text:
    DAMM v. VINCENT.
    Fraud — Contracts—Disaffirmance—Rescission.
    A contract for the purchase of a livery stable business is not rescinded by the purchaser on the ground of fraud within a reasonable time after discovery thereof where, although he promptly tells a-representative of one of the partners formerly owning the business that he wants the consideration bach, he continues to exercise dominion over the property for two months and causes two conveyances to be made during such period.
    Error to St. Clair; Tappan, J.
    Submitted April 11, 1917.
    (Docket No. 139.)
    Decided July 26, 1917.
    Assumpsit by Charles Damm against Edward L. Vincent for money obtained by fraud and deceit. Judgment for defendant. Plaintiff brings error»
    Affirmed.

      C. R. Black and J. B. Mcllwain, for appellant.

      Burt D. Cady and Joseph Walsh, for appellee.
    Plaintiff sues in assumpsit seeking to recover the sum of $1,500. It appears from the record that the plaintiff is 53 years old, a laboring man, and in the year 1907 was employed as a watchman in the city of Woodstock, Ontario. At that time he was the owner of a real estate mortgage for $4,200, inherited from his father’s estate. He was well acquainted with one Robert Colwell who resided in Port Huron, and had lived with Colwell in Port Huron some time prior to 1907 for 15 months. Colwell had formerly lived in Woodstock. Plaintiff prior to 1907 had loaned Col-well several hundred dollars, and Colwell knew of plaintiff’s possession of the real estate mortgage. One William A. Fraser and defendant, Vincent, were owners in equal shares of a livery stable in the city of Port Huron; Fraser was the owner likewise of a blacksmith shop in the same place. Defendant, Vincent, is a man 54 years of age, an employee of the St. Clair County Savings Bank of Port Huron, and was formerly county treasurer of St. Clair county. While the livery stable business was owned jointly by Fraser and defendant, Vincent, it was run exclusively by Fraser, and Fraser had secured from defendant prior to September 25th permission to sell Vincent’s one-half of the barn at a stated price. Early in September, • 1907, Fraser entered into an arrangement with Colwell to help sell the livery stable business, to plaintiff. Thereupon Fraser and Colwell went to Woodstock and tried to effect a trade. Plaintiff at first refused to deal, but permitted Fraser to take the real estate mortgage in order to ascertain whether it was good or not. On a later occasion (September 25, 1907) the parties again met in Woodstock, and plaintiff executed an assignment of the $4,200 mortgage to Fraser, and took a bill of sale from Fraser of the livery stable, valued in the deal at $3,000, and plaintiff either verbally or in writing placed the stable in the hands of Colwell to run. Later the blacksmith shop likewise was turned over by Fraser to plaintiff in place of the balance, the difference between the value of the livery stable and the face of the mortgage. Plaintiff did not examine the livery stable property until October 11, 1907, at which time he testified he found it in poor condition, horses run down, harnesses and buggies old, and the whole property much less in value than had been represented. At that time Fraser was not in Port Huron, but plaintiff claims to have then told Colwell that he wanted his mortgage back; however, at this time (October 11th), at Colwell’s suggestion. he executed a bill of sale of the livery stable property to Colwell’s wife. On November 11th plaintiff again visited Port Huron, and on examination found that Colwell was drinking, and dissipating the property. He secured the services of an attorney, and demanded and received a reconveyance of the property from Mrs. Colwell to himself, and put Colwell out of possession. On November 28th, á little more than two weeks later, he put Colwell back in possession of the property. That possession continued until December 20th, at which time, being advised by his attorney, he decided to try and gather the property together and tender it back to Fraser. Fraser, however, had died on November 13, 1907, so that the plaintiff on December 20, 1907, served notice on the defendant to the effect that plaintiff repudiated all the agreements between William Fraser, Robert Colwell, defendant, and himself, on the ground of fraud, and that he abandoned the livery stable, paint shop, and blacksmith shop. At this time he had succeeded in collecting most of the dissipated property. Defendant paid no attention to the notice, and it is not exactly clear from the record what ultimately became of the livery stable stock. Fraser, having cashed the mortgage for nearly its face value in Canada, sent to Vincent at one time $500 and at another time $200, of which $660 was used by defendant to pay notes of Fraser upon which defendant was indorser and the balance, $40, to be paid to one McNaughton for the keep of a horse.
    Subsequent to his attempted repudiation of the deal plaintiff brought suit in Canada against the estate of Fraser and against this defendant. Defendant Vincent, though apparently served with process in Michigan, did not appear in the Canadian litigation. Plaintiff there recovered from the Fraser estate, according to his bill of particulars in this case, $3,192.41. Later the action at bar was commenced against Vincent in this State to recover the balance lost by plaintiff in the transaction. At the conclusion of the proofs a motion to direct a verdict in favor of the defendant was made upon three grounds:
    (1) That there was no proof of a partnership that-would make Vincent responsiblé for the actions of Fraser.
    (2) That there was no proof of agency that would make him responsible in tort for the actions of Fraser.
    (3) “The evidence in this case shows that somewhere along the middle of September, the plaintiff assumed control and obtained possession of this property and kept that possession until the 20th of December, without any effort to rescind; in the meantime handling and moving the property as his own and making two conveyances of it and allowing it to be wasted, squandered, and spoilt, and allowing the business. of the concern to be absolutely lost, and then making no effort to return it, except the writing of a letter giving notice. Under these circumstances we move you to direct the jury that he is estopped from rescinding, and that he waived his right to rescind, and that his rescinding comes too late.”
    The court overruled the motion to direct, but submitted the case to the jury first upon the question as to whether a partnership existed between Fraser and Vincent in the livery stable business of such a character as to make Vincent liable for the fraudulent representations made by Fraser in relation thereto. With regard to rescission the court charged:
    “Now on the question of the rescission of the contract of sale. You are further instructed that though you should find that a partnership existed, and that Vincent is chargeable with the fraud committed on Damm, yet the burden is upon Damm to convince you that he took all the necessary steps required to rescind the sale, and to place Vincent in approximately the same situation he was when the sale was made. If Damm fails to establish this fact, then he cannot recover from Vincent, even though he was a partner, and a fraud was committed on Damm in obtaining his mortgage. I will explain that he parted with a $3,000 interest in his mortgage and received the livery property in exchange. He now seeks to recover back the property he parted with. Before he can do so, law and justice both require him to return or tender back the horses, rigs, harness, and stock he received as well as the good will of the business itself, in substantially as good condition as when he received it, and he was duly and legally bound to do this with reasonable diligence and speed after he discovered the fraud. Now, gentlemen, you have heard the evidence concerning* the condition of the horses, rigs, and stock and the condition or value of the business as a going concern. You have also heard all of the proof as to Damm’s knowledge or lack of knowledge as you may find the fact, concerning the property and the care and use given it by Colwell whom he put in charge and to whom he sold it. And I shall leave for your determination the fact whether Damm acted negligently, carelessly, and wrongfully in permitting the property to become run down, dissipated, or its value materially reduced to Vincent’s injury. In considering this fact you take into consideration all of the proofs and the surrounding circumstances. If you believe under the proofs that Damm has failed to establish the fact that he took reasonable care to protect the property and prevent its depreciation, or that he was negligent because of unreasonable delay in tendering back the property,- then it is your duty to return a verdict of not guilty. If, on the other hand, you find as a fact Damm returned the property in approximately as good condition as he received it, and that he did so within a reasonable time, the surrounding circumstances considered, then you are -warranted in holding that he has made a proper tender of the property and business to Vincent.” \
    The jury rendered a verdict in favor of the defendant.
   Brooke, J.

(after stating the facts). There are some 25 assignments of error which we find'it unnecessary to discuss seriatim. That plaintiff was victimized in the transaction by Fraser and his irresponsible tool, Colwell, clearly appears from this record. That defendant, Vincent, was either morally or legally bound by those representations does not so clearly appear, but, assuming that defendant, Vincent, was engaged actively in a conspiracy with Fraser and Colwell to defraud plaintiff, and that the fraud was accomplished, there would appear to be an insuperable objection to plaintiffs recovery. It is quite clear that on October 11th plaintiff became fully advised of the fraud that had been perpetrated upon him, and though he claims to have told Colwell that he wanted his mortgage back, he took no steps to disaffirm the contract which was made, not with Colwell, but with Fraser, and continued to exercise dominion and control over the property for upwards of two months thereafter, during which time he caused it to be twice conveyed. It is elementary that upon the discovery of fraud the party elected-to disaffirm upon that ground must act with diligence and without unreasonable delay. Jewett v. Petit, 4 Mich. 508; Carroll v. Rice, Walk. Ch. (Mich.) 374; Campan v. Van Dyke, 15 Mich. 371; Wright v. Feet, 36 Mich. 213.

We are of opinion that the motion for a directed verdict in favor of the defendant should have been granted upon the third ground' urged by his counsel.

