author: Person, J.

text:
    SNAY v. SNAY.
    1. Divorce — Alimony—Property Settlement.
    In divorce proceedings, the decree of the court below awarding the home to complainant and attaching a lien on other property owned by, defendant for the purpose of paying incumbrances against the home, which largely exhausts his property, will not be set aside, on appeal, where the evidence shows that he was a confirmed drunkard and had largely dissipated his property, and little was to be expected from him in the future for the maintenance of complainant and for the education and maintenance of the three minor children, whom it was his duty to support.

    2. Same — Order — Modification of Decree — Appeal Pending — Jurisdiction.
    The court below had jurisdiction, after defendant had filed his claim of appeal, to order him to surrender to complainant the possession of a note awarded to her by the general decree, and said order did not amount to a modification of the general decree while an appeal was pending.
    Appeal from Wayne; Mayne, J., presiding.
    Submitted January 11, 1916.
    (Docket No. 100.)
    Decided July 21, 1916.
    Bill by Theresa Snay against Frank Snay for divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      John H. Dohrman, for complainant.

      Thomas Mulvihill (George M. Dehman, of counsel), for defendant.

      As to effect of husband’s ability and opportunity to earn as basis for alimony in divorce case, see note in 4 L. R. A. (N. S.) 909.

   Person, J.

In this case the complainant was awarded a decree of absolute divorce from the defendant, and was given the care, custody, and maintenance of their three minor children, aged nine years, eight years, and three years, respectively. While counsel for the defendant protests that the decree was unwarranted, he yet fails to urge any good reason against it, and admits that the parties cannot longer live together. An examination of the proofs convinces us that the divorce was fully authorized and should not be set aside.

The principal contention is over the alimony awarded, and one’s first impression may be that the amount is excessive. But further consideration will show, we think, that the decree in this respect should not be materially changed or modified. The circuit judge found that defendant had been guilty of extreme cruelty towards complainant, and that he was an habitual drunkard. At one time, as the record shows, he was possessed of considerable property, all of which came to him by inheritance. About five years before the hearing of this case he sold a farm, upon which they had lived, for $5,500. Out of the proceeds he purchased a place on Rohns avenue, in the city of Detroit, for which he paid, as we understand it, $1,600. He also loaned to one McConnell $300, taking a promissory note therefor. The balance of the money, or most of it,' he has dissipated in drink. Upon selling the farm, he declared, according to complainant’s testimony, that he was not going to stop drinking, and was not going to work, until everything was used up, and they had only $1,000 left. He does not deny such declaration of intention, and appears to have adhered to it pretty closely in practice. Complainant estimates that, although in good health, he has worked only about three months, in all, during the five years. The Rohns avenue property, where complainant lives with the children, is estimated by a dealer in real estate to be now worth about $2,200; but the house seems to be in a somewhat dilapidated condition, and without furnace, basement, or bath. That property is mortgaged for $500, and taxes have been allowed to accumulate against it to the amount of $125. In the meantime defendant has inherited an interest in another piece of property, called the “lake front property,” and this interest is supposed to be worth about $1,500. These two pieces, the Rohns avenue property, with the liens upon it, and the interest in the lake front property, are all that remain to defendant, with the exception of $150, or thereabouts, still unpaid on the Mc-Qonnell note. The defendant, at the time of the decree, was also in arrears to the amount of $111 for temporary alimony, ordered by the court during the progress of the suit.

It was under these circumstances that the court awarded the Rohns avenue property to complainant, for the support and maintenance of herself and the children, together with the household furniture, which was probably of small value, inasmuch as counsel pass it over without comment. And, in addition thereto, the court further decreed:

“That the said promissory note aforesaid so diie from said William McConnell to said Frank Snay, and the avails thereof, shall be and belong to the said complainant, Theresa Snay, in payment of said temporary alimony, as and for her present needs, and further that the said defendant, Frank Snay, shall pay to the complainant, Theresa Snay, forthwith, or as soon as said interest of the said defendant in the property hereinbefore mentioned, located in Macomb county [lake front property], can be sold and converted into money, as follows: If the one-eighth interest of the said defendant therein sell for $1,500, then $1,150 thereof to the said complainant, and $350 to the said defendant, with a solicitor’s fee of $35 to John H. Dohrman, complainant’s solicitor. If the one-eighth interest of the said defendant therein sell for $1,800 or more, then $1,350 thereof to the said complainant, and the balance thereof to the said defendant, with a solicitor’s fee of $50 to John H. Dohrman, complainant’s solicitor, and that said money shall be by the said complainant forthwith first applied to the discharge and cancellation of said real estate mortgage hereinbefore mentioned, and the clearing of the said property so awarded to her from this court from the several liens and incumbrances by taxes and assessments thereupon, and that the balance of said money shall be as and for support, maintenance, and education of said minor children, Irene Snay, Hazel Snay, and RalphSnay, mentioned in said bill of complaint.”

There then follows in the decree a provision making the amounts awarded a lien upon the interest of defendant in the lake front property, and a further provision for the sale of the property by a circuit court commissioner, if necessary.

It was evidently the purpose of the circuit judge to secure a home for the wife and children, as the best possible provision that could be made for them, and to allow her something to be used for the children’s support and education. To make this home secure it was necessary that the incumbrances should be paid, and to make it comfortable repairs are needed. The amount awarded leaves but a little for her use after these things are done. That it largely exhausts such property as defendant’s dissipation has left is his own fault. It was, and is, his duty to provide a home for the children he has brought into the world, and for the mother who bore them; and the only apparent means for enforcing this duty is to take the property now on hand. It is useless to hope for further assistance from a man who intentionally proceeds to squander the means required for the support of his family. In one sense of the word he has had his share. The alternative was before the court to save what was possible for the wife and children, or to let him throw it away.

