text:
    MORAN v. DETROIT, YPSILANTI & ANN ARBOR RAILWAY.
    Street Railways — Collision—Injury to Horses — Negligence of Driver — Excessive Speed — Question for Jury.
    In an action for injury to horses, caused by a collision with a trolley car, it was proper for the court to refuse to decide, as a matter of law, the question whether the driver was guilty of negligence, where it appeared that an ordinance forbade the company to run cars in excess of an 8-mile rate of speed, and the driver testified that he looked for cars before turning in towards the track, and that none were visible within a distance of 40 rods.
    Error to Washtenaw; Kinne, J.
    Submitted June 7, 1900.
    Decided September 13, 1900.

      Case by John Moran against the Detroit, Ypsilanti & Ann Arbor Railway for injuries to personal property. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Cutcheon & Stellwagen (John D. Mackay, of coun•sel), for appellant.

      A. J. Sawyer & Son, for appellee.
   Hooker, J.

The plaintiff’s horses and wagon were injured in a collision with the defendant’s trolley ear. The defendant has appealed from a verdict of $125 in favor of the plaintiff. The only questions in the case are whether the record conclusively shows contributory negligence, and, if it does not, then whether the verdict is so clearly wrong as to make the denial of a motion for a new trial error. The distance that a car was visible from the point where the accident occurred is in dispute; defendant claiming it to be at least 70 or 80 rods, while the plaintiff and his witnesses place it at 40 rods. The plaintiff was driving along the road, until he should come to a point where a private lane turned off, and where he intended to cross the track. He testified that he looked both ways before turning in towards the track, and neither saw nor heard a car, and, as he drew up nearer the track, the step of the car hit his forward hub and the horse. There is opportunity for the belief that he did not turn short upon the track, and that he drove some 8 or 10 feet before he was struck, after looking and not seeing the car. We cannot say, therefore, that he drove immediately in front of the car, or that it was so close that it was necessarily negligent not to see it when he looked. He had a right to suppose that the car would be run at an 8-mile rate of speed, in conformity to the ordinance; and, if no car was within 40 rods, we cannot say, as a legal proposition, that he should not attempt to cross the track, had he seen it. In this respect the case resembles Ryan v. Railway Co., 123 Mich. 597 (82 N. W. 278).

Upon a motion for new trial, affidavits were produced which show that, by actual measurement, the car was visible for a greater distance than plaintiff claimed; but the view that we have taken precludes reversal upon this ground.

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    PORTER v. LONG.
    1. Partnership — Surviving Partner — Right to Compensation.
    It was the intention of a father and son, who composed a partnership, that the business of the firm should continue until certain contracts made between the father and the firm were fully performed. These contracts had not been performed at the father’s death. The father lived in Pennsylvania, and the son in Michigan, where the business was conducted solely by him, he receiving no compensation except his share of the profits. Held, that the son, as surviving partner, was not entitled to compensation for managing the firm business after the father’s death.
    2. Executors and Administrators — Accounts—Conclusiveness.
    On a bill to compel an accounting by defendant in the respective capacities of surviving partner and executor of his partner’s will, moneys wrongfully withheld by him from the estate as compensation for managing the firm business, which have never entered into his annual accounts as executor, should be charged against him, though such annual accounts have been duly approved by the probate court.
    3. Same — Litigation for Estate — Allowance for Expenditures.
    Where litigation conducted by an executor related to property of the estate, and the questions involved were such that law: yers of good repute would differ as to their proper solution, he was entitled to an allowance for expenditures made in such litigation.

      4. Same — Inventory of Assets — Mistake.
    An executor in his final account is not bound by an inventory of assets, made soon after his appointment, which by mistake showed larger assets than belonged to the estate.
    5. Same — Shortage—Fraud.
    Where an executor fraudulently had a short scale of timber' made, which had been sold by the testator to a firm composed of the executor and testator, such executor would be compelled to account for the shortage.
    Appeal from Kent; Grove, J.
    Submitted June 7, 1900.
    Decided September 13, 1900.
    Bill by Millie C. Porter and others against George H. Long, executor of the last will and testament of Arthur B. Long, deceased, and surviving partner of the firm of A. B. Long & Son, and Horace J. Culbertson, trustee under such will, for an accounting. From the decree rendered, all parties appeal.
    Modified.

      Butterfield & Keeney, for complainants.

      Crane, Norris & Stevens, for defendants.
   Moore, J.

A reference to the case of Long v. Landman, 118 Mich. 174 (76 N. W. 374), will make it unnecessary to make so long a statement of what is involved in this case as would otherwise be necessary. After that case was decided, this bill was filed by the complainants, who represent four of the five shares into which the will of Arthur B. Long divided his estate, the other share of which is represented by George H. Long. The purpose of the proceeding is to obtain from George H. Long, as surviving partner of the firm of A. B. Long & Son, an accounting of its affairs, and also to obtain from him, as sole executor for the State of Michigan, an accounting of the affairs of the estate of Arthur B. Long, deceased. In the court below, the following decree was made:

“1. That the defendant George H. Long, as surviving partner of the firm of A. B. Long & Son, is entitled to a reasonable compensation for all services rendered by him from June 24, 1884, in carrying on, with the original capital, good will, and assets of such firm, a general lumber business, in excess of mere winding up the affairs of said firm. But defendant George H. Long cannot receive double compensation for receiving and disbursing the same funds; that is, from his compensation' as surviving partner must be deducted the commissions allowed to him by the orphans’ court of Mifflin county, Pennsylvania, for receiving and disbursing the amounts paid over by said George H. Long out of the firm assets, property, and profits of the firm of A: B.' Long & Son.

“2. That all and singular the first, second, third., fourth, fifth, sixth, seventh, eighth, and ninth annual accounts rendered by the defendant George H. Long, as executor for Michigan, to the probate court for the county of Kent, in the State of Michigan, and by that court, pursuant to the statutory notice previously given, regularly settled, are conclusive as to all matters contained in them.

“3. That the defendant George H. Long properly brought the ejectment suit against the Chicago & West Michigan Railway Company, and properly defended the ejectment suit against the Chicago & West Michigan Railway Company, and properly defended the chancery suit brought against him by the Kent Furniture Company and the Chicago & West Michigan Railway Company.

“4. That all and singular the partnership accounts between the firm of A. B. Long & Son and Arthur B. Long and George EL Long, and the accounts between the two partners, were settled December 31, 1883, and such settlement was entered upon the books of account of such firm, and that neither party to this suit is at liberty to go behind such settlement so made and entered on such books; and the accounting hereafter directed is only to include transactions and matters since December 31, 1883.

“5. That the said cause, together with all testimony, exhibits, depositions, settlements, papers, and books of account, to be referred to William B. Brown, a circuit court commissioner of said county of Kent, to take and state an account:

“First. Of all the proceeds received by the defendant George H. Long as surviving partner of the firm of A. B. Long & Son, plus all sums deducted by the said defendant George H. Long as compensation for his services as surviving partner.

“Second. Of all sums received by him as executor of Arthur B. Long, deceased, in the State of Michigan.

Third. Of the amounts paid by him as executor in Michigan to himself as executor in the State of Pennsylvania.

‘Fourth. Of the amount of the personal estate of Arthur B. Long upon which George H. Long, as executor in the State of Pennsylvania, received commissions, and the amount of commissions so actually received by the defendant George H. Long as executor in Pennsylvania.

“Fifth. Of the amount of the commissions on the personal estate of Arthur B. Long in the State of Michigan received by the defendant George H. Long as executor in Michigan.

“Sixth. That the commissioner report the ainount of commissions the defendant George H. Long, as executor in the State of Michigan,would be entitled to if commissions should be allowed to him as ancillary-executor in Michigan.

“Seventh. Of the amount received by him as executor, if any, from the farm of Arthur B. Long in Millbrook township, Mecosta county, Michigan, and the disposition of the same.

‘Eighth. Of the amount of the personal estate of Arthur B. Long in Michigan, not including amounts paid for log stumpage nor for- shingle stumpage, nor from his individual estate, but derived solely from the business carried on by the defendant, as surviving partner of the firm of Arthur B. Long & Son, from the death of Arthur B. Long, June 24, 1884, and from the assets„of said firm.

“Ninth. Of the amount due from the defendant George H. Long, as surviving partner, to the executor of the will of Arthur B. Long, deceased, in the State of Michigan, under the contract of date July 9, 1881, for log stumpage, in accordance with the terms of that contract, and of the amount due from the defendant George H. Long, as surviving partner, to the aforesaid executor in Michigan, under the contract of date December 5, 1882, for shingle stumpage, according to the terms of such shingle-stumpage contract.

“Tenth. Of the amount received by him, as surviving partner, from the farm of Arthur B. Long, deceased, in Millbrook township, Mecosta county, Michigan, and the disposition of the same.

“Eleventh. Of the amount paid by the defendant George H. Long, as surviving partner, for highway taxes in Millbrook township, and the dates and amounts of such payments.

Twelfth. Of the amount, if any, paid by defendant George H. Long, as'executor in Michigan, for highway taxes in Millbrook township, Mecosta county, Michigan.

“6. That the complainants and defendants have leave to take before the commissioner additional testimony in respect to what would be a reasonable compensation for the defendant George H. Long, as surviving partner of A. B. Long & Son, for all services in excess of mere winding up, and upon such testimony, and upon all other testimony in the case, the commissioner report what would be a reasonable compensation for the defendant George H. Long, as surviving partner, for all services rendered by him in excess of mere winding up.

‘ ‘ 7. That the complainants and defendant have leave to take additional testimony in respect to the disposition by the defendant, as surviving partner, of the four thousand dollars ($4,000) received by the defendant, as surviving partner, under the mortgages executed by the defendant, as executor and surviving-partner, to Kate E. Long, and the reasonableness and propriety of such disposition.

