text:
    BADY v. DETROIT UNITED RAILWAY.
    Street Railways — Contributory Negligence — Evidence.
    Where plaintiff, on a dark, stormy night, in crossing a street and defendant’s tracks, stopped and looked just before he stepped upon the tracks, hut saw no car coming and he was struck by a car which carried no headlight, and which did not sound a hell or signal, there was evidence sufficient to present an issue of fact for the jury whether he was in the exercise of ordinary care.

      Error to Wayne; Murphy, J.
    Submitted November 13, 1913.
    (Docket No. 101.)
    Decided June 1, 1914.
    Case by William Bady against the Detroit United Railway for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Washington I. Robinson, for appellant.

      ■ Corliss, Leete & Joslyn and A. B. Hall, for appellee.
   Bird, J.

This is a personal injury case, in which the trial court at the conclusion of plaintiff’s case directed a verdict for the defendant, on the ground that the plaintiff contributed to his own injury. The sole question presented is whether the trial court was in error in so doing.

The testimony discloses that on the night of November 27, 1910, plaintiff was walking south on the west side of McDougall avenue in the city of Detroit. When he reached the intersection of McDougall avenue and Hendricks street, he lowered his umbrella, and went to within a few feet the north rail of defendant’s track on Hendricks street, where he stopped, looked, and listened for an approaching car. Neither seeing nor hearing one, he proceeded on his way, and an instant later was struck by a west-bound car and injured.

It is gathered from the testimony of the plaintiff and his witnesses that the night in question was a dark and stormy one, that the car "was being operated at a high rate of speed, without a headlight, and that no warning was given as it approached the intersection of the avenues. It further appeared that there was no street light at the intersection. Under this state of facts, we do not think it should be said, as a matter of law, that plaintiff was not in the exercise of ordinary care in attempting to go across the track. That question was one of fact to be determined in view of all the circumstances by the jury. In determining the question, it was proper for the jury to consider to what extent the storm and darkness might have prevented him from discovering the car in season to avoid it, and it was likewise proper for them to consider to what extent the failure to have a headlight in the usual position on the car might have misled him, and also to consider whether his lack of appreciation of the danger he was in was due in any manner to the failure of defendant to do the usual thing and sound the gong as the car approached the intersection.

Notwithstanding the presence of all these conditions, as is urged by defendant, it would seem as though plaintiff ought to have seen or heard the car approaching if he took the precaution which he testified he did before attempting to go upon the track; but whether he did the thing which ordinarily careful and prudent men would do under similar circumstances is a question which is not within our province to decide. Wavle v. Railways Co., 170 Mich. 81 (135 N. W. 914). Some light is thrown upon the question by a lady who walked down McDougall avenue for two blocks immediately behind the plaintiff. She testified that, when plaintiff was struck, she was not to exceed three feet away, and up to that time she had neither seen nor heard the approaching car.

The trial court was much influenced in his disposition of the case by the holding in Hamilton v. Railway, 167 Mich. 5 (132 N. W. 453). In that case plaintiff alighted from a north-bound car, and went around the rear and attempted to cross the south-bound track and was struck by a car. It was dark, and the claim was made that no headlight was exhibited. The question as to whether there was a headlight was submitted to the jury, and they found against the plaintiff, and the case was subsequently affirmed by this court. We do not think that case is controlling because of the difference in conditions.

The judgment of the trial court is reversed, and a new trial granted.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, and Steere, JJ., concurred. Moore, J., did not sit.


source: Caselaw Access Project

author: BROOKE, J.

license: Public Domain

text:
    HATT v. GREEN.
    1. Wills — Legacies—Grandchildren.
    Under a will beaueathing to the daughter of testator a stated' sum' and giving to her children, mentioned by name, the sum of one thousand dollars, a son of the daughter born after the will was executed received no share of the property and took nothing by the will.
    2. Same — Judgment—Conclusiveness.
    Where the grandson was a party to proceedings in which the will was construed and he took no appeal, the decree was binding on him in another suit in which his-rights under the will were involved.
    3. Same — Trustees—Good Faith — Accounting.
    The will having conveyed certain land or its value to decedent’s grandchildren at their majority, and the evidence showing that the trustees of his estate paid the eldest his proportionate share when he became of age, they should be held to have elected to keep the lands and treat the appraised value of the realty as a fixed trust fund in their hands to be invested and accounted for to the beneficiaries.
    4. Same — Trusts—Infants—Election of Right or Remedy.
    By dealing with the minors interested in the estate about as the trustees saw fit, stating 'that a certain sum represented tbeir several shares in the estate and demanding a formal release on payment of that amount, from the infant beneficiaries as they became of age, the trustees must be construed as having elected to retain the real property described in decedent’s will at its appraised value subject to the interest of the other devisees and legatees.
    5. Limitation of Actions — Trusts—Express Trusts.
    The bar of the statute of limitations does not operate between trustee and cestui que trust of an express trust, and no length of time is a bar to an accounting. Time does not run until a repudiation or adverse possession by the trustee with notice on the part of the beneficiary.
    Appeal from Bay; Collins, J.
    Submitted January 7, 1914.
    (Docket No. 2.)
    Decided June 1, 1914.
    Bill by Milo Hatt and others against William Green and others for an accounting and other relief. From a decree for defendants, complainants appeal.
    Reversed.

      WeadocJc & Duffy and E. S. Clark, for complainants.

      Roy E. Brownell (John E. Kinnane, of counsel), for defendant William Green.
    One George Green, grandfather of the complainants and father of defendant William Green, died January 1, 1899, leaving a last will and testament, the material provisions of which follow:

      “First: I will and bequeath to my daughter, Mary Ann Hatt, five thousand dollars to be paid to her out of my personal estate by my executors at any reasonable time after my decease, and to her children I will and bequeath one thousand dollars out of my personal estate and four lots of land of eighty acres each lot, more or less, as laid out by government survey, situate and laying in the township of Monitor, Bay county, Michigan, or the value of said lands, the value to be taken at or as soon after her oldest living child becomes of the age of twenty-one years, said value in aggregate and said money, viz.: One thousand dollars making a total aggregate valué of land and money to be divided equally according to the number of her children then living giving to each as they attain their majority their share with the accruing interest, i. e., to George H. Hatt (Mary Ann Hatt, my daughter’s oldest child) to Ellen J. Hatt, to Milo Hatt, to Merwin Hatt, to Walter Hatt, to Alfred Hatt, to Sarah A. Hatt, to Wade E. Hatt and to Governor Hatt, the youngest now of her children, each to receive dollar for dollar of said aggregate value of money and lands, and should any of her children die subsequent to the real or appraised value of said lots of land in section number nine in the township of Monitor aforesaid, such deceased child’s share to be divided equally these already of age. sH Hi sfc Hí

      “Fifth: I give and bequeath to,my sons, William and James all the rest and residue of my real estate, title deeds, of which have been given, viz.: To William Green the west half of the northwest quarter of section number twenty-five and the south half of the southwest quarter of section number twenty-four, north range five east in the county of Livingston and State of Michigan, and to my son, James Green, the southeast quarter of section number twenty-six township four north range five east in the county of Livingston and State of Michigan except two acres on the southeast corner.

      “Sixth: I also give and bequeath to my sons, William and James, all the rest of my property, personal, including notes, interest in and belonging to all mortgages of real estate and chattels and revenues belonging appertaining to the same, after paying the several legacies herein aforesaid, and in the manner stated from the personal hereby bequeathed to them and I do hereby nominate and appoint the said William Green and James Green, my two sons to be the executors of this my last will and testament.”
    Shortly after the death of George Green, his sons, as executors, secured a judicial construction of the first section of said will. The important part of the decree follows:

      "And it further appearing to this court that the said George Green in his lifetime, and after the execution of his said will, made, executed, and delivered to Ellen J. Hart (before her marriage Ellen J. Hatt) one of the grandchildren of the said George Green, mentioned in said will, a warranty deed, wherein and whereby he conveyed to said Ellen J. Hart in fee a portion of said last-named four lots of land, to wit, the E. 1/2 of the W. V2 of the N. E. 14 of section No. 9, in the township of Monitor, Bay county, Mich., and that the purpose and intention of the said George Green in so conveying said land to Ellen J. Hart was to satisfy the provision of his said will so far as the same concerned and benefited the said Ellen J. Hart.
    # ^ # % # % #
    "It is further ordered, adjudged, and decreed that the said defendant Rollo Hatt, having been born after the making of his said will by the said George Green, deceased, and not being specifically mentioned in said will, is not one of the devisees or legatees therein, and is not entitled to any of the estate of the said George Green, deceased.
    “It is further ordered, adjudged, and decreed that the defendants George Hatt, Ellen J. Hart, Milo Hatt, Merwin Hatt, Walter Hatt, Alfred Hatt, Sarah A. Hatt, Wade E. Hatt, and Governor Hatt, children of Mary Ann Hatt and grandchildren of the said George Green, are, by the terms of said will, entitled to the sum of $1,000 in the aggregate from the personal property of said George Green, deceased, the same to be equally divided between them, share and share alike, payment to such of said defendants as are now of age to be made immediately, and the balance of said shares to be paid, by said executors to each of said defendants entitled thereto, on his or her attaining the age of 21 years, together with all accrued interest thereon from the investment of said shares at interest by said executors, which investment the said executors are required to make; all interest obtained thereby by said executors on said shares after the date of this decree to belong to and to be paid to said defendants, respectively, with the principal as aforesaid, on their becoming 21 years of age. Provided, however, in case any of said children should die before reaching the age of 21 years subsequent to the appraisal of the land hereinafter mentioned, the share belonging to said child both principal and interest to belong and' be immediately paid over to such of the said children as shall then have attained the age of 21 years, share and share alike. It is further ordered, adjudged, and decreed that the first section of the will of said George Green, wherein he wills and bequeaths to the children of his daughter Mary Ann Hatt four lots of land of 80 acres, each lot more or less as laid out by government survey situate and lying in the township of Monitor, Bay county, Mich., or the value thereof, refers to and disposes of the W. % of the N. E. %; the W. l/2 of the S. E. %; the E. i/2 of the N. W. 14, and the E. i/2 of the S. W. %, all of section No. 9 in township No. 14 north of range No. 4 east, containing 320 acres of land according to the United States survey, and to no other land whatever; that by the warranty deed executed on the 23d day of June, A. D. 1888, by George Green to Ellen J. Hart (before her marriage Ellen J. Hatt) one of said defendants conveying the E. i/2 of the W. i/2 of the N. E. % of said section No. 9, containing 40 acres of land, more or less, the said George Green, deceased, satisfied the provisions of his said will as to said lands, so far as it concerns the said Ellen J. Hart, and that the said Ellen J. Hart has no interest in any real estate of the said George Green, nor in the value of any such real estate other than that conveyed to her by said deed aforesaid in his lifetime; that it was the intention of the said George Green in and by his said will, and the section thereof under consideration, to set the balance of said four lots of land herein above described apart, and the same is hereby set apart as and for a fund for the benefit of the other children of said Mary Ann Hatt, to wit, George H. Hatt, Milo Hatt, Merwin Hatt, Walter Hatt, Alfred Hatt, Sarah A. Hatt, Wade E. Hatt, and Governor Hatt; that in. and by the terms of said will the title to said land, to wit, the W. i/2 of the W. i/2 of the N. E. %, the W. % of the S. E. 1/4, the E. % of the N. E. %, and the E. i/2 of the S. W. 14 of section No. 9 in the said township of Monitor aforesaid vested in the executors of the will of the said George Green, in fee in trust, however, for the purposes of said will and the benefit of the last aforesaid named children of the said Mary Ann Hatt, as follows: That the said executors should cause the said lands last above described to be appraised at their true value as soon as convenient after the oldest child of the said Mary Ann Hatt should reach the age of 21 years, and that as soon as the said children of the said Mary Ann Hatt, to wit, George Hatt, Milo Hatt, Merwin Hatt, Walter Hatt, Alfred Hatt, Sarah A. Hatt, Wade E. Hatt, and Governor Hatt, should respectively attain the age of 21 years the said executors should deliver over and convey to each of said children, respectively, his or her pro rata one-eighth part thereof according to value, or that, instead of so delivering over and conveying to said children, respectively, each his or her pro rata part of the land itself, the said executors might and may at their option sell and convey said lands in fee to some other party or parties, and out of the proceeds to pay to each of said children, respectively, when he or she should arrive at the age of 21 years, the one-eighth part of the value of said lands as appraised with such interest as shall accrue thereon by being properly loaned (which the said executors are required to cause to be done in case they should deed or sell the land instead of delivering it over or conveying the land itself). In case, however, any of said children should die subsequent to the said appraisal of said land as aforesaid, and before reaching the age of 21 years, the share so going to such child, together with accrued interest thereon, in case the share shall have been sold, to be paid to and equally divided among such of said children as shall then have reached the age of 21 years, such appraisement of said lands to be made under the direction of the probate court for the said county of Livingston. It is further ordered, adjudged, and decreed that the first clause of the will mentioned and set forth in the bill of complaint in this cause is hereby construed by this court in the manner and to the effect hereinbefore set out in this decree.”
    In accordance with the mandate of said decree, defendant William Green and his coexecutor caused an appraisal of said lands to be made on June 3, 1891, as follows:

      Appraised Value.
    Dollars. Cents.
    The west half of the west half of the northeast quarter, sec. 9, 40 acres................... $ 600 00
    The west half of the southeast quarter, sec. 9, 80 ..................................... 1,200 00
    The east half of the northwest quarter, sec. 9, 80 ............................'......... 1,200 00
    The east half of the southwest quarter, sec, 9, 80 ..................................... 800 00
    $3,800 00
    Following this the executors settled with each of the children of Mary Ann Hatt at or near the time they severally became of age. Touching the complainants the settlements were made as follows:
    Reached Date of Born. Majority. Settlement.
    Milo Hatt.. .Mar. 26,1870. Mar. 26,1891. May, 1891.
    Alfred Hatt.Apr. 2,1877. Apr. 2,1898. May 14, 1898.
    Wade Hatt.. Jan. 24,1881. Jan. 24,1902. Feb. 26, 1902.
    Rollo Hatt. Nov. 1,1885. Nov. 1, 1906. Had no interest.
    In each case the executors took from the beneficiary a receipt and release in the following terms:
    “Received of Wm. Green and Jas. Green, executors of the last will and testament of George Green, deceased, four hundred seventy-five dollars, it being my one-eighth of the appraised value of the west half of the west half of the northeast quarter, the west half of the southeast quarter, the east half of the northeast quarter, and the east half of the southwest quarter of section number nine in the township of Monitor, Bay county, Michigan, and this receipt is intended by me to release the said Wm. Green and Jas. Green, as such executors from all and any further liability to me in consequence of and for my interest in said above described lands and in the proceeds from the sale of said lands under the will of George Green, deceased, and under the decree of the circuit court for the county of Livingston, in chancery, in the matter of interpreting the provisions of said last will and testament and do hereby receive the above-named sum of money as payment in full for all my interest in the said estate of said George Green, deceased,- under the terms of the said will and the said decree and otherwise.
    “Dated this 12 day of March, A. D. 1904.
    “Governor D. Hatt.
    “Signed, sealed and delivered in the presence of L. H. Berry. L. W. Edwards.
    “Dated the 12 day of March, A. D. 1904.
    “Received of Wm. Green and Jas. Green, executors of the last will and testament of George Green, deceased, one hundred dollars, it being my portion of the money left the children of Mary Ann Hatt, mentioned in said will.
    “Governor D. Hatt.
    “Signed, sealed and delivered in the presence of L. H. Berry. L. W. Edwards.”
    On March 7, 1893, William Green and James Green sold the W. % of the N. W. % of section 9 for the sum of $1,800. The title to the balance of the land remains as it was fixed by the will. Complainants pray for an accounting against William Green and for his removal as trustee. The other defendants appear to have no beneficial interest in the litigation. A decree having been entered dismissing the bill, complainants appeal.
   BROOKE, J.

(after stating the facts). It must be held that complainant Rollo Hatt took nothing under the will of his grandfather. His mother’s children were described by name in the will before his birth, and he was a grandson, not a son, of the testator. Moreover, he was a party to the proceeding in which the will was construed and his rights determined. No appeal was taken from that decree, and it stands as the law of the case.

We are satisfied that the appraisal of 1891 was fair. It was made by a supervisor and an ex-supervisor of the township, and it remained on file in the probate court unquestioned by complainants for upwards of 20 years. In the meantime the executors paid the taxes upon the land and it was drained. It undoubtedly increased in value, particularly within the past 10 years. We are unable to discover any fraud or gross undervaluation in the appraisal. Assuming that defendant William Green and his coexecutor had the right to elect to keep the land and pay its appraisal value to the children of Mary Ann Hatt, a conclusion perhaps warranted by the terms of the decree construing the will and the opinion upon which the decree was based, have they discharged their obligations to complainants? It is obvious that it was the intention of the testator to create a fund (either land or money) for the benefit of - complainants and their brothers and sisters.

The fact that the will commanded an appraisal and distribution of the fund from time to time with interest imposed the duty upon the executors and trustees of turning over the land with its unearned increment to the beneficiaries from time to time as they became of age, or of investing the fund represented by the appraisal valuation for the benefit of the beneficiaries, so that when each reached his majority, he should receive his share, plus the interest earned thereon during his minority. Neither course was followed by the trustees.

We are satisfied that when the eldest child became of age and the trustees paid to him his proportionate share of the appraisal value of the lands, they should be held to have made an election to keep the lands and to treat the appraised valuation as fixing the amount of a trust fund in their hands which, both under the will and the decree, they were bound to keep invested for the benefit of their cestuis que trustent. A careful reading of the record convinces us that the trustees dealt with the complainants about as they pleased. They told each one that the sum of $475 represented his share of the estate to which he was entitled, and demanded and secured a formal release.

The several transactions occurred when each of the complainants was barely 21 years of age, country boys, and presumptively ignorant of their legal rights.

The learned circuit judge held that any claim which complainants might have was barred by the statute of limitations. In this case we think he was in error.

In 2 Perry on Trusts and Trustees (6th Ed.), § 863, it is said:

“As between trustee and cestui que trust, in the case of an express trust, the statute of limitations has no application, and no length of time is a bar. Against an express and continuing trust time does not run until repudiation or adverse possession by the trustee and knowledge thereof on the part of the cestui.”

See, also, Jones v. Home Savings Bank, 118 Mich. 155 (76 N. W. 322, 74 Am. St. Rep. 377) ; Murphy v. Cady, 145 Mich. 33 (108 N. W. 493), and Russell v. Huntington, Nat. Bank, 162 Fed. 868, 89 C. C. A. 558.

The decree of the court below is reversed, and a decree will be entered in this court confirming the title to the lands in question in defendant William Green and the heirs of his cotrustee, but providing for an accounting against said defendant William Green in which he shall be charged with interest upon each share paid complainants from the time settlement was made with the oldest child, at which time the trustees must be held to have made their election. Complainants will recover costs of both courts.