It is suggested by counsel for defendant that, instead of placing the title to all of the property awarded as alimony in the name of the wife, some portion of it should be so disposed of as to make it more certain that the children will be benefited. But the amount, at the best, is not large, and it was found by ■the court that the complainant is competent to have the control of it. Any further restrictions upon its use may render it unavailable in case of necessity. As above stated, the general decree gave the McConnell note, upon which some $150 remained unpaid, to complainant in liquidation of the temporary alimony previously ordered, the balance to be used by the complainant for her present needs. When the decree was made, the note was in the possession of defendant, and he declined to surrender it to complainant. Thereupon, and after defendant had filed his claim of appeal, a further order was made by the circuit court in chancery that defendant forthwith surrender and deliver the note to complainant. An appeal was taken from this order, upon the ground that the circuit judge had no jurisdiction to make it, and that it amounted to a modification of the general decree while an appeal was pending. In this we think that the defendant is wrong. It is not claimed that any- return had as yet been made to this court, nor had any bond on appeal been approved and filed. The circuit court had jurisdiction to make the order. Delor v. Circuit Judge, 157 Mich. 587 (122 N. W. 196).

Both the decree and order are affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    DETROIT SAFE CO. v. MYER.
    1. Replevin — Demand—Lawful Possession.
    Where defendant lawfully came into possession of a safe under contract of sale, a proper demand on defendant on behalf of plaintiff for its surrender was necessary before defendant’s possession was unlawful and an action of replevin could be maintained.
    2. Same — Evidence—Directed Verdict.
    Where the demand for possession was made by plaintiff’s salesman on defendant’s son, without any showing being made that the salesman had any special authority to,receive payment or bring the action, and it is conceded that no demand was made of defendant himself, the court below properly directed a verdict for defendant on the ground that no proper demand for possession had been made.
    3. Evidence — Trial—Presumptions.
    In an action of replevin, evidence of conversation between plaintiff’s salesman and defendant’s son, at the time alleged demand for possession was made, was properly excluded; in the absence of explanation as to the nature of the conversation, it was presumptively incompetent.
    Error to Saginaw; Kendrick, J.
    Submitted January 7, 1916.
    (Docket No. 59).
    Decided July 21, 1916.
    Replevin by Detroit Safe Company against Frank J. Myer for possession of a safe sold on contract. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      A. Elwood Snow, for appellant.

      E. L. Beach and Alfred F. Myer, for appellee.
   Person, J.

This is an action of replevin brought to recover possession of a safe delivered by plaintiff to defendant under contract of sale. The contract is in the form of an order, signed by defendant, and _ reads as follows:

“5 — 13—1914.
“Detroit Safe Co.,
“Detroit, Mich.
“You will please ship me when notified one of your No. 60 fireproof safes with corner chest with combination lock. For this safe delivered on board of cars at Saginaw will pay you $225.00, terms cash. If change of color is decided on must have 4 weeks’ notice. Paint French Grey. Name, Myer Bros. And in consideration of the delivery of said safe, it is hereby agreed that you do not part with, or relinquish your claim, nor the title to said safe until the agreed price of it shall be fully paid to you; that if any default shall be made in the payments of the notes or the price as herein agreed, or if prior to said payment in full, the safe shall be removed from the possession of the undersigned, without your written consent, you or your agents may, without process of law, take possession of, and remove said safe, and for the use thereof, retain any payments that may have been made thereon. This order is given subject to your approval, and in consideration of above price. We hereby agree not to countermand this order until a reasonable time has been given for such approval, but to receive and pay for the same, as above stated. No agreement of any kind not stated in this order, shall become a part of this contract. The receipt of a duplicate hereof is hereby acknowledged.
“Salesmen are nót allowed to collect for us. Any payment made to them will be at your risk.
“If special cabinet work is required, make diagram on back of this order.
“F. J. Myer. [Signature.]
“Saginaw. [City or Town.]
“ [County.]
“Mich. [State.]
“[Give full shipping directions here.]
“Name of Salesman. Doherty.”

The safe was delivered without payment of the purchase price, but why that was done is not shown in the record. This action was finally brought because of defendant’s failure to make payment after several statements of account had been sent him. The affidavit was made by one Robert E. Doherty, who describes himself therein as salesman for plaintiff. Mr. Doherty was the only witness sworn upon the trial; and the court directed a verdict for defendant upon the ground that no proper demand, for the safe had been made.

So far as appears from the record, the safe came lawfully into the possession of the defendant. This was conceded throughout the trial. And having come lawfully into his possession a proper demand on behalf of plaintiff for its surrender was necessary before the defendant’s possession could be made unlawful and an action maintained to recover the property. Adams v. Wood, 51 Mich. 411 (16 N. W. 788); Wiggins v. Snow, 89 Mich. 477 (50 N. W. 991); Anderson v. Pendl, 153 Mich. 693 (117 N. W. 326).

It was conceded on behalf of plaintiff that no demand was made of Frank J. Myer, the defendant. Mr. Doherty testified that he did not find him, and went to Myer Bros. Jewelry Store, where he had a conversation with R. G. Myer, his son, and a member of the firm of Myer Bros. The defendant was not, himself, a member of the firm. Mr. Doherty testified that the safe was in the building occupied by the Myer Bros., at the time of his conversation with R. G. Myer, and says:

“I came up here and went to the store and demanded of Mr. R. G. Myer, and asked him what he was going to do in regard to paying for the safe, and he told me he had nothing to do with it, that I should see his lawyer, and then I went to the lawyer’s office, and he wasn’t in, and then I went back again and told them I would be back after dinner, and if they didn’t make some settlement I would take action to get the safe.”

This is all the testimony there was of a demand for the possession of the property. It was not shown that R. G. Myer, the son, had possession of, or control over, the safe, nor that he represented his father, the defendant, in any way. There was no testimony that Myer Bros, were using the safe, or that they had anything to do with it. According to Mr. Doherty’s testimony R. G. Myer, when asked what he was going to do in regard to paying for the safe, said that he had nothing to do with it. There is no explanation as to why the safe was in the building occupied by Myer Bros. So far as appears by the record the defendant may have kept it there for his own use and convenience. The simple fact that the order for the purchase of the safe required the name, “Myer Bros.,” to be painted upon it does not, without further testimony, tend to show that it had been turned over to the firm, or that the firm had anything to do with it. Nor does the fact, that the diagram for the interior of the safe was marked in one corner “O. K. R. G. Myer” tend to show, without explanation, that anyone other than the defendant himself had possession or control of the safe. It further appears by the terms of the order that none of the plaintiffs salesmen were authorized to collect or receive payment for it. Mr. Doherty did not testify that any special authority to receive payment, or bring the action, had ever been given him. Under the circumstances it must be held that plaintiff failed to show a proper demand, and that the circuit judge was correct in directing a verdict for the defendant.