The judgment is affirmed.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Fellows, JJ., concurred.


source: Caselaw Access Project

author: Kuhn, C. J.

license: Public Domain

text:
    FINKELSTEIN v. MICHIGAN RAILWAY CO.
    1. Damages — Personal. Injuries — Carriers—Evidence—Instructions.
    In an action against a railroad company to recover damages for personal injuries due to a collision of one of its cars with another car in which plaintiff was seated, where plaintiff contended that he sustained serious injury to both of his eyes, and particularly his left one, and there was evidence tending to show that plaintiff might lose both his eyes, a charge that in order to entitle plaintiff to recover for any apprehended injuries to his left eye it must appear reasonably certain that such injuries would result and that there could be no recovery for future loss of the right eye because of failure to make claim therefor in the declaration, was as favorable to defendant as he was entitled to, in view of plaintiff’s contention.
    2. Same.
    The evidence of- injury to defendant’s left eye was sufficient to warrant the submission to the jury of the question of future damage resulting from the injury to the eye.
    Error to Allegan; Cross, J.
    Submitted April 12, 1917.
    (Docket No. 62:)
    Decided July 26, 1917.
    Case by Samuel W. Finkelstein against the Michigan Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      George W. Mechem and Wilkes & Stone, for appellant.

      Clare E. Hoffman, for appellee.
    The defendant operates an electric railroad from Grand Rapids to Kalamazoo with a branch connecting with Allegan. On May 21, 1915, the plaintiff, a junk dealer living in Allegan, purchased a ticket and took passage on defendant’s car at Allegan for Kalamazoo. Near Kalamazoo the car in which plaintiff was traveling was placed on a side track, and while waiting there was run into by another car of the defendant’s traveling at a high rate of speed. It was not disputed by the defendant that the accident was due to the negligence of defendant’s servants. For the injuries thus received plaintiff brought suit, and the only questions in the case are the extent of plaintiff’s injuries and the amount of the damages. 'The plaintiff claimed that he had sustained serious and permanent injury to his right foot and to both his eyes, particularly to the left one, and to his spine.and nervous system, as a result •of which the condition of his general health had become depleted, he had lost his appetite and weight, and that he was unable to do the work that he formerly could. It appeared upon the trial that in the fall of the year 1914 plaintiff had fallen from his wagon, the wheels of which had run over him, and that he was injured so as to be confined to his bed for about a week. It further appeared that several years prior he had received a scratch upon his left eyeball which had somewhat impaired the sight of that eye.
    A verdict for $1,500 in favor of thé plaintiff was rendered, but was set aside by the trial court on motion of the defendant, and a second trial was had, which resulted in a verdict for the plaintiff in the sum of $3,425. The jury further found, in answer to a special question submitted to them, that the plaintiff’s foot was not defective prior to •the accident. The case is here by writ of error.
   Kuhn, C. J.

(after stating the facts). In this case the negligence of the defendant is admitted. No question is raised as to contributory negligence on the part of the plaintiff. That the plaintiff was in the accident and suffered injuries is also unquestioned. There is no assignment of error which raises a question as to the verdict being excessive. It is stated in the brief of counsel for the defendant:

“The errors relied upon by the defendant for a reversal of the judgment, in the admission of evidence, and the charge of the court, for the most part arise out of the admission of evidence as to the injuries to the eyes and foot of plaintiff and his right to damages for past and future loss growing out of such injuries.”

The plaintiff testified that his right eye was good before the accident, but that his vision in this eye was impaired after the accident. Dr. Robinson, a medical witness for the plaintiff, testified that from the condition that he found the eyes in it might happen that plaintiff would lose them both. With reference to these claims, the trial judge in part charged the jury as follows:

“You are further instructed .that, in order to entitle the plaintiff to recover for any apprehended future injuries to the left eye, there must be a degree of probability amounting to a reasonable degree of certainty, that such injury will result, and that it was caused by the accident in May.
“It is admitted by the plaintiff that his left eye was defective before this accident, and he says that there was a growth over that eye that affected the sight. Unless the jury find by a preponderance of the evidence that any subsequent trouble with this eye was caused by the accident in May, plaintiff cannot recover any damages for any change in the condition of this eye; that is, if the eye is more defective now than it was before the accident. But if the trouble with the eye is the result of prior injury or prior disease of the eye, then the jury could not award any damages to plaintiff for any impairment of the sight, or injury to this eye, unless they find to a reasonable certainty that this present condition of the eye was caused from the accident, and the jury would have no right to speculate on this question. They must find it, if they find for the plaintiff, from the evidence in the case, testified to by the witnesses.
“The jury are instructed that they would have no right to award any damages to Mr. Finkelstein on the theory that he may hereafter lose his right eye, there being no such claim for damages made in the plaintiff’s declaration.” ‘

We are of the opinion that this charge was as favorable to the defendant as it was entitled to in view of the plaintiff’s claims. The trial judge removed from the consideration of the jury the right of plaintiff to recover for the possible loss of the right eye.

It is strongly urged that the testimony of Dr. Robinson as to the injuries to the eyes was not specific and definite enough to bring it within the rule announced in the case of Brininstool v. Railways Co., 157 Mich. 180 (121 N. W. 731), in that the testimony did not show “* * * such a degree of probability of such (future) consequences as to amount to reasonable certainty that they will result from the original injury.” A part of the testimony which 'it is claimed is purely conjectural and a guess was brought out on cross-examination. A reading of the charge shows that the trial judge had the rule of the Brininstool and kindred cases in mind, as he stated:

“The jury cannot allow for any future damages except such as are reasonably certain to occur as a result of the injuries complained of. No damage can be included for consequences merely because they possibly may occur, nor based on speculation and conjecture; but all future damages must be based on reasonable certainty.”

In other parts of the charge the same instruction is given in different language. We are of the opinion there was enough evidence of injury to the left eye to warrant the submission of this injury to the jury under the instructions above set forth, which we deem proper.

We have examined defendant’s other assignments of error, but find them without merit. A reading of this record discloses that the plaintiff and his witnesses testified to severe and permanent injuries received through defendant’s negligence. The jury, after hearing the disputed questions of fact as to the injuries, found for the plaintiff. We are unable to find reversible error, and therefore affirm the judgment.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


text:
    STANTON v. STANTON.
    1. Divorce — Extreme Cruelty — Evidence—Sufficiency.
    Evidence Jield, sufficient to show that plaintiff was entitled to a divorce from her husband on the ground of cruelty, where he had accused her of immoral relations with other men at a time when she was afflicted with tuberculosis.
    2. Same — Extreme Cruelty — Condonation of Offense — Renewed by Subsequent Acts.
    Acts of cruelty of a husband towards his wife which have been condoned are renewed by a subsequent act of cruelty.
    3. Same — Equity—Judicature Act — Accounting.
    A court of equity has power, upon granting a divorce, to adjust the property rights of the parties and to compel an accounting by the husband of money of the wife in his hands, under Act No. 314, chap. 8, § 1, Pub. Acts 1915 (3 Comp. Laws 1915, § 12309), providing that a plaintiff may join in one action, at law or in equity, as many causes of action as he may have against the defendant.
    4. Appeal and Error — Questions not Raised by Appeal.
    The question of the power of a court of equity to adjust property rights of divorced persons on granting a divorce and to compel an accounting by the husband, cannot be reviewed on appeal where no objection was made in the trial court.
    5. Divorce — Alimony—Settlement oe Decree.
    Where it appeared that the husband and wife, parties to a divorce suit, owned a homestead worth $3,200 jointly; that the wife had $3,750 in bank certificates, $1,000 of which the husband placed in his own name while the wife was away and the balance in their joint names without authority, and that the husband personally owned property worth $4,300, a decree ordering $2,500 of the wife’s money to be repaid her, and awarding her the homestead and furniture as permanent alimony, was proper.

    Appeal from Van Burén; Tucker, J., presiding.
    Submitted April 19, 1917.
    (Docket No. 117.)
    Decided July 26, 1917.
    Bill by Myrtle E. Stanton against Lee W. Stanton for a divorce, alimony and an accounting. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Earl L. Burhans and David Anderson, for plaintiff.

      Thomas J. Cavanaugh, for defendant.

      For authorities discussing the question of charges of adultery as grounds for divorce, see notes in 18 L. R. A. 300; 34 L. R. A. (N. S.) 360.
      On effect of decree of divcrce on homestead rights, see notes-in 23 D. R. A. 239; 16 L. R. A. (N. S.) 114.

   Kuhn, C. J.

The bill filed in this case prays for a divorce and alimony, and incidentally an accounting involving dealings between the parties.

The parties were married on April 6, 1894. The plaintiff’s father at the time of thé marriage bought a 40-acre farm for them, paying $1,700 therefor, and took the deed in the names of the parties hereto as husband and wife, making them a present of $1,000 of the purchase price and leaving a mortgage of $700 upon the property. This farm has been the home of the parties during the whole of their married life. As they were thrifty, they .soon paid off the $700 mortgage, and the husband bought 30 acres more and also received a 5-acre parcel from his father’s farm, and bought out two other 5-acre parcels from other heirs of his father. At the time of the trial of this controversy he owned the 30 acres before referred to, which the court held were worth $1,200, the 15 acres of his father’s, worth $1,100, and the parties owned the 40-acre farm jointly, which the court held to be worth $3,200, and the court also found that the husband owned personal property aside from any belongings of his wife to the value of $2,000. The plaintiff’s father died on December 28, 1911, and she received money at various times from his estate, so that in February, 1914, she had $3,753.24 on deposit in certificates in various banks. The parties have three children, the eldest being a daughter aged 20 years at the time of the trial, a daughter named Velma, aged 6, and a son, Mark L., aged 3 years.

