v. Mason, Id. 237, and note.

   Hooker, J.

The Citizens’ Electric Light & Power Company of Manistee executed a deed of trust to a trustee to-secure an issue of bonds. The mortgage recited the issue and form of the bonds, which bonds stated that “ payment-of which is secured by a deed of trust of even date herewith, covering all of the property, real and personal, with its appurtenances and the franchises and rights of the said Citizens’ Electric Light & Power Company, as the same is-more particularly described and specified in said deed of trust.” The description of property mortgaged by said deed of trust was as follows: After describing certain real estate, it continued:

“Together with all buildings, constructions, and improvements upon the said premises or elsewhere situated, belonging to said company, and all dynamos, engines, boilers, pumps, wells, machinery, tools, instruments, apparatus, and lines of poles, the business of producing, renting, selling, distributing, and using electricity, whether now belonging to or hereafter acquired by the said Citizens’ Company.”

This instrument was dated February 1,1892, acknowledged May 5, 1892. It was recorded on April 4, 1893, in the office of the register of deeds, and was never filed with the city clerk. During the period intervening between May 3, 1892, and September 13, 1893, the Buckley & Douglas Lumber Company furnished the electric company slabs for fuel. Payments were made from time to time, and monthly statements of balances were furnished by the lumber company to the electric company. On September 13, 1893, the balance dne was $588. Of this snm $576 was furnished after May 9, 1893, and $48 on May 2, 1893. On May 1, 1893, the balance was $468, and $600 was paid during the time mentioned. On April 1, 1893, $476 was the balance, and $200 was paid during that month. On September 15, 1893, one Faben was in possession of the property of the electric company. From his testimony it would appear that he was managing its business, though the appellant's brief asserts that he was holding possession for the trustee. However this may have been, on the day mentioned the Buckley & Douglas Lumber Company commenced an action for its claim, and caused an attachment to be levied upon 9 double and 26 single carbon lamps. The sheriff arranged, to leave these in the custody of Faben. The next day Faben was appointed receiver, and the property of' the company has since been held by him in that capacity. This was in a proceeding to foreclose the trust deed. The bill was verified September 14, and is said to have been filed on the same day. The attachment suit went to judgment and execution. On November 20, 1893, the sheriff, having in his hands the execution, filed a petition in the foreclosure case, reciting the facts stated, and the refusal of Faben to deliver to him the attached property, which he then claimed to hold as receiver, and asking that Faben be required to deliver the property to be levied upon, or that he pay the amount of the execution. Upon the hearing of this petition proofs were taken in open court, and the circuit judge made an order granting the relief prayed for, from which order the receiver appealed.

Counsel for the petitioner contend:

1. That the lamps were not covered by the mortgage.

2. That, if they were, they were chattels, and the mortgage to that extent a chattel mortgage, and that, not being filed, with the city clerk, it was void as to the execution creditor, whose claim arose after the execution of the mortgage.

These claims are contested by the appellant, and he asserts further that the execution creditor should be required to collect its debt from one Hart. This contention calls for a further statement of fact. The evidence shows that in the spring of 1893 the Buckley & Douglas Lumber Company declined to extend further credit to the electric company without Mr. Hart, its president, “would see that they would get their pay, or become responsible; that, in order to keep the institution running, Mr. Hart verbally agreed that, if the lumber company would keep on furnishing the fuel to run the institution, he would see that they were paid, or that they did not lose anything." About the time the foreclosure proceedings began, Hart told the lumber company to proceed to collect its claim against the electric company, to avoid loss by reason of his promise or guaranty. This was upon demand of payment made by the lumber company upon him. There is reason to believe from the evidence that Mr. Hart will pay according to his promise, if the amount is not collected from the electric company. It is claimed that the action was brought for the benefit of Hart, and that, as between him and the bondholders, equity requires that Hart should pay the debt, especially as the record of the trust deed was deferred until April 4, 1893, by Hart himself.