During the examination of Mr. Doherty by counsel for plaintiff he was asked to state, “What conversation did you have with this Mr. Myer?” meaning Mr. R. G. Myer, defendant’s son. The question was objected to and excluded. This is assigned as error. The facts hereinbefore stated show that the court was right in sustaining* the objection. Counsel Tor plaintiff made no explanation as to the nature of the conversation which he proposed to show, and presumptively it was incompetent.

The judgment is affirmed.

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


text:
    KINSEY v. BARTH.
    1. Brokers — Commissions—Procuring Cause.
    In an action by a broker to recover commissions for tbe sale of real estate, he must show, by a preponderance of the evidence, that he was the procuring cause by which the sale was finally effected, in order to recover.
    2. Same — Burden of Proof — Instructions.
    The burden of proof being upon plaintiff to establish that the sale was made by him, it was erroneous for the court to instruct the jury that the defendant must show by a preponderance of the evidence that the sale was made by some one else.
    3. Same — Exclusive Agency — Procuring Cause.
    Where, in such action, the broker has no exclusive sale of the property, he does not become entitled to a commission merely by bringing the property to the attention of the purchaser, but he must show that his services were the effective means of bringing about the sale.

      A. Same — Commissions—Procuring Cause — Instructions.
    And where the broker abandoned all effort to sell the property without even inducing the purchaser to go to look at it, and the latter testified that he was not induced to look at it by anything plaintiff said or did, and had dropped it from his mind and would not have purchased it except for subsequent independent action of his son, it was error for the court to substantially instruct the jury that the broker had earned his commission by being the first to call the attention of the purchaser to the property, disregarding the purchaser’s testimony as to the procuring cause of the sale.

    Error to Kent; Brown, J.
    Submitted January 6, 1916.
    (Docket No. 45.)
    Decided July 21, 1916.
    Assumpsit by William H. Kinsey and another in justice’s court against Jacob Barth. Judgment for plaintiffs, and defendant appealed to the circuit court. Judgment for plaintiffs. Defendant brings error.
    Reversed.

      Eastman & Eastman, for appellant.

      Cornelius Hoffius, for appellees.

      The cases passing on the question as to when real estate broker is considered as procuring cause of sale, are reviewed in a note in 44 L. R. A. 321 et seq.

   Person, J.

Defendant owned a home, numbered 407, on Second street, in the city of Grand Rapids, and on the 12th day of August, 1911, conveyed it to one Burt H. Fry. The plaintiffs, who are real estate brokers in the city, bring this action to recover a commission for the sale, upon the ground that it was effected through their firm. They obtained judgment, first in justice’s court, and then in the circuit court, and the latter judgment is brought to this court by writ of error, for review.

Plaintiffs claim that the sale was brought about by an agent of theirs, a Mr. Van Steensel. This agent testifies that he was employed by defendant to make the sale, and that the rate of commission was agreed upon between them. This was denied by defendant, but the question of employment was submitted to the jury, under proper instructions, and their determination of that matter must be held conclusive upon this record.

The important issue in the case is whether the plaintiffs, through their agent, Van Steensel, were the procuring cause of the sale. The facts in this connection, as averred by plaintiffs, are as follows: Van Steensel, hearing that Mr. Fry, the purchaser, wished to buy a house, called upon him and learned the location and character of the property desired. He then made search for such a house, and found it, as he believed, at 407 Second street. This was the house owned by defendant, and which Mr. Fry subsequently purchased. Van Steensel, after finding the house, made the arrangement with defendant by which he was to have a commission for selling it, and went back to Mr. Fry. Mr. Fry promised to go with him to see the house, but never did. These transactions took place on the 12th and 13th of July, 1911. Mr. Van Steensel did not, in his talk with defendant, give the name of the expected purchaser, nor did he tell Mr. Fry the name of the owner of the house, but he did give him its street and number. Van Steensel says that his last call upon Mr. Fry in trying to sell him the house was on July 27th. Before that he had talked with Fry several times over the telephone, and had also, he says, talked with defendant in the same way. But he had seen defendant personally only the one time. After the 27th day of July, Van Steensel seems to have made no further attempts to effect a sale. He did not know that Fry had purchased the place until about the 28th day of October, and then he learned of it through casually meeting Fry on the street. Upon learning that the house had been sold to Fry, plaintiffs demanded their commission from defendant. Fry testified' that after his second meeting with Van Steensel, which was on July 13th, he decided, for certain reasons which he was not allowed to state, that he would not purchase the house in question, or any house, through Van Steensel’s agency. That, he says, is the reason he never went to look at the house when requested by Van Steensel. The way he did come to purchase the house, he says, was through his son, John Fry, who made an arrangement for him to meet Mr. Barth, the defendant, and look at a house owned by the latter. Van Steensel had never mentioned Mr. Barth’s name, and Fry says that he did not know it was the house Van Steensel had tried to sell him until he saw the number on it. He also testified that defendant asked him if he was sent to look at the house by any agent, to which he replied that he was not, and that he, in turn, asked defendant "if the young man from Kinsey & Buys had anything to do • with the house,” and that the defendant answered, "No.” Mr. Fry further testified that he would not go to see the house at Van Steensel’s request; that he would not have purchased it at all if it had been necessary that the purchase be made through Van Steensel, and that the Van Steensel proposition had been dropped entirely from his mind when, at his son’s request, he went to meet defendant. John Fry, the son, testified that he saw an advertisement that the house was for sale in a newspaper; went to see it; and made an appointment for his father to meet the owner.