“8. Of the disposition of the sum of four thousand dollars ($4,000) received by him, as surviving partner, under the two mortgages of date February 1, 1895, executed by him, as surviving partner and executor in Michigan, to Kate E. Long, and in the pleadings in this case mentioned.

“9. The parties to this cause have leave to apply to this court for permission to take additional proofs before the said commissioner on any of the points herein referred at any time prior to the conclusion of the hearing before the commissioner.

“10. That the commissioner, with his report and schedules, return all books, papers, documents, testimony, and depositions to the clerk of this court.

“ 11. That the effect of the statute of limitations, the effect of laches of the complainants, if any, and the question of double compensation paid to the defendant George H. Long, if any, is hereby reserved until the final decree of this court, in respect to all and singular the claims and demands of the complainants.

“12. That the right of the defendant, as executor in Michigan, to commissions upon the sums received and collected by him, and the question of costs, are hereby reserved until the final decree of this court.

“13. The commissioner is ordered to state the account, debit and credit, on each and every of the items hereinbefore referred ,to him for his consideration. ”

On October' 16, 1899, upon showing by affidavit, an order was made by the court, and filed, extending time to settle case until December 28th, inclusive.

While the record and briefs are very long, the legal questions involved are not very complicated. Following the order in which the questions were decided in this decree, the first item which requires our attention is a charge of $6,000 a year made for six years by George H. Long for the management of the business of A. B. Long & Son after the death of Arthur B. Long. To pass upon this item intelligently, in addition to the articles of partnership and the provisions of the will which appear in the case of Long v. Landman, 118 Mich. 174 (76 N. W. 374), it should be said that Arthur B. Long, during all the time he was associated with his son, was a resident of Pennsylvania, and there is nothing in the record to indicate that he did not expect to remain a resident of that State as long as he lived. George H. Long was a resident of Michigan, and the business of A. B. Long & Son was conducted in Michigan, and the articles of partnership expected it would be so conducted. Prior to 1881 Arthur B. Long was the Owner of a large quantity of valuable pine timber, when agreements reading as follows were made:

“This agreement, made and entered into this ninth day of July in the year one thousand • eight hundred and eighty-one, by and between Arthur B. Long, of Lewis-town, Miffiin county, Pennsylvania, of the first part, and A. B. Long & Son, a copartnership firm doing business in the city of Grand Rapids, Kent county, Michigan, composed of the said Arthur B. Long and George H. Long, of said city of Grand Rapids, parties of the second part: Whereas, the said parties of the second part have for a long time been associated together as copartners in the business of buying, selling, and manufacturing lumber in said city of Grand Rapids, and are now so associated together, under and by virtue of articles of agreement made and entered into by and between said parties of the second part on the first day of April in the year one thousand eight hundred and seventy-eight; and whereas, said parties of the second part hope and intend to continue their said copartnership and to carry on the business aforesaid until the timber hereinafter described shall have been manufactured into lumber:

“Now, therefore, this agreement witnesseth, that said party of the first part, for and in consideration of the covenants and agreements hereinafter contained, to be kept and performed by said parties of the second part, agrees to sell, and- hereby does sell and convey, to said parties of the second part, all the white-pine timber standing and being on the following-described land, situated in the county of Mecosta and State of Michigan, to wit: * i}i

“Said parties of the second part agree, in consideration of the premises, to pay to said party of the first part the sum of four dollars per thousand feet, board measure, for all the white-pine timber standing or being upon the lands above described, in manner following: On or before six months after each season’s cut is scaled, said second parties shall pay said first party for all the white-pine timber cut and scaled on said premises during the preceding season, at the price per thousand feet above stipulated; said timber to be scaled in the log straight and sound, according to Doyle’s rule for scaling logs. Said second parties further agreB to cut said timber at the rate of from five to ten million feet, more or less, each year, commencing when said timber shall be needed to stock the sawmill of said second parties, situated in said city of Grand Rapids.

“It is mutually agreed by the parties hereto that the title to said timber shall pass to and vest in said parties of the second part upon the execution .and delivery of this agreement.

“It is further mutually agreed that this contract shall be binding upon the heirs and representatives of the parties hereto.”

“This agreement, made and entered into this fifth day of December in the year of our Lord one thousand eight hundred and eighty-two, by and between Arthur B. Long, of Lewistown, Mifflin county, Pennsylvania, of the first part, and A. B. Long & Son, a copartnership firm doing business in the city of Grand Rapids, Kent county, Michigan, composed of the said Arthur B. Long and George H. Long, of said city of Grand Rapids, of the second part, witnesseth: Whereas, by contract in writing bearing date the ninth day of July, 1881, said party of the first part sold, and said parties of the second part bought, all the white-pine timber standing and being on the following-described land, situated in the county of Mecosta and State of Michigan, to wit: * * * Whereas, there is and will be a large quantity of off-falls and shingle timber upon said land, not covered by the terms of said contract:

“Now, therefore, the said party of the first part agrees to sell, and hereby does sell and convey, to the said parties of the second part, all the pine off-falls and shingle timber standing or being upon said land. And said party of the first part further agrees to, and hereby does, give, grant, and convey to said parties of the second part all the hardwood timber on said land which may be needed by said parties of the second part in carrying on lumbering operations upon said land, for making roads, and for other purposes. And said party of the first part hereby gives and grants unto said parties of the second part the right to enter upon, and the right of way over, said land, and every part thereof, for the purpose of cutting and removing the said off-falls and shingle timber; the same to be cút and removed within a reasonable time after the completion of said contract of date July 9th, 1881.

‘ ‘ Said parties of the second part agree, in consideration of the premises, to pay to the said party of the first part the sum of forty (40) cents per thousand for all clear A or star shingles manufactured from said off-falls and shingle timber; payment to be made on or before the first day of November in each year for the shingles manufactured during the year preceding; said parties of the second part to pay nothing for the seconds and culls manufactured from said off-falls and shingle timber.

“It is mutually agreed by the parties hereto that the title to said off-falls and shingle timber shall pass to and vest in said parties of the second part upon the execution and delivery of this agreement.

“ It is further mutually agreed that this agreement shall be binding upon the heirs and representatives of the parties hereto. ”

After these contracts were made, the business of A. B. Long & Co. consisted almost wholly in working up this timber, and putting the product thereof upon the market.

It is the contention of complainants that, in the absence of special agreement, a partner is not entitled to compensation for services in the common business,—citing Heath v. Waters, 40 Mich. 457; Major v. Todd, 84 Mich. 85 (47 N. W. 841); Pierce v. Pierce, 89 Mich. 233 (50 N. W. 851). They contend that the surviving partner is not entitled to any compensation for services in winding up the partnership business (citing Heath v. Waters, 40 Mich. 457; Loomis v. Armstrong, 49 Mich. 521 [14 N. W. 505], 63 Mich. 355 [29 N. W. 867]; Beatty v. Wray, 19 Pa. St. 516 [57 Am. Dec. 677]; Brown v. McFarland’s Ex’r, 41 Pa. St. 129 [80 Am. Dec. 598]; Tillotson v. Tillotson, 34 Conn. 335; Little v. Caldwell, 101 Cal. 553 [36 Pac. 107, 40 Am. St. Rep. 89]; Smith v. Knight, 88 Iowa, 257 [55 N. W. 189]; Starr v. Case, 59 Iowa, 491 [13 N. W. 645]; Washburn v. Goodman, 17 Pick. 519; Johnson v. Hartshorne, 52 N. Y. 173, 180; Denver v. Roane, 99 U. S. 355; Appeal of Shriver, 118 Pa. St. 427, note [12 Atl. 553]; Shelton v. Knight, 68 Ala. 598; Scudder v. Ames, 89 Mo. 496 [14 S. W. 525]; Berry v. Jones, 11 Heisk. 206 [27 Am. Rep. 742]; Piper v. Smith, 1 Head, 93; Cooper v. Reid’s Adm’r, 2 Hill, Eq. 549; Buford v. Neely, 2 Dev. Eq. 481; Frazier v. Frazier, 77 Va. 775), and that a partner who is appointed receiver to wind np the firm business is entitled to no compensation for his services in winding up the partnership affairs (citing Berry v. Jones, 11 Heisk. 206 [27 Am. Rep. 742]; Wilson v. Greenwood, 1 Swanst. 484; Blakeney v. Dufaur, 15 Beav. 44; Sargant v. Read, 1 Ch. Div. 603; Brien v. Harriman, 1 Tenn. Ch. 467; Todd v. Rich, 2 Tenn. Ch. 107; Doupe v. Stewart, 13 Grant [U. C.], 641; Kemp v. Jones, 12 Grant [U. C.], 260). We think these authorities fully sustain the contention of counsel.