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


author: McAlvay, C. J.

text:
    MERLAU v. KALAMAZOO CIRCUIT JUDGE.
    1. Fraud — Misrepresentation—Value—Exchange.
    In an action for deceit and false representations whereby plaintiff was induced to exchange her property for a farm, representations that defendant’s farm was worth $4,000, that he had purchased it for that amount, that he had sold the property on a land contract for $4,000, receiving a payment of $1,500, that the buildings were good and the soil productive and the farm was occupied by a family which were cultivating it, being false, sufficiently sustained plaintiff’s claim of fraud, and entitled plaintiff to a writ of capias ad respondendum.

      2. Same — Consideration—Contracts.
    Nor was the defendant relieved of the consequences of his wrongful act because no default had occurred upon the land contract before plaintiff commenced her action; affidavits establishing that the contract called for nearly three times the actual value of the land tended to show that the plaintiff had been defrauded in the exchange.
    3. Same — Rescission—False Representations.
    No rescission or restitution is necessary as a condition precedent to an action for damages for fraud and deceit.
    Mandamus by Nellie Merlau against Nathaniel H. Stewart, Kalamazoo circuit judge, to compel respondent to vacate an order quashing a writ of capias.
    Submitted January 20, 1914.
    (Calendar No. 25,943.)
    Writ granted June 1, 1914.

      Lincoln H. Titus, for relator.

      Jackson & Fitzgerald, for respondent.
   McAlvay, C. J.

Relator asks for a writ of mandamus to be issued against respondent to compel him to set aside a certain order made by him as such circuit judge in a cause pending in said court, wherein relator is plaintiff and Fred A. Herreman is defendant, quashing the proceedings had upon a certain writ of capias ad respondendum, discharging defendant from bail and his sureties upon the bail bond.

This action by relator is brought against defendant to recover damages arising from fraud. The answer of respondent and the brief of his counsel in these mandamus proceedings admit that the statement of facts in relator’s brief is substantially correct. The charges of fraudulent misrepresentations made by defendant to relator in connection with the transactions hereinafter detailed are not contradicted. Counsel for respondent contend that the truth or falsity of such representations is absolutely immaterial. Under these circumstances, it will be necessary to state only such facts as may be required to show the fraudulent statements, to properly understand the questions involved, as follows: From the affidavits presented upon the application for the writ, and upon which it was allowed, it appears that relator was the owner of a house and lot in the city of Kalamazoo, of the value of $2,500defendant claimed to own and, as the records in the office of the register of deeds also show, did own, a farm of 80 acres in Portage township, Kalamazoo county. A short time before May 13, 1913, he came to relator, whose property he had theretofore examined, and negotiations began between them as to an exchange of these properties. She charges that he fraudulently and falsely represented to her he had just purchased this farm and paid for it the sum of $4,000; that the property was well worth that amount; that there were situate upon said premises a good house, barn, and other outbuildings; that the soil was good and productive; that there was a man, or family, living upon said farm and working it — all of which representations as to the value of said farm, the amount he paid for it, the quality of the land, that it was being occupied and cultivated, were false and fraudulent. During these negotiations he further stated to her that he had recently sold this farm on a contract for $4,000, upon which he had received $1,500, and that there was upon it a mortgage given to the original owner for the purchase price, for the sum of $600. Defendant then and there offered relator to deed to her said’ farm, subject to the mortgage of $600, to assign to her the said land contract, and to pay her $200 in cash, in exchange for her Kalamazoo property.

Relator believed such statements, and, relying implicitly and fully upon such false and fraudulent statements and representations so made by defendant to her, did not go ‘to the said premises or make any inquiry or investigation concerning them, or the value and condition of the same, then and there accepted his offer to exchange properties, being induced to do so by such false and fraudulent representations, which she believed to be true, and on May 13, 1913, she executed and delivered to him'a warranty deed of her premises, and on the same date, his wife joining him, defendant executed and delivered' to her a warranty deed of this farm, subject to a mortgage of $600, and also subject to the land contract of $4,000, less $1,500 paid thereon, assigned the said land contract to her, and paid her $200. She states that had she known the true condition of the farm, and that the statements and representations of defendant were false and fraudulent, she would not have made the exchange* of properties with defendant, received what he deeded to her, or deeded her property to him.

In support of her affidavit, made upon her own knowledge, the substance of which has been given, relator, upon her application for a writ of capias, to show the falsity of defendant’s statements to her, presented the affidavit of the original owner of the farm, showing that he sold it to defendant for the sum of $1,000, and no more, of which $400 was paid in cash, and the balance secured by mortgage on the farm for $600. Also the affidavits of Mr. Titus and Mr. Miller, which show that there were no good buildings upon this land; that the soil was poor and run out; that the farm was largely marsh land; that there was nobody working the land; and that the same had not been occupied and cultivated for seven years previous thereto. Upon this showing a writ of capias ad respondendum was issued, and an order was indorsed thereon by respondent that defendant be held to bail in the sum of $1,000. Defendant was arrested upon such writ and gave bail to the officer in the sum required. Later defendant made a motion to quash the proceedings under such writ and to be discharged from such bail and for the discharge of his sureties. This motion was granted upon a hearing, and respondent ordered “that all proceedings had on said affidavit are hereby quashed, the above-named defendant discharged from bail, and said bail bond held for naught and the sureties thereon discharged.” The writ of mandamus in these proceedings is sought to compel respondent to vacate and set aside this order.

The record presents but one question to be determined, and that is whether the shoeing made by the affidavit of relator, and the affidavits annexed to and made a part of it, stated a cause of action and entitled her to this writ of capias. Respondent determined the matter upon the sole ground that there had been no forfeiture of this contract, and relator had not been damnified. The truth of the statements contained in relator’s showing made upon the application for the writ are not questioned in these proceedings. Is a cause of action for fraud stated?

By these false and fraudulent statements made by defendant to relator that he had paid $4,000 for the land he desired to exchange for her property, and that his land was worth it, that there were on said premises a good house, barn, and other outbuildings, that the soil was good and productive, that there was a man or family living upon the' farm and working it, upon the truth of which statements she absolutely relied, she, without viewing the premises and without inquiry, was induced to and did deed her Kalamazoo property to him. She swears that, by means of these false and fraudulent statements, she has been damaged and defrauded. Relator, by her affidavit and the supporting affidavits, has stated a good cause of action for fraud. Pratt v. Allegan Circuit Judge, 177 Mich. 558 (143 N. W. 890).

Attorneys for respondent contend that relator received, as a consideration for her premises, the land contract for $4,000, upon which $1,500 had been paid, and $200 in cash, and the argument is made that this was a valuable consideration upon the face of the papers, and, no default having been made in the payments on this contract, she has not been damaged or defrauded and has no right of action against defendant. There is no force in this contention, as far as these proceedings are concerned. It might possibly be material upon the trial of the case as bearing upon the measure of damages.

In view of the proof presented, showing the true condition and actual value of the premises for which defendant by fraud induced relator to exchange her property, this contract to sell these premises for nearly three times the actual value might well be considered as tending to support relator’s contention that she had been defrauded. It was not necessary that default should occur in this contract as a condition precedent to bringing suit for fraud.

It is intimated by counsel that relator has not rescinded the contract and offered to restore what she received. Upon this proposition it need only be said that it is well-settled law that no rescission or restitution is -necessary as a condition precedent to maintaining an action for damages arising from false representations and deceit. 20 • Cyc. p. 91, and cases cited; Wegner v. Herkimer, 167 Mich. 587 (133 N. W. 623). The fraud in this case was completed when defendant, by his false representations, induced relator to deed her property to him, and a right of action then accrued. Petitioner had been fraudulently induced by defendant to part with her property. Briggs v. Brushaber, 43 Mich. 330 (5 N. W. 383, 38 Am. Rep. 187). The value and condition of this farm was falsely represented by defendant. Relator having parted with her property, relying upon such representation, a right of action accrued immediately upon .ascertaining its falsity. Short v. Cure, 100 Mich. 418 (59 N. W. 173); First Nat. Bank of Ovid v. .Steel, 146 Mich. 308 (109 N. W. 423). None of these .authorities are disputed, and counsel for respondent ■cite no authorities supporting their contentions. The :motion to quash the proceedings should have been denied.

A peremptory writ of mandamus will issue against respondent to compel him forthwith to set aside the order made and entered by him quashing the proceedings and discharging defendant from bail in the cause pending in the circuit court, Kalamazoo county, wherein relator is plaintiff and Fred Herreman is defendant, and to proceed in due course to hear said cause upon its merits. Relator will recover costs of these proceedings against Fred A. Herreman.

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


author: McAlvay, C. J. KUHN, J.

text:
    RUSCYK v. DETROIT UNITED RAILWAY.
    1. Amendment — Adjournment—Continuance—Surprise.
    On the trial of a personal injury action in which the plaintiff amended his declaration so as to charge defendant’s motorman with subsequent negligence and failure to take necessary precautions to avoid a collision with the car on the rear bumpers of which plaintiff was riding, the court should not have permitted the amendment without granting a continuance which defendant’s attorney asked for on the ground of surprise.
    2. Street Railways — Personal Injuries — Negligence.

      Held, also, that the evidence did not sustain plaintiff’s claim that defendant’s motorman was chargeable with actionable negligence notwithstanding plaintiff’s precedent contributory negligence, that defendant’s motorman took every possible precaution to avoid the collision after he discovered plaintiff's peril and a verdict for the defendant should have been directed.
    Kuhn and Bird, JJ., dissenting.
    Error to Wayne; Van Zile, J.
    Submitted November 6, 1913.
    (Docket No. 83.)
    Decided June 1, 1914.
    Case by Bernard Ruscyk, by his next friend, against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Corliss, Leete & Moody (William G. Fitzpatrick, of counsel), for appellant.

      Dohany & Dohany, for appellee.
   McAlvay, C. J.