The instructions given by the court to the jury, on the trial, were, for the most part; clear and correct. Thé jury were told that, in order to recover, plaintiffs must show—

“by a fair preponderance of evidence that it was by reason of their contract of agency and through their means and efforts that Mr. Fry was found and the sale finally made. In other words, they must satisfy you that they were the procuring cause, or chief means, by which this sale was finally effected.”

And in regard to the testimony of Mr. Fry that he was brought to look at the house by his son and not by Van Steensel, the, court said:

“Now, if you are satisfied from a fair preponderance of the evidence that Mr. Fry abandoned all idea of looking up the property that Mr. Van Steensel called his attention to, and that he was led to, examine the defendant’s property through other and independent means, and that ,he finally purchased without any effort on the part of the plaintiffs, and did not buy the property as a result of their calling his attention to it, then I charge you that the plaintiffs cannot recover, and your verdict must be ‘no cause of action.’ ”

Fault could not well be found with these portions of the charge, except as to what was said in the paragraph last quoted about the preponderance of evidence. That was erroneous. The burden of proof was upon plaintiffs throughout to show that the sale was procured by them, and not upon the defendant to show that it was procured by some one else.

But, after giving the foregoing instructions, and other instructions pertinent to the case, the court, near the close of his charge, used the following language:

“And so in this case, if you believe the testimony of Mr. Fry that he called Mr. Barth’s attention to Kinsey & Buys, or their agent, in connection with the deal, and you further believe that such a verbal agreement and understanding for the sale of the place was entered into between Mr. Van Steensel and Mr. Barth, as testified to by Mr. Van Steensel, then I charge you that Mr. Barth cannot escape liability in this case, and your verdict would be in favor of the plaintiff. * * * It being undisputed in this case that Mr. Van Steensel first spoke to Mr. Fry, the buyer, and first called the Second street property to Mr. Fry’s attention, even though no bargain was then struck and the negotiations were permitted to rest for a while, if then Mr. Barth did not revoke his agreement with-Kinsey & Buys, made through Van Steensel (if you believe such understanding was had between the parties), then I charge you that when Mr. Barth later completed the sale, the plaintiffs would be entitled to their commission, even though other parties may have assisted in bringing about the sale.”

This was incorrect under the circumstances of the case, and inconsistent with the earlier portions of the charge. It amounted substantially to an instruction that Mr. Fry’s testimony should be disregarded as to the cause of his purchase, and that a broker has earned his commission by being the first to call the attention of the purchaser to the property.

It may be, and no doubt is, true that a sale is often effected by simply bringing the property to the buyer’s attention; but it is not because he brought the property to the buyer’s attention that the broker is entitled to his compensation, but because by doing so he became the procuring cause of the sale. Wood v. Smith, 162 Mich. 334 (127 N. W. 277), and cases there cited; Wylie v. Bank, 61 N. Y. 415; Studer v. Byson, 92 Minn. 388 (100 N. W. 90). As was said in Whitcomb v. Bacon, 170 Mass. 479, 481 (49 N. E. 742, 64 Am. St. Rep. 317):

“A broker who does not have the exclusive sale of real estate does not become entitled to a commission merely by bringing the property to the attention of the person who finally buys it, but he must also show that his services were the efficient or effective means of bringing about the actual sale.”

In the instant case it is not claimed by plaintiffs that they had any exclusive right to sell the property. Their agent, Van Steensel, apparently abandoned all effort, on and after the 27th day of July, to get Fry to even look at the property. He did not learn that a sale had been made until the 28th of October, and then only through a chance meeting with Fry. And if it-is true, as Fry testified, that he was not induced to look at the property by anything Van Steensel said or did, and had dropped it from his mind, and would not have looked at or purchased it, except for the subsequent, independent action of his son, then Van Steensel was not the procuring cause of the sale, even if he did first call Fry’s attention to the property, and plaintiffs are not entitled to any commission.

For the errors pointed out, the judgment is reversed and a new trial granted, with costs to appellant.

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


text:
    HUME v. GRAND TRUNK WESTERN RAILWAY CO.
    1. Appeal and Error — Issues—Trial—Flooding Lands.
    In an action against a railroad company for flooding plaintiff’s lands, she alleged, and gave evidence tending to prove, that the natural flow of the surface water was from her lands over and across defendant’s right of way; that in 1871 defendant graded its right of way so as to obstruct the natural flow; that until about 1902 an open ditch had taken the water off plaintiff’s land, but in that year defendant widened its grade and destroyed the ditch; that by reason of said obstruction the water has backed up on plaintiff’s land during certain specified years to her injury. The defense was confined mostly to a denial that such ditch ever existed, and the only questions submitted to the jury were whether there had ever been such a ditch and whether it had been filled up; held, that the other issues will be treated as if they had been decided in plaintiff’s favor, and that the natural flow of the surface water is from plaintiff’s land over and across defendant’s right of way, that the water has been held back to her injury during the time alleged, and that defendant has been guilty of actionable wrong unless the verdict of the jury for defendant is equivalent to finding a prescriptive right in its favor.
    2. Waters and Watercourses — Prescription—Proof.
    Where, in such action, a prescriptive right was claimed, it was not a right to maintain the grade, but a right to hold the water back on plaintiff’s land, and must be shown by the fact that the water had been held back during the prescribed period of time.
    3. Same — Inference—Conclusiveness.
    And where no way for the escape of the surface water has been shown since the construction of defendant’s grade in 1871, the inference that it must have been held back upon plaintiff’s land, while very strong, is not conclusive, and is not equivalent to a direct finding by the jury.
    4. Pleading — Notice—Limitation of Actions — Prescription.
    Where the notice annexed to defendant’s plea was a notice of the statute of limitations, it presupposed the existence of a right of action which had become barred by lapse of time, rather than of a prescriptive right, which denies that the alleged' right of action ever existed.
    Error to Calhoun; North, J.
    Submitted January 7, 1916.
    (Docket No. 73.)
    Decided July 21, 1916.
    Case by Elizabeth Hume against the Grand Trunk Western Railway Company for damages for flooding plaintiffs land. Judgment for defendant. Plaintiff brings error.
    Reversed.