It is urged upon the part of defendant that, conceding the rule to be as above stated, it does not apply to the facts of this case, but, as the partnership agreement did not contain any stipulation that upon the decease of one of the partners the business should be continued by the surviving partner, the firm was dissolved by the death of A. B. Long, — citing Crawshay v. Maule, 1 Swanst. 495; Gillespie v. Hamilton, 3 Mad. 251; Roberts v. Kelsey, 38 Mich. 602; Jenness v. Carleton, 40 Mich. 343; Hoard v. Clum, 31 Minn. 186 (17 N. W. 275). He also claims the subsequent agreements did not contemplate a continuance of the business of the firm after the death of a member of it. It is also insisted that the will did not authorize the defendant Long, as executor, to carry on the business of the firm; that the court cannot act on a bare conjecture, and there must be a most distinct and positive authority and direction given by the will for that purpose (citing Kirkman v. Booth, 11 Beav. 273; Willis v. Sharp, 113 N. Y. 586 [21 N. E. 705, 4 L. R. A. 493]; Stewart v. Robinson, 115 N. Y. 328 [22 N. E. 160, 163, 5 L. R. A. 410]), and therefore it was the duty of the defendant, as-surviving partner, to wind up the business of the firm (citing Frey v. Eisenhardt, 116 Mich. 160 [74 N. W. 501]; Freeman v. Freeman, 136 Mass. 260). It is then argued:

‘ ‘ The defendant, as surviving partner, after the dissolution of the firm by the death of his partner, carried on the business of the firm for years, using the good will and property of the firm, and, after paying all the firm debts, made large profits, which were divided between the estate of his deceased partner and himself in proportion to the capital stock contributed by the respective partners, and according to the partnership agreement. The defendant, under these circumstances, was 'entitled to deduct from the gross profits a reasonable compensation for his services, before making such division,” —citing Brown v. Litton, 1 P. Wms. 140; Brown v. De Tastet, 1 Jac. 284; Cook v. Collingridge, Id. 607; Crawshay v. Collins, 2 Russ. 325; Wedderburn v. Wedderburn, 2 Keen, 722; Willett v. Blanford, 1 Hare, 253; Hite’s Heirs v. Hite’s Ex’rs, 1 B. Mon. 177; Holden’s Adm’rs v. McMakin, 1 Pars. Eq. Cas. 270; and many other cases.

The learned counsel make an elaborate argument, covering more than 100 pages of their brief, arguing these propositions, and making, an analysis of the cases cited. The learned counsel for complainants have also devoted a good many pages of their brief to these propositions and the authorities. It is evident that we cannot, in this opinion, dilate upon the views expressed by counsel, but must content ourselves with stating briefly our conclusions.

The articles of copartnership, the contract for stumpage, the shingle contract, and the will of Arthur B. Long are somewhat inartificially drawn, and it is evident that they are not the work of a trained legal mind; but it is difficult to read them in connection with the relations of the parties, and come to any other conclusion than that it was expected by the parties thereto that the business of A. B. Long & Son would continue until the contracts made between Arthur B. Long and A. B. Long & Son were fully completed. These contracts had not been performed at the time of the death of A. B. Long, and it was the duty of the surviving partner to complete them. Davis v. Sowell, 77 Ala. 262; Ayres v. Railroad Co., 52 Iowa, 478 (3 N. W. 522). This was the practical construction put upon the contracts by George H. Long himself. He continued the business as that of A. B. Long & Son; as executor, he dealt with the business as that of A. B. Long & Son; and the profits of the business were divided upon the basis, ostensibly, of the contract made between Arthur B. Long and A. B. Long & Son. We think it equally clear that it was not contemplated that George H. Long should have any compensation for the work done by him in the conduct of the partnership business, but that he should content himself with the share of profits which should come to him. The contract made between his father and the firm was an exceedingly favorable one for George H. Long. As before said, his father lived in Pennsylvania. George lived here. The business was here. It was contemplated that George would look after it. He did nothing more in that respect after his father’s death than he was expected to do had his father lived. We think his charge of $6,000 a year as partner was not a proper charge, and that his compensation for managing the business is confined to his share of the profits.

It is urged that he filed annual accounts in probate court, and had an annual accounting, and that this item cannot now be questioned. It is a sufficient reply to that position to say that this charge does not appear in the annual accounts, and the $36,000 withheld by George H. Long, á member of the firm of A. B. Long & Son, never passed into possession of George H. Long, executor, and did not enter into the account of the latter at all in the probate court.

George H. Long, as executor, rendered annual accounts to the probate court for the county of Kent. The court below held that, as to the first nine of these accounts, they are conclusive as to all matters contained in them. This holding is in harmony with the recent case of Morton v. Johnston, ante, 561 (83 N. W. 369). But, as was saidin that case, ‘ ‘ Had there been any omission of credit or concealment of assets, a different rule would apply.”

George H. Long, as executor, brought an ejectment suit against the Chicago & West Michigan Railway Company, and was made defendant in a chancery suit brought against him by the Kent Furniture Company and the Chicago & West Michigan Railway Company. The court below held that he should be reimbursed because of any expenses incurred by him in this litigation. It is urged upon the part of the complainants that they were not consulted in this litigation, that it was wholly unnecessary, and that George H. Long should bear the expense himself. The litigation was in relation to property belonging to the estate. The questions involved were such that lawyers of good repute would differ as to the proper solution of them. We agree with the circuit judge that the defendant should be made good for any expenditures made by him in this litigation.

Soon after defendant Long was appointed executor, he caused an inventory of the assets of the estate to be made, in which inventory it appeared that there was nearly 51,000,000 feet of pine timber yet unmanufactured, which was embraced in the contract between A. B., Long and A. B. Long & Son. It is claimed that George H. Long fraudulently arranged to have a short scale made of this timber, resulting in a shortage of nearly 19,000,000 feet, for which A. B. Long & Son have not accounted to the estate of A. B. Long. It is urged upon the part of the defendant that the woods scale ought to control, and that there is no occasion to open up this question. If it is true that this scale was a short one, a,nd that it was purposely made so by the direction of the defendant, it ought not to control. If any mistake was made in the inventory, and there was not in fact as much timber when scaled in the manner that the contract provides it should be scaled, George H. Long should not be bound by the inventory'. It is his duty in good faith to account for all of the timber which came into the hands of A. B. Long & Son, and he should not be required to account for any more. To arrive at this amount, it seems necessary to follow the course provided for in the decree.

Taking the case as it now stands, we are satisfied with the disposition made in the court below of the other questions raised by counsel. The decree will be modified in accordance with this opinion, and further proceedings liad as directed in the decree made in the court below. The question of costs will wait the final disposition of the case.

The other Justices concurred.


author: Montgomery, C. J.

text:
    BATES v. KUNEY’S ESTATE.
    1. Executors and Administrators — Claims—Estoppel.
    Plaintiff, as administrator, claimed compensation from the defendant estate for services performed by his intestate. The wife of plaintiff’s intestate had formerly filed, and obtained payment of, a claim against the defendant estate for similar services, which she then stated had been assigned to her by her husband; but she testified on the trial that her claim was for her. personal services. The plaintiff was present at the time when her claim was allowed, and made no objection thereto, but his claim was on file at that time. Held, not to estop plaintiff from maintaining his action.
    2. Trial — Instructions.
    It is not error to refuse a requested instruction which is substantially covered by the general charge.
    Error to Lenawee; Chester, J.
    Submitted June 8, 1900.
    Decided September 13, 1900.

      Daniel W. Bates, administrator of the estate of Seymour Kuney, deceased, presented a claim against the estate of Christian Kuney, deceased, for services rendered. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for claimant, defendant brings error.
    Affirmed.

      Salsbury &' O’Mealey, for appellant.

      Louis A. Browne and John E. Bird, for appellee.
   Montgomery, C. J.

The claimant recovered a verdict on a trial before a jury, and defendant brings error. The claim presented was for services of the claimant’s intestate in nursing Christian Kupey in his lifetime. There was testimony tending to show that the deceased, Christian Kuney, promised to pay for this service, and the jury evidently believed and acted upon such testimony. The defense chiefly relied upon in the court below was an estoppel growing out of the following facts, as claimed by appellant: When the commissioners on claims for the estate of Christian Kuney were appointed, Mrs. Seymour Kuney presented a claim for the identical service for which the administrator of Seymour now seeks to recover. On the hearing before the commissioners she claimed that her husband had, in his lifetime, assigned the claim for his services to her, and an allowance was in fact made to her by the commissioners for such nursing, although for a somewhat less sum than claimed. The administrator, Daniel W. Bates, was present during this hearing, and he heard the claim which Mrs. Seymour Kuney made, and made no objection. This defense would certainly appeal strongly to us, if made out conclusively, but an examination of the record shows that this question was a disputed one. Mrs. Seymour Kuney testified that the claim which she made before the commissioners was for her own services in nursing the deceased, and for board, the claim for which had been assigned to her; but what is more .significant is the fact that, before the determination by the commissioners of Mrs. Seymour Kuney’s' claim, the present claim, or a duplicate of it, was filed. The commissioners could not have failed to understand, therefore, that the administrator was claiming that the charge for Seymour Kuney’s services was due the estate. The court especially charged that, if Seymour Kuney assigned this claim to his wife, there could be no recovery in this action. As, in the absence of an assignment or some estoppel against the administrator, the proceeding by her would not constitute a bar, we think the instruction referred to fully protected the defendant.

The defendant also claimed a set-off. This was disallowed by the jury. The instruction upon this subject was as follows:

“ If you allow that, you will allow the offset on that, if you find there was an offset. As I have said, the estate of Christian Kuney claims that they have a set-off here against the estate of Seymour Kuney. They claim there was a balance of $200 on a land deal (I will speak of it as a land deal); that Seymour Kuney should pay to the estate of Christian Kuney, also, $300 of money paid to Seymour Kuney by Perry Kuney; that the estate of Seymour Kuney should account for that. You will examine all the evidence in this case, to find whether Seymour Kuney was at the time of his death indebted to his father, Christian Kuney, in the sum of-$200, as claimed by the estate, and also in the sum of $300. When I say you will examine all of the evidence, you will find out, in the first place, whether he was indebted to him at any time in that amount, and, if he ever was, whether that had been ’ paid to his father. If it has been paid, then, of course, you will not allow any of it, or at least the part that was paid. The burden of proving this set-off is upon the estate of Christian Kuney. If the set-off is not established by a preponderance of the evidence, then it should not be allowed. If you find the set-off, or any part thereof, established by the contestant, then the same should be allowed, unless you find that the set-off has been paid by Seymour Kuney in his lifetime. If you find that he was indebted at the time of his death, or at any time, to his father, then the burden of showing that that was paid is-upon the estate of Seymour Kuney.”