A judgment was recovered by plaintiff against defendant for damages in a negligence case for personal injuries. Plaintiff, a young man about 17 years old, received his injury at about half past 6 o’clock on the morning of April 19, 1911, while riding on the rear bumper, or deadhead, outside of the rear dash of a north-bound Baker-Chene street car of defendant in the city of Detroit, while such car was on the passing switch near the corner of Garfield and Chene streets.

At this time defendant operated a single track line on Chene street from Gratiot avenue to the northeasterly city limits, upon which cars moved north and south, passing each other on switches located at distances of from 800 to 900 feet apart. The service ordinance then in force called for a three-minute service, upon which cars from the barn on Baker street were operated. From the Chene street intersection on this track it was not possible to operate cars exactly on schedule. The cars from that point were run north and south substantially upon a, double header system by which two cars going north would ordinarily pass two cars going south on the same switch.

On the morning in question it had rained considerably before the accident occurred. The track was wet, and the weather foggy. This was during what is called the “rush hour,” and all the cars were crowded. Plaintiff lived several blocks north of this switch. He was acquainted with the conditions of traffic at this time of day, and walked south on Chene street as far as Forest, where, discovering a car on or near the switch at Garfield street, one block further on, he proceeded south. Arriving at this place he found the car crowded inside and on the platform. The second car, bound in the same direction, also came on this switch and stopped near the rear of the first car. Plaintiff says he undertook to get on this second car, and, not being able to do so, because of the crowd, went back to the first car, and, with others, climbed on the rear bumpers of the rear dash, where he stood when the conductor took his fare. The testimony indicates that the cars stood from 6 to 15 feet apart. These cars waited on this switch until two south-bound cars passed them. The first car then started forward and, after moving a short distance, suddenly stopped.

To this point there is no dispute between these parties upon the facts. It is claimed on the part of plaintiff, and testimony is in the record ón his part tending to show, that the motorman on the rear car, who was in a position to see plaintiff riding on the bumper of the first, slowly started his car forward, and did not stop it until the collision occurred and plaintiff was injured.

It is not disputed on the part of defendant but that the motorman operating the rear car saw the persons who were riding on the bumper. Defendant’s claim relative to the collision, tending to support which there is evidence in the record, is- as follows: The motorman on the second car testified that, observing the first car had started, he gave the signal that he was ready, and, receiving the answer from his conductor, started his car ahead on one point of the controller, afterwards increasing it to two. He says he very soon observed that the car ahead had stopped, and at once shut off his power, tripped his sand, put on his air brakes, and hand brakes, but, owing to the wet and slippery condition of the track, was unable to stop his car before it struck the bumper of the first car a slight blow, without injury to either car. There is no dispute between the parties as to the following facts: Some of the men standing on this bumper jumped before the cars collided. Plaintiff’s left foot was caught between the bumpers of the cars and badly crushed, and another boy was injured slightly. These bumpers are five inches wide, extending out this distance around the end of the car. Plaintiff distinctly saw the car approaching slowly from the rear, and testified he thought it was going to stop. He had frequently used the cars on this line before this day in going to and from, his work. He appears, from his testimony, to be a young man of ordinary intelligence, and had attended a Polish school, also an English school into the fifth grade, and could read and write both languages.

Experienced motormen operated both of these cars on this date. The first car started out after the two south-bound cars had passed on this switch. It had gone but a short distance before the motorman discovered another south-bound car approaching about one block south of the next switch. He had not discovered it sooner because of the fog. To avoid being forced to back south if he passed the frog on this Garfield switch going north, and thereby lose his place and also time, he stopped his car at once.

Cars, of necessity, on this line, because many of the switches will accommodate but two cars, must keep quite near together. The motorman of the rear car could not see, as he testifies, the car going south, and, having started slowly, when he discovered the sudden stopping of the first car, immediately made the efforts to stop his car, the controlling mechanism of which was in perfect condition.

At the close of plaintiff’s case, and after a motion made by defendant for a directed verdict, because there was no proof of the acts of negligence charged in the first count of the declaration, because of a fatal variance between the allegations of negligence contained in the second count of the declaration and the proofs in the case, because there was no evidence of negligence proved as charged in such count, and because plaintiff was guilty of contributory negligence, the court, upon motion of plaintiff’s attorney, granted leave to amend the second count of the declaration. This was done, notwithstanding the objection of defendant that such amendment charged a new cause of action, on account of which defendant was not prepared to proceed because of complete surprise. The amended count reads as follows:

“That he boarded a certain car of the deféndant which was facing in a northerly direction, and which was standing on the easterly side of the switch at said point, and paid his fare to the conductor in charge of said car; that said car was greatly overcrowded; plaintiff took a position outside of the rear dash of the same, in which position plaintiff and several other passengers were standing when the conductor of said car accepted his fare; that after plaintiff boarded said car said car was moved forward on said switch a distance of 4 or 5 feet, at which point it stopped and remained stationary for a period of three or four minutes; while said car was so standing at said point on said switch, the defendant, by its servants in charge of another car standing about 11 feet in the rear of said car upon which plaintiff was a passenger, caused said rear car to be started forward and to be operated to and against the plaintiff who was standing on the bumper; * * * that the motorman in charge of said car in the rear of the car saw plaintiff and several other passengers in their position outside of the rear dash of said car before causing said rear car to be started forward, and well knew that if he collided with the rear of said car upon which plaintiff was riding, that plaintiff would be crushed and crippled, that notwithstanding the fact that plaintiff occupied said position outside of the rear dash of said car and.was in plain view of, and had been seen by defendant’s motorman before starting his car forward, the said motorman in charge of said rear car, in utter disregard of his duty in the premises, and with reckless, thoughtless, and intentional disregard of the consequences, acting with gross, wanton, and wilful negligence, caused said car which he was operating to be propelled forward to and against the plaintiff and other passengers who were outside of the rear dash of said car, and without the exercise of any proper effort to avoid said collision.”

Defendant was required to proceed at once with the trial upon such declaration as amended, to which its counsel objected and excepted. This declaration upon which.'the case was submitted to the jury was the third which had been filed in the case.

The original declaration, filed August 15, 1911, contained but one count, and alleged that, while plaintiff was a passenger on the rear platform of a crowded car of defendant company which had arrived on the switch at Garfield street, another car going in the same direction at a high rate of speed collided with it, badly crushing and injuring him, charging defendant’s duty was to operate its cars not less than a certain distance apart and at a certain speed, which duties were alleged to have been violated.

In October, 1912, upon leave given, plaintiff filed an amended declaration containing two counts. The first count alleged that he boarded one of defendant’s cars at Garfield and Chene streets to go to his work, and paid his fare; it charges in proper language defendant’s duty to operate its cars without negligence, and as required by certain ordinances, and at a certain distance apart when approaching from the rear, and at a certain rate of speed; it charges a negligent disregard of such duties in operating a car at a high rate of speed approaching the car upon which plaintiff was a passenger from the rear, so that it collided with it, and he was severely injured, without fault or negligence on his part. The position which plaintiff occupied upon the car is not stated in this count.

The second count alleged that plaintiff at this place, at the invitation of defendant, boarded a greatly overcrowded car while it was standing on Garfield switch; that he “took a position outside of the rear dash of the same” where several others were standing, and paid the conductor his fare; that the car remained stationary for three or four minutes, and, while so standing on the switch, another car of defendant, approaching from the rear of the car upon which plaintiff was a passenger, in plain sight of the approaching car, where he could be seen for several blocks by its motorman, was operated with gross, wanton, and wilful negligence at a high rate of speed, causing it to collide with the car upon which he was a passenger and injured him severely.

Under the direction of the court, the trial of the case proceeded after the court had denied defendant’s motion for a directed verdict, and had allowed an amendment to plaintiff’s declaration, notwithstanding an objection by defendant that such amendment stated a new cause of action and was a matter of surprise. The case was tried and submitted upon this declaration amended at the close of plaintiff’s case. The result of the trial was a verdict in favor of plaintiff. Defendant has brought the case to this court for review by writ of error.

The errors assigned and relied upon by defendant for a reversal, which are based upon the refusal of the court to grant its motion for a directed verdict at the close of plaintiff’s case, do not require consideration. It is admitted in plaintiff’s brief that the first count of the declaration was eliminated from the case during the trial. The abandonment of the second count immediately after this motion was made, by asking from the court and accepting permission to amend the second count of plaintiff’s declaration and filing the amended count, was an admission on the part of plaintiff that the contention of defendant that there was a fatal variance between the declaration as it then stood and the proofs of plaintiff in the case was well founded.

The contention of defendant that the record disclosed plaintiff was guilty of contributory negligence does not appear to be disputed. This is admitted by the amendment to plaintiff’s declaration, which relies entirely for a recovery upon the alleged subsequent negligence of defendant, upon which, if shown, a recovery could be had, notwithstanding plaintiff’s contributory negligence. This was the view of the case taken by the court, as appears from what was said at the time the amendment was made, and later in submitting the case to the jury upon the one question of subsequent negligence.

It is strongly urged on the part of defendant that the court erred in allowing plaintiff to amend his declaration at that time. Under the circumstances, we do not think it necessary to consider the proposition. If it be admitted that allowing such amendment was a matter of discretion on the part of the court, the question remains whether requiring defendant to proceed to trial at once was an abuse of judicial discretion, when its counsel was protesting that this amended declaration stated another and different charge of negligence, whereby defendant, by reason of surprise, was not prepared to proceed to trial.

The court, later in' the case, where a similar question arose relative to another amendment to the declaration to allow proof of a certain custom, not so important as the one under consideration, recognized the fact that, if by an amendment a great surprise is given to the opposite party, sufficient time for preparation should be granted, and so ruled. We do not think, under the circumstances of this case, this court should say that, where defendant had been called to meet a certain specific charge of negligence alleged in the declaration, and had prepared to defend such a case, it should be required forthwith to proceed to defend a substantially different charge of negligence, without opportunity to procure witnesses or' make other preparation for defense.

