text:
    CITY OF MONROE v. POSTAL TELEGRAPH CO.
    1. Telegraphs and Telephones — Post Roads — Federal Statutes —Police Power — Municipal Corporations.
    The provisions of the Revised States of the United States, § 5263, that any telegraph company shall have the right to construct, maintain and operate lines -of telegraph over and along any of the post roads, of the United States, and that such lines shall be so constructed and maintained as not to interfere with the ordinary traffic on such -post roads, are permissive merely, and the power is given subject to other lawfully existing rights, among them that of the State and its municipalities to exercise the police power for the safety, health, and convenience of the public.
    2. Same — Police Power — Ordinances.
    An ordinance of a city requiring a telegraph company to remove its wires and place them underground within a business district is within the police powers of the municipality, where the use of telegraph poles interferes with traffic and with the effective work of the fire department.

      3. Same — Police Powers — Electric Railway — Discrimination.
    The act of a city council in requiring the removal of the wires of a telegraph company from poles and placing them underground within the business district of a city cannot be deemed discriminating where it does not appear by what right an electric road, which has been permitted to still use its trolley wire in the middle of the street, operates, and It also appears that another telegraph, company and a telephone company have put their wires underground and that the city has done so, except in a few instances where the wires have been overlooked.
    4. Municipal Corporations — Ordinances—Violation.
    It is no defense to a violator of an ordinance that others also are violating it.
    Certiorari to Monroe; Gilday, J.
    Submitted February 24., 1917.
    (Calendar No. 27,416.)
    Decided March 30, 1917.
    Mandamus by the city of Monroe against the Postal Telegraph Company to compel respondent to place certain of its telegraph wires under ground. From an order denying the writ, relator brings certiorari.
    Reversed.

      Jesse H. Root and Willis Baldwin, for relator.

      Thornton Dixon, for respondent.

       On right of’ municipality to require telegraph or telephone wires to be placed under ground, see notes in 31 L. R. A. 806; 14 L. R. A. (N. S.) 654.
      On telegraph company subject to police power of municipality, see note in 13 L. R. A. 454.

   Moore, J.

This proceeding is for mandamus to compel the Postal Telegraph Company to place its wires under ground on Monroe street within the business district of the city of Monroe. Monroe street is the most traveled street in the city. It has the electric line running from Detroit to Toledo. It also has electric lights. The poles of the Postal Telegraph Company are just inside the curb line on the edge of the sidewalk. They stand about 15 feet from the store buildings and carry three cross-arms. The poles are from 40 to 45 feet above the sidewalk. The Stoddard Telephone Company also has wires on Monroe street.

Proceedings were instituted against both the Postal Telegraph Company and the Stoddard Telephone Company to make them remove their wires or place them under ground within the restricted district. The proceedings against the Stoddard Telephone Company are now pending.

The ordinance under which these wires were ordered under ground was passed in January, 1913. In pursuance of the ordinance in question the city placed or is placing its light wires under ground. The Western Union Telegraph Company and the Michigan State Telephone Company have placed all of their wires under ground within the restricted district.

After a hearing the court dismissed the petition of relator, but did not give his reasons for doing so. The case is brought here by certiorari.

The respondent insists that the council cannot apply the ordinance to it because, there being no contract relations established by a franchise issued to the respondent to limit or prescribe the use of this highway, and such use having been specifically granted by the sovereign power of the United States in the post road act of 1866, and the respondent having, independent of such act, been in continuous and unquestioned use of its wires and poles for a period of more than 15 years, it has acquired by prescription the right to maintain and operate them within the restricted territory, and that the city of Monroe has no power to require such removal, or to in any wise interfere with the continued use of this portion of Monroe street by respondent. It is also claimed that the city itself flagrantly violates the provisions of this ordinance or permits other corporations to do so, and takes no steps whatever to compel a like action upon the part of such other corporations. It also contends that it cannot appeal to this police power while permitting, without protest or attempt of removal, the electric railway line to maintain its trolley line in this same street.

The identical questions presented in this case have1 been before the courts repeatedly. In Michigan Telephone Co. v. City of Charlotte, 98 Fed. 11, it is said:!-

“Counsel for the complainant supports its claim upon the merits of several distinct grounds:
“1. It is insisted that the action taken by the common council violates the provisions of section 5263 of the Revised Statutes of the United States [U. S.1 Comp. St. 1913, § 100723, which provides that any /telegraph company shall have the right to construct, maintain, and operate lines of telegraph over and along any of the post roads of the United States, or which may hereafter be declared such by law, and such lines of telegraph shall be so constructed and maintained as not to interfere with the ordinary travel on such post roads; and it is claimed that Main street, in the city of Charlotte, is such post road, and further, that this company is a telegraph company within the meaning of the statute, citing in support of this latter proposition City of Richmond v. Telephone Co., 85 Fed. 19 (28 C. C. A. 659), and the cases relied upon by the court in deciding that case. It is urged that this provision of law confers upon the complainant the right to occupy any street in the city of Charlotte which is a post road, without let or hindrance from the common council. But in my opinion the statute has no such effect. It is permissive, merely, and the power is given subject to other lawfully existing rights, among them, that of the State and its municipalities to exercise police powers for the safety, health, and convenience of the public. * * *
“It is further contended that the action of the common council of the city constitutes an unlawful interference with commerce between the several States. Assuming that this rule applies to telephonic communication as a means of such commerce, it is to be observed that the clause in the Constitution which gives to Congress the control of interstate commerce does not preclude the exercise of power in the States to impose regulations designed for the safety of the local public. Sherlock v. Alling, 93 U. S. 99; Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. 564; Kidd v. Pearson, 128 U. S. 1 (9 Sup. Ct. 6); Plumley v. Massachusetts, 155 U. S. 461 (15 Sup. Ct. 154); Patapsco Guano Co. v. Board of Agriculture, 171 U. S. 345 (18 Sup. Ct. 862). * * *
“Indeed, each and every of the grounds upon which the complainant relies is negatived by the application of one general proposition, which is that the city, being vested by the legislature with the power of supervision and control of its streets in the manner and to the extent in which that power is given by its charter, has the authority to make such a requirement as it made by the ordinance in question, provided it was made in good faith, and can fairly be seen to be directed to a legitimate purpose falling within the purposes of the delegated authority. As has been already said, if this action of the common council was purely arbitrary, and had no fair tendency in the direction of the public safety, the result would have been different. If power exists, and the exercise of it is not clearly in disregard of its proper bounds, the court is not authorized to determine the validity thereof by its own sense of the wisdom or expediency of the action taken, nor weigh in a nice balance the question of its justice in a general sense. 7 Am. & Eng. Enc. Law (2d Ed.), p. 676, and cases therein cited.”

In Ganz v. Telegraph Cable Co., 140 Fed. 692 (72 C. C. A. 186), it is said:

“The primary purpose of a highway being for travel and transportation, its use by a telegraph company to facilitate communication is subordinate to its use by the public for the primary purpose. Railway Co. v. Telegraph Ass’n, 48 Ohio St. 390 (27 N. E. 890 [12 L. R. A. 534, 29 Am. St. Rep. 559]) ; 1 Lewis on Eminent Domain (3d Ed.), § 187; Hudson River Telephone Co. v. Railway Co., 135 N. Y. 393 (32 N. E. 48, 17 L. R. A. 674, 31 Am. St. Rep. 838). * * *
“Let us briefly examine the points made:
“This being a post road, and the telegraph company having complied with the provisions of section 5268 of the Revised Statutes of the United States (U. S. Comp. St 1901, p. 3581 [U. S. Comp. St. 1913, § 10077]), it is insisted it has a right, under section 5263 (U. S. Comp. St. 1901, p, 3579 [U. S. Comp. St. 1913, § 10072]), to maintain its telegraph line where it is, by virtue of the authority conferred by that section. It may be noted that, while the section does grant to cerain telegraph companies the right to construct and maintain their lines, on the military or post roads of the United States, it contains, the express provision that such lines shall be so maintained as not to 'interfere with the ordinary travel' on such * * * roads.’ But, passing this, it is established by numerous decisions that the statute is permissive merely. It was not intended by its passage to interfere with the proper control and regulation of such highways by the States, counties, or municipalities, which had them in charge. Michigan Telegraph Co. v. City of Charlotte, 98 Fed. 11, 14; City of Toledo v. Telegraph Co., 107 Fed. 10, 13 (46 C. C. A. 111, 52 L. R. A. 780); Western Union Tel. Co. v. Massachusetts, 125 U. S. 530 (8 Sup. Ct. 961); City of St. Louis v. Telegraph Co., 148 U. S. 100 (13 Sup. Ct. 485); City of Richmond v. Telephone Co., 174 U. S. 761, 772 (19 Sup. Ct. 778).
“But it is contended that, apart from the Federal post road statute, the erection of the telegraph line, under authority granted by the commissioners for a consideration, vested in the appellee a right to maintain its poles, and wires where they are indefinitely, and that it cannot be deprived of this right, which is a valuable one, but by due process, of law. It is enough to say in reply to this that the county commissioners had no power to grant such a right or franchise. Their power was limited. They had a right to permit the telegraph company to maintain its poles and wires in the road, provided they should not incommode the public in its use, but that was the extent of their power; and whether the public is at any time so incommoded is a question to be determined according to the conditions existing at the time. A location not inconvenient when made may become so because of changed conditions; and whether it has or not must be ascertained by the commissioners in office when the inquiry is made. No board has power to determine for all time just how a highway shall be used. The use may be changed as the new conditions demand. Elster v. City of Springfield, 49 Ohio St. 82, 97 (30 N. E. 274) ; Daily v. State, 51 Ohio St. 348, 356 (37 N. E. 710, 24 L. R. A. 724, 46 Am. St. Rep. 578) ; Wabash R. Co. v. City of Defiance, 52 Ohio St. 262 (40 N. E. 89); Wabash R. Co. v. City of Defiance, 167 U. S. 88, 97 (17 Sup. Ct. 748); City of Zanesville v. Fannan, 53 Ohio St. 605 (42 N. E. 703, 53 Am. St. Rep. 664); Lake Shore, etc., R. Co. v. City of Elyria, 69 Ohio St. 415, 432 (69 N. E. 738); Chicago, etc., R. Co. v. Nebraska, 170 U. S. 57, 75 (18 Sup. Ct. 514); American Rapid Telegraph Co. v. Hess, 125 N. Y. 641, 646 (26 N. E. 919, 13 L. R. A. 454, 21 Am. St. Rep. 764); Chicago, etc., R. Co. v. City of Quincy, 136 Ill. 563, 571 (27 N. E. 192, 29 Am. St. Rep. 334). * * *
“It is submitted that the location of the electric railway, and not that of the telegraph line, is the cause of the trouble. It is said that the telegraph line was there before the electric railway, and there was plenty of room on the pike then for vehicles. This is but another phase of the argument that the telegraph company got a perpetual right to maintain its poles in the pike. It never did get such a right. The commissioners retained the power to regulate the use of the highway by quasi public corporations, and might have required the appellees to remove its poles to the north side of the pike when it gave the electric railway company the right to build its road along or near the south side.”