The record is convincing that the defendant is a hard-working, sober and industrious man, but it also discloses that there was more or less friction and unpleasantness during the whole of their married life. It appears that the defendant was of a jealous disposition, and that in 1912 he accused the plaintiff of infidelity with the minister of the church which they attended and openly stated that one of his children was not his child. Mrs. Stanton became afflicted with tuberculosis, and desired to go to Arizona to seek restoration of her health. There was some dispute between them over this contemplated trip, but the husband finally consented, and the plaintiff started for Arizona on February 18, 1914, and returned about May, 1915. While she was there the defendant paid her two visits, one in June, 1914, and the second time in May, 1915, when he brought her back home with him. During the last trip the defendant secured possession of the certificates of deposit; Mrs. Stanton having indorsed them to her husband in order that he might be able to renew them and collect the interest on them. It is her claim that it was the express understanding that he would renew them in her own name and return them to her. Instead of doing this, he renewed them mostly in the joint names of himself and wife, and placed $1,000 thereof in his own name. After her return she was anxious to get hold of these certificates, and this led to further controversy. She continued to grow worse, and finally, in September, 1915, she went to a tuberculosis hospital in Kalamazoo, where she was at the time the bill was filed, and remained up to the time of the trial.

The learned circuit judge who heard the case made a decree granting the plaintiff an absolute divorce and disposing of their property matters as follows: He ordered $2,500 of her own money to be returned to her, and awarded her the homestead held by them jointly and the furniture in the home as permanent alimony. The custody of the children was temporarily provided for, the expense to be borne by the parties equally, and their final disposition was reserved for future determination.

Counsel for the appellant says there are three questions here for determination:

“(1) Is plaintiff entitled to a decree of divorce?
“(2) Did the court have jurisdiction to dispose of the property in the manner indicated by the decree?
“(3) If so, was the court justified in awarding the plaintiff the amount of alimony indicated and especially in taking from the defendant the home in which he and the children were living at the time of the decree?”

This record presents a most unfortunate situation, and it is to be sincerely regretted that they cannot live together. The question that confronts us, however, is whether there was adequate proof to entitle the plaintiff to a decree of divorce. Upon this we agree with the trial judge. Granting that the defendant was left at home with his children in an unfortunate situation, it must also be borne in mind that the wife, suffering from a dreaded and wasting disease, was far from her home, among strangers, looking for encouragement and consolation from those at home. Instead of receiving it, defendant wrote her a letter which the trial judge characterized—

“* * * the most brutal letter I have ever heard read, hinting that she was at the time and while in Arizona unduly intimate with men. So far as this case shows, there was no possible foundation for any such hint or charge.”

Counsel seek to palliate this offense by saying that defendant was nervous, and that he was worried over the large expenditure of money which her stay there necessitated. But this does not, in our opinion, justify such a course of conduct, nor does it justify his making the charge of her intimacy with the minister on the occasion of the visit of the sheriff of the county to their home after their return from the west. This act of cruelty on his part renewed the original acts of a similar character which plaintiff may have condoned. See Eistedt v. Eistedt, 187 Mich. 371 (153 N. W. 676).

We are also of the opinion that the court, by virtue of section 1, chap. 8 of the judicature act (Act No. 314 of the Public Acts of 1915, 3 Comp. Laws*1915, § 12309), had the power to adjust the property matters and the accounting in the divorce proceedings; proper allegations having been made in the bill. It also appears that no objection was made on this ground on the trial below nor upon the settlement of the decree, and the question was not raised until the brief was filed in this court. See Jeup v. State Fire Marshal, 182 Mich. 231 (148 N. W. 340),

We also agree with, the findings of the circuit judge as to alimony and the accounting. Considering the amount of property she contributed and the money in her own name when she left for the west, we think the award made by the trial judge is fair and equitable.

The decree of the court below is affirmed, with costs to the appellee.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


text:
    PAGENKOFF v. PATRONS’ MUTUAL FIRE INSURANCE CO.
    Dismissal and Nonsuit — Judicature Act — Matters in Bar.
    Under the judicature act (Act No. 314, chap. 14, § 4, Pub. Acts 1915, 3 Comp. Laws 1915, § 12456), a motion is improper because not setting up matters which might have been raised by demurrer, plea in abatement, or plea to the jurisdiction under the former practice, which is made to dismiss an action by a member of a farmers’ mutual fire insurance company, based upon an award of an adjusting board, on the grounds that the subject-matter sued on had been submitted to the company’s arbitrating board, after an appeal from the adjusting board, and an award made which was final and conclusive, and the plaintiff has been extended all rights contemplated by the contract for settlement of disputes in the adjustment of losses.
    Certiorari to Menominee; Flannigan, J.
    Submitted April 10, 1917.
    (Docket No. 122.)
    Decided July 26, 1917.
    Assumpsit by William Pagenkoff against the Patrons’ Mutual Fire Insurance Company of Michi-' gan, Limited, on a policy of insurance. From an order denying a motion to dismiss, defendant brings certiorari.
    Affirmed.

      G. L. Leibrand, for appellant.

      Michael J. Doyle, for appellee.
   Kuhn, C. J.

The defendant is a farmers’ mutual fire insurance company. The plaintiff applied for insurance therein on June 1, 1914, and on the 22d of May, 1915, he made another written application for increased insurance, upon which policies were issued on or about the above dates. The articles of association of the defendant company provide that, if the property insured shall be incumbered after such policy is issued the policy is void, unless the consent of the president and secretary of the company be indorsed in writing upon the policy and signed by both of them. A similar provision is found in the by-laws of the company. It is the claim of the defendant that without the knowledge or consent of the company, and in violation of the provisions of the policy contract, by which the assured accepted the insurance subject to the articles of association and the by-laws of the company, he placed a chattel mortgage on a horse for $275 after the policy was issued. On August 1, 1915, defendant company received formal notice of loss from the plaintiff, which for the first time disclosed to the defendant the existence of the chattel mortgage. In accordance with another provision of the articles of association of the company an adjusting board consisting of a director of the company, a member of the grange to which the plaintiff belonged, and a member of a nearby grange adjusted the plaintiff’s loss at $315, which was made up of the chattel mortgaged horse in. question, $150, and other property loss, $165. The articles of association also had the following provision:

“Article VI. In case the loser or the company is not satisfied with the findings of the adjusting board, either as to the justice of the claim, the validity of the policy, the liability of the company or as. to the amounts and valuations as fixed by said board, he or it, as the case may be, shall make appeal to the board of arbitration within thirty days from such findings, as follows: He shall notify the secretary of the company in writing of such determination to appeal and deposit with him $10.00. Within ten days, after giving such notice and deposit the secretary shall notify the members of the board of arbitration and the appellant of the place and time of hearing, which time shall not be more than thirty days from the date of appeal. In case the claim of the loser shall be sustained, in whole or in part, by the board of arbitration, the $10.00 deposit with the secretary shall be returned to such loser. If, however, the claim of the loser in whole or in part shall not be sustained by the board of arbitration, then said deposit shall be applied as his portion of the expenses of the board of arbitration and the hearing of such appeal. In case the company desires to appeal from the findings of the adjusting board to the board of arbitration, the secretary shall notify such board and loser in the same manner as is provided in case where the loser appeals. And no appeal to. such board of arbitration shall be taken by either the loser or the company after the expiration of thirty days from the date of the findings; but in such ease, the findings of the adjusting board shall be final and conclusive as to both the loser and the company.”

The company, not being satisfied with the adjustment, attempted to appeal therefrom to the board of arbitration, and under date of September 16, 1915, gave plaintiff notice of the said appeal by mail. On September 24, 1915, the secretary of the defendant company notified the plaintiff and the. members of the board of arbitration that the board would meet for the purpose of considering plaintiff’s claim at the Bancroft Hotel at Saginaw, Mich., on Thursday, October 7, 1915, at 1 o’clock in the afternoon. Mr. Doyle, attorney for the claimant, attempted to have the hearing postponed by writing a letter to the secretary, and was advised that the board of arbitration only had the power to postpone action, and he thereupon requested Mr. Beach, an attorney at Saginaw, to look after the matter for him. On October 6,1915, Mr. Beach wrote a letter to the secretary of the company which is as follows:

“Dear Sir: I have received a letter from Michael A. Doyle, of Menominee, Michigan, in reference to the claim of Pagenkoff v. Patrons’ Mutual Fire Insurance Company, in which Mr. Doyle desires me to have the matter held open for two weeks from October 7th, at 1 o’clock, as your notice provides that the meeting will be held at the Bancroft Hotel on Thursday, October 7th, at 1 o’clock.
“I wish you would kindly let me know if you can adjourn this hearing for two weeks, and you may fix the time of hearing at my office, No. 212 Bearinger Building, Saginaw, Michigan, as you know at the present time there is no such hotel as the Bancroft, as it has been torn down, and we would certainly have to give another notice and fix the time of hearing and at some other point in Saginaw.
“Kindly let me know by wire and oblige,
“Yours respectfully,
“E. L. Beach.”