Defendant’s counsel complain that their sixth request was not given. This request reads as follows:

“If the jury find that in his lifetime Christian Kuney deeded 20 acres of land to Seymour Kuney, and that Seymour was to pay him $200 over and above what was coming to Seymour for said land, and that Seymour has never paid the same, then said claim for $200, which was so to be paid back to Christian Kuney, would be a set-off, and should be allowed by the jury against any claim of the claimant, and the balance, if any, be allowed by the jury in favor of the estate of Christian Kuney.”

It is now urged that it was error to refuse this request; that the item was proved, and that there was no evidence against the claim; that it was the duty of the jury to allow it, and of the court to so instruct them. The request itself is a sufficient answer to this contention. It was a request to submit both the question of the original promise and of payment to the jury as a question of fact. This is precisely what the circuit judge did, and added that the burden of proof to show payment rested upon the claimant. The instruction given fully covered the request.

The other questions presented are, for the most part, dependent upon the questions which we have discussed, and need not be separately considered. None of the points made in the brief of appellant can be sustained.

The judgment will be affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    BENEDICT v. CITY OF PORT HURON.
    1. Negligence — Open Drawbridge — Absence oe Guards — Contributory Negligence — Knowledge oe Surroundings— Improper Argument — Instructions.
    In an action by an executor against a city for negligently leaving a drawbridge open in the night-time without guards, whereby the decedent rode his bicycle off the approach and was drowned, it appeared that the opening was commonly guarded by a chain, but that the chain had become broken on the occasion of the accident. Defendant’s counsel presented proof that the decedent on former occasions had ridden his wheel against the chain, and in his argument contended that such proof tended to show that decedent was habitually a careless rider. The court, however, instructed the jury that the line of argument was improper, that decedent’s carelessness on previous occasions would have no bearing on the question of his negligence at the time of the accident, and that the testimony was admissible only to show that decedent was acquainted with his surroundings. Held, that the evidence was competent for the purpose pointed out by the court, and that the error in the argument was cured by the instructions.

      2. Same — Oeeer oe Incompetent Evidence — Misconduct oe Counsel.
    The fact that defendant’s counsel made an offer of proof that decedent had ridden against the chains which guarded bridges other than the one where the accident occurred, which proffered evidence the court excluded, will not require a reversal, it not appearing that counsel was guilty of intentional professional misconduct.
    3. Same — Accident — Death oe Victim — Inference as to Due Care — Argumentative Instructions.
    It was not error to refuse a request that the love of life is instinctive, and that men do not usually expose themselves to great danger without motive, and that deceased should not be deemed guilty of contributory negligence without “satisfactory proof or strong inference,” since the request was not only argumentative, but the inference which jurors may draw, in the absence of testimony, where the victim of an accident is dead, may be overcome by any proof which, in the opinion of the jury, tends to show want of care.

      4. Same — Riding Wheel at Night — Necessity for Caution.
    Where a wheelman rode at night at a high rate of speed, with his head down, towards an open drawbridge, at which on one or two previous occasions he had been stopped by his wheel’s striking a chain stretched across the highway, and, because of the absence of the chain on the particular occasion, fell over the embankment and was drowned, it was not error to refuse an instruction, in an action for his death, that he had the right to assume that defendant would do its duty in the matter of guarding the draw, and was under no obligation to look for danger if he could not reasonably be expected to see that the draw was open, since, if he could not see, there was occasion for caution, and he should not have pushed on in the expectation of being stopped by the chain.
    5. SaMe — Momentary Forgetfulness.
    Nor could the failure of decedent to act upon his knowledge be excused on the ground that he momentarily forgot the conditions.
    6. Same — Change in Conditions — Caution to Jury.
    Although the evidence showed that the condition of the bridge and surroundings had changed between the time of the accident and the time of the trial, it was not error to omit to caution the jury upon that point, since they could not fail to understand that they were to consider the condition at the time of the accident.
    7. Same.
    In an action for negligently causing death, proof that decedent was guilty of a want of ordinary care and prudence, in however slight a degree, which negligence directly contributed to the accident, will defeat a recovery; it not being necessary to show that his negligence “materially” contributed. Disapproving dictum in Denman v. Johnston, 85 Mich. 39
    Error to St. Clair; Vance, J.
    Submitted June 8, 1900.
    Decided September 13, 1900.
    Case by James W. Benedict, executor of the last will and testament of George P. Burgess, deceased, against the city of Port Huron, for negligently causing the death of plaintiff’s testate. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Avery Bros. & Walsh (O’Brien J. Atkinson, of counsel), for appellant.
    P. H. Phillips, for appellee.
   Hooker, J.

The plaintiff’s testate was drowned through riding a bicycle off from a bridge, at night, while the draw was open to permit the passage of a vessel. Deceased had a place of business about two blocks from the bridge, and was in the habit of crossing the bridge on his way to and from his home. The testimony varies as to the degree of darkness, but it is shown to have been a moonlight night, and a red lamp upon the center of each side of the bridge was facing the street. Commonly a chain was stretched across the bridge when the draw was open, and this chain had been stretched on this occasion, but had been driven against and broken. Notwithstanding this fact, the draw was opened for the approaching boat, without any steps to provide warning to persons approaching being taken. The learned circuit judge left the questions of negligence and contributory negligence to the jury, and they returned a verdict as follows: “We find that George P. Burgess came to his death through contributory negligence, ánd therefore no cause of action.” No requests for special findings had been submitted to them, but, as this verdict clearly shows that it was based on contributory negligence, it necessarily implies that they found the defendant guilty of negligence. It becomes unnecessary, therefore, to discuss the -assignments of error bearing alone upon defendant’s negligence.

There are other bridges in Port Huron where conditions are similar. The defendant showed that on one or two other occasions the deceased had ridden his bicycle against the chains upon the bridge where he ultimately met his death, and had been violently thrown down upon the bridge. An attempt was made to show that he had done the same upon another bridge, and, after the answer had been excluded, a similar question was asked as to a third bridge. It was not answered, however. The argument was afterwards made that the fact that the deceased rode against the chain on other occasions tended to show that he was a careless rider, and corroborated the testimony of witnesses that on the night in question he started from ¡ his place of business at a rapid pace, with his head down, (and was seen thus riding, and warned, when near the chain. It is urged that the admission of this testimony, and the conduct of counsel in relation to it and to that excluded, call for a reversal of the case. In his charge the judge said upon this subject:

“Now, in determining whether or not Mr. Burgess on that night in question was guilty of contributory negligence, you have a right to take into consideration his knowledge of the surrounding facts and circumstances. There was some testimony introduced here tending to show that Mr. Burgess on one or two other occasions had run against the chain on the bridge, and was thrown off his bicycle. Now, that testimony was admitted for the single and sole purpose of showing, or tending to show, that Mr. Burgess knew the kind of a barrier that was used there, and so far as it tended to throw any light on the fact that he knew it was a drawbridge, and that it was opened at times for vessels to pass through. The defendant’s counsel, in his arguments, said to you that the evidence tended strongly to show what kind of a rider Mr. Burgess was, on his bicycle. Now, that argument was not proper. Counsel was distinctly advised before that testimony came in that it could not be used for that purpose. You have no right to consider that testimony for the purpose of showing that Mr. Burgess was a careless rider, because, though he may have been careless at other times, that does not show that he was careless on this night. Whether he was or was not careless on the night he was drowned must depend upon the evidence bearing upon his conduct that night, and not at any other time, so that for that purpose you will disregard that testimony; but you may consider it for the purpose of showing his knowledge of the bridge and the surrounding circumstances and the guards that were used there, but for no other.”

It was certainly competent to show that the deceased was acquainted with the situation, and the fact that on other occasions he had ridden his wheel up to the verge of the chasm, and had stopped at or been stopped by. the chain, would be convincing evidence of such acquaintance, admissible notwithstanding the fact that it showed carelessness upon those occasions. It is a well-understood rule that testimony that is offered for a purpose for which it is competent is not to be excluded because it tends to prove another fact which is incompetent. The court carefully restricted the use of this proof, and plainly instructed the jury to disregard the objectionable argument. This was all he could do, and in the absence of intentional professional misconduct, or some evidence that the jury disregarded the instructions of the court, we should not reverse the case for the offer of proof.

Counsel for plaintiff requested the court to charge that:

“The love of life is instinctive. Men do not usually expose themselves to great discomfort or great danger without some strong motive. Mr. Burgess is dead, and cannot speak; but his estate is entitled to any presumption that may arise from this instinct of self-preservation, and you should not find him guilty of negligence without satisfactory proof or strong inference that he is so.”

The request is objectionable, because argumentative; but, furthermore, the inference which a jury may draw, in the absence of testimony, in a case where the victim of the accident is dead, may be overcome by any proof which, in the opinion of the jury, reasonably tends to show want of care, and the judge was not called upon to instruct the jury that the “proof must be satisfactory, and the inference strong,” without further explanation of the subject.

It is contended that the court should have instructed the jury that the deceased had a right to assume that the city would do its duty in the premises. A request of this kind was offered, but it was coupled with the implication that the deceased was under no obligation to look for danger if he could not reasonably be expected to see or expect that the draw was open. Under undisputed proof, we think that the deceased knew he was approaching a place that might be dangerous; and if, as the court said, he could not see, there was occasion for caution, and he should not blindly push on, in reliance upon the expectation that he would be stopped by running into a chain on the brink of a chasm.

Again, the claim that, if he momentarily forgot the conditions, it would excuse his failure to act upon his knowledge, is not tenable. If it were, no one need do more than to forget his knowledge of conditions (%. e., be absent-minded or preoccupied), to be excused from all care. But these things amount to inattention, and inattention is heedlessness, and this is not to be thus excused. The cases cited do not support this claim. They go no further than to say that it is for the jury to determine what is due care in attempting to avoid a known danger.