In sustaining the right of the village to exclude the setting of a line of poles on Chicago street between West and Maumee streets, this court said:

“The complainant in the case at bar urges that this one block is its main business block, and that to permit it to be incumbered with poles and wires would not only render it unsightly, but would appreciably increase the risk from fire by making it more difficult for the fire department to erect ladders and reach a conflagration. Neither of these considérations is without weight. The mere fact that the route designated by the municipality is less convenient or involves on the part of the telephone company a larger expenditure is of no consequence so long as the company is not thereby prevented from reaching all those it desires to serve or who desire service from it. The record before us fails to disclose this condition. Where a municipality, in the exercise of its inherent police power, adopts an ordinance reasonably regulating the manner, character, or place of construction of a contemplated line, the telephone company must comply with such regulations and exercise its right of entry under the general powers conferred by the State subject to them.” Village of Jonesville v. Telephone Co., 155 Mich. 86 (118 N. W. 736, 130 Am. St. Rep. 562, 16 Am. & Eng. Ann. Cas, 439).

See, also, City of Richmond v. Telegraph Co., 174 U. S. 761 (19 Sup. Ct. 778); Michigan Telephone Co. v. City of St Joseph, 121 Mich. 502 (80 N. W. 383, 47 L. R. A. 87, 80 Am. St. Rep. 520); Michigan Telephone Co. v. City of Benton Harbor, 121 Mich. 512 (80 N. W. 386, 47 L. R. A. 104); Traverse City Gas Co. v. City of Traverse City, 130 Mich. 17 (89 N. W. 574); Postal Telegraph-Cable Co. v. Ingraham, 228 Fed. 392.

In the instant case the mayor testified:

“I have seen Monroe street from the north side of First street to Front street so congested with people that these telegraph poles interfered with traffic. I have seen it a good many times north of Front street. When it was so congested, people did what was'absolutely necessary to get around the poles. * * * I have seen that condition of the street nearly every Sunday afternoon. I frequently go on the west side of Monroe street and I see it jammed there, crowded so that these poles interfere with traffic.”

There was other testimony of like character, and also that the wires, strung on the poles would interfere with the work of the fire department.

With reference to the claim that the action of the council is. descriminating, it may be said that it does not appear in the record by what right the electric road operates, and it does appear that the trolley wire is in the middle of the street. It also appears that the Western Union and the Michigan Telephone Company have buried their wires, and that the city has done so except as to two or three wires that inadvertently escaped the attention of those whose duty it was to act.

Municipalities like individuals cannot do everything at once. The ordinance does not anywhere indicate an intention to discriminate. It is no defense to a violator of an ordinance that others are also violating it. The council in passing the ordinance was acting within its police powers, and the writ of mandamus should have been issued as prayed.

The action of the court below is reversed, and the issuance of the writ is granted, with costs to the relator.

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


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    GREENMAN v. GILLERMAN’S ESTATE.
    Trial — Issue—Question for Jury.
    On the retrial of a case reversed by this court because of a directed verdict for defendant, where the case made by plaintiff was even stronger than in the former action, the court below was not in error in refusing to direct a verdict for defendant
    Error to Kent; McDonald, J.
    Submitted January 10, 1917.
    (Docket No. 16.)
    Decided March 30, 1917.
    Esther Greenman presented a claim against the estate of August Gillerman, deceased, for the support of an adopted child. From an allowance of the claim the administrator appealed to the circuit court. Judgment for claimant. Defendant brings error.
    Affirmed.

      C. C. Coburn, for appellant.

      E. A. Maher, for appellee.
   Moore, J.

This, case has been here before and is reported in 188 Mich. 74 (154 N. W. 82). In the opinion filed there is a somewhat detailed statement of facts, by consulting which it will be unnecessary to make a long statement here.

After the opinion was handed down, the case was tried before a jury. From a judgment in favor of the claimant in the amount of $312.50, the case is brought here by writ of error.

The assignments, are grouped under three heads:

(1) It is said the court erred in not directing a verdict for the defendant.
(2) It is said the court erred in his. rulings, upon the reception of evidence.
(3) It is said the court erred in his charge to the jury.

1. This is the important assignment of error. Upon the second trial the claimant presented substantially the same case which was passed upon by this court, perhaps making a stronger case than before. We are still of the opinion that the case made by the claimant made a case for the jury.

It would profit no one to discuss the other assignments of error. An examination of the record does not show reversible error.

The judgment is affirmed, with costs to the plaintiff.

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


text:
    PEOPLE v. LESTER.
    Intoxicating Liquors — Local-Option Law — Criminal Law— Keeping Place Where Intoxicating Liquors Are Sold — Construction 03? Statute.
    Act No. 107, Pub. Acts 1909, § 38 (2 How. Stat. [2d Ed.] § 5053, 2 Comp. Laws 1915, § 7116), providing that 'the having or keeping in any house or building, or in any room or place occupied by any person, except a private residence occupied as such, intoxicating liquors for the purpose of selling, giving away, or furnishing to those frequenting such place, or to others, shall be held to be the keeping of a place where intoxicating liquors are sold, furnished or given away, and section 1 (2 How. Stat. [2d Ed.] § 5017, 2 Comp. Laws 1915, § 7080), providing that it shall be unlawful for any person to manufacture, sell, keep for sale, give away or furnish any intoxicating liquor or keep a saloon or any other place where any such liquors are manufactured, sold, stored for sale, given away or furnished, must be read together, and as such, construed that if the offense of keeping a place where intoxicating liquors are stored, given away and furnished is shown to have been in a private residence, something more must be shown than simply the keeping or having any of the liquors mentioned in section 1.
    Exceptions before sentence from Hillsdale; Chester, J.
    Submitted January 10, 1917.
    (Docket No. 160.)
    Decided March 30, 1917.
    Lewis Lester was convicted of keeping a place where 'intoxicating liquors were furnished in a county that had adopted prohibition.
    Affirmed.

      Frank M. Hall, Prosecuting Attorney, for the people.

      Wilbur D. Grommon, for respondent.
   Moore, J.

This case is here upon exceptions before sentence. The defendant was convicted of keeping a place where intoxicating liquors were stored, given away, and furnished. The cross-examination of the defendant is illuminating; we quote it in part:

“Q. Is that John Neidigh a particular friend of yours?
“A. He is a friend of mine.
“Q. Now that night that John came down there what did- he say when he came in there?
“A. Well, he said something about getting a drink and something about selling him a drink.
“Q. He went down there to ask you for whisky?
“A. Yes.
“Q. And you gave him two smiles, didn’t you?
“A. Well, I can’t say whether he took one or two. I think he helped himself. I told him he could have a drink. I don’t remember whether I got it and set it on the table for him. He hadn’t been there a great while. I said he could have a drink, but he couldn’t buy one. * * *
“Q. John Gibson was there the same day, wasn’t he?
“A. Yes, sir.
“Q. Did you give him some liquor?
“A. Yes.
“Q. How many drinks did John have?
“A. I don’t know whether he took more than two or not. I don’t think he did.
“Q. John wasn’t intoxicated was he?
“A. Well, John had been drinking a little.
“Q. And you noticed it, didn’t you?
“A. Well, no; not until he had been there some little time. I didn’t notice it much until he went away.-
“Q. Now, on the 14th of December you had four quarts of whisky come there to Prattville, didn’t you?
“A. I don’t remember what time it was.
“Q. Well if the records so show, it would be true, wouldn’t it?
“A. Well, yes; I have no reason to doubt that.
“Q. Since that time and before you were arrested you ordered four quarts more, didn’t you?
“A. Yes.
“Q. Does it take two gallons of whisky to run you a month?
“A. I don’t think a man is much of a drinker if he can’t drink a quart in 24 hours. I don’t drink that much on an average.
“Q. Also, Mr. Dodson got some whisky at your house, didn’t he?
“A. He did.
“Q. And John Gibson got some?
"A. Yes, sir.
“Q. And John Neidigh?
“A. Yes, sir.
“Q. And Mr. Gaskill? And Yern Dayton?
“A. Yes, sir.
“Q. And Gus Burnham?
“A. Yes.
“Q. Did John Gibson ever ask you for any whisky?
“A. No, he might have said, ‘Have you got anything around anywhere?’ speaking in that way, and I would say, ‘Yes,’ if I knew where it was.
“Q. And you knew by that that he meant whether you had anything to drink or not?
“A. Yes. He asked for it maybe once or twice.
“Q. When Neidigh came there, the only time he was there, he just simply asked for whisky, didn’t he?
“A. Yes.
“Q. Clarence Burnham got several drinks there, didn’t he?
“A. Yes, sir. He has been there maybe a half dozen times. All Gaskill had was one bottle of beer, all Dayton had was one bottle of beer, and all Gus Burn-ham had was a glass of beer, I think.
“Q. Do you remember the time when Mr. Fisk came down there?
“A. Yes, sir. He drank out of his bottle, and I drank out of mine. *
“Q. And you had a little row there?
“A. Oh, not much of a row, just a little chewing match, but nothing that amounted to much. He talked back after he got on the steps, and I told him he better go on and not stop and chew the rag there; didn’t want no loud talking; it didn’t look well.
“Q. You were running a quiet place there?
“A. Why I tried to; yes, sir.
“Q. You wanted your place kept quiet?
“A. Yes, sir.”