When the members of the board of arbitration arrived at Saginaw it was found that the Bancroft Hotel had been torn down and was in the process of being rebuilt. They therefore, on October 7, 1915, at 1 o’clock in the afternoon, met and organized on the site of the Bancroft Hotel, and afterwards adjourned to Wright’s Hotel, across the street from the Bancroft Hotel, and there considered plaintiff’s claim, and made an award of $165.25, which was the amount allowed by the adjusting board, minus the $150 which was allowed for the chattel mortgaged horse. Neither the plaintiff nor any one in his behalf appeared before the arbitration board.

Suit was brought by the plaintiff in the circuit court based upon the award made by the adjusting board, and a tender was there made by the defendant of $192.40,*the amount of the award of the board of arbitration with interest and costs to date, which was refused. The defendant thereupon made a motion to dismiss the case for the following reasons:

“(1) That the subject-matter sued upon had been sübmitted to the company’s board of arbitration, and an award made by said board which was final and conclusive, and no suit at law could be commenced or maintained to recover any further or other sum.
“(2) Plaintiff had been extended and offered every right contemplated by the policy contract declared upon in the event that he has not in the past availed himself of the said rights and privileges contemplated by the policy contract for the settlement of disputes in the adjustment of losses.”

The motion was based upon the affidavit of the secretary of the defendant company setting forth the facts substantially as above narrated. This motion was overrued by the trial judge, and the record is now brought before this court by certiorari to review the action of the circuit judge in overruling the motion.

We are of the opinion that the merits of the motion to dismiss are not before us, or that they should have been considered by the trial court. Section 4, chap. 14, Act No. 314, Pub. Acts 1915 (3 Comp. Laws 1915, § 12456), provides:

“Demurrers, pleas in abatement, and pleas to the jurisdiction are abolished. All questions heretofore raised by such plea or demurrer, shall hereafter be raised by motion to dismiss, or in the answer or notice attached to the plea; and in case such questions are raised by answer, or by notice attached to the plea, the same may be brought up for determination by the court, in advance of the trial of said cause, upon four days’ notice by either party. The plaintiff shall at any time, either before or after the hearing of the questions so raised, be entitled to amend his pleadings, so as to meet the objections raised thereto, upon such terms as the court may deem proper.”

Unless the matters set up in this motion to dismiss are matters which might have been raised ’ by demurrer, plea in abatement, or plea to the jurisdiction under the former práctice, they cannot be made the basis of a motion to dismiss. The declaration counts upon the award of the adjusting board, and is not questioned as properly setting up a cause of action on such award; therefore this motion does not assume the functions of a demurrer under the former practice. While the motion, in language, questions the jurisdiction of the court, that jurisdiction is questioned solely because of the facts set up in the motion, and which have no tendency to oust the court of jurisdiction. There is nothing upon the face of the record, or so far as disclosed or suggested, which would indicate that the circuit court for the county of Menominee did not have jurisdiction over the person and subject-matter. This motion does not go to the jurisdiction of the court and saying that it does in the motion does not make it so. Unless the facts alleged show a want of jurisdiction of either subject-matter or person, no jurisdictional question is raised. In the instant case no jurisdictional question is raised by the motion, and it cannot be regarded as a substitute for a plea to the jurisdiction. We are therefore left to inquire whether the matters set up in the motion are such matters as, under the former practice, could be raised by plea in abatement.

An analysis of defendant’s motion, together with the affidavit upon which it is based, discloses that defendant is insisting that the plaintiff is not entitled to recover upon the award of the adjusting board because subsequent to such award another and different award was made by the board of arbitration provided for by the by-laws of defendant. If the award of the board of arbitration is a valid one and binding upon plaintiff, a subject upon which we need to express no opinion, the plaintiff is not entitled to recover on the award of the adjusting board. If valid, it is, in our judgment, a bar to the plaintiff’s right to recover, and not an abatement of his right to proceed.

Our attention is called to Paccalona v. Lumber Co., 171 Mich. 605 (137 N. W. 518), where former adjudication was pleaded in abatement. But no question of practice was there raised, and the questions presented were disposed of without questioning the propriety of the manner in which they were raised. City of Sault Ste. Marie v. Railway Co., 184 Mich. 681 (151 N. W. 649). Here plaintiff insists in his brief and oral argument that the matters set up in defendant’s motion are matters which may only be disposed of on the trial, and cannot be disposed of in this summary manner on motion to dismiss. We think he is correct in his contention, and that we cannot, and ought not, dispose of cases on motions to dismiss, except as provided in the judicature act. This motion does not come within the provisions of the act, and the order overruling it should be, and is hereby, affirmed.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


text:
    CAMERON v. ROYAL NEIGHBORS OF AMERICA.
    1. Insurance — Life Insurance — Fraternal Insurance — Fraud —Estoppel—Evidence—Sufficiency.
    Id. an action against a mutual benefit insurance company-on a benefit certificate evidence held, insufficient to sustain the burden of proof as to an estoppel of defendant, through knowledge of the habits of the insured obtained by its deputy supreme oracle before delivery of the certificate, to claim as a defense that deceased had made false statements as to his habits in the use of liquor and drugs in the application.
    2. Evidence — Hearsay—Admissibility.
    In an action against a mutual benefit insurance company on a benefit certificate, in which it is contended by plaintiff that defendant was estopped by knowledge of the habits of the insured before he signed the certificate to set up the defense of fraudulent statements in the application as to the use of intoxicating liquor and drugs by insured, the testimony of a local officer that she told a supreme camp representative before the certificate was signed of a rumor that insured was a user of liquor and a drug fiend is incompetent as hearsay.
    3. Insurance — Life Insurance — Fraud—Estoppel.
    The basis of an estoppel of the insurer to claim fraud in the making of false statements in an application for mutual benefit insurance as to the use of liquor and drugs, is not afforded by a mere rumor as to the use of liquor and drugs by the applicant which is communicated by a local officer of the society to a deputy supreme oracle of the head camp after the application is signed and before the policy is signed.
    4. Same — Fraud—Burden of Proof.
    The burden of proof was on plaintiff to prove such knowledge on the part of the defendant of the habits of deceased as to constitute an estoppel to set up the defense of false statements in the application as to the use of liquor and drugs.

      Error to Eaton; Smith, J.
    Submitted April 13, 1917.
    (Docket No. 29.)
    Decided July 26, 1917.
    Assumpsit by Nellie M. Cameron against the Royal Neighbors of America for the amount of a benefit certificate. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Dean W. Kelley and J. Earle Brown (U. A. Screech-field, of counsel), for appellant.

      Gardner & Hood, for appellee.
    The declaration in' this case alleges that the sum of $500 is due upon a beneficiary certificate issued by the defendant society upon the life of Alexander H. Cameron, wherein the plaintiff is named as beneficiary. The defendant pleaded the general issue, and set up as affirmative defense that the deceased had made false and fraudulent statements concerning his habits in the use of liquor and drugs in his application for insurance, and as a further affirmative defense that he became intemperate in the use of alcoholic drinks and in the use of drugs in violation of the terms of his contract, and that his death resulted, both directly and indirectly, therefrom. The case was tried before a jury, and a verdict rendered in favor of the plaintiff in the sum of $567.96.
    The deceased was a physician, and had resided in the village of Dimondale, Mich., for about eight years prior to his death. On January 12, 19Í1, he made written application to the defendant society for insurance, which was reported favorably, and the benefit certificate was issued January 20th, and delivered to him on the 22d of the same month. Among others appeared the following questions and his answers thereto upon the application:
    “18. a. Have you within the last seven years con-suited any person, physician or physicians in regard to personal ailment? No.
    “22. a. Do you abstain entirely from the use of intoxicating liquors? Yes. d. Have you ever taken any .treatment for cure of the liquor habit? No. e. Do you use intoxicating liquors, daily, and if not, state how frequently and also state kind and quantity consumed? No. * * *
    “23. c. Do you use, or have you used morphine, opium, chloral, cocaine, or any form of narcotic or stimulant? No.”
    On October 2,1911, he was taken sick, and came into his office, where his wife, the plaintiff, found him. He was pale, and said he did not feel well, and he went to his room and laid down upon the bed. Plaintiff looked in at. him and found liim sleeping, and a short time later found him gasping for breath and black in the face. She called a doctor, who attended him until his death, which occurred in the evening of the same day. Upon the death certificate, which was signed by the physician who attended him, the cause of death was stated to be paralysis.
    Upon the trial of the case the defendant introduced evidence to show that for several years prior and at the time of the deceased’s application for insurance he had been a heavy user of liquor and of the drug chloral, that he had undergone treatment for the .liquor habit, and that his death was caused by an overdose of chloral. The plaintiff contended, and introduced evidence to show, that he had never been a heavy indulger of liquor or drugs, that he .had never taken treatment for the liquor habit, and that his death was not caused by a'dose of chloral. The plaintiff further contended that, even if it be found that he had been a user of liquor and drugs prior to and at the time of his application, and so made fraudulent answers to the questions asked therein, the defendant knew of this fact, and so was estopped to set up the fraudulent answers in defeat of the policy of insurance. , As evidence to this effect the plaintiff introduced testimony that one Minnie Bateman, local camp recorder, had, after the application was signed and before it was delivered to Dr. Cameron, said to Frederika Runner, the deputy Supreme Oracle, who was alleged to be an officer of the Supreme Camp by whom the certificate was issued, and who received and signed the application of Dr. Cameron, that it was rumored that Dr. Cameron was a user of liquor and a drug fiend. Mrs. Runner stated that she did not believe the rumor, and no notice of it was ever sent to the Board of Supreme Managers of the society. The trial judge submitted the question of notice and estoppel to the jury, and it is upon this that several of the assignments of error are based.