Again, a request was offered to the effect that if deceased rode over the draw because of the absence of the chain, which he was looking for, the plaintiff was entitled to recover. This should not have been given. It left out other circumstances. It would not be due care to ride rapidly towards a place of danger in a dark night, in the expectation of seeing a small chain on the brink of a chasm in time to avoid danger. It would be- a very hazardous performance.

It is contended, also, that the court ought to have called attention to differences in the condition of the bridge and surroundings at the time of the accident from those existing at the time of the trial, but we think the request was more in the nature of an argument than a proper request. The jury could not have failed to understand, if they were possessed of ordinary intelligence, that it was the condition upon the former, and not the latter, occasion that they were considering.

The court told the jury that:

“ It is the settled law of this State that no person can recover damages against a city for injuries, -nor for the death of any person, if the person who was killed or person injured was guilty of contributory negligence. Now, that means merely this: If they were guilty of some act which in itself was negligence, and contributed to the injury they received, or to the death they complained of, it would make no difference how slight the negligence may be, if it contributed to the result, it defeats recovery absolutely.”

I't is now argued that this was error, and that the contributory negligence must be such as to materially contribute to the injury. This is based on an expression, probably used out o'f “abundant caution,” in the case of Denman v. Johnston, 85 Mich. 396 (48 N. W. 565). No such question was involved or passed upon in the case, and no other is cited. On the other hand, it is settled that if the plaintiff was guilty of any want of ordinary care and prudence, however slight, which neglect contributed directly to produce the injury, he cannot recover. Cremer v. Town of Portland, 36 Wis. 92. The language quoted from the charge might, under some authorities, be objectionable, if standing alone; but, in connection with the remainder of the charge, it is clear that want of ordinary care was made the test of contributory negligence. E. g., the court sums up the subject by saying:

“All these matters are proper for your consideration, and from them determine whether or not Mr. Burgess, when he rode into that draw, was in the exercise of that reasonable care and caution that a prudent,.careful, and cautious man would have exercised on such a night as that was, approaching that bridge, with the knowledge of the surroundings Mr. Burgess had. From this testimony, and all the surroundings, and your own view of the bridge, you must determine the fact whether he was in the exercise of reasonable care and caution, — in other words, whether he was guilty of contributory negligence. ”

For an interesting, but perhaps rather technical, discussion of this question, see Beach, Contrib. Neg. § 20, and notes.

We have endeavored to give the questions raised a critical examination, and think that the plaintiff’s case was fairly tried, and clearly submitted to the jury.

The judgment is affirmed.

The other Justices concurred.

       Viz.: Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011); Graves v. City of Battle Creek, 95 Mich. 266 (54 N. W. 757); Sias v. Village of Reed City, 103 Mich. 312 (61 N. W. 502); Urtel v. City of Flint, 122 Mich. 65 (80 N. W. 991).


text:
    HOVEY v. MICHIGAN TELEPHONE CO.
    1. Telephone Companies — Suspended Wires — Injury to Horse —Contributory Negligence op Driver — Question por Jury.
    In an action against a telephone company for injury to a horse, occasioned by contact with a wire suspended in the street, the fact that plaintiff knew that defendant was engaged in stringing its wires, and that the day was bright and clear, does not conclusively establish his negligence in failing to see the wire in time to avoid it.
    2. Same — Violation op Municipal Ordinance.
    Proof that plaintiff in such action, at the time of the accident, was violating an ordinance imposing a penalty on dangerous or unusual driving, is not conclusive against a recovery, unless it is shown that such driving contributed to the injury.
    3. Same — Negligence.
    It cannot be said, as a matter of law, that telephone companies have a right to suspend wires across public highways for. such reasonable time as may be necessary for making connections, without taking measures for the protection of travelers.

    4. Municipal Ordinances — Violation—Fast Driving.
    A village ordinance against dangerous or unusual driving is not necessarily violated by driving at a rate of 12 miles an hour.
    5. Same — Instructions to Jury.
    Failure to instruct the jury as to dangerous, as well as unusual, driving, within an ordinance forbidding dangerous or unusual driving, is not reversible error, where no request was made for such instruction, and the court’s attention was not directed to the omission.
    Error to St. Joseph; Yaple, J.
    Submitted June 12, 1900.
    Decided September 13, 1900
    Case by Charles S. Hovey against the Michigan Telephone Company for injuries to a horse. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Wells, Angelí, Boynton & McMillan (Stewart & Bliss, of counsel), for appellant.

      Alfred Akey, for appellee.

       For liability for injuries by electric wires in highways, see note to Denver Consolidated Electric Co. v. Simpson, (Colo.) 31 L B A 566.

   Hooker, J.

The defendant’s workmen, engaged in constructing a telephone line, had strung and fastened its wire along Main street, in the village of Centerville, to and upon a pole standing at the corner of Main and Clark streets. The wire was then carried diagonally across the intersection of the two streets to the opposite corner, and over a crossbar upon a pole there situate, being allowed to sag near the ground across the intersection of the streets, thereby temporarily obstructing travel. The plaintiff, while driving his horse before a cutter, ran against the wire, and claims that the horse was injured. He recovered a judgment of $125, and the defendant has appealed.

The plaintiff testified that he was driving at a rate of about 12 miles an hour, and did not see the wire, which hung about 2 feet from the ground, until just before it struck his horse’s knees. Counsel allege that the court erred in refusing to direct a verdict for the defendant, asserting that the record conclusively shows that the plaintiff knew that the defendant was stringing wire upon its poles along Main and Clark streets, and that the sun was at his back, shining brightly upon the wire, which was copper. It is contended that he was bound to know that there was liable to be a temporary obstruction, and that he was negligent in not having his horse under control, and in not seeing the wire in time to avoid it. We agree with the learned circuit judge that it was for the jury to say whether he had reason to expect and should have seen the obstruction; for we think it is not conclusively shown that he had such knowledge or notice as should lead an ordinarily careful man to look for an obstruction, or that it was negligence not to detect the wire.

It is contended that he was shown to have been driving in violation of an ordinance imposing a penalty on dangerous or unusual driving. If it be conceded that he was driving in violation of the ordinance, that fact alone is not conclusive against him. Before contributory negligence is established as a defense, there must be proof, not only of negligence, but that it contributed to the injury. These we consider questions of fact in this case, and it was proper to leave them to the jury.

The defendant was not entitled to have given either the fourth or sixth request to charge. We cannot say, as a legal proposition, that defendant had a right to hang a wire across the street for such reasonable time as might be necessary for its purposes, without taking measures to protect travelers against accident; It would depend upon the circumstances, and therefore it was for the jury to determine the question. Again, if, as contended, the judge might have told the jury that the proofs conclusively showed that plaintiff was driving at an unlawful rate of speed, that of itself did not entitle defendant to a verdict. .There was the further question of whether it contributed to the injury.

It is said that the judge should not have left the jury to determine whether the speed was unusual, and that he should not have omitted to say to them that the ordinance prohibited dangerous as well as unusual driving, and that he should not have left them to determine whether 12 miles an hour was prohibited by the ordinance or not. There was considerable testimony tending to show that others drove at a 12-mile pace through these streets, and our attention is not called to any proof that a 12-mile pace was dangerous. It seems to us that they were proper questions for the jury.

The omission to instruct in relation to the word “dangerous” cannot be allowed to reverse the case. No proper request was directed to this question, and counsel did not call the court’s attention to the omission, while one or more of the requests omit the word “dangerous,” while including “unusual.”

The judgment is affirmed.

The other Justices concurred.


text:
    HATHAWAY v. DETROIT, TOLEDO & MILWAUKEE RAILWAY CO.
    1. Railroads — Killing Cattle — Defective Cattle-Guard— Declaration — Amendment.
    Where, in an action against^a railroad company for the kill-' ing of cattle alleged to have strayed upon the track owing to defendant’s failure to maintain a proper cattle-guard, the declaration alleged that the ballast had not been excavated from between the ties, and that sand and gravel completely filled the spaces between the joists, so that the guard offered no resistance to cattle going over it, and on the trial the testimony tended to show that the spaces between the joists had become filled with cinders, it was proper to allow an amendment of the declaration to conform to the evidence.
    2. Same — Liability—Instructions.
    The court charged that if the jury should find that the guards were such as were approved by the railroad commissioner, but that the company failed to keep the same in repair, and that the cattle went upon the track over the guards so out of repair, and that the injury was occasioned by such want of repair, the defendant would be liable, but that if they should find that the guards were in repair, or that the injury was not occasioned because- of want of repair, the company would not be liable. Held, that the instruction was sufficiently favorable to defendant.
    8. Same — Contributory Negligence.
    The statutory liability of a railroad company for stock killed upon its track by reason of its failure to maintain a sufficient cattle-guard is not affected by the contributory negligence of the owner of the stock.
    4. Same — Yard Limits — Defenses.
    A railroad company which fences its right of way, and puts in a cattle-guard, at a point 80 to 80 rods from a country passenger station, cannot be exempted from liability for stock killed on its tracks by reason of the defective condition of the guard, on the ground that it was not required to fence or guard the place because within the yard limits.

      5. Trial — Argument—Conduct or Counsel.
    It was not error for tlie court to prohibit an attorney sitting 10 feet from his associate from making suggestions to him while the latter was addressing the jury.
    Error to Lenawee; Chester, J.
    Submitted June 12, 1900.
    Decided September 13, 1900.
    Case by William P. Hathaway against the Detroit, Toledo & Milwaukee Railway Company for the killing of cattle. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Walter B. Bichie and Watts, Bean & Smith, for appellant.

      John- ]£. Bird, for appellee.
   Moore, J.

The plaintiff recovered a judgment against defendant, from which judgment the case is brought here by writ of error. There are a good many assignments of error, but few of which we deem of sufficient importance to merit discussion.