      No A. Cobb, for appellant.

      L. C. Stanley (L. E. Stewart, of counsel), for appellee.
   Person, J.

Plaintiff is the owner of a lot in Roberts addition to the city of Battle Creek, and this lot abuts upon the southerly side of defendant’s right of way. The right of way, at least in that locality, runs in an easterly and westerly direction. There was a house built upon the lot in the year 1905, in which plaintiff lived for some time, but of late years the property has been rented. Plaintiff claims that the grade upon the right of way cuts off the natural flow of the surface water and holds it back upon the lot; and she has brought this action to recover damages for the alleged injury. The declaration sets out the cause of action as follows:

“That the said defendant, or its predecessors in title about the year 1871 constructed a grade running east and west through the said Roberts addition, before which time the surface waters from said plaintiff’s premises in their natural course found their way northerly to the Battle Creek river; that after the construction of the said grade, as aforesaid, said surface waters from said plaintiff’s premises were taken off by means of an open ditch running on the south side of said defendant’s grade; that about the year 1902 the said defendant or its predecessors in title raised and widened its grade adjacent to plaintiff’s property, and easterly and westerly thereof, and thereby necessarily filled up the said open ditch because of the widening of its grade, and by reason of the construction of the grade and consequent filling of the said ditch, the outlet for the surface waters which had previously existed and the surface water which had, prior to this time, been taken care of by the aforesaid open ditch was flooded back upon the plaintiff’s premises, causing the said plaintiff s premises to be flooded and inundated at various, times during the years 1909, 1910, 1911, 1912, 1913, and 1914. And the plaintiff alleges that at various times above set forth, that is to say, during the years 1909, 1910, .1911, 1912, 1913, and 1914, tlje said defendant railway company has continued to injure the plaintiff in the manner above set forth, and has maintained its grade in such a way as to stop the surface water from being carried off the plaintiff’s property as it was carried off in its natural state. And the plaintiff alleges that the defendant company has maintained the obstruction to the flow of said surface water, which obstruction has caused the said surface water to be backed up on said plaintiff’s premises, causing the said plaintiff’s premises to be flooded and inundated during the years 1909, 1910, 1911, 1912, 1913, and 1914.”

It will be observed that the injury complained of is the flooding of the land during the last six years because defendant “has maintained its grade in such a way as to stop the surface water from being carried off in its natural state.” Plaintiff asserts no right to have the ditch, which was an artificial water way, kept open, but .mentions- it to show why the grading of 1871 caused her no injury at the time. Her right of action is based upon the natural, and not upon the artificial, flow of the water; and the natural flow of the water could not be affected by filling the ditch and bringing the surface of the ground to its original level. The averments relative thereto were not therefore material to the prima, facie establishment of the particular cause of action sued upon, and were probably inserted in anticipation of some claim of prescriptive right.

Upon the trial of the case the course taken was somewhat peculiar. Plaintiff produced evidence tending to prove all the averments in her declaration, including those relative to the ditch; but the defense was confined mostly to a denial that any such ditch ever existed, although one or two witnesses carried the flooding of plaintiff’s land back much earlier than 1902. And the only questions submitted by the court to the. jury were whether there had evér been such a ditch as plaintiff claimed in her declaration, and whether it had ever been filled up. And they were told:

“If you find that the defendant railroad company has never at any time maintained a ditch from the property in question and not provided an outlet for any surface water, then I instruct you that your verdict should be in favor of the defendant.”

The verdict as rendered for the defendant was consequently based upon the single proposition that the ditch referred to never existed, and therefore was never filled up. And all issues in the case, upon which plaintiff offered evidence, except this one and those which this one determines by necessary inference, must be treated, for the purpose of this appeal, as if they had been decided in plaintiff’s favor. This means that the natural flow of surface water is from plaintiff’s land over and across defendant’s right of way, and that the water has been held back to her injury during the years mentioned, by the grade maintained by defendant. And it further means that, in so holding back the water from its natural course, the defendant has been guilty of an actionable wrong, unless the finding by the jury that no ditch ever existed and that no way has been shown by which the water could have escaped since the first grade was made in 1871 is equivalent to finding a prescriptive right in favor of defendant.

The prescriptive right in question is not a prescriptive right to maintain the grade, but a prescriptive right to hold the water back on plaintiff’s land, and must be shown, not simply by the existence of the grade, but by the fact that the water has been held back during the prescribed period of time. Washburn’s Easements and Servitudes (4th Ed.), p. 174; Boyd v. Conklin, 54 Mich. 583 (20 N. W. 595, 52 Am. Rep. 831); Gregory v. Bush, 64 Mich. 37 (31 N. W. 90, 8 Am. St. Rep. 797); Offley v. Garlinger, 161 Mich. 351 (126 N. W. 434).

No way for the escape of the surface water having been shown, the inference that it must have been held back upon plaintiff’s land since 1871 is very strong, indeed, but it is not necessarily a conclusive inference, and is not legally equivalent to a direct finding by the jury that the water had been so held back. This is particularly true in view of the testimony of plaintiff and some of her witnesses that her lot was dry down to 1902 or 1903. For these reasons, the judgment must be reversed, and a new trial granted.

Mention, perhaps, should be made of the fact that the notice annexed to defendant’s plea is a notice of the statute of limitations rather than of a prescriptive right, one marked difference between the two being that the former presupposes the existence of a right of action which has become barred by the lapse of time, while the latter denies that the alleged right of action ever existed.

The judgment is reversed, and a new trial granted.

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


author: Kuhn, J.

text:
    LEONARD v. FARMERS’ MUTUAL FIRE INSURANCE CO. OF MONROE AND WAYNE COUNTIES.
    1, Insurance — Mutual Fire Insurance Company — Construction of Charter.
    The provisions of the charter of a mutual fire insurance company will be strictly construed against the company, where it is seeking to take advantage of them to defeat a claim.