      As to scope and effect of provisions in policies of insurance forbidding use of intoxicating liquor, see comprehensive note in 15 L. R. A. (N. S.) 206; 25 L. R. A. (N. S.) 1241.

   Kuhn, C. J.

(after stating the facts). The learned trial judge in charging the jury said the following with reference to the claim of an estoppel:

“* * * The plaintiff .further claims that, even though Dr. Cameron did make certain untrue statements touching his habits regarding the use of intoxicating liquors and certain named drugs, defendant is now estopped from interposing such defense, for the reason that Minnie D. Batemen, the recorder, informed Frederika C. Runner, deputy Supreme Oracle, about the habits and life of Dr. Cameron after his initiation in the local lodge, which was January 17, 1911, and before the delivery to him of the policy on January 22, 1911. Now, if you are satisfied by a fair preponderance of the evidence, and the burden is upon the plaintiff to satisfy you of this claim first, if you are satisfied by a fair preponderance of evidence that Minnie D. Bateman did inform Frederika C. Runner that Dr. Cameron was in the habit of drinking intoxicating liquors and used drugs before the delivery to him of the certificate or policy, then the defendant would be estopped from interposing such matters as a defense to the recovery upon the policy.”

The only testimony in support of this claim is that of Minnie Bateman-, which is as follows:

“Q. Now, Mrs. Bateman, what did you tell Frederika C. Runner after the initiation and before the delivery of the policy?
“Mr. Kelley: I object to it as immaterial and for the reasons before stated.
“The Court: Take the answer.
“Mr. Kelley: Exception.
“A. I told her that it had been rumored about the doctor’s condition and the circumstances.
“Q. What did you tell her?
“A. That he was a user of liquor and was a drug fiend.
“Q. What did she say?
“A. She didn’t believe it she said.
“Q. (showing witness a paper). Did she sign that policy afterwards?
“A. She did.”

We are of the opinion that there is not sufficient testimony in this record upon which the claim of estoppel could be based, and that therefore the trial judge erred in submitting that question to the jury. The testimony, in our opinion, was incompetent as hearsay. All the knowledge that Mrs. Bateman claims to have was as she states a rumor that Cameron was a user of liquor and a drug fiend. Mrs. Runner, the representative of the Supreme Camp, at the time had the sworn, unequivocal statement of the assured in his application which had been passed upon and accepted by the Supreme Camp. A mere rumor communicated to her was not such knowledge as could be made the basis of an estoppel. The plaintiff having asserted a waiver and estoppel, the burden of proving knowledge on the part of the defendant rested upon her. This, in our opinion, she has failed to do.

Assignments of error are also based on the failure of the court to grant the defendant’s motion for a directed verdict and because of the failure of the court to grant the motion for a new trial on the ground that the verdict was against the weight of the evidence. The disputed questions of fact were submitted to the jury, and we are not satisfied that this was so clearly against the weight of the evidence as to warrant us in overruling the action of the trial court in denying a motion upon this ground. In our opinion, the questions of fact were properly submitted to the jury. However, the case should be reversed for the error before referred to.

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

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


author: Stone, J.

text:
    BROWN, ex rel. VAN BUREN, v. LAWRENCE.
    Appeal and Error — Moot Questions not Considered.
    A moot question which will not he determined on appeal in a quo warranto proceeding to determine whether an officer of a corporation is rightfully holding his office is presented where, after a judgment of ouster and pending appeal, the respondent is legally elected as an officer of the corporation, and the case will he dismissed if no other questions are involved.
    Error to Ingham; Collingwood, J.
    Submitted April 11, 1917.
    (Docket No. 39.)
    Decided July 26, 1917.
    Quo warranto by William C. Brown, prosecuting attorney, on the relation of George H. Van Burén, against Fred S. Lawrence to try the title to the office of director and president of the Lawrence & Van Burén Printing- Company. Judgment for relator. Respondent brings error.
    Writ dismissed.

      McArthur & Dunnebacke and Person, Thomas, Shields & Silsbee, for appellant.

      Selling & Brand, for appellee.
   Stone, J.

This is a proceeding by information in the nature of quo warranto, filed in the Ingham circuit, to inquire by what warrant the defendant claimed to hold, use, exercise, and enjoy the offices of director and president of the Lawrence & Van Burén Printing Company, a corporation created by the authority of the State of Michigan, under Act No. 232 of the Public Acts of 1903 (2 Comp. Laws 1915, § 9017 et seq.). The legality of the election of directors at the stockholders’ meeting of July 16, 1915, was involved in this proceeding. There was a judgment of ouster of the defendant entered in the circuit court on April 28, 1916, and he brought the case into this court by writ of error; said writ having issued on June 19,1916.

On the 17th day of April, 1917, the following suggestion was filed in this court and a copy thereof served on the attorneys for the defendant:

“And now comes the relator, by Selling & Brand, his attorneys, and suggests of record as having a bearing upon the questions here involved the following circumstances which have occurred since the entry of the order of ouster in the lower court against the respondent as director and president of the Lawrence & Van Burén Printing Company, a Michigan corporation:
“(1) That at a meeting of the stockholders of the Lawrence & Van Buren Printing Company held upon August 17, 1916, a board of directors consisting of Fred S. Lawrence (the present respondent), Henry N. Lawrence, and Roy Hurd, were elected directors for one year; that in a proceeding heretofore had in the circuit court for the county of Ingham, that court having jurisdiction, by a final judgment entered and not appealed from, it was determined that the meeting electing the said Fred S. Lawrence, Henry N. Lawrence, and Roy Hurd was a valid meeting, and that they were properly and duly elected directors for the period of one year from and after their election.
“(2) That the board of directors so elected thereafter qualified and met, and have elected officers for the year beginning from and after the time of their election.
“(3) As a result whereof it has become immaterial whether the said respondent was properly ousted as director and president of the Lawrence & Van Burén Printing Company for the term beginning July 16, 1915, inasmuch as there is now a duly elected board of directors of said corporation of whom the respondent is one and said board has elected a president for the current year, said respondent, who has qualified.
[Signed] “Selling & Brand,
“Attorneys for Relator.”

This suggestion was duly verified; and it is the claim of counsel for appellee that the same was properly filed and served under the provisions of section 26 of chapter 20 of the judicature act (Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 12762). Without passing upon that point it may be said that it does appear by statement of counsel for appellant that the matters contained in the suggestion are true in fact, and that the matter of costs has been adjusted by counsel. We have nothing before us, therefore, but abstract questions of law, which do not rest upon existing facts or rights. The questions involved are moot questions, and the case becomes a moot case, which we must decline to consider. When it appears by the record that action by the court would be futile, by reason of the lapse of time, the case will be dismissed. Schouwink v. Ferguson, 191 Mich. 284 (157 N. W. 726), and cases there cited.

The writ of error is dismissed, without costs.

Kuhn, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


text:
    BAYNE v. EVERHAM.
    1. Negligence — Collapse of Building — Evidence—Question for Jury.
    In an action against the owner of a building, the contractor, and a materialman to recover for the negligent death of plaintiff’s intestate due to the collapse of a portion of the upper floor of a concrete building during its construction, where the evidence was conflicting, it was a question for the jury whether the design of the concrete beams furnished by the materialman were insufficient, and the floor likely to collapse.
    2. Same.
    Evidence held, sufficient to show that the upper floor of the building was not constructed according to the plans and specifications.
    3. Trial — Instructions.
    An instruction that it was the duty of the materialman to use due care to furnish reasonably safe and accurate designs, plans, and specifications and to describe in detail the necessary and proper sizes and dimensions of the beams, panels and columns used in the construction of the building so that they would.hold the required weight and to specify proper steel bars and rods to be used in anchorage, was incorrect.
    4. Negligence — Responsibility of Architect — Defective Material.
    The responsibility of an architect does not differ from that of a lawyer or physician, and he does all the law requires, when he possesses the requisite skill and knowledge, if he uses his best judgment in the exercise of such knowledge.
    5. Same — Death—Assumption of Risk — Contributory Negligence — Instructions—Question for Jury.
    In an action against the owner of a reinforced concrete building, the contractor, and a materialman furnishing material and architects’ plans for the concrete work, for the death of a carpenter due to the collapse of a portion of the upper floor of the building which plaintiff’s decedent and others were attempting to shore up to prevent it from falling, UeXcX, that the questions of assumption of risk and of contributory negligence were for the jury under proper instructions.
    6. Independent Contractor — Definition.
    A person who furnishes an estimate of the cost of the construction of a building and agrees to oversee the work for a certain percentage of the cost, to furnish equipment and machinery and to pay for the hauling of the same away upon completion of the work, and is to have the lumber used in the work, is an independent contractor.
    7. Same.
    A company which furnishes plans and. specifications and reinforcing steel for a reinforced concrete building is an independent contractor.