The defendant’s railroad runs east and west, crossing the Cincinnati Northern road at Addison Junction. There is a small passenger station west of the Cincinnati Northern road, and north of the defendant’s road. There is a small freight station immediately east of the Cincinnati Northern road, and south of the defendant’s road, and not far from its track. Nearly all the freight handled at this freight house is transferred from one. road to the other. At a point east of the intersection of these two roads, at a distance not very accurately disclosed by the record, but variously stated by the witnesses to be from 30 to 80 rods,' a highway crosses the defendant’s road at right angles. West of this highway, at a distance variously stated at 10 or 20 rods, there is a Y extending from the defendant’s road in a northwesterly direction to the Cincinnati Northern road. At the highway crossing, cattle-guards have been put in, and the right of way has been fenced east of said highway. Two freight trains and two passenger trains are run over the defendant’s road each way daily. It is the claim of the plaintiff that the east cattle-guard was not kept in repair, but cinders and other things were allowed to accumulate between the slats or joists, until cattle could readily pass from the highway, over the cattle-guard, upon the defendant’s right of way. His cattle escaped from his field into the highway, and, passing over the cattle-guard, were killed.

The first point calling for discussion relates to the sufficiency of the declaration. It contained an allegation reading as follows:

“And that said guard was out of repair, in this, to wit: That there was no appearance of a pit beneath the joists constituting the said cattle-guard; that the ballast had not been excavated from between the ties upon which said guard rested; that the ballast had not been excavated from between the joists of said cattle-guard; that sand and gravel completely filled the spaces between the said joists, so that the said guard offered no resistance to cattle going over it; and that the said joists constituting said cattle-guard were too far apart; and that said joists were too small to make the same a legal cattle-guard.”

The testimony of the plaintiff tended to show that the spaces between the joists had become filled by allowing cinders to accumulate therein. It is said that cinders are not ballast, and are not sand and gravel, and that the declaration was not specific enough; citing McDonald v. Railway Co., 51 Mich. 628 (17 N. W. 210), and Smead v. Railway Co., 58 Mich. 202 (24 N. W. 761). These cases do not sustain the contention of counsel; but, to avoid any question about the declaration, the plaintiff obtained leave to amend it by inserting the word “cinders” therein. Under our statute of amendments, it was entirely compe’ tent for the court to allow this amendment.

It was claimed on the part of the defendant that it put in a cattle-guard approved by the railroad commissioner, and kept it in good repair, and therefore it was not liable. Whether the cattle-guard was in repair or not was a dis* puted question, in relation to which much evidence was given upon both sides. The court charged the jury as follows:

“You are further instructed, gentlemen, that if you find from the evidence in this case that the guards in question were not such guards as were approved by the railroad commissioner, or that they were not placed down as required by the railroad commissioner, under his plans and specifications submitted here, then you would find the defendant liable, under further instructions that I will give you. Or if you find that they were such guards, and were so placed, as required by the plans and specifications approved by the commissioner of railroads, but that the company had negligently failed to keep such guards in repair, then you will find them liable. When I say ‘ keep them in repair,’ I mean in good and sufficient repair, so they would serve the purpose for which they were placed there. I do not mean that, if you find they were in that condition, they would be liable, but you must further find that this injury was occasioned because of such defect, if you find it. In other words, gentlemen, if you find that the guards in question are such as are approved, and further find that the company negligently failed to beep the same in repair (that is, negligently permitted them to fill up between the slats with cinders, ballast, or dirt), and that these cattle went upon the railroad track, over these guards so out of repair, and that the injury was occasioned by such want of repair, then the defendant would be liable. If, on the other hand, you do not find these things to be true, then they would not be liable; that is, if you find that the guards were in repair, the company would not be liable, or, if you find that the injury was not occasioned because of the want of repair, then the company would not be liable.”

We think this was a sufficiently favorable instruction. 2 Comp. Laws 1897, § 6294, and cases cited in note thereto.

The judge was asked to cüarge the jury as follows:

“Under the pleadings and proofs in this case, before the plaintiff can recover you must be satisfied that these cattle of plaintiff got upon the railroad of defendant, and across the guard in question, without any negligence on the part of plaintiff contributory to said animals getting upon said railroad and over said guards.”

Because lie declined to do so, it is said to be error. The court did not err in his refusal to give this request Flint, etc., R. Co. v. Lull, 28 Mich. 510; La Flamme v. Railway Co., 109 Mich. 509 (67 N. W. 556).

It is said that this highway was within the yard limits, and the company was not bound to maintain a culvert at all at this point; citing Flint, etc., R. Co. v. Lull, 28 Mich. 510; Chicago, etc., R. Co. v. Campbell, 47 Mich. 265 (11 N. W. 152); McGrath v. Railroad Co., 57 Mich. 555 (24 N. W. 854); Rinear v. Railroad Co., 70 Mich. 620 (38 N. W. 599); Grondin v. Railway Co., 100 Mich. 598 (59 N. W. 229); McDonald v. Railway Co., 113 Mich. 484 (71 N. W. 859); Schneekloth v. Railway Co., 108 Mich. 1 (65 N. W. 663); Fuller v. Railway Co., 108 Mich. 690 (66 N. W. 593). It is no longer an open question in this State that railroad companies are not bound to fence their station grounds. So far as these cases are applicable at all to the facts disclosed in this record, they are against the contention of the defendant. They hold that the statute requires a railroad company to fence its track and to put in cattle-guards at road crossings, but this requirement has no reference to station grounds; the exemption from this requirement applying to cases where the common convenience of the public and the railway company require that the place should be open for the transaction of their mutual business. At the place in controversy the public was not admitted at all. The right of way was fenced. The company put in a cattle-guard, and claimed that it maintained it in good order. Prior to this accident the company did not proceed upon the theory that it was not required to fence its right of way and maintain a cattle-guard at this place, but, on the contrary, did both, and upon the trial claimed by way of defense that it did both so well as to meet the requirements of the statute. The station was from 30 to 80 rods from this crossing. The public had no access to the right of way or to the station grounds or to the freight depot at this place, and the exception to the requirements of the statute does not apply here.

During the progress of the trial the following occurred:

“During the course of Mr. Smith’s argument to the jury, Mr. Bean interrupted him with a suggestion, to which Mr. Bird, counsel for plaintiff, objected, and thereupon the following colloquy took place:

“Mr. Bean: During the time my associate is making an argument, may I not make a suggestion to him from the table ?

“The Court: I will make a record of this question that is now raised. I do not think it is proper for counsel to sit clear back where the attorneys sit, and speak to their associates when addressing the jury, — clear across the room, a distance of 10 feet.

“Mr. Bean: Can I not do it while sitting at my table ? That is what I want settled. I do it with all due respect to the court, but I contend that, when my associate is making an argument, I may make a suggestion to him, — just one word, to give him the idea.

‘Mr. Smith: And, as a part of it, I want to say that it interrupts me less to have Mr. Bean speak to me out loud than it does to whisper to me. I am sometimes unable to catch it when he whispers to me.

“The Court: I repeat it, because it results in two counsel talking at the same time, and it is very confusing in the court-room. You may assist counsel all that you desire, but in the way I suggest.”

It is said that this is error, and counsel argue seriously that they should be permitted to use their own judgment as to the manner of the argument, and that they were prevented from making their argument in accordance with their ideas of the most effective manner of doing so. They say in their brief:

‘ ‘ The matter may not be so important in this case, since the court substantially declined to submit the claims of defendant to the jury. At the same time, the question continually arises in our court, and we think that this court should determine what our rights are in the premises.”

The action of the circuit judge in insisting upon an orderly presentation of the case, instead of being ground for a reversal of the case, has our unqualified commenda tion.

The other assignments of error do not call for discussion.

Judgment is affirmed.

The other Justices concurred.


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    PEOPLE v. ECARIUS
    1. Criminal Law — Hurried Trial — Continuance.
    An objection that a respondent, convicted of murder upon a trial commenced only 17 days after the crime was com. mitted, was “railroaded” into prison, and that the court erred in refusing to delay the case, is conclusively answered by the fact that no continuance was asked.
    2. Same — Jury.
    Where there is nothing in the record in a criminal case to indicate that there was any trouble in getting a competent jury, it cannot be urged on appeal that the court erred in not summoning jurors from the vicinage.
    3. Same — Witnesses—Leave to Indorse.
    Three days before trial, counsel for respondent obtained an order for the subpoenaing of 13 witnesses in his behalf at the expense of the people. In the same order leave was granted the prosecuting attorney, upon a motion theretofore made, to add three names to those indorsed on the information, respondent making no objection thereto. Held, that respondent could not attack the order on appeal.
    4. Same — Opening Statement oe Prosecutor.
    A failure to prove all that the prosecuting attorney, in his opening to the jury, in good faith stated that he expected to prove, is not ground for reversal.
    5. Same — Respondent as Witness — Evidence Against Himself.
    Respondent, charged with a murder committed with an iron bar as a weapon, being sworn-on his own behalf, was required on cross-examination to put the bar in-his pocket, to show the manner in which it might have been concealed. Held, that the illustration might properly have been made, and with equal effectiveness, with any other person as a witness, and therefore the error, if any, was without prejudice.
    6. Same — Closing Argument oe Prosecutor — Summing up Testimony.
    A conviction for murder will not be reversed because the prosecuting attorney, in his closing argument to the jury, made the statement, “ If this man goes free, no jury sitting in this box will find the murderer of” decedent, whereat does not appear from the record that the remark was other than a proper summing up of the effect of the testimony.
    7. Same — Conduct oe Counsel — Rebuke by Court — New Trial.
    The fact that the circuit judge, apparently with impatience, met an objection of respondent’s counsel to the argument of the prosecuting attorney with the remark, “Don’t interrupt counsel’s argument,” does not require a new trial, where the record shows that objections of a trivial character had been frequently interposed.
    Error to Saginaw; Snow, J.
    Submitted June 12, 1900.
    Decided September 13, 1900.
    Edward Ecarius was convicted of murder in the first degree, and sentenced to imprisonment for life in the State prison at Jackson.
    Affirmed.