At the close of the case counsel for defendant made a motion for a directed verdict, “upon the ground that there is no proof of the allegations of negligence contained in the plaintiff’s declaration and that, under the law, the plaintiff is guilty of contributory negligence.” Counsel challenged the sufficiency of the amended declaration, as not charging a case of subsequent negligence, and said:

“If it does state a case for liability for subsequent negligence, I assert that there is no evidence which supports the allegation of subsequent negligence, as charged in the declaration.”

The motion was denied, the court saying:

“I think negligence arises from the fact that the motorman saw it who was opérating the car. I think that is sufficient negligence. * * * I think, in other words, you may go to the jury in this case upon the question of subsequent negligence.”

Errors are assigned upon the ruling of the court denying this last motion, and also upon the holding of the court that subsequent negligence arose from the fact that the motorman operated the car in such a way that it collided with the car upon which plaintiff was riding, with the knowledge of the fact that plaintiff was in an exposed and dangerous position.

The case was submitted to the jury upon the one question of subsequent negligence upon the theory of the court as above stated. The declaration contains no specific averment of negligence in starting the rear car in the manner it was started, nor as to the speed at which it was operated. There is no dispute in the record but that the car started and proceeded slowly, nor is there any dispute but that the motorman did everything possible to stop the car and avoid collision. Plaintiff testified that it was coming slowly, and that he expected it would stop before striking his car.

To hold the defendant liable for subsequent negligence under this declaration it must appear that after the rear car was started the motorman, with knowledge of the situation, made no reasonable effort to stop it and avoid collision. In other words, that the conduct of the motorman amounted to gross negligence. The evidence in the record does not support such a conclusion.

Other errors assigned do not require consideration.

For the reasons stated, the judgment of the circuit court is reversed, and a new trial granted.

Brooke, Stone, Ostrander, Moore, and Steere, JJ., concurred with McAlvay, C. J.

KUHN, J.

(dissenting). I am of the opinion that the judgment should be affirmed, as the question of the defendant’s subsequent negligence, under the facts in this case, was a question of fact, and was properly submitted to the jury.

Bird, J., concurred with Kuhn, J.


text:
    BLAKESLEE v. PEABODY.
    1. Brokers — Contracts—Compensation—Performance.
    Where plaintiff, acting as broker for the defendant, secured a buyer for the property who was ready and able to pay the price, and, at the time the transaction should have been concluded, the defendant was in Europe and the buyer, through defendant’s agent, obtained possession of the premises, which he occupied for some time, after-wards conveying the property to defendant by quitclaim deed, the plaintiff had performed his commission so as to be entitled to the agreed compensation.
    2. Same — Ratification—Vendor and Purchaser.
    Under conflicting testimony, the issue whether defendant ratified the sale by negotiating with the purchaser and obtaining a quitclaim deed of the premises during the absence of defendant from the country, was a question of fact, properly left to the jury.

      Error to Ottawa; Cross, J.
    Submitted January 23, 1914.
    (Docket No. 85.)
    Decided June 1, 1914.
    Assumpsit by Chauncey M. Blakeslee against Frederick F. Peabody for broker’s commissions. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Soule & Soule, for appellant.

      Farr, Kolyn & Farr, for appellee.
   McAlvay, C. J.

This suit was brought by plaintiff against defendant in assumpsit to recover a certain commission under an agreement made with defendant to furnish him a purchaser ready, willing, and able to purchase certain premises located in the township of Spring Lake, Ottawa couhty, Mich., at a price and upon terms fixed by defendant. The result of the • trial was a verdict and judgment in favor of plaintiff for the amount claimed. Defendant, upon a writ of error, asks for a reversal.

There is little or no dispute between the parties upon the material facts in the case. The property in question was part of a considerable tract of resort property at that place owned by defendant, who resided in Troy, N. Y. He was acquainted with plaintiff, who was a contractor living at Spring Lake. On May 11, 1912, defendant wrote plaintiff a letter,.the material parts of which are as follows:

“If you can find a purchaser for my whole property on Spring Lake * * * for $25,000 * * * I will sell the whole property. * * * I hope you can find a purchaser for me, and if so, I am willing to pay you the usual commission of 21/2 per cent.”

Plaintiff found a -customer for ten acres of it, upon which a bungalow was situated, and wrote defendant to put a price upon it. On June 5, 1912, defendant wrote plaintiff as follows:

“Dear Sir:
“The lowest price I have put on the bungalow is $9,000. It includes, ag you probably know, ten (10) acres of land. I hope you will succeed in selling it to Mr. Williams.”

On June 10, 1912, defendant wrote another letter to plaintiff, as follows:

“I have had some correspondence with Mr. Williams and finally offered him the bungalow for $8,000, $2,000 cash and the balance in three years at six per cent. I think that is a very low price for the property and hope he will take it.”

After receiving this letter, plaintiff had further negotiations with Mr. Williams, who agreed to take the property at that price and said he was going to New York and would stop at Troy and complete the purchase with Mr. Peabody. Mr. Williams, on arriving at Troy, went to the office of Mr. Peabody ready, willing, and able to take the property upon the terms fixed. He found that Mr. Peabody had sailed for Europe the day before, and was informed by Mr. Peabody’s secretary that she was authorized to complete the transaction. Mr. Williams, who was examined as a witness for plaintiff, was not allowed to testify further as to what occurred in Peabody’ office in Troy, because of the objection that no agency had been shown. Within a few days he returned to Spring Lake and took possession of this property and occupied it for several weeks, when, upon payment to him of $750 by an attorney who claimed to represent defendant, he quitclaimed all his right and interest in the premises to defendant. The action of this attorney was confirmed by defendant, as appears by an excerpt from a letter written by him to plaintiff’s attorney, as follows:

“ * * * My attorney afterwards paid Williams a consideration for the annulment of the contract so as to clear the title but no sale was ever made to Williams in the proper sense of the term.”

The record shows that, after Mr. Williams was at Troy, all of the premises which defendant owned at Spring Lake were sold, on June 26, 1912, for $25,000 to a man named Morse through real estate agents in Grand Rapids, in whose hands'they had been placed for sale for more than a year. The last letter above quoted was written by defendant after such sale and after his return from Europe, when plaintiff’s claim against defendant had been given to his attorneys.

Defendant offered no evidence in the case and made a motion at the close of plaintiff’s case for a directed verdict. This was denied, and after argument by counsel the case was submitted to the jury under the charge of the court with the result as stated. There were 27 assignments of error, of which very few require consideration, the most material of which is whether the court should have directed a verdict in favor of defendant.

It is the contention of plaintiff that under his agreement with defendant his duty ended when he had furnished a purchaser ready, willing, and able to complete the purchase upon the terms offered by the vendor. It does not appear to be disputed but that he found such a purchaser in Mr. Williams, who was ready, able, and willing to buy this property from defendant upon the terms fixed by defendant; nor is it denied that Mr. Williams went to Troy, N. Y., for the purpose of completing the purchase. Plaintiff’s commission, however, did not depend upon a completed sale. This principle is so well established by the courts of this and other States that citations of authority are unnecessary.

It appears that the principal contention of counsel for defendant is that this consummation of the sale was defeated because there is no evidence in the record that defendant was notified of that fact. Plaintiff contends that the record not only shows defendant was notified that Mr. Williams would purchase this property, but that afterwards through his office he recognized and ratified the transaction. The evidence in the case conclusively shows that plaintiff secured this-purchaser and notified defendant of that fact; that defendant took the matter up with Mr. Williams, and his letter shows that he gave him the terms and notified plaintiff by the letter what the terms were; that plaintiff then had further negotiations with him, and he agreed to the price and terms; and that Mr. Williams,, for the purpose of closing the deal, went to defendant’s office in Troy and so informed defendant’s secretary, who said she was familiar with defendant’s correspondence as she had written the letters; that Mr. Williams returned to Spring Lake, where he and his wife were let into possession of the premises by defendant’s caretaker and plaintiff, who, being present, surrendered the keys of the cottage to Mrs. Williams. It appears to be undisputed that Mr. Williams retained such possession for several weeks. It was a question of fact for the jury to determine whether defendant, through his duly authorized agent, was notified that plaintiff had fulfilled his contract.

The matter of ratification rests upon what was done after that and the surrender of possession of the premises by Mr. Williams. There is no evidence in the case disputing the fact that defendant’s attorney negotiated with Mr. Williams and upon payment of $750 to him received a quitclaim deed to the defendant of all his interest in the premises. The authority of this attorney is admitted in the quotation from defendant’s letter given above. This, also, was a question of fact for the jury to determine.

There is a claim in the case that the authority to plaintiff to find a purchaser for this property was revoked by the sale to Morse. Upon the facts in the case upon which plaintiff relies for recovery, we do not think it is necessary to consider this proposition.

Error is assigned upon portions of the charge of the court and certain requests to charge as given, also upon the admission of certain testimony in the case. These have been examined with care, and we find that no reversible error was committed. The charge of the court, taken as a whole, fairly submitted the questions of fact in the case to the jury, and there was evidence to support the verdict. ■

The judgment of the circuit court is therefore affirmed.