The contention of counsel for defendant is well stated as follows:

“I want to object to any testimony in this case under the information filed herein for the reason that it sets forth no offense known to the laws of the State. In addition to the general objection, I desire more specifically to object for the reason that the information charges defendant with having kept a place where intoxicating liquors were stored, given away, and furnished, and describes said place as a certain building, namely, his residence situate on Railroad street in the village of Prattville, whereas Act No. 107 of the Public Acts of 1909, an amendatory act to Act No. 207 of the Public Acts of 1889, defining what constitutes keeping a place, expressly exempts a private residence. The section that I refer to is section 38 of the act, and is as follows (2 Comp. Laws 1915, § 7116):
‘“The keeping or having in any house or building, or in any room or place occupied by any person, corporation, club, association or society, except a private residence occupied as such, of any of the liquors mentioned in section one of this act for the purpose of selling, giving away or furnishing to those frequenting said place, or to others, shall be held to be the keeping of a‘place where intoxicating liquors are sold, furnished or given away.’
“Under this section, as I understand the law, the legislature has expressly exempted from this particular offense a private residence. A man might be guilty of selling, he might be guilty of furnishing or giving away from a private residence, but he could not be guilty of keeping a place. I think the legislature intended by this act to put that question out of cases where the place was a private residence. A man may be guilty of some other violation of the law there, but it is my contention that under this section he could ,not be guilty of keeping a place in a private residence.”

Section 38, quoted above, should be read in connection with section 1, Act No. 107, Pub. Acts 1909 (2-Comp. Laws 1915, § 7080), which reads:

“It shall be unlawful for any person, directly or indirectly, himself, or by his clerk, agent or employee, to manufacture, sell, keep for sale, give away or furnish any vinous, malt, brewed, fermented, spirituous, or intoxicating liquors, or any mixed liquor or beverages any part of which is intoxicating, or keep a saloon or any other place where any such liquors are manufactured, sold, stored for sale, given away or furnished, in any county of this State. * * *”

We think counsel is wrong in his contention that section 38 makes it impossible to commit the offense charged in a private residence. The two sections should be read together, and when so read we think a proper construction is that, if the offense is shown to have been in a private residence, something more must be shown than simply the keeping or having any of the liquors mentioned in section 1. The trial court did not err in submitting the question to the jury. See People v. Lewis, 166 Mich. 516 (132 N. W. 82).

Complaint is made of the argument of the prosecuting attorney. We do not think it exceeded the latitude permitted to counsel in commenting upon the testimony, and in answering the argument of opposing counsel.

The conviction is affirmed, and the case is remanded to the trial court, with direction to proceed to sentence the defendant.

Kuhn, C. J., and Stone, Ostrander, Bird, Steere, and Brooke, JJ., concurred. Fellows, J., did not sit*


text:
    DAICH v. STUDEBAKER CORPORATION.
    Master and Servant — Review of Finding of Industrial Accident Board.
    Where there is any competent evidence to support a finding of the industrial accident board, based on conflicting evidence, the Supreme Court will not undertake to weigh the evidence or disturb the finding.
    Certiorari to Industrial Accident Board.
    Submitted January 12, 1917.
    (Docket No. 125.)
    Decided March 30, 1917.
    Joseph Daich presented his claim for compensation against the Studebaker Corporation for injuries received in respondent’s employ: On petition by said respondent to be relieved from paying further compensation under an agreement entered into between the parties. From an order denying the petition, respondent brings certiorari.
    Affirmed.

      Roy C. Gamble and Frederick J. Ward, for appellant.

      Ira J. PeUiford, for appellee.
   Moore, J.

In March, 1915, claimant was in the employ of defendant corporation. It is his claim that while at work dust or filings got into his eye, which gave him serious trouble. July, 1915, an agreement was entered into, the material parts of which read:

“Workmen’s Compensation Law.
“(Act 10 of Public Acts, Extra Session 1912.)
“Industrial Accident Board,
“Lansing, Mich.
“Agreement in Regard to Compensation.
“We, Joe Daich (name of injured employee), residing at city or town of Detroit, Michigan, and the Studebaker Corporation (name of employer, insurance company, or commissioner of insurance), have reached an agreement in regard to compensation for the injury sustained by said employee while in the employ of the Studebaker Corporation. * * * Injured was working as usual at his ordinary work when he felt his eyes begin to burn, about a week before he reported to the doctor. At first he thought nothing of it, but the eyes gradually grew worse. * * * Injured having received $12.50 per week, it is hereby agreed that he is to receive $6.25 per week during disability.
“Witness:
“Joe Daich. (Name of Injured Employee.)
“The Studebaker Corporation. (Name of employer,
“Insurance Co., or Insurance Commissioner.)
“By J. E. Spencer, Assistant to the Vice President.
“Dated at Detroit, Michigan, this second day of July, ■ 1915.”
This agreement, accompanied by the following letter, was filed with the industrial accident board:
“July 2d, 1915.
“The Industrial Accident Board,
“Lansing, Mich.
“Gentlemen: We are inclosing herewith Agreement in Regard to Compensation, made with Joe Daich. We do not, however, feel that we are legally under obligation to Mr. Daich, neither does he think we are liable to him, but he is in very hard circumstances at present and we are doing this in order to help him out.
“We make this statement to protect us, should anything further develop from the case.
“Yours truly,
“The Studebaker Corporation,
“By Roy C. Gamble, Compensation Department.”

The record does not show that claimant had any knowledge of this letter. On the 30th of July the industrial accident board entered an order approving of the agreement. After paying claimant $12.50 the Studebaker Corporation discontinued its payments, and petitioned the board that it might be relieved of further payments for the following, among other, reasons:

“First. That on July 2, 1915, an Agreement in Regard to Compensation was made between the above parties, which agreement was made solely for the purpose of furnishing applicant financial assistance at the time, and not for the reason that he was entitled to compensation under the workmen’s compensation law, and a letter was sent to the industrial accident board simultaneously with sending of agreement, stating that respondent did not feel obligated to applicant under the terms of the law.
“Second. The applicant is not suffering as a result of an injury arising out of and in the course of his employment.
“Third. The applicant is now suffering from a constitutional disease of long standing.”

Depositions of witnesses were taken and filed and a hearing had by the board. Among other things the board found:

“(1) The board finds that the agreement in regard to compensation, madé and signed by the parties on the 2d day of July, 1915, and approved by the board on July 24, 1915, constituted a valid and binding contract, obligating respondent to continue to make payments at the rate specified during the period of disability, and that the question as to whether the respondent could be held liable in the absence of such a contract was not open on the hearing on said petition.
“(2) It is not seriously disputed but what applicant’s disability continued up to the time of the hearing on the petition, and the board found as a matter of fact that it so continued.
“ (8) The board also found as a matter of fact that the condition of applicant’s eyes is the result of an accidental injury received while in the employ of the respondent, and that applicant’s present disability is the result of such injury, which either created the present condition or made active a latent disease or condition of the eyes which would have caused no appreciable harm in the absence of the aforesaid injury.”

It is'sought' to review this~action by certiorari.

Many claims are made and argued by counsel for the Studebaker Corporation which we think, under the evidence and the findings of the industrial accident board, are not now debatable.

Claimant testified as to the condition of his eyes prior to the time of the alleged accident and to the occurrence .which he claimed caused the trouble:

“Q. Now'just describe what happened.
“A. Well, I was putting on the lamp brackets, the fellow back of me filing motor hood, or, that goes over the motor, but just because some of them do not fit lots of them does, and some of them do not, and he was filing them off, and while I was sitting down he lifted this motor hood over the top of me like he done the other time. * * * I was sitting at the front part of the auto — well, it was not fixed up altogether, and I was putting this lamp bracket on, and this fellow, was filing in back of me, and I was fastening it on,’fastening this lamp bracket on, and he was filing off in back of me, this motor hood.
“Q. Yes.
“A. And while I was sitting down this fellow, I guess he was done with it, for he lifted it over the top of my head, while I was sitting down putting this lamp bracket on, and while he was putting it over the top of my head, I looked up at him, you know, kind of put my head out of the road, and these particles of this motor hood fell down in my eyes, I could not say whether it was enamel or whether it was grindings of that motor hood, whatever it was, I don’t know, I could not say; but I know it fell off of that while I looked up at him.”