    8. Appeal and Error — Instructions—Inconsistent Instructions.
    In an action against the owner of a building, the contractor and a materialman furnishing plans and specifications and material to recover for the death of a carpenter due to the fall of a portion of the upper floor, an instruction that the materialman was an independent contractor was inconsistent with one that it was the duty of the owner to furnish plans and specifications.
    9. Same — Inconsistent Instructions — Presumptions.
    Where a charge contains two conflicting portions, one of which is correct and the other incorrect, it will be presumed on appeal that the jury followed the erroneous portion.
    10. Same — Instructions.
    In an action against the owner of a building, the contractor, and a materialman furnishing material and plans, for the death of a carpenter due to the collapse of a portion of the upper floor of the building, an instruction that if the jury believed from the evidence that the owner let the contract to different contractors and during the progress of the work reserved to himself certain control over the manner of executing the work and assumed control, in whoie or in part, of the work, and by reason of such control the death of deceased was caused without any fault upon his part, the owner was liable, was improper, wnere the only evidence as to assumption of control related to another portion of the building.
    Error to Wayne; Cross, J., presiding.
    Submitted April 19, 1917.
    (Docket No. 124.)
    Decided July 26, 1917.
    Case by James H. Bayne, administrator of the estate of Leo La Framboise, deceased, against Melville B. Everham, Thomas F. Cowhey, the Gabriel Reinforcement Company and William W. De Lange for the negligent killing of plaintiff’s intestate. Judgment for plaintiff. Defendants Cowhey and Gabriel Reinforcement Company bring error.
    Reversed.

      Alexander J. Groesbeek and Guy A. Miller, for appellant Cowhey.

      Chamberlain, Denby, Webster & Kennedy, for appellant Gabriel Reinforcement Company.

      Washington I. Robinson, for appellee.

      The question as to who is an independent contractor is discussed in notes in 65 L. R. A. 461; 17 L. R. A. (N. S.) 372.

   Stone, J.

This is an action to recover damages for the negligent killing of plaintiff’s intestate by the collapse, while under construction, of a portion of a reinforced concrete garage upon which he was employed as a carpenter in making and setting up forms and shoring, used in connection with the concrete work.

The defendant Cowhey was the owner of the premises, and, being desirous of erecting a garage upon it, he hired an architect named Molby to draw plans and specifications for such building.

The defendant Gabriel Reinforcement Company was in the business of selling reinforcing steel for concrete construction work. It furnished the reinforcing steel for this building amounting to between $1,400 and $1,500, and was paid for the same by Cowhey’s check. Defendant De Lange was its manager. Defendant Everham was the contractor.

From a verdict and judgment for $7,500 against defendants Everham, Cowhey, and Gabriel Reinforcement Company, the last-named two defendants have appealed. Defendant Everham has not appealed, and a verdict was directed in favor of defendant De Lange.

The building where deceased lost his life is located on the north side of Larned Street, East, in the city of Detroit, on a lot 70 feet by 120 feet, which runs back to an alley parallel with the street. The building covered the entire lot. After consultation with the architect, Molby, and after consultation with the defendant De Lange, defendant Cowhey concluded to use the Gabriel system of reinforced concrete construction. Plans for the concrete work, specifying the amount, kind, and placing of reinforcing rods, the size and location of beams and columns, and the kind of floor construction were prepared by the Gabriel Reinforcement Company and delivered by it to Mr. Cowhey, These plans were introduced in evidence as Exhibit 2. Tracings and a blueprint showing the part of the building which collapsed are hereto attached. Both the architect’s plans and the steel reinforcement plans were submitted to the department of buildings of the city of Detroit. After being in the possession of the department for some days, they were approved and returned to Mr. Cowhey. No claim of negligence was made against defendant Cowhey in connection with the employment of either the architect or the Gabriel Company. After the form of construction was determined upon defendant Cowhey made the following contract with defendant Everham:

“M. B. Everham,
“Successor to
“Hanneman Everham Co.,
“Contractors,
“Reinforced Concrete Structures,
“Detroit, Mich.
“Office: 707 Chamber of Commerce.
“Phone Cherry 223.
• “Aug. 14, 1912.
“Mr. Thomas E. Cowhey,
“309 Jefferson Ave.,
“Detroit, Mich.
“Dear Sir: I beg to submit this proposal for furnishing machinery and tools to build the following work in your garage building to be erected in East Lamed St. near Antoine:
“Reinforced Crete.
“Concrete walls.
“Concrete floors (first floor and basement).
“Second floor cement finish.
“Cinder fill on roof and cement finish.
“This work includes no steel or iron work except reinforcing steel. No sidewalks are included.
“I estimate the cost of material and labor to complete the above work to be $9,700.00, exclusive of my charge for doing the work. On this estimated cost you are to pay me 3 per cent, or $291.00, for the use of my machinery and equipment and for my supervision of the work.
“My estimate of $9,700.00 as the cost of this work is based on making the walls four (4) feet deep below first floor except at basement. You are to pay for all material and labor required in the work, including one civil engineer superintendent. You are to pay all hauling charges of my machinery and equipment, and such lumber as I have, to the work. I will pay for hauling my machinery and equipment away from the work.
“I will furnish without cost to you such lumber and plank as I have on hand (except the hauling) and all the lumber bought and used and resulting from the above-mentioned work shall belong to me. I will pay for hauling lumber away from the work.
“If the final cost of this work should exceed my estimate of $9,700.00, exclusive of my fee, I agree that one-half of such excess shall be deducted from my fee of $291.00 and if one-half of excess cost should be $291.00 or more I am to get nothing for my supervision of the work or the use of my machinery and equipment, except that I am to get the lumber resulting from the work, and I am not to be held for more than $291.00 of excess cost.
“If I succeed in reducing the cost below my estimate of $9,700.00 you are to pay me one-half of such saving or reduction in cost in addition to the 3 per cent, on estimated cost of $9,700.00, and I am also to have the lumber used in and resulting from the work.
“Respectfully,
“M. B. Everham.”

The following is in the handwriting of Thomas E. Cowhey:

“Party of the second part agrees to complete said work by the 10th of October unless he is obstructed by some unforeseen obstacle that is not any fault of. his.
“Thomas E. Cowhey,
“M. B. Everham.”

Everham was a man of considerable experience, and it is not claimed that defendant Cowhey was negligent in contracting with him for this work. Some description of the construction will aid in understanding the situation.

The building to be erected was a two-story structure, with a roof so designed that at some future time it could be used as a floor. In the testimony upon the trial this, was referred to mostly as the third floor, but sometimes as the roof. The reinforcement consisted, of bars, rods, and wires designed and sold by the Gabriel Company, whose sizes, and locations were prescribed by the plan Exhibit 2. The entire weight of the structure was carried by a series of concrete columns, connected by concrete beams. The latter carried the weight of the floor slabs and the load supported thereby into the columns. The clear height of the first story was about 14 feet from the floor to the bottom of the beams carrying the second floor, the collapse of a part of which caused the deceased’s death. This floor was supported by a series of transverse beams, labeled “A” and “B” on the plans, which rested at their outer ends on concrete columns, and at the center line of the building on a series of similar columns. The clear span of these beams was about 32 feet, and they were ' 17 feet apart north and south. None of these beams fell. The columns at the outer ends of the beams were connected by beams called lintel beams, which carried the curtain walls of brick forming the east, west, and north walls, and which were labeled “LI,” “L2,” etc. The floor spaces between the transverse beams, and referred to as panels, were about 17 feet span from beam to beam, and were what is known as tile and concrete construction. In this construction hollow tile 6"x 12"xl2" are laid, end to end, in parallel lines, flat side down, perpendicular to the supporting beams, and the rows 4 inches apart. Between the rows of tile reinforcing rods are placed, which run at each end into the supporting beams, and help to support the floor. These beams are filled with concrete, and concrete 2 inches deep is poured over the top of the tile, which is merely a filler. At the northwest corner, where the accident occurred, the plans called for an elevator opening, and this necessitated the use of beams of different sizes. Beams “E” and “F” which ran north and south, from the rear wall to columns 10 and 17, respectively, were designed to be about 16' 3" span, and of the size indicated in the schedule attached to the plan. Beams “C” and “D” ran parallel to the rear wall, the former resting upon columns 10 and 17 at- the south ends of “E” and “F,” and “D” rested upon “E” and “F” at points between 3 and 4 feet from the rear wall.

The testimony of the experts indicated that “D” and “F” were the weakest beams, and that the weakest point was where “D” joined “F.” This was the point where the structure failed. Beam “F” in its fall carried with it “C,” “D,” and “E,” the floor panel bounded by those four beams, the part of the floor west of “F,” and a part of the panel south of “C.”

The beams here in question had been poured six weeks, and the shoring had not all been removed. It is the claim of the defendant Cowhey that there was no negligence in removing the shoring, and that no injury could have resulted if the plans had been proper and had been followed, and if the concrete had been properly mixed in proportions prescribed in the specifications. The defendant Gabriel Company claims that the plans were proper, but that there was no evidence that they were followed either in the mixture of concrete or in the placing of the steel. All parties agree that the placing of the steel reinforcement, the design of the same, and the quality of the concrete are of the greatest importance in such work.