      2. Same — Application — Provisions of Charter — -Inference— Question of Fact.
    Although it may be conceded that by inference defendant’s charter required a written application, yet in the absence of a provision strictly forbidding parol applications, plaintiff’s claim of a parol application and its acceptance by defendant’s agent should be submitted to the jury.

    3. Same — Contract—Waiver by Oeeicers — Assignment.
    The charter and by-laws of a mutual fire insurance company, being part of the contract of insurance, the officers of the company cannot waive compliance with their provisions; and where no written assent was indorsed on the policy by the officers, as required by the charter, no valid assignment of the same was made to the plaintiff.
    4. Appeal and Error — Fire Insurance — Controlling Question.
    Where plaintiff’s claim was based on two theories, one that an application for a new policy was made and accepted, and the other that an assignment of an old policy was made to plaintiff, and both theories were submitted to the jury, and it is conceded, on appeal, that no valid assignment was made, a judgment for plaintiff will be reversed, as the appellate court is unable to determine that the verdict was based upon the question properly submitted.
    Error to Monroe; Chester, J., presiding.
    Submitted January 2, 1916.
    (Docket No. 142.)
    Decided July 21, 1916.
    Assumpsit by Moses Leonard and another against the Farmers’ Mutual Fire Insurance Company of Monroe and Wayne Counties, on a fire insurance policy. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Thornton Dixon, for appellant.

      Willis Baldwin, for appellees.

      As to validity of oral contract of fire insurance, generally, see note in 22 L. R. A. 768.

   Kuhn, J.

The defendant is a mutual fire insurance company, organized under the laws of the State governing the creation of such mutual corporations, and attached to the policies issued by it is a copy of its charter. Various of the charter provisions which are of importance in this litigation are as follows:

“Sec. 15. Any person may become a member of this company by paying a membership fee of one dollar, together with ten cents on each hundred dollars they insure.”
“Sec. 18. Any member may, upon sale of his property, transfer his policy to the purchaser, by paying a fee of one dollar and obtaining the consent of the president and secretary thereto, which must be indorsed, on said policy.”
“Sec. 20. All applications for insurance must be made to the secretary or his agent, and contain such statements in regard to the risk of the property insured as the board of directors may deem proper to embody in the application.”

The plaintiff owned a small farm in the township of Erie, Monroe county, Mich., and has for a number of years carried a policy in the defendant company covering both his buildings and his personal property. Dennis Knaggs was also a resident of the township of Erie, and owned a farm upon which he for a number of years carried a policy in the defendant company, covering $400 on his buildings and $1,400 on his personal property. Some years previous to the occurrence which gave rise to this litigation, Mr. Knaggs left his farm in Erie township and moved into another township in Monroe county, carrying with him his personal property. He had his policy changed to allow insurance on the building to remain as originally written, and his policy on the personal property to apply in the township where he was then a resident. The plaintiff sold his farm to one Dwyer, and agreed with him to have his insurance policy transferred to Dwyer, as Dwyer desired to take the same amount of insurance upon the personal property that the plaintiff carried. The plaintiff then purchased the Knaggs farm and bargained with Knaggs to have the insurance upon the building on the Knaggs farm transferred to him. On March 12, 1912, the plaintiff and his wife, Knaggs and his wife, and Dwyer went to the office of Mr. Hilton, in the village of Erie, to have the necessary conveyances made to cover the sales and purchases of the property. Mr. Hilton, who is a secretary of the defendant company, was a notary public, and did considerable conveyancing in the community in which he resided. The necessary papers to transfer the various properties were made and executed, and Leonard then transferred his policy of insurance to Dwyer. But upon Knaggs making a similar request regarding the transferring of his policy to Leonard, Mr. Hilton called his attention to the fact that his policy only covered $400 on buildings and $1,400 on personal property then located elsewhere, and suggested that Mr. Knaggs retain his policy, cancel the insurance on the buildings, and that Leonard take a new policy. There was some dispute as to what occurred in Mr. Hilton’s office, but Knaggs testified:

“I agreed to assign my policy to him (plaintiff); I was to pay the expense of transferring the policy. * * * Mr. Hilton said he would fix it up and send my policy to me and make a new one for Mr. Leonard; that is what I understood; as soon as possible. About the new policy, I said I would pay for it, all that was coming. * * * I explained to Mr. Hilton my bargain with Mose about paying for the insurance; that I would pay for the new one, and he would make it. That is all I understood.”

On cross-examination he further said:'

“When I sold the property to Leonard I told Mr. Hilton to transfer this policy to him on the house, and he said he would make a new policy and return this to me by mail (meaning Knaggs’ own policy), and he returned it about three days afterward. *. * * I was to pay for Leonard’s new policy. I did — $1, I think.”

Hilton testified that Knaggs did not pay him for insuring Leonard’s property, and that he told Mr. Leonard that he would have to have a new application and policy, and that he would fix it up any time Leonard came in. Mr. Hilton did not finish the business, being compelled to leave his office, and upon his return he transferred Leonard’s insurance to Dwyer, canceled the insurance on the buildings on Knaggs’ policy, and returned the policy covering the personal property to Mr. Knaggs. No policy was ever issued on Knaggs’ property purchased by the plaintiff, and on September 12, 1912, the buildings were destroyed by fire and were a total loss. This suit was brought against the defendant to recover upon what is alleged to be a contract of insurance made by Mr. Hilton at the time the deed was passed, and upon which contract for insurance the company should have issued its policy. The trial resulted in a verdict for the plaintiff in the sum of $400, and judgment was duly rendered thereon.

Error is alleged because the learned trial judge, in his charge to the jury, said:

‘ “Gentlemen, you are instructed that if you find by a preponderance of the evidence that at the time of the transfer of this real estate from Mr. Knaggs to Mr. and Mrs. Leonard, Mr. Knaggs agreed with Mr. and Mrs. Leonard to transfer to them his insurance on the property, and to that end agreed and arranged with Mr. Hilton, secretary of the company, to transfer the insurance, either by assignment of the old policy or the issuance of a new one, and paid Mr. Hilton for such transfer, and Mr. Hilton then and there, for the company, accepted the money therefor, and further said to them at that time that that was all they had to do, and that Mr. Leonard need not do anything more and need not come back again to get his policy issued, then plaintiff would be entitled to recover.”