He testified that at once his eyes began to smart, and that in a few minutes thereafter he went to the corporation’s doctor for treatment, and testified to subsequent events. Considerable of his testimony was not in harmony with that offered on the part of the corporation. Justice Brooke, speaking for the court, said:

“In two recent cases we have determined that where there is any competent evidence to support the finding of the board, this court will not undertake to weigh the evidence or disturb that finding. * * * While, this court might reach a different conclusion as to the cause of the death of claimant’s decedent than that reached by the board, we do not think it can be said that there is no evidence in the record justifying that conclusion.” Lindsteadt v. Salt & Lumber Co., 190 Mich. 451 (157 N. W. 64).

There is abundance of competent evidence to support the findings of the industrial accident board.

See, also, section 12, pt. 3, Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5466); Bayne v. Storage & Cartage Co., 181 Mich. 278 (148 N. W. 412); Redfield v. Insurance Co., 183 Mich. 633 (150 N. W. 362); Beckwith v. Spooner, 183 Mich. 323 (149 N. W. 971, Am. & Eng. Ann. Cas. 1916E, 886); Ramlow v. Ice Co., 192 Mich. 505 (158 N. W. 1027, L. R. A. 1916F, 955); La Veck v. Parke, Davis Co., 190 Mich. 604 (157 N. W. 72, L. R. A. 1916D, 1277).

As there was an issue of fact presented which was. decided after hearing conflicting testimony by the industrial accident board in favor of the claimant, we must decline to interfere.

Judgment is affirmed, with costs to claimant.

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


text:
    HOFFMAN v. WILKIE-RENCHARD-GARDINER CO.
    Contracts — Bilis and Notes — Agreement to Pay — Evidence.
    In an action on notes against the successor of the corporation maker, evidence held, sufficient to sustain the finding that the defendant corporation ■ did not agree to pay the notes.
    Error to Wayne; Chester, J., presiding.
    Submitted January 9, 1917.
    (Docket No. 46.)
    Decided March 30, 1917.
    Assumpsit in justice’s court by William J. Hoffman against the Wilkie-Renchard-Gardiner Company upon two promissory notes. From a judgment for plaintiff, defendant appealed to the circuit court, where the case was heard before the court without a jury. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Campbell & Dewey, for appellant.

      Fritz L. Radford, for appellee.
   Moore, J.

The plaintiff commenced in justice’s court two actions upon two notes. The plaintiff declared in each action upon the common counts and “specially upon a note” of C. V. Wilkie & Son assumed by defendant, which note is payable to plaintiff. The defendant pleaded the general issue. From a judgment in justice’s court the case was appealed to the circuit court.

Prior to these appeals coming on for trial in the circuit court, the defendant corporation gave special notice puis darrein continuance of its discharge in bankruptcy as an additional defense under the general issue already pleaded in the justice's court. The two appeals were consolidated and tried together before the judge without a jury.

The defendant corporation succeeded Wilkie & Son and the Renchard Shirt & Neckwear Company, and it is claimed by the plaintiff that the defendant corporation agreed to pay the notes in question. This is denied by the defendant.

The following appears in the record:

“Mr. Campbell: In order to avail myself of the right to file my writ of error, I must request a finding of the facts and law. It doesn’t appear your honor has quite covered the ground, especially on the question of the promise made by Mr. Renchard and Mr. Wilkie to Mr. Hoffman. If your honor finds there was no such promise, I would like to have that included. * * ’ *
“Do you make a finding of promise subsequent to the writing of those minutes, or was it not made by Renchard and Wilkie to Hoffman. I think my case stands or falls on that finding of fact.
“The Court: You claim Mr. Hoffman testified to it?
“Mr. Campbell: Mr. Wilkie claims he was there, and remembers Mr. Hoffman coming in — he can’t remember the words — and also he testified the corporation would assume the obligation. Mr. Hoffman testified to it positively, and, as I said in my argument this morning, it was the natural thing to do, the thing he would reasonably and certainly have done, and I ask for an express finding on that fact.
“The Court: Well, I think the court will go this far: The burden is upon the plaintiff to establish the claim.
“Mr. Campbell: Was that promise made or not made?
“The Court: Under those circumstances, the one claiming it was and another it wasn’t, both standing equal before me, the burden being on him, the court will have to find it wasn’t established. The proof doesn’t establish that the promise was made.”

Mr. Hoffman testified in relation to this question:

“I am the plaintiff in these two cases. I loaned the sum of $500 to C. V. Wilkie & Son and received the notes marked Exhibits C and D for this loan. Shortly afterwards I had a talk with Mr. C. Y. Wilkie, who told me that the Wilkie-Renchard-Gardiner Company was a new corporation, who it was, and how the notes would be taken care of. Of course, I stated to him, ‘If that is so, I will let it go through that way.’ Subsequently I called at the store where the Wilkie-Renchard-Gardiner Company was conducting its business. I saw there Mr. Renchard and Mr. Wilkie. Mr. Wilkie said to Mr. Renchard, ‘This is Mr. Hoffman whom we owe $500 to.’ I never met Mr. Renchard, so I came over to see if I couldn’t get some money as I could use it and Mr. Renchard says, ‘We can’t spare it this month, Mr. Hoffman; maybe we can fix you out next month.’ I said, ‘Well, I can use the money; I am looking to you now for this, and I need some money’; and he says, ‘We will try and fix you out, I think.’ I was waiting to hear from them, and nothing came forth. This was some time in the year 1914.”

Mr. Renchard testified in relation to this conversation in part as follows:

“I remember a conversation between Mr. Wilkie and Mr. Hoffman and myself in the front room, and I sat on the table just as Mr. Hoffman said, but there was absolutely nothing said about the notes at the time.. I never told Mr. Hoffman that the corporation assumed those notes. I never told Mr. Campbell that the corporation would assume those notes. * * *
“Q. State whether the corporation has. ever, so far as you know, recognized Mr. Hoffman’s claim on those notes.
“A. Absolutely not.”

It will be observed that counsel recognized upon the trial that as to this feature of the litigation his case must stand or fall upon the fact of whether the promise was made. It is also clear that the testimony was in sharp conflict. The trial judge was passing upon the question of fact. He had the great advantage of seeing-the witnesses. The record justifies, the finding of fact. See Wilson v. Sauble, 181 Mich. 406 (148 N. W. 165); In re Hoffman’s Estate, 188 Mich. 67, 69 (148 N. W. 268, 152 N. W. 952); Knowlson v. Friar, 184 Mich. 464, 468 (151 N. W. 555); Cummins & Beecher’s Judicature Act, 709, 710; Revised Circuit Court Rule No. 45, § 4, and notes thereto in Cummins & Beecher’s Michigan Rule Book.

Many questions are raised by counsel, but the finding that no promise to pay was made makes it unnecessary to discuss them.

Judgment is affirmed, with costs to defendant.

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


author: Brooke, J.

text:
    BENDYKSON v. LYONS EVANGELISTIC COMMITTEE.
    Master and Servant — Workmen’s Compensation Act — Applicability op Act.
    It is not competent for the industrial accident hoard to make an award where the injury to a claimant for compensation occurs before the employer has elected to come under the workmen’s compensation act (Act No. 10, Extra Session 1912, 2 Comp. Laws 1915, § 5423 et seg.).

    Certiorari to Industrial Accident Board.
    Submitted January 16 1917.
    (Docket No. 144.)
    Decided March 30, 1917.
    Ole J. Bendykson presented his claim for compensation against the Lyons Evangelistic Committee for injuries received while in defendant’s employ. From an order awarding compensation, defendant and the American Indemnity Company bring certiorari.
    Reversed,

      Fred L. Vanderveer (Orville II. Foster, of counsel), for appellants.
   Brooke, J.

On September 7, 1915, respondent, Lyons Evangelistic Committee, filed with the industrial accident board a written acceptance of the provisions of the so-called employers-’ liability act (2 Comp. Laws 1915, § 5423 et seq.). This acceptance was approved by the board on September 29, 1915. The claimant, in the course of his employment', while working for said respondent, the Lyons Evangelistic Committee, was injured on the 1st day of September, 1915. He made a claim for compensation under the act, and was awarded compensation by an arbitration •committee, which award was afterwards affirmed by the board on appeal.

The injury to claimant having occurred before his employer had elected to come under the act, it was not competent for the board to make an award. Bernard v. Traction Co., 188 Mich. 504 (154 N. W. 565); Shevchenko v. Railway, 189 Mich. 421 (155 N. W. 423).

The order of the board granting compensation is vacated and set aside.

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


text:
    LARSON v. COLLINS.
    1. False Imprisonment — Commitment—Sufficiency—Recital of Offense.
    A commitment in a criminal case reciting that a certain person was convicted of having, on a specified date, at a specified city and county, then and there acted in a disorderly manner on one of the public streets of said city, ■ contrary to the form of an ordinance of the city, entitled “An ordinance relating to disorderly persons,” and against the peace and dignity of the people of the State, does not recite a conviction of any offense known to law, and is therefore void upon its face.
    2. Same — Liability of Officer — Void Commitment.
    A commitment in a criminal case which is void upon its face does not afford protection to the officer executing it* and he consequently may he liable for damages for false imprisonment.
    3. Same — Question of Law.
    In an action for damages for false imprisonment against an officer, where the facts are undisputed, the question of probable cause is a question of law for the court.
    Error to Muskegon; Sullivan, J.
    Submitted January 10, 1917.
    (Docket No. 94.)
    Decided March 30, 1917.
    Case by Matilda Larson against Fred J. Collins, sheriff of the county of Muskegon, for false imprisonment. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Harris E. Galpin, for appellant.