Work was begun by defendant Everham about August 15, 1912. It will be noted that the contract provides that:

“You [meaning Cowhey] are to pay for all material and labor required in the work including one civil engineer superintendent.”

• To fill this place Everham hired a man named Johnson. Together they laid out the building, starting at the front and marking the positions of the side and center columns, which were 17 feet 2 inches from center to center. When the rear panel was reached, it was found that the lot was 6 inches over 120 feet in length, and to cover the whole lot 6 inches were added to the rear panel, which had the effect of lengthening the beams “E” and “F,” without lengthening the steel reinforcing rods. It is undisputed that this reduced the anchorage of the rods in the columns, and reduced the strength of the beams. Defendant Everham took charge of the job, built a shed for his tools, had his concrete mixer and hoisting engine brought to the job, and put up his sign. The machinery was placed and installed by Johnson.and one John Deppert, who at first worked as engineer, a part of . the time as carpenter, and who became foreman after Johnson left on November 2d. After the foundations were in defendant Everham left Johnson in active charge of the work. Everham was on the job sometimes every day, sometimes four or five times a week, to see how Johnson was getting along, and how the work progressed; he did not give orders as to the way the work was done, but relied entirely on Johnson.

After the foundations were completed, the forms for the columns and the second floor beams and floor panels were put in place. The second floor was poured in sections, the middle part of the building first, then the rear end, including that part that later fell, and last the front panels. The pouring of the front panels was finished October 15th. There being but one hoist and one mixer, the work could not have been completed in one operation. The shoring remained under the beams and panels for from ten days to two weeks, when a part was taken out, and they were reshored so that there were three shores under each of the long transverse beams, one under “C,” “D,” “E,” and.“F,” and some shores under the floor panels. All this was done under Johnson’s supervision.

After the second floor was reshored, the forms, centering and shoring for the third floor were put in place. Those for the rear two-thirds of the building were first placed, and the concrete for that part was poured first. While this work was in progress Johnson quit on November 2d. On Monday, November 4th, John Deppert took charge as foreman. Johnson had been called superintendent. Just how this change was brought about is quite vague in the evidence. Upon this change practically the entire charge of the negligence on the defendant Cowhey’s part is based, a charge which he claims finds no support in the evidence. Deppert continued the work of placing the steel for the third floor subject, to Everham’s instructions and to the directions of De Lange, manager of the Gabriel Company. In this work it is the claim of defendant Cowhey that Deppert received no instructions from him. Deppert also so testified.

When the steel was in place for all except the front 40 feet of the third floor, the operation of pouring the concrete began. On November 15, 1912, when about one more bucket of concrete was needed to finish the third floor, and the part in the rear resting on the beams “C,” “D,” “E,” and “F” had just been poured, the man in charge of the hoisting engine noticed that the shoring under “F,” near its intersection with “D,” was bending. He called Deppert, who was on the third floor. When the latter saw the condition of the shoring he called the carpenters, who at the time were at work on the second floor erecting forms and shoring for the front 40 feet of the third floor, ordered them to bring shores and wedges from the second floor and from the first floor, and went under the beam in question on the first floor to shore it up. Five carpenters and several laborers were at work trying to shore up beam “F.” While they were working with great speed to get the shores in place, a quantity of concrete, about a bushel or more, fell from the bottom of the beam, exposing the reinforcement rods. The men looked at the beam after this fall, decided it was safe to go under the beam, returned to their work, and kept on working faster than before. When they had four or five shores in place, and were raising another, the second floor gave way above them, and in its fall brought down the newly-poured concrete above it. Deceased and two or three others were caught and killed, and several others were injured.

The evidence shows that Deppert had had nothing to do with the concrete work or the shoring under the second floor; his work was confined to the third floor, and the only effect of his operations lay in the added weight of wet concrete put upon the second floor. This weight amounted to about 25,000 pounds on the floor that fell. The portion which collapsed covered an area at the northwest corner of the building of about 285 square feet. The remainder of the building stands, and is in use as originally constructed.

Plaintiff’s claim of negligence against the defendants is based upon three propositions:

(a) That the portion of the second floor which collapsed was not properly “shored” up.
(b) The concrete used in the construction of the second floor was improper.
(c) The concrete plans were improper and insufficient.

In disposing of the case, we think it necessary to treat the claims- of defendant Gabriel Company and defendant Cowhey separately, as their claims are in some instances antagonistic.

Manifestly the Gabriel Company had nothing to do with the shoring, or the mixing of the concrete, and plaintiff’s claim of negligence as against the Gabriel Company rests only on the concrete plans. There was a sharp conflict in the testimony of the experts who testified regarding the design. The plaintiff produced Mr. Yokum, and defendant Co whey Mr. Adams, and both testified that in their opinions the design of the beams which collapsed was insufficient, Mr. Yokum testifying that the weakest beam was stressed to the breaking point, and Mr. Adams that beams “E” and “F” would not have carried the dead and live load which they were supposed to carry, and in his opinion the building would be sure to fall down if constructed according to plans.

The Gabriel Company called as an expert Julius Kahn, an expert of large experience and conceded ability in his profession. Mr. Kahn made a personal examination of the portion of the building which collapsed, and figured in detail the stresses and strains-on the beams, etc. He testified that, while not in accordance with the building code, it was such a design as first-class engineers might submit, and that, in his opinion, the design had nothing to do with the collapse, saying: “I am absolutely satisfied it did not.” Such was the sharp conflict of expert opinion. Here undoubtedly was a question of fact. It is the further contention of the defendant Gabriel Company, and in this we think it is correct, that there was no evidence that the second floor was constructed according to plans and specifications. We have examined the record carefully, and it may be said that the plaintiff produced no testimony of any kind to prove that the building was actually or substantially built according to the design.

Defendant Everham was called to the stand by plaintiff, and in the course of his. examination identified the concrete plans as having been on the job in the possession of Johnson; and while it is true that he answered “Yes” to a general question to the effect that, in so far as he was able to see, the work was being done properly and according to plans and specifications, when his attention was challenged to this on cross-examination, he then stated several times that he did not know whether the building was constructed according to the concrete plans or not. He did not know the proportions in the mixture of concrete. He did not know the size of the beams, the placement of steel, or any of the details of the construction work. Everham testified that it would not be in his province to find fault with Johnson’s work, he stating- that it was a part of the second floor which collapsed, and that Johnson knew all about its construction; and he testified repeatedly that he knew nothing about it. Johnson was not called as a witness in the case. Neither defendant Cowhey, the owner, nor any of the workmen produced as witnesses testified that the building was constructed according to plans and specifications, and it is urged that naturally they would not be able to testify regarding such matters.

It is urged by said defendant that, not only is the record barren in this respect, but, on the other hand, there was most convincing evidence that the plans and specifications were deviated from in respects which were of necessity vital.

The specifications called for concrete one part of cement, two of sand and four of gravel, called in the record the “1, 2, 4 mixture.” The plaintiff produced the witness Holsenbeck, who ran the mixer, and there is no contradiction of his testimony in the record. He stated that the mixture was one part of cement to eight parts of gravel at the minimum. It was probably a much leaner mixture. The plaintiffs expert witness characterized this mixture as “ridiculous,” estimating it to be somewhere around half as strong as the specifications called for. Mr. Adams gave substantially the same opinion, while Mr. Stoddard, from the testing laboratory, said it would not be over one-quarter as strong. The gravel used contained an excess of sand, which weakened the mixture, and actual tests for compressive strength of the very concrete involved in the failure showed 474 pounds per square inch to 589 pounds, while, if properly mixed (1, 2, 4 mixture), the compressive strength would have been 2,200 to 2,400 pounds and over at the time of failure. In fact, there may be said to be a seeming unanimity in the testimony regarding the poor quality of the concrete used. The opinion of the experts, the tests made in the laboratory, as well as the evidence of the man who mixed it, show conclusively that the concrete was, in fact, only from one-quarter to one-half as strong as it should have been, if mixed in the proportions called for in the specifications.

The testimony also showed, without dispute, that the building itself was six inches longer than the plans called for; and defendant Everham, the only witness who testified on the subject, stated that the whole of the additional six inches was accounted for by lengthening the last panel, which was the one that failed. The attention of the Gabriel Company was not called to this surplus of length, and the reinforcing bars were not lengthened out to correspond. The witness said that Johnson was to attend to this, and he also stated that he'did not think this was done. It is apparent that the effect of lengthening out this panel was to decrease the amount of anchorage and materially weaken the beams.

It is also uncontradicted that steel was omitted. The witness Deppert testified, and in this he was uneontradicted, that certain pieces of steel intended for use in the second floor were found on the job after all of the second floor had been poured. He testified:

“It was in the way, and we piled it up close to the brick wall in the front part of the building.”

Mr. Kahn testified that he had made a careful examination of the beams and columns of the building after the collapse. It was poured as a monolithic mass, and by examining the perforations in the columns he could determine the number of steel rods in each beam, and also just" where the bars were placed, i e., distance from top to bottom. He testified that beam “E” called for three bars according to the plan, but only tWo bars were placed therein. In beam “F” the continuity bar was omitted. The cantilever bar was omitted in “L2.” He testified that this “materially decreased the efficiency of the beam,” and, in his opinion, was one of the causes of the failure of the building.