Counsel for the defendant contends that section 20 of the charter above set forth requires that a written' application of insurance should be made, and this construction of the charter contended for not having been complied with, the plaintiff cannot have any claim on the theory that a new policy was issued; and that clearly no contention can be made upon any claim because of the right to have a transfer of the policy made, because section 18 of the charter provides that no such transfer can be made without obtaining the consent of the president and secretary thereto, which must be indorsed on the policy. This it is conceded was not done in the instant case.

It may be said that, upon reading section 20, the conclusion is justifiable that by inference, at least, it was the intention of the framers of the charter to require a written application. But it would have been a very simple and easy matter to have said so in words, so as to leave nothing to implication. In our opinion such a provision should be strictly construed against the insurer when it is sought to be taken advantage of to defeat a claim such as is relied upon in the instant case, where the application was made to an authorized agent of the company and was accepted by him, and the required fee whs paid. There being evidence to support these claims and no provisions in the charter expressly forbidding the acceptance of such a parol application, this theory of the case, in our opinion, was properly submitted to the jury, as an oral contract for insurance has been held to be valid and binding. Gristock v. Insurance Co., 84 Mich. 161 (47 N. W. 549).

It was held in Becker v. Insurance Co., 48 Mich. 610 (12 N. W. 874), and in the later case of Kamm & Schellinger Brewing Co. v. Insurance Co., 168 Mich. 606 (184 N. W. 999), that the charter and by-laws of a mutual insurance company are parts of the contract of insurance, and that the officers of the company cannot waive any of the provisions of the charter or the by-laws. Under these authorities, the plaintiff’s counsel concedes that section 18 of the charter, with reference to the .transferring of policies, is binding upon the plaintiff. So that it appears clearly that the plaintiff was not entitled to recover on the theory that there had been an assignment of the old policy to him.

It will be noticed on reading the section of the charge above set forth that both of these.theories were submitted to the jury, and it is of course impossible to tell upon which theory the jury determined that the defendant was liable. Under the facts here set forth, the defendant was éntitled to an instructed verdict upon the theory of the assignment of the policy, but as we have intimated, the question of a new contract of insurance was one which it was proper to submit to the'jury.

Being therefore unable to determine whether the jury decided the question of whether or not an oral contract for new insurance was made, we conclude that the error in the judge’s charge must be said to be prejudicial.

The judgment is therefore reversed and a new trial granted.

Stone, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


author: Stone, C. J.

text:
    POPA v. NORTHERN INSURANCE CO. OF NEW YORK.
    1. Insurance — Adjuster—Denial of Liability — Proofs of Loss —Waiver.
    Where a fire insurance company sends an adjuster to inquire into a loss, and he denies all liability of the company under the policy, such action will be held a waiver of proofs of loss by the company.
    2. Same — Action—Denial of Liability — Waiver.
    Although the company may have 60 days in which to pay the loss before suit may be commenced, yet a peremptory refusal to pay by an authorized agent of the company is a waiver of that right, and suit may be commenced at once.
    3. Same — Damages—Evidence—Value of Destroyed Goods.
    Evidence by plaintiff as to what he paid for the insured goods one year prior to the fire, their condition at the time of the fire, and the wear they had received, was competent to show their cash value at the time they were destroyed.
    4. Same — Amended Judgment — Weight of Evidence.
    Where, upon a motion for a new trial, the trial judge found that a judgment for $500 was excessive, and ordered that a new trial be granted unless the plaintiff should elect to remit all in excess of $400, to which reduction he consented, and judgment was finally entered for the latter sum, and there was evidence to support the judgment, it will not be reversed, on error, on the ground that the judg-. ment was against the great weight of the evidence.
    Error to Wayne; Searl, J., presiding.
    Submitted June 16, 1916.
    (Docket No. 147.)
    Decided July 21, 1916.
    Assumpsit by Andrew Popa against the Northern Insurance Company of New York in justice’s court on a fire insurance policy. From a judgment for plaintiff defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Frederick J. Ward, for appellant.

      James I. Ellman (Walter Phillips, of counsel), for ■appellee.
   Stone, C. J.

This is an action to recover for a loss under a fire insurance policy issued by defendant to plaintiff, covering any direct loss or damage that might occur to the household goods, of every description, of plaintiff, located in the two-story frame dwelling house situated at, and known as, 14 Kendall avenue, Highland Park, to an amount not exceeding $700. The policy bore date May 18, 1914, and was for the term of three years. A fire and loss occurred January 7, 1915, and plaintiff claimed the right to recover $500 damages by reason thereof. The defendant denying liability, suit was brought on the policy April 17, 1915. The declaration was in the usual form. Under the plea of the general issue the defendant gave notice, among other things, that the plaintiff had commenced this action before any money was payable, under the terms and conditions of said policy, to wit:

“This company shall not be held to have waived any provision or condition of this policy or any forfeiture thereof by any requirement, act, or proceeding on its part relating to the appraisal or to any examination herein provided for; and the loss shall not become payable until 60 days after the notice, ascertainment, estimate, and satisfactory proof of loss herein required have been received by this company, including an award by appraisers when appraisal has been required.”
“This sum, for which this company is liable pursuant to this policy, shall be payable 60 days after due notice, ascertainment, estimate, and satisfactory proof of loss have been received by this company in accordance with the terms of this policy.”

The plaintiff recovered a verdict and judgment for $500, but upon a motion for a new trial the trial judge found that the recovery was excessive, and ordered that a new trial be granted, unless the plaintiff should elect in writing to remit all sums in excess of $400. Whereupon the plaintiff consented to such reduction, and judgment was finally entered for $400.

The defendant has brought error and, while there are 17 assignments of error, we think that the meritorious questions can be disposed of under the following heads:

(1) Was the suit prematurely brought? and did the court err in refusing to direct a verdict for defendant upon this ground? This question involves the scope of the authority of the adjuster.
(2) Was there competent evidence of the value of the property?
(3) Was the judgment excessive or against the great weight of the evidence?