      B. B. Gale, for appellee.
    This is an action for false imprisonment. Plaintiff was arrested and tried before one Elmer E. Rosenberry, a justice o.f the peace and police justice of the city of Muskegon. The complaint which charged the plaintiff with the commission of an offense does not appear in the record. She was convicted, however, and the following commitment was thereupon made out by the justice:
    “State of Michigan, ( . “County of Muskegon, [ss,:
    “To the Sheriff, or Any Constable of said County, and
    to the Keeper of the Common Jail of said County,
    Greeting:
    “Whereas at a court held this.day at the 1st of October in said county, before me, Elmer E. Rosenberry, a justice of the peace and police justice, of the city of Muskegon, in and for said county of Muskegon, one Lillie Larson was by me, after a full hearing in his presence, under a proper complaint in writing, and upon oath of Thomas Gerrity, duly convicted of having on the 30th day of September, A. D. 1915, at the city of Muskegon and in the said county aforesaid, did then and there act in a disorderly manner on one of the public streets of the city of Muskegon contrary to the form of an ordinance of said city entitled ‘An ordinance relating to disorderly persons’ (section 3), January 25, 1878, and against the peace and dignity of the people of the State of Michigan. And whereas, upon such conviction, I, the said justice of the peace and police justice, did adjudge that the said Lillie Larson should pay a fine of $20.00 (twenty dollars),' within one hour and that in default of payment of said fine within said time then she should be and remain imprisoned in the common jail of said county until said fine shall be paid but not to exceed the period of forty days from and including this date, and that said fine has not been paid.
    “Therefore, you, the said sheriff or constable, are hereby commanded, in the name of the people of the State of Michigan, forthwith to convey and deliver the said Lillie Larson into the custody of the keeper of the common jail of said county; and you, the keeper of said jail, are hereby required in the name of the said people, to receive the said Lillie Larson into your custody, in the said jail, and her there safely keep until the expiration of her said sentence as above recited, or until she shall be discharged by due course of law.
    “Given under my hand and seal at the city of Muskegon, in said county of Muskegon, this 1st day of October, A. D. 1915.
    . _ “Elmer E. Rosenberry,
    _ “Justice of the Peace and Police Justice.”
    There is no question that this commitment was made out and signed by the justice at the time of the conviction. It did not, however, get into the hands of the defendant, the sheriff, until about 18 days later. After said plaintiff had been incarcerated by the defendant sheriff for a period of 18 days, she was released upon a writ of habeas corpus, whereupon she instituted the present action against the sheriff for false imprisonment. No point was made in the court below based upon the fact that the sheriff had imprisoned the plaintiff without any commitment; but the commitment itself, set out above, was attacked as void on its face and therefore insufficient to protect the sheriff. Nd fraud or bad faith on the part of the sheriff was charged or proven at the trial. There being no dis-1 puted question of fact, each party moved for a directed verdict. The learned circuit judge before whom the case was tried concluded that the commitment was absolutely void upon its face and directed the jury to return a verdict against the defendant, leaving to the jury simply the question of the amount of damages. A verdict was returned in favor of the plaintiff in the sum of $65, upon which verdict judgment was duly entered.
    There are several assignments of error, but all will be disposed of by a determination of the single question: Was the commitment sufficient upon its face to protect the sheriff in the execution of the sentence therein set forth? The statute defining the procedure of justice’s courts in criminal cases (1 Comp. Laws, § 1038; 3 Comp. Laws 1915, § 15788) provides:

      “The judgment of every such court shall be executed by the sheriff or any constable of the county where the conviction shall be had, by virtue of a warrant under the hand of the justice who held the court, to be directed to such officers, and specifying the particulars of such judgment.”
   Brooke, J.

(after stating the facts). On behalf of the appellant, it is contended that the commitment was fair upon its face and a sufficient protection for the sheriff. It is said that the commitment was held invalid by the trial court, not because the particulars of the judgment were not set forth, but because the offense was not set forth with that degree of particularity which might be required in the complaint; and it is urged that the law does not require the commitment to set forth the offense with as much particularity as might be required in the case of an indictment or an information. Counsel cites 12 Am. & Eng. Enc. Law (2d Ed.), pp. 765-767, where it is held generally that when an executive officer is directed by a warrant, valid upon its face, he is not bound to look behind the face of the writ placed in his hands to be executed, nor to take notice of extrinsic facts; but he will not be permitted to question the validity of a writ neither void nor voidable upon its face, and this even though the magistrate issuing the warrant committed an error of judgment in so doing, or even though the writ has been illegally or fraudulently issued. The case of Wheaton v. Whittemore, 49 Mich. 348 (13 N. W. 769), is also cited. This court there said:

“The officer is not bound to look behind a regular warrant coming from a proper jurisdiction. In many cases it must be exceedingly difficult for the officer or his advisers to determine whether a warrant is or is not defective upon its face, and in view of the peculiar position in which the officer is placed, in all such cases he cannot be held liable in a civil action for damages, for making the arrést.
“Where a criminal warrant is issued by a magistrate in a case where he has no authority to issue process of that nature, ordinarily no question could arise; but, where jurisdiction is given him over the subject-matter, his warrant ‘reciting the substance of the accusation’ will not always show upon its face whether the magistrate did or did not have the necessary jurisdictional facts, before him. And the officer is not required for his protection to inquire into the facts back of his warrant.”

It should be noted that in the authorities cited on behalf of the appellant the officer is held to be protected only by a warrant fair upon its face. It is asserted by counsel for appellee, and with that contention the learned circuit judge agreed, that the commitment set out a conviction for no offense known to the law. The paper recites that the plaintiff was—

“duly convicted of having on the 30th day of September, A. D. 1915, at the city of Muskegon and in the said county aforesaid, did then and there act in a disorderly manner on one of the public streets of the city of Muskegon contrary to the form of an ordinance of said city entitled, ‘An ordinance relating to disorderly persons.’ (section 3), January 25, 1878, and against the peace and dignity of the people of the State of Michigan.”

While we agree with counsel for appellant that actions of this character against officers of the law should not be encouraged, we are yet constrained to hold that the commitment recited a conviction of no offense known to the law, and was therefore void upon its face and insufficient to afford protection to the officer who executed it. The following cases, while not identical with the one at bar, sustain this conclusion upon principle: Le Roe v. Roeser, 8 Mich. 537; In the Matter of Leddy, 11 Mich. 197: Rogers v. Jones, 3 Barn. & Cress. 409.

Where the facts are undisputed, the question of probable cause is a question of law for the court. That being the situation in the case at bar, a verdict was properly directed. White v. McQueen, 96 Mich. 249 (55 N. W. 843).

The judgment is affirmed.

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


text:
    PACKER v. OLDS MOTOR WORKS.
    Master and Servant — Workmen’s Compensation Act — Specific Compensation — Disability.
    Section 10, pt. 2, of the -workmen’s compensation act (Act No. 10, Extra Session 1912, 2 Comp. Laws 1915, § 5440), specifying the cases in which disability shall be deemed to continue for the period specified, and specifying the compensation to be paid, although providing for the loss of a thumb or the first phalange of the thumb, does not provide for the loss of a part of a phalange of a thumb, and an award of the industrial accident board in the latter case should be limited to the period of actual disability, under section 11, pt. 2, of the act.

    Certiorari to Industrial Accident Board.
    Submitted January 10 1917.
    (Docket No. 77.)
    Decided March 30, 1917.
    Roy Packer presented his claim for compensation against the Olds Motor Works for an injury received while in defendant’s employ. From an order granting compensation, defendant and the New England Equitable Insurance Company, insurer, bring certiorari.
    Reversed.
    C. W. & W. S. Foster, for appellants.
    On December 7, 1915, claimant was injured in the course of his employment. Said injury was caused by claimant’s left thumb being caught in a punch press, necessitating the amputation of about one-half of the distal phalange of said thumb; there remaining a stump of the nail on the upper side of said thumb and a good cushion on the under side.
    On January 10, 1916, an agreement as to compensation was executed by the interested parties and filed with the accident board, which agreement provided for: “Compensation at the rate of $8.94 per week during disability.” Payments were made in accordance with said agreement up to and including February 1, 1916. On March 29, 1916, claimant filed a notice and application for adjustment of said claim, and on April 24, 1916, an arbitration of said claim was. had before an arbitration committee, which resulted in the entry of an order denying the applicant further compensation. Thereafter applicant filed an application for review of his claim before the full board, which review was had on June 21, 1916. On that hearing testimony of a physician was taken showing the condition of claimant’s thumb to be as above stated. Testimony of the claimant was taken, in the course of which he testified to a period of disability because of the accident covering a period of 18 weeks.
    On July 18, 1916, the board reversed the award of the arbitration committee and ordered compensation for 30 weeks at the rate of $8.94 per week. This order was based upon the following finding of the board:

      “That at said hearing, to further sustain his claim, the applicant exhibited the injured thumb to the board, and the board made a careful examination of the injured member, and from such examination and investigation the board was satisfied and found as a fact that the injury was of such a character that the applicant had lost the entire use of the first phalange of the injured thumb because of said accident.”

      On construction and effect of workmen’s compensation acts generally, see comprehensive note in L. R. A. 1916A, 23, particularly as to total or partial loss of member, see pages 257, 258 of above note.

   Brooke, J.

(after stating the facts). Section 10, pt. 2, of the compensation law (2 Comp. Laws 1915, § 5440), prescribes the disability presumed from a list of specified injuries, in part as follows:

“In cases included by the following schedule the disability in each such case shall be deemed to continue for the period specified, and the compensation so paid for such injury shall be as specified therein, to wit: For the loss of a thumb, fifty per centum of the average weekly wages during sixty weeks; * * * the loss of the first phalange of the thumb, or of any finger, shall be considered to be equal to the loss of one-half of such thumb, or finger, and compensation shall be one-half the amounts above specified.”