Brooke, Kuhn, -Stone, Ostrander, Bird, and Steere, JJ., concurred. Moore, J., did not sit.


author: Brooke, J.

text:
    NORTHWESTERN COOPERAGE & LUMBER CO. v. RUBINSKY.
    1. Contracts — Sales—Words and Phrases — Scrap Iron.
    Under a written contract to sell-all the scrap iron owned hy plaintiff at a place specified, defendant was not entitled to claim materials, dynamos and engines which were capable of being repaired and placed in running order.
    2. Same — Construction—Performance.
    Failure of defendant to furnish shipping directions at the request of the vendors of certain scrap iron, the required information not appearing in the written contract between the parties, excused the vendor for not shipping the merchandise.
    2. Sales — Interpretation of Contract.
    Under the provisions of a contract of sale of certain scrap, specifying the kinds and prices, railroad weight at the point of shipment to constitute the basis of settlement, evidence that the railroad company weighed the respective kinds of material separately and the weights so found, was conclusive on the buyer.

      4. Evidence — Contracts—Parol Testimony.
    Parol testimony is not competent to vary the plain, unambiguous terms of a writing.
    Error to Muskegon; Sullivan, J.
    Submitted January 20, 1914.
    (Docket No. 132.)
    Decided June 1, 1914.
    Assumpsit by the Northwestern Cooperage and Lumber Company against Henry Rubinsky for breach of contract. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Cross, Vanderwerp, Foote & Ross, for appellant.

      William, Carpenter (G. R. Empson, of counsel), for appellee.
   Brooke, J.

Plaintiff and defendant entered into the following contract:

“Gladstone, Michigan, Feby. 9 — 09.
“H. Rubinsky,
“Muskegon, Michigan.
“Dear Sir:
“This will confirm our conversation of even date whereby we agree to sell you and you agree to purchase and pay for what scrap iron we may have at Gladstone at the following prices f. o. b. cars, railroad weight at Gladstone to be final basis of settlement: Scrap, $8.50; sheet iron and saws, $3.00 per net ton.
“We also agree to pay you $300.00 for burner now located at Garth, with the privilege of moving same at any time during the coming summer. Your acceptance will constitute all the contract necessary between us, and shall be binding upon our respective successors, heirs, and assigns. All brass, copper, and dynamo is included.
“Yours truly,
“N. W. Coop. & Lbr. Co.,
“F. P. Bushong.
“Accepted: H. Rubinsky,
“Per — Harry.”

Certain scrap was delivered to defendant thereunder, but he declined to pay therefor. Plaintiff thereupon brought suit to recover the value of the same, filing its declaration in assumpsit, and serving a bill of particulars of its claim as follows:

1909.
Peb. 22 5,800 lbs. sheet scrap iron at $2.75 per net ton.......................$ 7 98
175 10 41,200 lbs. cast scrap iron at $8.50 per net ton.......................
10 04 27 7,300 lbs. sheet scrap, iron at $2.75 per net ton.......................
182 75 43,000 lbs. cast scrap iron at $8.50 per net ton........................
6 74 4,900 lbs. sheet scrap iron at $2.75 per net ton........................
448 48 105,525 lbs. cast scrap iron at $8.50 per net ton.......................
$831 09
Loaded in Car No. 40776-30545-32852.

To this declaration the defendant filed a plea and notice. Generally speaking, the notice sets out that plaintiff had made breach of the contract, in that it had not delivered to defendant all of the scrap bargained for, and that therefore the defendant had lost the difference between the contract price and its value —about $6 per ton, a total of $900 — that no brass, copper, or dynamos were delivered, and that he should have received 3,200 pounds of this material, and which was worth $251.51 per net ton in excess of the agreed price of $8.50 per net ton, entailing a further loss on defendant of $403. Further, that plaintiff failed to deliver to defendant 15 tolls of sheet iron and saws, which were worth $8.50 per net ton, an excess of $5.50 per net ton over the agreed price of $3, entailing a further loss on defendant of $82.50. Defendant asked that his damages occasioned by the alleged breach of the contract by plaintiff should be ascertained, and such, portion as was necessary set off against plaintiff’s claim, and the balance thereof certified in his favor.

At the close of the testimony, the court directed a verdict for the plaintiff in the sum of $759.70.

Defendant’s assignments of error are grouped under two heads: (1) Error in directing a verdict for plaintiff; (2) error in the admission and rejection of evidence.

It appears that the scrap actually shipped was shipped on February 22 and February 27, 1909; that thereafter plaintiff made frequent demands upon defendant for payment. On April 3, 1909, plaintiff wrote defendant the following letter:

“Gladstone, Mich., 4/3/09.
“Mr. H. Rubinsky,
“Muskegon, Mich.
“Dear Sir:
“We have yours of the 31st ult., and, replying, you are laboring under a mistake or misunderstanding, as we shipped you practically all the scrap we had, except a little that we were not able to gather up out of the snow, but it is not enough for a car load.
“As to the. brass, copper, and dynamos. The dynamos we sent to shops and will repair. There was no brass, except a couple of small quarter boxes, and, inasmuch as we are repairing two or three of the engines that went through the fire, these small boxes are being used. We shipped no scrap to other parties, except such as we are getting repaired to use again in our mill, and you must know that we are entitled to do this. You are taking a very technical position indeed in suggesting the things you do in your letter. We have given you an absolutely fair deal in every respect, and do not take kindly to such a letter as you have written. We treated this matter properly when you were here, giving you preference when we could have shipped the iron to better advantage to other people, because we had done business with you in some of the material at Garth. Furthermore, every dollar’s worth of material we ever bought of you at Garth we paid you spot cash right in our office. Now you come along with a letter such as you have no right to write. We are entitled to settlement long ere now for the iron shipped you, and will ask you to kindly send us remittance promptly.
“We also note you mention a difference in your weight and the railroad weight. We do not know why there should be any difference, as you know we are not interested in same as -the basis of the sale to you was railroad weights to govern. We have evidence to believe the railroad weight is correct and furthermore we are shipped hundreds of cars per month of all kinds of material that are weighed over the railroad scales at Gladstone and we find their weights in every case to be very accurate.
“We called your attention to the matter of the 2 per cent, that was on our invoice in some way by oversight. Such terms as you know, are not known to the trade at all, and we surely are as much entitled to our money when this iron was shipped, as you are to expect spot cash for material we buy of you. The raising of the question in your letter and intimations made will not tend to make future business with you very desirable, unless you are disposed to treat this matter in exactly the spirit in which the deal was made.
“We shall expect to hear from you promptly, so that we will know exactly where we are at in this matter.”

On May 17, 1909, defendant wrote plaintiff the following letter:

“May 17 1909. ’
“Northwestern Cooperage & Lumber Co., ’ “Gladstone, Mich.
“Gentlemen:
“Replying to your favor of the 15th inst., I have to say that my contract provides thatT shall receive all scrap which you had on your premises at the time that contract was made, and should also have all brass and dynamos; and I am surprised that you should have shipped any of the material covered by my contract, when you knew that I was entitled to it.
“I want a full statement showing what became of this material, through which I -am entitled to, under my contract.
“When I get this information, I will be ready to adjust this matter; but you certainly could not ask me to settle until you comply with the terms of this contract fully.”

After some further correspondence, plaintiff wrote defendant as follows:

“Gladstone, Mich., 5/15/09.
“Mr. H. Rubinsky,
“Muskegon, Mich.
“Dear Sir:
“We are in receipt of yours of the 10th. In reply, we sent to Escanaba three of our engines, constituting in all two car loads, for repairs, just as was our right according to the deal with you. It developed after-wards that one of the engines was so badly burned that it could not be repaired, consequently it was scrapped. There was also, we believe, enough put in to make car load weight, but just what this was, we are at this time unable to state. Be this as it may, you know very well that our deal provided that we were to reserve such materials as we needed for our use or any of the material or this scrap that we could use and why you should be hanging back as you are is more than we can understand. It certainly has nothing to do with the adjustment of the matter. We will thank you, therefore, to clean it up promptly.
“Yours truly,
“The Northwestern Cooperage & Lumber Co., “By I. N. Bushong, Manager.”

Fourteen days later plaintiff wrote the following letter:

“Gladstone, Mich., 5/29/09.
“Mr. H. Rubinsky,
“Muskegon, Mich.
“Dear Sir:
“Replying to yours of the 17th. As stated in our former letter, our agreement provides that we shall reserve any of the material that went through the fire that we can use in our rebuilding and what you are trying to get at in writing the way you do is more than we can understand. This was all set out very plainly in the contract, and, as you know, was also
talked fully between yourself, my son, Mr. Staple, and myself when you were here. We sent car No. 93501, weighing 45,600 pounds, and car No. 28799, weighing 45,400 pounds, to the Chatfield Iron Works at Escanaba, and on these cars were five of our engines that were through the fire, and besides some other fittings. This is everything that has gone from here, except what has been loaded on your cars. All of this material we had a perfect right to reserve as contract provides. We need not have given you more than one car load if we did not wish to, but we have given you an absolutely square deal just according to the contract, and we ask you to come forward and settle pow, or we shall have to take other measures. If you do not think we have been square with you, why don’t you come over and investigate, and not be playing the coward as you are. We have in the neighborhood of two cars of scrap here yet, but you can rest assured that it will not be shipped until you change your attitude very much. What we want now is a settlement, or else we shall take legal proceedings very shortly. Your letters are entirely out of order. We have at all times kept within our rights. We are ready to demonstrate this to you any time you will come over and make the investigation.
“Yours truly,
“The Northwestern Cooperage & Lumber Co., “By I. N. Bushong, Manager.
“Two of the engines referred to have been repaired and are here. Three are still at the iron works in Eseanaba, and you can very easily verify all we have said. We paid you cash for all the Garth material, hence your attitude is all the more ridiculous.”

On June 30, 1909, plaintiff wrote the following letter:

“Gladstone, Mich., 6/30/09.
“Mr. H. .Rubinsky,
“Muskegon, Mich.
“Dear Sir:
“We have had no advice from you with shipping orders for the balance of the scrap here and have now been waiting for nearly 30 days. If we do not hear from you within the next four or five days, as per our former letter, we shall sell this material in other directions, as we must have it off the ground.
“Yours truly,
“The Northwestern Cooperage & Lumber Co., “By B.”