We cannot agree with counsel for the appellant that the record of a mortgage of real estate in the office of the register of deeds is notice to the world of the mortgage of chattels included in the same instrument, as it is not the place provided by law for obtaining such notice, and it cannot be supposed that interested parties will look there for such mortgages. “A record is not notice for any purpose not declared by statute.” Burton v. Martz, 38 Mich. 762. We think, however, that the term “apparatus” in the mortgage is broad enough to include the lamps, and to that extent it was good as a mortgage of chattels; but, not being filed, it was void under the statute, as against the claim of the execution creditor, who is not shown to have known of its existence when credit is given. See Watson v. Mead, 98 Mich. 330, and cases cited. The evidence is clear that payments were regularly applied upon the earlier purchases of fuel.

The evidence shows that Hart made an oral promise in the nature of a guaranty. If this promise was intended to apply to subsequent transactions, it was still within the statute of frauds. He has not performed it, and if he should choose to make that defense to an action it would certainly be good. In his testimony he intimates that he will keep his promise. But this does not strengthen the promise any. It is still an oral promise to answer for the debt of another. Should the petitioner be defeated in this proceeding, and the lumber company should bring its action against Hart, certain defeat would follow if Hart should see fit to defend and the case should depend upon the evidence given in this record. The result would be that the company would, to use a homely expression, “fall between two stools.” It is urged that credit was given to Hart, instead of the electric light company, and that, therefore, the promise was not within the statute; but we think that the evidence shows otherwise. In this view of the case it is manifest that Hart’s alleged delay in recording and filing the deed of trust cuts no figure, for the lumber company is in no way chargeable with complicity.

The order of the circuit court in chancery will be affirmed, with costs.

The other Justices concurred.

       The lamps were stored in defendant’s buildings, and not in use.


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    George W. De Jonge v. Frank Hunt.

      Contract — Offer—Acceptance.
    An owner of land in Michigan, who resided in Iowa, offered, by letter, to sell the land to a resident of the city in which it was situated for $500 cash, net. And it is held that this meant the payment of the purchase price to the offerer at his place of residence in Iowa, and that an acceptance by letter of the offer as to price, coupled with a request that the deed be sent to a third person in the city where the offeree resided, and a statement that the offeree would pay for the land there, if it was the same to the offerer, but, if he had any objections, he could do differently, is not such an unqualified acceptance of the offer as to complete a contract for the sale of the land.
    Error to Kent. (Grove, J.)
    Submitted on briefs October 31, 1894.
    Decided December 18, 1894.

      Assumpsit. Plaintiff brings error.
    Affirmed.
    Tbe facts are stated in tbe opinion.

      Martin liozema (C. 0. Smedley, of counsel), for appellant.

      Wesselius & Corbitt, for defendant.
   Grant, J.

Tbe following facts were found by tbe court:

“Tbe plaintiff resides in the city of Grand Eapids, Michigan, and tbe defendant resides in Sioux City, Iowa. February 3, 1893, tbe plaintiff received the following letter from tbe defendant, viz.:

‘Friend, George:

‘“As I am disposing of all my property outside of Sioux City, Iowa, if you can net me $1,000 for my two lots and two and one-half acres, let them go, as I want to get rid of them, and clean up; you to get your commission above that amount. George, you ought to make $500 out of this deal. If not sold within 60 days, I will take it out of the market. Let me hear from you.

“‘Yours respectfully,

“•Frank Hunt.’

“ In response to said letter, on February 4, 1893, plaintiff wrote and mailed a letter to said defendant, stating that he had received his (defendant’s) letter of February 1, and ‘that he had made a mistake of the amount of land he had in the city; that the two lots he spoke about, on the West side, I had been selling for him a year before to Mr. Pressburg, and that all the land he had here was two and one-half acres on Fulton street. If he meant that at $500, I thought I could strike a bargain with him, because I wanted to make a shift for myself; and that I would like to hear from him.’ In response to this letter, plaintiff received the following:

“ ‘ Sioux City, Iowa, February 17, 1893.

“ ‘ George De Jonge,

“ ‘ Grand Rapids, Mich.

‘Dear Sir: In regard to yours of recent date, I forgot that I had sold the two lots you referred to. I believe all I have left now is the two and one-half acres. I will take $500 in cash for it, net.