The statute nowhere provides for the loss of a part of a phalange in its list of specified injuries and presumed disability arising therefrom. Except as to enumerated specific injuries, the compensation is to be proportionate to the extent of the impairment of the “earning capacity in the employment in which he was working at the time of the accident.” Section 11, pt. 2, compensation law (2 Comp. Laws 1915, § 5441). It is obvious that the award by the board of compensation for 30 weeks, which is that allowed by the statute for the loss of an entire phalange, was based upon its determination that claimant had lost the entire use of said phalange. Under our decisions, this award is clearly erroneous. Limron v. Blair, 181 Mich. 76 (147 N. W. 546); Hirschkorn v. Desk Co., 184 Mich. 239 (150 N. W. 851); Cline v. Studebaker Corporation,. 189 Mich. 514 (155 N. W. 519, L. R. A. 1916C, 1139); Carpenter v. Forging Co., 191 Mich. 45 (157 N. W. 374), the latter case being directly in point.

The award of the board should have been limited to the period of disability, which, under the testimony of the claimant, was 18 weeks.

The order is reversed, and the case remanded for further proceedings.

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


text:
    THEISEN v. PITTMANS & DEAN CO.
    Nuisance — Permanent Nuisance — Horse Barn.
    The erection, and maintenance of a barn in -which are stabled a large number of horses on premises adjacent to those used for residence purposes does not constitute a permanent nuisance authorizing recovery for depreciation in value of the residence property.

    Error'to Wayne; Van Zile, J.
    Submitted January 17, 1917.
    (Docket No. 83.)
    Decided March 30, 1917.
    Case by Joseph P. Theisen against Pittmans & Dean Company for damages caused by the maintenance of a horse barn on premises adjoining plaintiff’s property. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Eugene P. Berry and George W. Lehman, for appellant;

      Miller, Smith, Canfield, Paddock & Perry, for appellee.

      ’Authorities discussing the question as to whether a stable for horses is a nuisance are collated in notes in 17 L. R. A. (N. S.) 1025;.. 49 L. R. A. (N. S.) 958.

   Brooke, J.

This is an action of trespass on the case in which plaintiff, who was the owner of a house and lot on Baltimore avenue, between Second and Third streets in the city of Detroit, seeks to recover damages from the defendant growing out of the fact that defendant has erected and maintained, on lots immediately adjoining and west of the property owned by plaintiff, a horse barn in which defendant is charged with having stabled upwards of 50 horses. The record discloses that plaintiff bought the property in 1908 for about $5,000 and sold it in 1910 for about $3,350. During the period of his ownership, plaintiff brought two actions against the defendant for damages to the rental or usable value of his property and recovered verdicts.

The case at bar was instituted for the purpose of recovering the. difference between the market value of the property at the time it was purchased by the plaintiff and the market value at the time he sold it upon the theory that the erection and maintenance of the structure in question constituted a permanent nuisance. The court at the close of the plaintiff’s casé directed a verdict in favor of the defendant upon the ground that under the facts of the case the nuisance complained of was not permanent, and therefore that depreciation in the property itself could not be recovered, and, as plaintiff did not claim anything in this action on account of the depreciation of the usable or rental value, he could not recover,

The sole question presented by appellant’s four assignments of error is whether the trial court was in error in directing a verdict for defendant upon the ground that the erection and maintenance of a barn on the premises adjacent to those of the plaintiff did pot, under the authorities, constitute a permanent nuisance.

Under the decisions of our own court, we are of opinion that the action of the learned trial judge was proper. Grand Rapids, etc., R. Co. v. Heisel, 38 Mich. 62 (31 Am. Rep. 306); Id., 47 Mich. 393 (11 N. W. 212) ; Hoffman v. Railroad Co., 114 Mich. 316 (72 N. W. 167); Phelps v. City of Detroit, 120 Mich. 447 (79 N. W. 640) ; Addison Flouring Mill Co. v. Railway Co., 160 Mich. 330 (125 N. W. 347).

Judgment is affirmed.

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


text:
    NEGAUNEE NATIONAL BANK v. LE BEAU.
    1. Gifts — Inter "Vivos — Money in Bank. — Joint Deposit.
    Where a father deposited money in a bank and a certificate was • indorsed upon the ledger sheet of the bank stating that the sum deposited to the account belonged to the father and daughter jointly, and that it was understood that each might withdraw on his or her individual order during their joint lives, and that any balance remaining upon the death of either should go to the ' survivor, and signed by both, a gift inter vivos of the property of the father, and not a testamentary disposition thereof, was created, and it is immaterial that the father retained the passbook in his possession.

      2. Constitutional Law — Statutes.
    The constitutionality of an act will not be considered where a decision of the case can be reached on other grounds.
    Appeal from Marquette; Flannigan, J.
    Submitted January 11, 1917.
    (Docket No. 171.)
    Decided March 30, 1917.
    Bill of interpleader by the Negaunee National Bank against Edward Le Beau, administrator of the estate of Euchrist Le Beau, deceased, and Sophia Charles for a decree determining the title to certain money. From a decree for defendant Charles, defendant Le Beau appeals.
    Affirmed.

      J. M. Edgerton, for appellant.

      J. H. Primean, Jr. (E. A. McDonald, of counsel), for appellee.
    A fund being on deposit in plaintiff bank at the death of Euchrist Le Beau and said sum having been claiined by Sophia Charles, daughter of said deceased, and by his administrator, .the plaintiff bank filed a bill of interpleader. The issue was framed through the filing of separate answers by the defendants. Defendant Edward Le Beau asserted title to the fund as the administrator of his father, Euchrist Le Beau, it being his claim that at the time of the death of his father said fund was a part of his father’s estate. Defendant Sophia Charles claimed said fund by virtue of a certificate indorsed upon the ledger sheet of the plaintiff bank on which said account was entered as follows:
    “The sum deposited to this account belongs to
    Signature: “Euchrist Le Beau,
    “Sophia Charles,
    jointly; it being understood each may withdraw on his or her individual order during their joint lives, and that any balance upon the death of either shall belong to the survivor.
    [Signed] “Euchrist Le Beau.
    [Signed] “Mrs. Ed. Charles.”
    The money in dispute, now amounting with interest to upwards of $2,000, was deposited in the plaintiff bank under the following circumstances: In the fall of 1909, Euchrist Le Beau and his wife were both upwards of 70 years of age. The wife and mother having met with an accident, it was found necessary or advisable to have one or other of her daughters with her. The defendant Sophia Charles left her home in Minnesota, and in August, 1909, came to her mother’s home in Negaunee, where she remained until after her mother’s death, which occurred in January, 1910. Subsequent to that date she continued to reside with her father, giving him such care and attention as was necessary until June, 1910. On June 6th, June 20th, and June 22d, the deposits in question in this case were made. Prior to that Euchrist Le Beau had kept his money in other banks. Shortly after said deposit was made Euchrist Le Beau went for a visit to Canada and placed his bank book and other papers with one Joseph Barabe, who testified upon direct examination as follows:
    “He told me he was going to Canada, and in case anything should happen to him, to turn this package of papers over to Mrs. Sophia Charles, his daughter.”
    Touching the transaction, the vice president of the plaintiff bank gave the following testmony:
    “Q. Please state just what that transaction was?

      “A. Mr. Le Beau brought some money, and he said he was— * * * Mr. Le Beau told me that he wanted to bring some money there because he knew I would pay it out as he wished to have it paid. I said, ‘Yes, we will do that.’ And he said he wanted to give that money to his daughter Mrs. Charles, after he died, and I told him he couldn’t do that; I told him that if he wanted to give it to Mrs. Charles he would have to give it to her now. ‘You can’t give it to her after you’re dead.’ He says, ‘Well, I will give it to her now.’ I said, ‘All right; if you do, then she can come here tomorrow and take the money; she can come tomorrow and take the money, or you can come and take it. That is the only way you can give it to her.’ And he said, ‘That is what I want to do.’

      “Q. Is that what he did?

      “A. That is what he did. * * *

      “Q. Did you tell Mr. Le Beau that you would pay to the survivor in this case? .
    “A. I told him — not in those words — I told him it was hers right there and then, and she could come the next day and get it, and, of course, she could get it after he was dead, if she could get it when he was living. * * *

      “Q. Did Mr. Le Beau say why he was giving this to his daughter?
    “A. Because she had done more for him than the rest, and that is why he wanted to give her this money.”
    Among the rules and regulations of the savings department of the plaintiff bank, printed in the passbook, was the following:
    “5. No checks will be cashed or deposits received in this savings department unless accompanied with the depositor’s passbook.”
    Upon cross-examination this witness testified:

      “Q. I understand that Mr. Le Beau came to you and wanted to have it arranged so that Mrs. Charles could have this money when he died?
    “A. Yes, sir.

      “Q. And you told him that that could not be done unless he would put it into this form of account?
    “A. I told him he could not give it to her after his death; I told him he had to give it to her right there and then, if he wanted to give it to her; it could not be done after his death; because after his death it became a part of his estate, the minute he died.

      “Q. So he said he would put the account in that form?

      “A. Yes; that is.what he wanted to do. I told him, ‘She can come tomorrow and take the money and you won’t have a word to say.’ And he said, ‘That is what I want; that is all right.’

      “Q. In saying that she could come tomorrow and take the money, did you say anything more to him as to whether or not the money would all belong to her or not?

      “A. No; I didn’t explain any more than that; I thought that covered it.”
    With reference to the rule touching the production of the bank book he further testified:

      “Q. Have you a rule of your bank in regard to producing the bank passbook in drawing out on a savings account?