It appears to be defendant’s claim that he was entitled to receive everything of metallic character belonging to plaintiff that went through the fire. Expert evidence was offered on the part of plaintiff as to what the term “scrap iron” included. We are satisfied that it cannot be held to include any material which is in a condition which will permit of repair. The correspondence clearly shows that the engines and dynamo were shipped by plaintiff for the purpose of repair, and that they were all repaired, with the exception of two of the engines, which turned out upon examination to be too badly burned to permit a restoration. The letter of plaintiff to defendant of June 30th, supra, indicates a willingness on the part of the plaintiff to deliver to defendant all the remaining scrap, even though the defendant had up to that time declined to make settlement for that which had been shipped to him in the month of February. Defendant did not comply with the request for shipping instructions, and therefore cannot be heard to complain that he did not, in fact, receive all of the scrap. It is therefore unnecessary to determine whether plaintiff was entitled to demand payment for the scrap already shipped and to decline to ship the balance in case payment was not made.

Under the terms of the contract, the railroad weight at Gladstone was to control. Defendant does not contend that he has not received according to the railroad weight the iron which at the contract price would represent the amount of the judgment against him. He does, however, claim that the proportion of cast scrap and sheet scrap was not such as is indicated by the plaintiff’s bill of particulars. This claim is based upon the evidence of defendant’s son, who claimed to have examined the scrap after receipt, and that it was three-quarters sheet iron and one-quarter heavier iron scrap. The record discloses that in loading the cars the cars were first weighed empty by the railroad company, and were then loaded with light scrap and again weighed, and thereafter the load was completed with heavier scrap, the various weights being taken by. the weighmaster. Evidence of these weights was introduced at the trial, and we are of opinion that, under the terms of the contract, the defendant is bound by them, and cannot, after receipt of the material, question their accuracy.

Error is assigned upon the refusal of the court to permit the defendant to testify how certain words in the contract came to be inserted. The court was clearly right in the ruling, as the contract was plain and unambiguous, and must be construed by the court according to its terms.

Other errors are assigned as to rulings of the court in rejecting certain testimony. They require no discussion.

The judgment is affirmed.

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


text:
    FOGARTY v. MICHIGAN CENTRAL RAILROAD CO.
    1. Customs and Usages — Railroads—Evidence.
    In an action for negligent injuries to the employee of a sugar factory, who was injured by defendant’s train in switching upon the property of plaintiff’s employer, his testimony that he had been employed about ten days by the sugar company, that it was customary when defendant did switching in the yard of the factory for the conductor of the train or some other employee to precede the engine on the track to give warning of its approach, not corroborated by plaintiff’s other witnesses who had been familiar with the conditions for a longer time than had plaintiff, and who testified that after the original warning no further effort was made to notify the workmen of the approaching train, except that a lookout was stationed on the first car, held, insufficient to establish a custom which would be binding on the defendant.
    2. Same — Railroads—Negligence.
    A custom must be certain, uniform, invariable and notorious, that is, known to all persons of intelligence having to do with the subjects to which it relates.
    Error to Bay; Collins, J.
    Submitted January 12, 1914.
    (Docket No. 47.)
    Decided June 1, 1914.
    Case by John J. Fogarty against the Michigan Central Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      Waits S. Humphrey and Cooley & Hewitt (Humphrey, Grant & Humphrey, of counsel), for appellant.

      Hall, De Foe & Hall, for appellee.
    Plaintiff, a man 42 years of age, was employed by the German-American Sugar Company in Bay City as a common laborer. He started to work October 1, 1908, and was injured on October 11th.

      Defendant railroad operates a siding and several switch, tracks in the yards of the sugar company. The southerly switch track runs from the main lead upon a curve in a southwesterly direction. This curve extends about 600 feet. The line then becomes straight and runs due west a further distance of about 600 feet to a post, where it ends. On the north side of this track, at a point just west of the curve, there is located a barrel shed, in front of which and close to the track there is a platform about 70 feet long and 4 feet high. The platform is only 2 or 3 inches distant from the side of a passing car. West of the barrel shed is located a large coal bin. South of the track the beet sheds stand. A lime kiln is located upon this track in which limestone and coke are used. This material is piled alongside the track, east of the barrel shed, awaiting use. The extent - to which this material obstructed the view of a train approaching from the east is a matter of dispute. On the day in question it became necessary to-remove some empties and place some loaded cars upon this track.
    Following a conceded custom, the conductor of the switching' crew passed along the track and warned those working on or about the cars that a movement was tó be made. At this time a partially unloaded car containing stone stood upon the track east of the barrel shed. Two men were at work in it, and they rode out with the train and back when it was pushed in. Having taken the train out and shunted the empties, the crew coupled onto a loaded coal car, and the train of four cars (the coal car being farthest west and the partially loaded stone car being next) was backed in upon the siding. While the train was being backed in a brakeman was stationed on top and at the west end of the loaded car for the purpose of seeing that the track was clear and warning.any one who might be in danger. The engine was equipped with an automatic bell which was ringing at the time.

      Plaintiff had been afflicted with deafness to some extent for many years prior to his injury. He described the accident as follows:
    “When I went through the opening and went onto the track I looked both east and west. There were no cars in sight from the point of vantage that I was viewing them from, but I saw the car before — when I got onto the track that day there was nothing in sight. There were no cars in sight. I saw a car standing out onto the track there right off the switch before I came into this opening. It was just over the switch where the switch leads off from the main line. I can point out on this Exhibit A about where that car stood. * * * I saw the engine working over
    on the north side. There were no other cars between this car that I have pointed out and the platform. There was just that one car. I saw where the locomotive that works in the yard was at that time. It was over on the north side of the building. It was right on the main track going into the main building. It was west of the switch that leads in on the south. The front end of the engine was headed toward the east. The locomotive was standing on the side track. I saw Mr. Coles, the switchman, around there. He was going over toward the office, the sugar company’s office. I did not see any of the rest of the train crew. When I got up on the platform that day I went right into the storehouse and pulled the door open and set on a nail keg there and ate my dinner. There was not any one else eating dinner in there that day with me, but there was two fellows that went by me that waved their hands at me. One was Smith and the other was —I can think of the name later. There were no more than those two that went through while I was eating my dinner, that I know of, and they couldn’t have went through unless I would have seen them. I was sitting about one foot from the door that leads into this storeroom when I ate my dinner. I could see out onto the track from where I sat. No trainman passed along on the track while I sat there eating my dinner. I was there about 20 minutes eating my dinner. After I had finished my dinner I closed up my basket. I had one of those square baskets, and went out on the platform. I did not eat all my dinner up. In the basket I had a glass filled with preserves (it was only about half full), and some tea, and a few sandwiches. I still had on these heavy boots. When I got out on the platform I went right out and I looked first to the. east and then looked to the west. There was no car in sight nor no men nor nothing else in sight. * * * I was just inside this door; it was a sliding door; and the door was open about three feet. I got up and had my lunch basket in my right hand. I came out to the end of the platform; first looked to the east and then to the west; nothing was coming, and I turned around, got down like that with one knee, and had the basket in my hand; got this leg out about that way. I felt the jar of the train coming and I got all the way in except my heel. My heel got caught with the end of the flat car, the gondola, and that pulled me. There was a 2x4, a piece of hemlock, nailed to the platform on the outside, and I grabbed hold of that and hung onto that, but it dragged me along until pretty near the end of the platform before they came to a stop. Well, after they did stop, and the switchman came running from the east to me, and he went to take my leg out from the car, and I stopped him. I told him to leave it there until somebody came along. He wouldn’t do it. He got hold of it with the toe like that and got the heel, and threw the leg out onto the platform. There was no use in my saying anything; I couldn’t stop him from doing it. I was in that shape.”
    Upon the question of defendant’s custom in giving notice when about to back in trains, plaintiff testified:

      “Q. Going back to the trains backing in, had you ever seen a train backing in with merely the trainman standing on the end of the car or in the front end of the car as it was pushed in ?

      “A. The conductor of the train always went back down where the work was to be done and notified those people, whoever was working there, that he was coming- in, and always stayed there until the work was done. This door that led out onto the platform was closed before I went there, but it was not closed after I got there, because I left the door open.

      “Q. Was there anything that would have hidden from your view the conductor, if he had gone in, or any trainman, if he had walked ahead that day?

      “A. There was nothing to obstruct my view at all. I had a clear view of everything in front of me.

      “Q. Did you give notice and attention to whether any one came in or not?
    “A. There was nobody could go by these unless I could have seen them.

      “Q. Did any one go by at all? Did any trainman go by during that time?

      “A. No, sir.”
    Upon the same question his first witness, Kelley, testified in part:

      “Q. When the engine is coming in, what men is it, do you say, they notify?

      “A. Men working around the cars there unloading beets or anything like that.

      “Q. Working around the beet cars, or coal cars, or anything of that kind?

      “A. Notify them around the cars there.
    “Q. If they are working around the cars?

      “A. Yes, sir.

      “Q. They don’t go into the factory and notify the people in the factory, do they?

      “A. I don’t know.

      “Q. You never seen them do that?

      “A. I never seen them do that; no.

      “Q. Well, you don’t say that when the engine comes in one of these railroad men run ahead of the engine in the yard?

      “A. They always come ahead and notify us.

      “Q. Before coming in on the track they stop the engine, don’t they, and what other men comes in and notifies those men along that track that they are going to do switching?

      “A. I never paid much attention if they stopped the engine or not, but they always have a man ahead.
    “Q. He comes in and says to the men there, ‘Look out, we are going to do some switching on this track,’ don’t he?

      “A. Yes, Sir;

      “Q. When he does that they do not give any further notice there while they are doing that switching on that track, do they?