“‘Yours respectfully,

‘“Frank Hunt,’

“February 21, 1893, plaintiff wrote and mailed a letter in reply to the defendant’s letter of the 17th, stating that he accepted his offer, and inclosed a deed of the property to be made out to him, and suggested that to facilitate matters he send the deed back to the Michigan Trust Company, and that he would pay for it there, as they had been doing business that way before, and asking him ‘if it was the same for him to do so; if he had any objections, he could do different.’ Plaintiff had bought property of the defendant before this, and they had transacted their business through the Michigan Trust Company. Defendant did not answer the said last-mentioned letter, nor did he convey said land to plaintiff, nor did he write that he •wanted the money. Plaintiff was ready and willing to pay the consideration, and called at the office of the Michigan Trust Company for that purpose, within three or four days after he had mailed the said last-mentioned letter, but he did not make an actual tender of the consideration to the defendant. Defendant on the 23d day of February, 1893, sold and conveyed the said property to one Sybrant Wesselius, of Grand Eapids, Michigan, by warranty deed, for $600, which land is described in said deed as follows [here follows the description], which is the same property referred to in defendant’s letters, and which said deed was recorded in the office of the register of deeds for Kent county, Michigan, on the 2d day of March, 1893, in Liber 232 of Deeds, on page 145. Defendant owned no other land in the city of Grand Eapids. If the said defendant had conveyed the said land to the plaintiff, he could have disposed of said land, and made a profit of $1,000. The value of the said property on February 21, 1893, was $1,500.”

Upon these facts, the court found, as the conclusion of law, that the plaintiff was not entitled to recover, and entered judgment for the defendant.

Two questions are presented:

1. Is the contract void, within the statute of frauds, for lack of a description of the land?

2. Did the two letters constitute a valid and binding contract for the sale of the property?

We deem it unnecessary to determine the first question, since the answer to the second is conclusive of the case.

In order to complete the contract, it was necessary that the plaintiff should write an unqualified acceptance of the defendant’s offer. The offer was to sell for $500 cash, net. This meant payment to the defendant at his residence in Iowa. The acceptance requested that defendant send the deed to a party in Grand Eapids, with whom the plaintiff would deposit the money on receipt of the deed. It became, therefore, necessary for the defendant to write another letter in order to close the transaction. It was to be a cash transaction, and plaintiff’s duty was to remit the money, and pay or tender it to him, within a reasonable time after an unqualified acceptance. A response necessitating delay and further correspondence is not an unqualified acceptance. If it had taken weeks instead of days for letters to pass, certainly the defendant would not have been bound to wait, and notify the proposed purchaser that he must send the money to him at his place of residence, — a statement already in the offer. It does not appear when plaintiff’s letter was received by defendant. We may, however, assume that, in due course of mail, it was received before the sale to Wesselins.

The only authority cited by plaintiff to sustain his position is Matteson v. Scofield, 27 Wis. 671. In that case the plaintiff, residing at Hudson, Wis., wrote a letter to defendant, in Connecticut, accepting his offer for the sale of land; suggesting that he make out a deed and send it to the bank, with instructions, and saying that he suggested this method of making the transfer, as it would save time and expense. The defendant replied that he would come out to Hudson, and attend to the business himself. The court held that it was the undoubted right of the defendant to insist upon payment at his residence in Connecticut; and to have the business personally transacted there, but as he did not so insist, but replied that he would come out to Hudson, the contract was complete. Had the defendant ignored the letter, as was done in this case, a different question would have been presented to the court.

The following authorities appear to sustain this ruling: Sawyer v. Brossart, 67 Iowa, 678; Gilbert v. Baxter, 71 Id. 327; Eggleston v. Wagner, 46 Mich. 620; Whiteford v. Hitchcock, 74 Id. 209; Sands & Maxwell Lumber Co. v, Crosby, 74 Id. 313; Iron Co. v. Meade, 21 Wis. 474; Eliason v. Henshaw, 4 Wheat. 225; Johnson v. Stephenson, 26 Mich. 63.

Judgment affirmed.

The other Justices concurred.