      “A. Yes, sir; it is on the rules here that they should bring the passbook every time they make a deposit or a withdrawal. Still we don’t insist upon it; there are times when they take money out without the passbook, or put it in.”
    In October, 1910, Euchrist Le Beau fell ill, and he directed his daughter Mrs. Harry Siegel to send for his daughter the defendant Mrs. Sophia Charles, which was done.. She arrived on October 15th, and became possessed of the passbook shortly after her arrival. Euchrist Le Beau died October 26, 1910. A decree having been entered in favor of the defendant Sophia Charles, the defendant administrator of Euchrist Le Beau appeals.

       On deposit in joint names as gift to codepositor, see note in 12 L. R. A. (N. S.) 355.
      On effect of delivery of order for savings account without the book to complete a gift of the account, see note in 22 L. R. A. (N. S.) 568, L. R. A. 1915B, 396.

   Brooke, J.

(after stating the facts). It is the position of the appellant that the provision in the certificate indorsed on the ledger account and signed by the parties, to the effect that the money remaining in the account at the death of either shall belong to the survivor, is testamentary in character, and therefore void, citing Union Trust & Savings Bank v. Tyler, 161 Mich. 561 (126 N. W. 713, 137 Am. St. Rep. 523); State Bank of Croswell v. Johnson, 151 Mich. 538 (115 N. W. 464). In the latter case the fund in question was represented by a certificate of deposit which bore the following indorsement placed there by an officer of the bank:

“F. J. Battersbee, Cashier of the State Bank of Croswell: Issue a new certificate in place of this one and make said certificate payable to Thomas Parker and Alice Parker or the survivor of them.
his
“Thomas X Parker.”
mark

This certificate was then placed in a safety deposit box rented by Mr. Parker and the box and keys were given to Mrs. Parker. It was held in this court that Mrs. Parker was the owner of the fund because of the fact that Thomas Parker—

“intended to give her a present interest in this fund equal to his own, and that, in the event of his death, which he must have anticipated and which actually occurred on the second day after, to give her the entire fund. He did all that he could to carry out his intention and the question is, Did he go beyond an intention to make the gift? We are of the opinion that this question must be answered in the affirmative.”

In the case of the Union Trust & Savings Bank v. Tyler, supra, an officer of the bank at the request of the owner of the fund indorsed upon the book the following words:

“In the event of her death, this account is payable to her daughter, Catherine Gordon.”

We there held that the words indorsed upon the book were clearly testamentary in character, and therefore inoperative to convey an interest in the' fund, but the donee took the fund by reason of the introduction of evidence which tended to support the inference that the donor had given to her daughter the book itself representing the deposit prior to her death.

The case at bar, in our opinion, presents a situation quite different from either of those considered. Here the deposit was made under a certificate declaring the deposit to belong jointly to Euchrist Le Beau and Sophia Charles. The writing itself, quite apart from the testimony of the vice president of the bank, indicates on the part of Euchrist Le Beau the intention to create in his daughter Sophia Charles a present estate in the fund, equal to his own, together with the sole right to said fund in case of his death. This writing, therefore, does not constitute a testamentary disposition of the property of Euchrist Le Beau, but plainly amounts to a gift inter vivos. It is said on behalf of appellant that Euchrist Le Beau retained control over the fund by retaining possession of the passbook representing it. It is clear that' he retained no more control over the fund than did his daughter, Sophia Charles. Under the form of the deposit, with or without the passbook representing the same, either could have withdrawn the entire amount during the lifetime of the other. In this case it is not necessary to predicate determination upon the fact that the passbook prior to the death of Euchrist Le Beau was in the possession of the donee, and to draw an inference from that possession that the same was given to her by her father in his lifetime with the intention of giving her the fund represented thereby. He had already given her the'fund by his unequivocal act at the moment the deposit was made. Appellee relies upon the provision of Act No. 248, Pub. Acts 1909, section 3 of which (2 Comp. Laws 1915, § 8040) provides :.

“When a deposit shall be made in any bank or trust company by any person in the name of such depositor or any other person, and in form to be paid to either or the survivor of them, such deposits thereupon and any additions thereto, made by either of such persons, upon the making thereof, shall become the property of such person as joint tenants, and the same together with all interest thereon, shall be held for the exclusive use of the persons so named and may be paid to either during the lifetime of both, or to the survivor after the death of one of them, and such payment and the receipt of acquittance of the same to whom such payment is made shall be a valid and sufficient release and discharge to said bank for all payments made on account of such deposits prior to the receipt by said bank of notice in writing not to pay such deposit in accordance with the terms thereof.”

It is asserted by appellant that said statute, if applicable, is unconstitutional for various reasons assigned. Without casting any doubt upon the validity of the legislation in question, and following our usual practice, we decline to consider this phase of the question, being able to reach a determination of the issue involved upon other grounds.

The decree of the court below is affirmed.

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


author: BROOKE, J.

text:
    GAZLEY v. KOEPKE.
    Deeds — Boundaries—Land Deeded — Vacated Alley — Statutes.
    Under section 3355, 1 Comp. Laws 1915, providing that, upon the vacation of a street or alley, the same shall he attached to the lot or ground included in a plat and hordering on such street or alley, where an alley was vacated the land in such alley to the center of it became attached to an adjoining lot, and upon the sale of a specified number of feet off the part of the lot abutting on such alley, measurement must be made from the center of the alley.

      Error to Genesee; Stevens, J.
    Submitted January 8, 1917.
    (Docket No. 51.)
    Decided March 30, 1917.
    Ejectment by Frances E. Gazley against Arthur C. Koepke and Lula L. Koepke to determine the ownership of certain real property, before the court without a jury. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Brennan, Cook & Gundry, for appellants.

      Clinton Roberts, for appellee.
   BROOKE, J.

This is an action of ejectment brought to determine the ownership of 16% feet of land, being a part of lot 1, block 17, of the village of Flint.

It appears that the plat of the village of Flint was recorded on July 15, 1836. As shown upon said plat, lot 1 of block 17 is located at the southwest corner of Saginaw street and Sixth street. It is 66 feet wide fronting on Saginaw street, running westerly on Sixth street a distance of 148.5 feet. According to the plat, there is an alley 33 feet wide west of and adjoining said lot. It further appears that on the 16th day of September, 1856, an order was made vacating this alley, and that the decree of the circuit court by virtue of which said vacation was effected was recorded in the office of the register of deeds on June 18, 1867. At the time said alley was vacated the title to lot. 1 was vested in one person. On July 3, 1904, Margaret Gazley, having become through mesne conveyances the sole owner of all of lot 1, conveyed to Harley P. Gazley the west 90 feet of lot 1. On October 19, 1908, Harley P. Gazley and wife conveyed the same to William H. Pier and wife. On July 20, 1915, William H. Pier and wife conveyed the same to the defendants in this case. In all these three last mentioned conveyances the land conveyed is described as the west 90 feet of lot 1, block 17, of the village of Flint. The question for determination is whether the west 90 feet of lot 1 commences in the center of the vacated alley or upon the westerly line of lot 1 as originally platted.

It is the claim of plaintiff that the westerly line of the property conveyed-by these three deeds is the center of the alley, and that the conveyances.cover only the westerly 73% feet of lot 1 as shown on the original plat. The defendants contend that they are entitled to measure their '90 feet easterly from the westerly line of lot 1 as originally platted, and that they are entitled, in addition to the 90 feet so defined, to the 16% feet of the vacated alley lying immediately west therefrom. Section 2522, 2 How. Stat. (2d Ed.) (1 Comp. Laws 1915, § 3355), provides that upon the vacation of a street or alley “the same shall be attached to the lot or ground included in such plat and bordering on such street or alley.” It was conceded in the court below that the statutory provisions relative to the vacation of streets and alleys, were the same in 1856 as they are at the present time so far as they can be said to affect the case at bar.

The learned circuit judge held with the contention of the plaintiff, and with this determination we agree. It seems very clear that, when the vacation proceedings were consummated, the easterly 16% feet of the alley by force of the statute became immediately attached to lot 1, and that from that moment the westerly line of lot 1 was the center of the alley 16% feet-west of the original westerly line of the lot as shown upon the recorded plat. The record contains evidence tending to show that after the west 90 feet of lot 1 was sold in 1904 the plaintiff continued to occupy the easterly balance of lot 1 up to a point ..within 90 feet of the center of the alley. There is likewise evidence tending very strongly to establish the fact that defendants understood the description of the land purchased by them to commence at the center of the alley and to run 90 feet easterly from that point; for after their purchase in 1915 they commenced the erection of a building on said 90 feet, placing the easterly wall approximately 90 feet from the middle of the vacated alley. Later, however, they apparently became convinced that they were entitled to 161/2 feet more, and attempted to change the location of their easterly wall, whereupon the plaintiff brought this suit in ejectment. Counsel for defendants and appellants say:'

“If I purchase the west 90 feet of a lot, I purchase it with reference to the recorded plat by which that lot is described or designated. The plat is the only thing of record which would apprise me of what I am purchasing, and my west boundary line for the purpose of measuring the west 90 feet of the lot would be the east boundary line of the vacated alley, or the west boundary line of the lot according to the recorded plat.”

In making this statement counsel evidently overlooked the fact that the proceeding to vacate the alley was had in a court of record, and that the decree providing for the vacation had been of record in the office of the register of deeds for nearly 50 years. The decree of the court, taken in conjunction with the provisions of the statute, should have made it plain to the defendants that the westerly boundary line of lot 1 had been moved from its position on the recorded plat to a point I6V2 feet west thereof, in the center of the vacated alley.

We have examined the authorities cited by counsel for the defendants, but find nothing in them which in our opinion casts any doubt upoii the correctness of this conclusion.

The judgment is affirmed.