      John Hurst, for appellant.

      F. L. Faton, Prosecuting Attorney, for tbe people.
   Moore, J.

The respondent was convicted of murder in the first degree, and sentenced to the State prison for life. Two motions for a new trial were made before the circuit judge, both of which were overruled. The case is brought here by writ of error. Incorporated in the bill of exceptions are the affidavits and counter affidavits used in the motions for a new trial. The zeal of counsel on both sides has led them to make statements in their briefs not justified by the record.

In December last, Louis Buehler was employed in a factory near the river in the southwestern part of Saginaw. His home was reached by going through the settled portion of the city, and was in the outskirts of the city, and in the northwestern part thereof, and about three miles from where he worked. The accompanying plat will help to explain the situation.

The respondent lived near Andre street, about half way between the factory and Buehler’s home. The father-in-law of the respondent lived in a shanty marked in the northeast portion of the plat.

On December 20th Mr. Buehler was paid at the factory two $5 bills and 89 cents in change, all of which were in an envelope when handed to him. It is the claim of the people that on his way home he stopped at Starkweather’s saloon, and got a flask filled with rum, and had got within 20 rods of home, when he was felled to th¿ ground by an irpn strap about 2 feet long and 2 inches wide, used to connect iron rails together, and having in the ends thereof holes through which to pass bolts; that a struggle ensued, when he was struck over the front of the head, fracturing his skull; that he either climbed over the fence or was thrown over; that he afterwards was partially revived by the rain, and attempted to crawl to his house upon his hands and knees, and was found by his mother in a dazed condition. He said that he had been pretty nearly killed by a man with a piece of iron, who had taken his money, but did not say who the man was. He was afterwards removed to a hospital, and two days later died. In this connection it is proper to say it is claimed on the part of respondent that Mr. Buehler was at this time sufficiently possessed of his mental faculties to give a coherent narrative of what occurred, and that the reason why he did not state who was his assailant was because he did not know the man; but we think a reading of the testimony indicates very clearly that he was in a dazed condition, soon became unconscious, and remained so until his death. The cap of Mr. Buehler, with much blood on it, and the iron bar, with blood upon it, were found inside the fence. The pay envelope was also found. It had been torn open, and the money removed. It was bloody. A pocketbook carried by Buehler was not found on his person. A flask corresponding to the one which had been filled at Starkweather’s was in Buehler’s side pocket.

It was the claim of the people that about 4 o’clock the respondent left the shanty of his father-in-law, going to a house near the factory, and leaving there about the time the factory closed, and a little later was seen by and talked with one Miller, and was also seen on Court street, going west, and still later was seen by Mrs. Streichert going west on Court street, five or six blocks from Buehler’s, and that Buehler was then a short distance ahead of him, and the respondent was walking fast, as though to overtake him. The respondent was arrested for the crime. There was a purse upon his person, in which there was a $5 bill and some change; and it is the claim of the .people that there was fresh blood upon the bill, and also fresh blood upon the coat of respondent. The respondent denied all knowledge of the crime, and claimed he went near the factory to see Miller, who owed him. Miller was sworn as a witness, and denied that he owed respondent. The respondent claimed that he had been possessed of the $5 bill for some time, and had kept it hidden at his house, so it should not be spent until he needed it for a definite purpose ; that, if there was blood upon it, that fact could be accounted for by his having recently filed a butcher’s saw, just from the meat-block, and also from his having recently cleaned fish, and also from the fact that he had recently had nosebleed.

The foregoing statement embraces the principal claims of the parties. Mr. Buehler was assaulted December 20th. He died on the 22d. The respondent was arraigned in court December 30th, and upon the same day his present counsel was assigned to him by the court. His trial was commenced January 6th. It is now said that respondent was railroaded into prison, and that the court erred in refusing to delay the case, and also erred in not summoning jurors from the vicinage. It is a reply to these claims that no application was made for a continuance, and there is nothing in the record to indicate any trouble whatever about getting a competent jury.

It is also said that the court erred in allowing names to be indorsed upon the information; counsel citing the case of People v. Casey, ante, 279 (82 N. W. 883). Instead of being an authority against what was done, it is an authority sustaining the action of the court. - The record shows that, on January 3d, counsel for respondent asked and obtained an order for the subpoenaing of 13 witnesses on his behalf at the expense of the State; and in the same order leave is given the prosecuting attorney, upon a motion heretofore made, to add three names to the information. The record does not disclose that any objection was made to this order, and, under the circumstances shown, it was a very proper order to make.

Error is assigned to the opening statement of the prosecuting attorney, for the reason that he did not prove all that he stated that he should. The opening was a very temperate statement of the case which the people expected to make. There is nothing to indicate that any statement was made except in the utmost good faith. A failure to prove all that the prosecuting attorney expected to prove is not a ground for reversing a case.

Errors are also assigned concerning the admission of testimony. We do not think that any of these are well taken, and but one of them calls for discussion. The respondent was called as a witness on his own behalf. On the cross-examination the following occurred:

“Q. Just take this iron bar and put it in your pocket. '

“A. Which one?

“Q. Either one: Put it in the outside pocket of your coat.

“Mr. Hurst: Don’t go any further until I make an objection. I want it stated on the record that the attorney for the people hands the prisoner ah iron bar, and asks him to put it into his pocket. The prisoner does it, and I make an objection. I object to that, may it please the court, as incompetent and immaterial. There is no evidence to show that this man was seen by a single person with anything of that kind about his person; the evidence all to the contrary. I say there is no evidence to base it' upon. It is incompetent and immaterial, and raises a presumption against this respondent.

“The Court: He may answer. (Exception.)

“Q. Put your hand down. This comes under your arm, — just goes under your arm?

“A. Yes; it would tear the pocket.

“Q. Just put it down in your trousers pocket. It is under your arm, ain’t it?-

“A. Yes, sir.”

It is said that this compelled the respondent to give evidence against himself, and was error; citing Stokes v. State, 5 Baxt. 619 (30 Am. Rep. 72), and Kerr, Hom. § 461. In Kerr on Homicide, supra, the author says: “No principle of law is better settled than that a person shall not be compelled to be a witness or compelled to testify against himself. This is a right guaranteed by the constitution in most, if not all, the States,”—‘citing Stokes v. State, supra. The case of Stokes v. State was referred to in State v. Ah Chuey, 14 Nev. 79 (33 Am. Rep. 530), and held not to be good law. In Walker v. State, 7 Tex. App. 245 (32 Am. Rep. 595), it was held that it was not compelling a respondent to give evidence against himself, within the, meaning of the law, to require him to make an impression in a soft substance, in order that said impression might be compared with a foot-print apparently connected with the homicide. See, also, State v. Graham, 74 N. C. 646 (21 Am. Rep. 493). In State v. Ah Chuey, on a question of personal identity, a witness testified that respondent had certain marks upon his person. The court compelled the respondent, against objection, to exhibit his person to the jury. See State v. Garrett, 71 N. C. 85 (17 Am. Rep. 1). None of these cases were cases in which the respondent offered himself as a witness. In State v. Graham the following language is used:

“If an officer who arrests one charged with an offense had no right to make the prisoner show the contents of his pocket, how could the broken knife, or the fragment of paper corresponding with the wadding, have been found ? If, when a prisoner is arrested for passing counterfeit money, the contents of his pockets are sacred from search, how can it ever appear whether or not he has on his person a large number of similar bills, which, if proved, is certainly evidence of the scienter? If an officer sees a pistol projecting from the pocket of a prisoner arrested for a fresh murder, may he not take out the pistol, against the prisoner’s consent, to see whether it appears to have been recently discharged ? Suppose it be a question as to the identity of the prisoner, whether a person whom a witness says he saw commit a murder, and the prisoner appears in court with a veil or a mask over his face; may not the court order its removal, in order that the witness may say whether or not he was the person whom he saw commit the crime? Would the robber whose face was marked with the wards of a key have been allowed to conceal his identity by wearing a mask during his trial ? ”

For a good many years in this State a respondent has been allowed to be sworn as a witness in his own behalf. 3 Comp. Laws 1897, § 10211. The respondent in People v. Glover, 71 Mich. 303 (38 N. W. 874), availed himself of that- privilege. It was a material inquiry in the case whether respondent had gonorrhea or not. He swore upon his direct examination that he did not have it. On the cross-examination he was compelled, against objection, to answer questions as to his physical condition, and why he had certain bottles of medicine in the jail, and for what purpose he used their contents. It was urged that requiring him tó answer these questions was to compel him to give evidence against himself, but the court held that no error was committed in requiring him to answer the questions. In People v. Howard, 73 Mich. 10 (40 N. W. 789), it is held that, when a respondent takes the witness-stand in his own behalf, he may be cross-examined the same as any other witness. It is true, a respondent cannot be required to testify against himself, but, when he becomes a witness in his own behalf, if he can throw any light upon the transaction it is his duty to do so. Speaking for myself, even if the question is properly here, I have no hesitancy in saying that, in view of the fact that respondent was a witness, the court did not err in what was done. One of my associates suggests that counsel did not assign as a reason for his objection that the effect of what the respondent was required to do was to give evidence against himself, and that fairness to the'tidal judge required this to be done, and," not having been done, his failure to act according to a suggestion not made is not reversible error. There is much force in this- suggestion. There is another reason why the case ought not to be reversed because of what occurred at this time. It was the claim of the people that the respondent struck the deceased from behind with the bar of iron; that he had procured it before this, and, allowing the lower end to rest in his pocket, and the upper portion in his coat-sleeve or beneath his coat, had thus concealed it from view; and it was to show the possibility of this having occurred that the request was made of respondent. The prosecutor might have made the illustration just as effective by using the iron plate in the same way in his own coat or trousers pocket, and it would have been competent for him to do so, and this would be no more prejudicial to the respondent than what was actually done. If it was an error, it was error without prejudice.