      “A. I never paid much attention to that.

      “Q. You never knew them to give any more notice than that, did you?

      “A. Always a man comes there and standing around there hollers to let you know they are coming in.

      “Q. What do you mean by standing around there?

      “A. He stands around there until they come in and take hold of the cars.

      “Q. Suppose you are at work in the shed on a beet car, and he comes in and says, ‘Look out, we are going to do switching on these cars,’ then you stop work, don’t you, while they are doing the switching?

      “A. Why, sometimes we ride out on them.

      “Q. Sometimes you ride out in the car?

      “A. Yes, I have. * * *

      “Q. Now, the only time they give you that notice is when they first come in to tell you they are going to do the switching?
    “A. Well, yes, sir. The man rides in ahead on the loaded cars.

      “Q. When they come back there is one of the men rides on the head car coming in?

      “A. Yes, sir.

      “Q. And that is all the notice they give, isn’t it?

      “A. The man ahead—

      “Q. And that is all the notice that is given, isn’t it?
    “A. That is all 1 ever paid any attention to.

      “Q. That is all you ever knew of being given?

      “A. That is all.

      “Q. Now, if before these cars were switched out of there, the conductor came in along that track and said to the men, ‘Now, look out, we are going to do switching in here,’ and then they would hitch onto the cars, switch them out, leave the empties, and come back in again on that track with the other cars, with a man standing in the front car, that would be all they ever do, wouldn’t it, so far as you know?

      “A. Yes, as far as I know.”
    Plaintiff’s witness, Le Mere, testified on direct as follows:
    _ “Q. Now, can you answer my question more distinctly whether it was the practice of the railroad company, before backing or sending a train of cars or the locomotive, for one of the trainmen to go ahead along the track and warn people?

      “A. Yes, sir.”
    On cross-examination he said in part:

      “Q. When the railroad men were going to switch on that track, I understand you that a railroad man would come in before the engine?

      “A. I seen them lots of times. They would tell me to clean the track off if I had anything across the track. I knew they were coming in then to switch. If there were coal cars and lime cars in there that they were unloading, and to the west there would be empty cars that they wanted to take out, they would couple up the cars together and then they would pull out. I knew that those cars that were* being unloaded would be shoved back in again. When those cars would be shoved back in again they would not run ahead again and tell me they were going to shove them in; I never knew them to do that.

      “Q. When they would come back in, there would be a man at the front end of the car ahead?

      “A. I have seen it that way.

      “Q. And you would get no other warning except the first warning that you got when they told you they were coming in there to do work; that would be all the warning you would get about it, wouldn’t it?
    “A. That is all I ever got.”
    Plaintiff’s next witness, Engstrom, on direct examination, testified:

      “Q. What was the practice or the method adopted by the train crew of notifying the men working on the cars or about the tracks before they came in with the engine at the time of Mr. Fogarty’s injury that fall?

      “A. Well, the conductor used to come ahead and notify him when they came in with the engine.

      “Q. During that fall, before Mr. Fogarty’s injury, did you ever know of the train or the engine coming in without one of the men going ahead and notifying you?

      “A. No.”
    On cross-examination:

      “Q. When you were working around the cars and they were going to do switching, what would the railroad men do; what would they say?

      “A. Well, they say we are going to switch; 'Watch out for us,’ they told me. Sometimes you stayed in the cars, sometimes jumped out. Then they would go ahead with the work, and we would watch out until they got through.

      “Q. Suppose they wanted to take some empty cars out from the farther end of the beet shed and you were working unloading cars near the engine, they would come in and hitch onto your car and then onto the empties ahead, pull them back down over the switch, shove the empties on in on the main track, uncouple, and come back and put your cars back in the shed, wouldn’t they?

      “A. Yes, sir.

      “Q. When they did that, did- you used to ride in and out?

      “A. Sometimes you would ride and sometimes step off.
    “Q. When they would put those cars, those empties, onto the main, and were then coming back in again, they would not send a man ahead then, would they?
    "A. They came ahead that time, too.

      “Q. They would ride on the car in front, wouldn’t they?

      “A. Yes, sometimes walk:

      “Q. When they came back in the car in front there would be a man in the front end riding in it coming back in?

      “A. Yes.

      “Q. So that if anybody was around there he could holler to him?

      “A. Yes.

      “Q. That is the way they came back, wasn’t it?

      “A. Yes, that is the way they are supposed to come back.

      “Q. If this day that Mr. Fogarty was hurt, before they did the switching, the conductor came in and told the men working around the cars to 'look out, we are going to do a switch on this track,’ and then they would come in and hitch onto the cars, the loaded cars and the empties ahead, pull them out over the switch, shove the empties in on the main, and then had a brakeman in the front car and shove back over the switch back in there, would that be the way they usually and ordinarily would do that?

      “A. Yes, sir.

      “Q. If they did that they did what they ordinarily did, didn’t they?

      “A. Supposed to do.”
    Plaintiff’s fourth witness upon this subject testified:
    “Did you ever know of trains to be backed in without somebody coming ahead to notify the men about the track at that time?

      “A. No, I have not.”
    On cross-examination he said:
    “I don’t mean that when they switch on a track they notify the men more than once that they are going to switch. They come in when they are going to take out — make their switch — and when they are coming back there is some one in front, or sometimes they leave a man right in there, and they will go out and pick out a car and come back in, and this man is there all the time. Sometimes if they have switching to do they leave a man in there. If they have an empty to pick off, one man might take it out, and this fellow would wait until they come in with the load. When they come back coming in one man rides on the head car as a rule, I guess; sometimes they come ahead of it.”
    Frank Mann, one of the men who rode in on the stone car, an employee of the sugar company, and a witness for defendant, described the accident as follows:
    “When they hitched on we stayed right in that car. We went up farther west, I guess, to drag some empty cars out there. Then they took us back to the main line. My partner was working in the car with me, Morris Schwartz. We both rode out in that car. They took us along. After they took the empties out they put them on the main track. We stayed on our car, and our car was right at the stone car; they took us along again. Then they took the coal car and shoved us in again. Then they brought us back in again on that track. The coal car was to the west of our car when we came back in on the track. Ours was the second car to that coal car. We were hitched right onto that coal car. The brakeman was in the coal car. I do not know what his name is. He stopped on the north side and had one foot on the car and the. other foot on the coal. That car was a coal rack. There was no cover over the top. It was an iron rack; I don’t know exactly how high they are. It was loaded clear to the top. He stood on top of the coal with one foot on the coal and the other on the front. He did not stand there all the way coming in. He jumped one car, and this was only a little bit in, and he walked through that, and he climbed upon the coal car, and he walked to the far end. He went through our car and then went onto the far end of the coal car. When we were coming in there I did not see Mr. Fogarty. I didn’t look. What called my attention to Mr. Fogarty was I heard the brakeman holler. Then I flagged the car. I looked up and I went right inside and looked and saw Mr. Fogarty sitting there. He was sitting about eight feet from the west side of the platform. He was sitting about like I am sitting, a little to the west like this. His feet was hanging down over the platform. When the brakeman hollered he did not look up. The brakeman hollered more than once. I hollered. He did not look up. I did not then see anything done by the brakeman or anybody. The brakeman flagged the car, and they stopped. I did not exactly see the car and Mr. Fogarty when the car hit him.”
    This version of the accident was corroborated by Schwartz, the other laborer in the stone car, and by High, the engineer of the train.
   Brooke, J.

(after stating the facts). We have set out somewhat at large the testimony relating to the custom of defendant in giving notice when about to back in cars upon the side track for the reason that the sole negligence of defendant is predicated upon its failure to observe an alleged custom to send a man in over the track in advance of the train to warn plaintiff of its approach. In our view of the case it becomes unnecessary to consider the question of plaintiff’s contributory negligence upon which much could be said even if plaintiff’s statement be taken ás absolutely true. Nor is it necessary to determine his status as a licensee or otherwise. He relies for recovery upon the establishment of a custom, the breach of that custom by defendant, and his injury in consequence thereof. A careful reading of all the testimony offered on behalf of plaintiff convinces us that no such custom as he testified to obtained in the yard where he was injured. His observation covered a period of but ten days, while that of his witness Kelley covered a period of five or six campaigns, of his witness Le Mere, from the time the sugar company started operations, and his other two witnesses an indefinite but apparently extended period.

It is unnecessary to consider defendant’s evidence upon the point which was to the effect that, after the original warning, a man was never sent in ahead of a train being backed in on an empty track. A brakeman was always placed upon the front end of the forward car to see that the track was clear. The most that can be said of plaintiff’s evidence, taken as a whole, is that sometimes the defendant sent a man in advance of a train being backed in and sometimes stationed a brakeman upon the front end of the forward car. This situation was not such a one as would warrant plaintiff in the belief that he would be personally notified of the approach of an oncoming train by a man sent in advance. It is undisputed that an effort was made by the brakeman to warn him. This warning proved abortive either because of plaintiff’s deafness or because of the noise caused by dumping stone into the lime kiln.

A custom must be certain, uniform, and invariable. It must also be notorious; that is, known to all persons of intelligence having to do with the subject to which it relates. Ledyard v. Hibbard, 48 Mich. 421 (12 N. W. 637, 42 Am. Rep. 474); Black v. Ashley, 80 Mich. 90 (44 N. W. 1120); Chicago, etc., R. Co. v. Lindeman, 143 Fed. 946, 75 C. C. A. 18.

As defendant’s negligence rested alone in a breach of an alleged custom which plaintiff failed to establish, we must hold that he failed to introduce any evidence tending to establish negligence on the part of defendant, and that therefore a verdict should have been directed in defendant’s favor.

Judgment is reversed, and there will be no new trial.

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