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


text:
    HOLLAND v. HOLLAND.
    Frauds, Statute of — Contracts—Real Property — Memorandum —Sufficiency.
    An instrument in which the signer agreed to deed to a certain person a half interest in designated property at any time the deed might he demanded, is an insufficient memorandum under the statute of frauds (3 Comp. Laws 1915, § 11977), where no consideration was named and no time was stated within which the consideration must he paid.

    Appeal to Huron; Beach, J.
    Submitted January 19, 1917.
    (Docket No. 30.)
    Decided March 30, 1917.
    Rehearing denied June 1, 1917.
    Bill by Gottlieb Holland against Edward Holland and another for the specific performance of a contract to convey certain real property. From a decree for plaintiff, defendants appeal.
    Reversed.

      X. A. Boomhower, for appellants.

      Paul Woodworth, for appellee.
    This is a bill filed by the complainant to compel specific performance of the following written instrument:
    “I hereby agree to deed Gottlieb Holland half interest in the Hotel Smalley property at any time that he may demand the deed.
    [Signed] “Edward Holland.
    “Witness: S. H. Cochran.”
    The facts gathered from the bill, answer, and testimony given upon the hearing are briefly as follows: In April, 1918, defendant Edward Holland bought a hotel property in the village of Caseville from one Paul Deford for the sum of $5,200. This sum was paid in cash, with the exception of a $1,800 mortgage which Edward Holland assumed. Prior to this time Edward Holland had been in the saloon business at Kilmanaugh. His interest in this business he sold for the sum of $4,600. He had borrowed from his wife and invested in the business about $3,000, which sum she had received from her father’s estate. A year later, in April, 1914, plaintiff, who was a brother of the defendant Edward Holland, went to Caseville and purchased from Edward a one-half interest in the hotel- property, paying therefor in cash the sum of $2,600. Thereafter, and until July 1, 1914, the two brothers continued to operate the hotel and saloon; the retail liquor business conducted therein being operated under a license which at all times stood in the name of the defendant Edward Holland. On July 1, 1914, the hotel building and saloon with all contents were destroyed by fire. After the fire plaintiff returned to the city of Detroit, but later, in the month of August, went to Caseville and received from his brother, the defendant, the sum of $500. Shortly after the fire plaintiff and defendant agreed to sell the land upon which the hotel had stood to one Edwards for the sum of $1,800. Edwards paid down $200 upon the contract and proceeded with the erection of a new building upon the site. He apparently, however, had not sufficient means to complete the building, and in October turned it over to the defendant Edward Holland, who bought such material as was upon the ground and proceeded with the erection of the building. On December 4, 1914, when the building was approaching completion, plaintiff visited his brother, the defendant, at Caseville, and there a statement of account was made up by Mr. Cochran, the cashier of the bank, which, showed that the partnership then had an indebtedness of $3,251.74, and that it had credits of $5,919.35. Deducting the debits from the credits, there appeared to be a net balance owned by the two brothers of $2,667.61, plaintiff’s share of which amounted to $1,333.80. It was there agreed that defendant Edward should purchase from his brother, the plaintiff, his one-half interest in the assets of the partnership for the last-mentioned sum. Plaintiff had already received the sum of $551.50, and it was agreed that a check for $782.30 should be paid him to balance the account. A deed had been prepared from plaintiff and his wife to the defendant of plaintiff’s one-half interest in the property. This deed plaintiff took from Caseville to Detroit, where it was executed by plaintiff’s wife, and by plaintiff, and was on December 4th delivered to the defendant Edward Holland, or to Mr. Cochran for Edward Holland, and at the same time plaintiff received the check for $782.30. The deed was immediately forwarded to the county seat for record, and plaintiff returned to Detroit. A week later, on December 11,1914, plaintiff returned to Case-ville from Detroit, and again became connected with the business. At that time he took the check for $782.30 back to the bank in Caseville and deposited it to the credit of his brother, the defendant, receiving at the same time the paper writing above set forth. The brothers continued the business together thereafter until October, 1915, when, defendant Edward having refused to convey an undivided one-half interest in the property to plaintiff, the bill in this cause was filed. With reference to the sale of his one-half interest in the partnership assets to the defendant, plaintiff testified:
    “I accepted the check and turned over a deed of the place. I took the deed down to my wife and had her sign it. I took it down the latter part of November. I did not take it down in August. I came back, and we went to the bank and made a settlement, this paper marked Exhibit 1, and at that time had an equal division of all the property after the bills were paid. Ed. and I were entitled to $1,333.80 each. I had already had $551.50 that was deducted from my share, and I got a check for $782.30 and turned over the deed and Mr. Cochran delivered the deed to Ed., and I went back to Detroit again.”
    Touching this incident the defendant Edward Holland testified:
    i “That was a final settlement between Gottlieb and myself. I think he gave me a deed that day. When we made the settlement he delivered the deed in the bank, either he or Mr. Cochran. The deed was after-wards put on record. Mr. Cochran did that. Mr. Cochran sent it to the register of deeds and had it put on record. That was a final settlement between Gottlieb and myself in the business at Caseville. At the time we made this settlement I understood that he and I had dissolved partnership that day. He then went to Detroit and came back on the 11th. The settlement was a final settlement, and he delivered the deed at that time. I paid him this check; was all he had coming.”
    The only other witness to the transaction was Mr. Cochran, the cashier of the bank, who gave the following testimony:

      “Q. There was talk about their going out of business, dissolving partnership, at the time they made this settlement, and you drew up these papers?

      “A. Yes; there was some talk.

      “Q. You understood that they were dissolving the partnership, and Ed. was buying this man’s interest?

      “A. There was talk of it.

      “Q. You understood it that way?

      “A. I think I did.

      “Q. You proceeded at their request to make out the papers ?

      “A. Yes.

      “Q. And Exhibit 1 is the settlement you made at that time?

      “A. Yes.

      “Q. At that time the deed was delivered to Edward, the deed from Gottlieb and his wife was delivered to Edward?

      “A. I think it was practically delivered. I think I sent it to Bad Axe for them.”
    This testimony on the part of Cochran was somewhat qualified by his statement that the defendant Edward desired Gottlieb to continue in the business with him or to re-enter into partnership with him at a later day. With reference to this settlement, the bill of complaint charges in paragraph 2 that plaintiff’s deed of his one-half interest in the hotel property was delivered to defendant.
    After a hearing on the merits a decree was entered in the court below granting the prayer of plaintiff for specific performance and setting aside and holding for naught two mortgages executed by defendant covering said hotel property. From this decree, defendants appeal.

       On the necessity of specifying time of payment of purchase price in contract or memorandum for the sale of real property, see note in 33 L. R. A. (N. S.) 84.

   Brooke, J.

(after stating the facts)." It is perhaps a significant fact that the paper writing, specific performance of which is directed by the decree, is not set out in the bill of complaint. It is further significant that after the hearing in the court below was closed and nearly a month had intervened plaintiff applied for and secured a reopening of the case for the purpose of introducing further testimony, when he went upon the stand and gave testimony to the effect that, when he delivered his deed to Cochran and received defendant’s check in return therefor in settlement of the partnership affairs, it was understood that Cochran was to hold the same for a time until he (plaintiff) should determine whether he should remain in partnership with his brother Edward or not. It is now asserted on behalf of appellee that there was no delivery of the deéd from plaintiff to defendant sufficient'to pass title. All the witnesses to the transaction whose evidence was. taken upon the first hearing agree that the deed was delivered in consideration of the check, and that the partnership was closed. The bill itself asserts a delivery and makes no claim of any condition in connection therewith, and the decree of the court assumes such delivery because it directs the conveyance to plaintiff of the one-half interest in the hotel property. Such a decree could only be based upon the assumption that the entire title to the property at the time the decree was made rested in the defendant Edward Holland. The decree refers to the agreement to reconvey, and direct specific performance thereof. The first question therefore to be determined is whether the writing relied upon is sufficient under our adjudicated cases to warrant the court in granting the relief sought. This paper is fatally defective in several vital particulars. It has been repeatedly held that a memorandum to be sufficient under- the statute must be complete in itself and leave nothing to rest in parol. It must not only contain a description of the property to be conveyed and the consideration to be paid therefor, but it must definitely express the time or times of payment. McMurtrie v. Bennette, Har. Ch. (Mich.) 124; Gault v. Stormont, 51 Mich. 636 (17 N. W. 214); Ebert v. Cullen, 165 Mich. 75 (130 N. W. 185, 33 L. R. A. [N. S.] 84), and cases there cited. Assuming that the description of the property to be conveyed is sufficiently stated in the paper writing, there is no consideration named, nor is there any time stated within which said consideration must be paid. Where no time is fixed for performance, the court 'will not grant relief. Gates v. Gamble, 53 Mich. 181 (18 N. W. 631). Equity is without.power to enforce a contract such as the one counted, upon in the case at bar. Our conclusion upon this point renders it unnecessary to consider the claim advanced by the defendant Edward Holland that the hotel property was the homestead of himself and wife, and that her signature was necessary to any enforceable contract for its sale. It is, we think, quite clear from an examination of the evidence given by the interested parties that it was never agreed between plaintiff and defendant Edward that Edward should reconvey a one-half interest in the hotel property to his brother, the plaintiff, for the sum of $782.80. That both parties at one time desired and perhaps expected to again become associated as partners in business cannot be questioned, but the terms of such contemplated partnership are not set out in the contract relied upon

The decree of the court below is reversed, and the bill dismissed, with costs of both courts to the defendants.

Kuhn, C. J.,"and Stone, Ostrander, Bird, Steere, and Fellows. JJ.. concurred. Moore, J.. did not sit.