Steel misplaced. By the same method Mr. Kahn testified that he was enabled to determine that steel bars had been badly misplaced in beam “F”; that a steel bar, if intended to act in compression, must be placed near the top of the beam; if for tension, near the bottom; and that a deviation from its proper placement materially reduced its effectiveness. He testified that the distance from the top bar to the bottom should have been 12 inches; actually it was only 7 inches, “reducing the effectiveness of the beam at that place pretty near 50 per cent.” This testimony relates to the beam claimed to have been the first to fail, and is not contradicted on the record.

The Gabriel Company moved for a directed verdict at the close of the evidence, and the grounds covered the foregoing as well as other points. It also presented requests to charge along the same line. The trial judge overruled the motion, refused the requests, and submitted the case to the jury. In so doing the court left to the jury to determine whether the plans had been substantially followed, and charged that it was the duty of the Gabriel Company to furnish proper and sufficient plans.

It is strenuously urged by the Gabriel Company in support of appropriate assignments of error that an engineer or architect cannot be held responsible for the collapse of a building, unless his plans have been substantially followed. It is urged that there is no testimony showing that the concrete plans were actually followed, or substantially followed, in the construction of the portion of the building which actually fell; that, on the contrary, the testimony shows that the plans and specifications were deviated from in material and vital respects which might, and probably did, cause the collapse. It is urged that it is elementary in principle to say that the plaintiff must show (1) not only defective plans, but also (2) that those defective plans were put into execution, causing (S) the collapse of the structure, and that, if plaintiff supplies proof of (1) and (3), ignoring (2), he does not make a case; that plans may be defective and a building collapse, but the connecting link between cause and effect remains to be supplied; and that Johnson, the superintendent who actually constructed the second floor, knew all about it, but was not produced as a witness, and no other witnesses were called to supply this evidence.

Counsel for the Gabriel .Company called attention to Lake v. McElfatrick, 139 N. Y. 349 (34 N. E. 922). In that case damages were sought against an architect for defective plans and specifications furnished by him for the erection of a theater building. The sole defect complained of was in the plan of the proscenium arch. This was designed to rest upon what is known as stone skewbacks. Their office was to furnish a firm foundation for the arch, and distribute its thrust over a large area of 'the abutments. Instead of using stone skewbacks, brick was substituted. The trial court permitted the plaintiff to recover, and the supreme court affirmed the judgment of the trial court. The court of appeals, however, held that plaintiff’s complaint should have been dismissed upon the ground of a failure to prove that the arch was built in substantial compliance with the plans and specifications furnished by the defendants. The court said:

“The trial judge held that there was sufficient evidence to support a finding that the arch fell on account of the omission of the stone skewbacks," and he submitted that question to the jury, with the instruction that if they so found the plaintiff should not recover. But we think it was error to submit this question to the decision of the jury, When it was conceded that the plaintiff’s assignor had not followed the plans in this respect, and it appeared that the failure to put in the stone skewbacks may have caused the loss, which the plaintiff is seeking to impose upon the defendants, they were entitled to a ruling as a matter of law that the plaintiff could not recover, and the complaint should have been dismissed. * * * It is not necessary to hold that a literal performance of the condition was required. A variance, confessedly immaterial, or a departure from the plans in a separate and independent part of the building, having no structural relation to the defective member, would present a different case for our consideration. But where the variance is not disputed, and involves the integrity of the mode of construction of the affected part, and is so far material that it may have been the direct cause of the injury for which the owner seeks to hold the architect responsible, it must be held, we think, that the plaintiff has failed to establish the cause of action upon which he relies.”

To the same effect see, also, Clark v. Pope, 70 Ill. 128, 132.

It is also urged, and we think with much force, that the court erred in its charge to the jury covering the duties of the Gabriel Reinforcement Company with reference to the so-called concrete plans. Among other things, the court charged the jury as follows:

“It was the duty of the said Gabriel Reinforcement Company to use due, proper, and reasonable care and caution and prudence to furnish reasonable, safe, proper, and accurate designs, plans, drawings, and specifications, which plans, drawings, and specifications should have contained the proper, necessary, and practical knowledge, information and directions for the proper construction of the said building, and to acquaint, specify, itemize, and describe in detail the necessary and proper sizes and dimensions for the beams, panels, and columns to be used in the construction and erection of said building, so that, when said building was being constructed and maintained, the said beams, panels, and columns would hold and maintain the load and weight designed to be placed upon said beams and panels of said building in reasonable safety and security.
“It was the duty of the said defendant the Gabriel Reinforcement Company to furnish plans which would specify and direct the use of reasonably safe, secure, and proper steel bars and rods to be used in the anchorage used in the construction of said building.”

In 5 Corpus Juris, p. 269, the rule is stated as follows :

“In the preparation of plans and specifications, the architect must possess and exercise the care and skill of those ordinarily skilled in the business; if he does so, he is not liable for faults in construction resulting from defects in plans, as his undertaking does not imply or guarantee a perfect plan or a satisfactory result, it being considered enough that the architect himself is not the cause of any failure, and there is no implied promise that miscalculations may not occur.”

This court has held that the responsibility of an architect does not differ from that of a lawyer or physician. When he possesses the requisite skill and knowledge, and in the exercise thereof has used his best judgment, he has done all the law requires. The architect is not a warrantor of his plans and specifications. The result may show a mistake or defect, although he may have exercised the reasonable skill required. Chapel v. Clark, 117 Mich. 638 (76 N. W. 62, 72 Am. St. Rep. 587).

We think there was error in the charge of the court as above indicated, and it seems very clear to us that upon the condition of this record the defendant Gabriel Reinforcement Company was entitled to a directed verdict in its favor.

We are of opinion, however, that the questions, of assumption of risk and contributory negligence of the plaintiff’s decedent were questions for the jury, under proper instructions. He could not properly be charged with knowledge of the existing conditions.

What we have said of bad concrete and omission and misplacement of steel (for all of which defendant Everham was directly responsible) is as applicable to defendant Cowhey as to the other appellant, and it is unnecessary to repeat the statements. We have no doubt that, under our own holdings, the defendant Everham was an independent contractor. The rule upon that subject is well stated in Bissell v. Ford, 176 Mich. at page 73 (141 N. W. 860), and in other recent cases, among which may be mentioned Wright v. Manufacturing Co., 124 Mich. 91 (182 N. W. 829, 50 L. R. A. 495); Lenderink v. Village of Rockford, 135 Mich. 531 (98 N. W. 4); Burns v. Paint Co., 152 Mich. 613, (116 N. W. 182, 16 L. R. A. [N. S.] 816); Kilts v. Board of Sup’rs of Kent Co., 162 Mich. 646 (127 N. W. 821).

We think the charge of the court with reference to the duty of defendant Cowhey was inconsistent. The jury was correctly instructed that the Gabriel Company was an independent contractor as to defendant Cowhey, but we think that was inconsistent with the charge in which the court instructed the jury, “I charge you that it was the duty of the defendant Thomas F. Cowhey to furnish * * * proper plans and specifications”; and we think the latter charge was wrong as matter of law, and the question should not have been submitted, and, being inconsistent with the other part of the charge falls within the rule which we have frequently recognized, that the court will assume that the erroneous part of, the charge was followed by the jury.

The thirty-first assignment of error of defendant Cowhey is well taken. It is to the effect that the court erred in charging the jury as follows:

“I charge you that if you believe from the evidence in this case that said defendant, said Cowhey, let the contract for the building of the garage to different contractors, and that during the progress Cowhey reserved to himself certain control of the manner of executing the work, and assumed control of the work, or some part of it, and that by reason of said control and interference on his part the said injury ensued, whereby said plaintiff’s intestate was killed, while exercising due care on his part, then you should find said Cowhey guilty and plaintiff is entitled to a verdict against him.”

We think we speak understandingly when we say that there is no evidence to warrant submitting the question to the jury whether defendant Cowhey gave orders and assumed and exercised control over the method of doing the work. The only testimony looking in that direction was that of defendant Everham, who testified to a conversation which he claimed to have heard between defendant Cowhey and Deppert upon November 4, 1912, when he found them together on the second floor. One cannot read this record without being satisfied that defendant Everham was very unfriendly to the defendant Cowhey, but undoubtedly the question of the weight of his testimony would be for the jury; but, as we have said, the only testimony which he gave tending to. connect defendant Cowhey with Beppert was as to the claimed conversation of November 4, 1912, which related to a different part of the building, to wit, the front of the building, which never fell, and it had no connection with that part of the building which did fall. We think the court should not have submitted to the jury the question whether defendant Cowhey placed Beppert in charge of the work. We find no evidence to support the claim or to warrant the submitting of that question; and there was positive evidence to the contrary. That such portion of the charge was prejudicial to the rights of defendant Cowhey cannot be doubted in the light of this record.

Upon the whole record we are of the opinion that the judgment as to both appellants was a miscarriage of justice.

For the errors pointed out, the judgment of the court below as to both of the appealing defendants is reversed, with costs, and a new trial ordered.

Kuhn, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.