Upon the closing argument of the prosecuting attorney the following occurred:

“Mr. Eaton: If this man goes free, no jury sitting in this box will find the murderer of Louis Buehler.

“Mr. Hurst: I take exception to that remark.

The Court: Don’t interrupt counsel’s argument.”

It is very strenuously insisted that this was an expression by the prosecuting attorney of his opinion of the guilt of the respondent, and that the reply of the judge to counsel was improper, and for these reasons, if none other, a new trial ought to be granted. This court has repeatedly expressed itself as to the impropriety of the prosecuting attorney expressing to the jury his personal opinion as to disputed facts (People v. Quick, 58 Mich. 321 [25 N. W. 302]; People v. Dane, 59 Mich. 550 [26 N. W. 781]; People v. McGuire, 89 Mich. 64 [50 N. W. 786]); but it has never been held that he may not say to the jury that certain testimony in the case impresses him with the belief that the respondent is guilty, and why it so impresses him (People v. Welch, 80 Mich. 616 [45 N. W. 482]). In People v. Hess, 85 Mich. 128 (48 N. W. 181), Justice Morse, speaking for the court, said:

It is not proper for the prosecuting officer to tell the jury that he believes the defendant guilty, as his belief is not evidence in the case; but he has the right to argue from the testimony that the defendant is guilty, and to state to them what evidence before them convinces him, and should convince them, of such guilt. To deny to a prosecuting officer this privilege would be to deny to him the right to place before the jury the logic of the testimony which leads his mind to the inevitable conclusion of guilt, and which he has the right to presume will lead them to the same conclusion if they view it as he does; and he has, I think, the right to state that he stands unbiased between the people and the respondent, as we have often said he ought to stand.”

An isolated sentence is taken from the argument of the prosecuting attorney, without showing the connection in which it was used. Counsel for respondent requested the court to take the case from the jury for the reason that no competent testimony showed beyond a reasonable doubt the guilt of the respondent. He doubtless argued in the court below to the jury, with great zeal, as he argues here, the truth of that proposition. Was it not competent for the prosecuting attorney, in reply to this argument, to call' the attention of the jury to the testimony tending to show that respondent, without any adequate reason, was near the factory when Mr. Buehler received his pay; that he was seen at several points in the route between the factory and where Mr. Buehler was found; that Mrs. Streichert saw him apparently seeking to overtake Buehler when but a few blocks from, where the latter was soon found badly hurt and with his money gone; that, after Buehler was found, the bloody envelope, the bloody cap, and the bloody bar of iron were found, and soon the respondent was put under arrest; that fresh blood was found upon his clothing; that in his possession was found a bill corresponding in denomination to one paid to Buehler but a few hours before, upon which there was fresh blood, — and, after reviewing this testimony, say to the jury, “If this man goes free, no jury sitting in this bos will find the murderer of Louis Buehler ? ” I think this statement was but a logical summing up of the effect of the testimony, and was entirely proper. The trial judge might have treated counsel more courteously, and should not have been so impatient as the brief extract we have taken from the record indicates he was. An examination of the record, however, shows he was not wholly without excuse for his impatience. The record abounds in objections, many of them of a trivial character; but, taken as an entirety, the record impresses us with the fact that a careful and impartial trial was given the accused.

We are strongly urged to reverse the case because the trial court did not grant a new trial. Under the provisions of Act No. 134, Pub. Acts 1893, we have no doubt of our power to review the action of the circuit judge in refusing a new trial, and in a proper case it would be our duty to do so. In this case the trial judge saw the witnesses who were sworn, and he doubtless knew many of those whose affidavits were filed both for and against a new trial, and would possess better means of deciding upon the weight to be given to these affidavits. A careful reading of the record, the affidavits, and the counter affidavits does not satisfy us that the trial court erred in the exercise of his discretion in refusing a new trial.

Judgment of the court below is affirmed.

The other Justices concurred.


text:
    LOCKWOOD v LOCKWOOD.
    1. Deeds — Cancellation—Evidence.
    A conveyance by an aged widow to her son of all her property, reserving only a life estate, without any written agreement by the son to pay taxes and insurance, to keep the premises in repair, or to maintain and support the grantor, made in reliance on the son’s assurances as to what would be for her best interests, will be set aside in equity, where the grantee repudiates all his promises and obligations, and makes the home so unpleasant that the grantor is unable to remain therein.
    2. Same — Consideration.
    Where the only consideration for a deed from an aged widow to her son and grandchildren was certain obligations assumed by the son, which obligations he wholly fails to perform, the grandchildren cannot complain of a decree setting aside the deed.
    3. Same — Parties—Nonjoinder—Failure to Demur.
    Where a bill to set aside a conveyance to defendant of land in possession of complainant states that defendant is a married man, but the wife is not made a party, and no demurrer for her nonjoinder is filed, an objection thereto cannot be raised on the hearing.
    Appeal from Clinton; Daboll, J.
    Submitted June 18, 1900.
    Decided September 13, 1900.
    Bill by Catherine Lockwood against Orsamus A., Claud A., and Maud A. Lockwood to set aside a deed. From a decree for complainant, defendants appeal.
    Affirmed.

      Patterson & Moinet, for complainant.

      Spaulding, Norton & Pooling, for defendants.
   Moore, J.

The bill was filed in this case to cancel a deed made by the complainant to her only son, Orsamus A. Lockwood, and to his two children, the defendants herein. From a decree rendered in favor of complainant, the defendants have appealed. The defendants interpose the following defenses:

1; That, under the proofs, the complainant has not made out such a case as entitles her to the relief prayed for, as against the defendant Orsamus A. Lockwood.

2. That, as to the other defendants, they not having been charged with any failure or fraud on their part, they cannot be deprived of their interest in the lands in question; their interest having been given to them by complainant as a gift, in consideration of love and affection.

3. That the wife of the defendant Orsamus A. Lockwood should have been made a party defendant.

It is the claim of the complainant (and the circuit judge, who heard the proofs in open court, found her claim to be supported by the evidence) that in 1882 her husband died; that, in anticipation of his death, he deeded 50 acres of his land to his only son, Orsamus A. Lockwood, and the remaining 50 acres of land to the complainant. Upon the land deeded to the complainant were the farm buildings. This 50 acres was worked by the son, and a share of the proceeds was delivered to the mother, who lived a portion of the time with the son, and a portion of the time with other persons, until in May, .1888. At this time she was about 70 years old. She claims that she was ill, and had great confidence in her son, who had either lived with her; or with whom she had lived, since the death of her husband, and that, relying upon his assurances as to what was best for her, and upon his promise that he would maintain and support her the remainder of her life, she was induced to deed to him and his two children the 50 acres of land owned by her. She alleges that he has not carried out his promise, but that he and his wife have both treated her very badly, and that in April, 1898, she was compelled by her son to leave his home, and that she is now obliged to make her home with strangers. The son denies that he promised to maintain and support his mother if she would make the deed she did, and says that she proposed to make it as it was made, and that all he agreed to do was to rent the place from her for three years.

The testimony is conflicting, but there are some things about which there can be no dispute. The complainant for some reason was induced to make to her son and his children a deed of all the property she had in the world, except a little personal property, without any writing being given her in return providing for her maintenance and support. In the deed which was made, there was simply reserved to her a life estate in the farm. The son did not bind himself by any written agreement to pay the taxes or insurance, or to keep the premises in repair, or to maintain and support his mother. It is also beyond reasonable doubt that his home is made so unpleasant for his mother that it would be cruelty to compel her to live therein, and we also think it appears by a preponderance of the evidence that complainant was sent away from his home. The proofs disclose that the complainant had confidence in her son, and relied upon him implicitly. It was his duty to see that her interests were guarded, and that his promises made to her were carried out. Instead of doing so, he has obtained from her, for himself and children, all the property she has; and at the age of 80 years she is without property, and without the home which was promised her. Such a result cannot be permitted by a court of equity to stand. Seeley v. Price, 14 Mich. 541; Witbeck v. Witbeck, 25 Mich. 439; Barnes v. Brown, 32 Mich. 146; Jacox v. Jacox, 40 Mich. 473 (29 Am. Rep. 547); Bowe v. Bowe, 42 Mich. 195 (3 N. W. 843); Finegan v. Theisen, 92 Mich. 173 (52 N. W. 619); Smith v. Cuddy, 96 Mich. 562 (56 N. W. 89); Rexford v. Schofield, 101 Mich. 480 (59 N. W. 837).

As to the claim that the interest of the grandchildren in the lands cannot be reached, because they were not guilty of any failure or misrepresentation, it is sufficient to say that nothing passed from them to the complainant, and that the only consideration for the making of the deed wholly failed, so that no injustice is done them by setting the deed aside.

As to the third defense, that the wife of defendant Orsamus A. Lockwood should have been made a party, the bill sets up that the defendant is a married man. It was not demurred to. The complainant and her lessee are in possession of the land in controversy. Orsamus A. Lockwood and his wife live upon the 50 acres of land deeded to him by his father. The interest of Mrs. Orsamus A. Lockwood in the land in controversy is but an inchoate dower interest. It is evident that this interest will never be anything more if the deed to her husband is canceled by a decree of this court. In Miller v. Thompson, 34 Mich. 12, Justice Cooley used the following language :

“It is to be observed, also, that the objection for want of parties was not taken by any pleading, but for the first time at the hearing. At that stage of the case any defect that does not preclude a decree that does justice as between the parties, and fully determines the controversy as between them, should be overlooked. Payne v. Avery, 21 Mich. 524.”

See Woodward v. Clark, 15 Mich. 110; 15 Enc. Pl. & Prac. 681.

The decree is affirmed, with costs.

The other Justices concurred.