1. An examination of the record discloses that proof of loss was mailed to the defendant’s home office in New York on February 16, 1915, and it was received there on February 18, 1915, as appears by defendant’s stamp on the exhibit.

The plaintiff’s attorneys having been, by the local representative of defendant, referred to James W. Price of Detroit as the adjuster of the loss, they, on February 13, 1915, wrote him a letter the substance of which was as follows:

“The local representative of the said company has referred us to you for the purpose of attempting an adjustment of the claim for fire loss sustained by our client, on the 8th of January, 1915, at 14 Kendall avenue, Highland Park.”
“We hold in our possession the insurance policy and a sworn statement, as required by the policy of insurance. The total amount representing the value of the household effects of our client is $624.84.”
“If you desire to take this matter up with us, please communicate with our office on Monday, the 15th inst.”
“A copy of this letter goes to the Nortnern Insurance Company of New York for their information.”

On February 25, 1915, Mr. Price replied to this letter as follows:

“February 25, 1915.

“Messrs. Ellmann, Butler & Blumrosen.

“Attorneys at Law,

“Free Press Building, City.

“Re Claim of Andrew Popa v. Northern Insurance Co.

“Gentlemen:

“Acknowledging receipt of your favor of the 13th instant per your Mr. Ellmann, also your letter of the 16th addressed directly to the Northern Insurance Company at New York, which latter letter inclosed a document reputed to be a proof of loss in which Andrew Popa swears that property to the cash value of $624.84 has been entirely destroyed and that he has suffered loss and damage to that amount, will say that said proof is hereby rejected as being absolutely false and untrue, and an attempt having been made by the assured, through you, to collect from the company moneys not due him, the policy of the said Insurance Company is, by its terms, void.

“Some time previous to the date of either of your letters, the writer, in company with an adjuster hired by the assured to represent him, looked over the property in question, and knows for a fact that the items listed in the proofs as being totally destroyed- were not so destroyed, and, in fact, some of them had sustained but' very slight, if any, damage. The assured at that time claimed that certain articles of clothing hanging in one of the closets had been burned, but there was no evidence that the assured ever owned such items.

“The adjuster employed by the assured claimed'that there had been a damage of about $180, but, as the writer could see no such damage, an offer of $87.50 was made to assured’s adjuster, which amount, merely as a matter of compromise- and to save expense of litigation, is still open without in any way admitting any valid claim against the company on account of the false swearing by assured as indicated above.

“Yours very truly,

“James Price, Adjuster.”

After a reply by plaintiff’s attorneys to Mr. Price’s' letter, offering arbitration and in which they stated, “If we fail to hear from you within five days that you desire to arbitrate this matter, we shall conclude that you have no desire to do so, and we will take the necessary legal proceedings,” this suit was brought, the plaintiff claiming that, the defendant, through the adjuster, having denied liability under the policy, its terms as to arbitration and time in which defendant became liable to pay were waived, and that plaintiff had the right to sue at once, and without waiting the 60 days provided for in which to pay the loss.

Mr. Price was called as a witness for the plaintiff, and he testified that he was a public adjuster and that in that capacity "he had acted for the defendant 20 or 30 times, and that he did act for defendant as adjuster in this case; that the loss was referred to him by a Mr. Beck, the so-called State agent of the defendant. It also appeared that Mr. Price had in his possession, when he acted in the case, the original proof of loss sent by the plaintiff to defendant, and also the letter accompanying the proof of loss. An important question in the case is, What was the presumed authority of Mr. Price, the adjuster?

An examination of the authorities satisfies us that when an insurance company has been notified of a loss under a policy issued by it, and it sends an adjusting agent to inquire into the loss, and such agent, while engaged in, or at the conclusion of, such business, refuses payment, and denies all liability of the company under the policy, such action by the adjuster will be held a waiver of proof of loss by the company. Gristock v. Insurance Co., 84 Mich. 161 (47 N. W. 549); Ohio Farmers' Ins. Co. v. Vogel, 166 Ind. 239 (76 N. E. 977, 3 L. R. A. [N. S.] 966, 117 Am. St. Rep. 382, 9 Am. & Eng. Ann. Cas. 91, and cases cited); Ætna Ins. Co. v. Shryer, 85 Ind. 382; Minnesota, etc., R. Co. v. Insurance Co., 64 Minn. 61 (68 N. W. 132); see Words and Phrases, title “Adjuster,” p. 118:

“An adjuster is a person who makes any adjustment or settlement, so that an insurance adjuster would be empowered and authorized to adjust and settle loss, and his authority would be sufficient to enable him to take any step which he deemed necessary or proper to facilitate an adjustment; hence a declaration that the company will not pay the claim is binding on the company. Flaherty v. Insurance Co., 20 App. Div. 275 (46 N. Y. Supp. 934-936.”

If Price had authority, and we think that prima facie he did, the liability of the defendant was denied. Did that waive the question of the time in which the claim became payable? This time was for the benefit of the defendant. Was it waived? The authorities are to the effect that, upon a peremptory refusal to pay, suit may be brought at once. May on Insurance, § 488, and cases cited in note. Although a company may have 60 days in which to pay the loss, yet, if before that time an authorized agent declares that it will not pay, suit may be commenced at once. Georgia Home Ins. Co. v. Jacobs, 56 Tex. 366; State Ins. Co. v. Maackens, 38 N. J. Law, 564; Hoffecker & Bro. v. Insurance Co., 5 Houston (Del.), 101; Commercial Fire Ins. Co. v. Allen, 80 Ala. 571 (1 South. 202).

We think the suit was not prematurely brought, and that the trial court did not err in its rulings in admitting the letter of Price and of plaintiff’s attorneys in evidence.

2. Was there competent evidence of the value of the household goods? The plaintiff and his witnesses were permitted to testify what they paid for the goods one year prior to the fire, their condition at the time of the fire, and the wear they had received. We think that this evidence was proper as tending to show the cash value at the time.of the fire. 19 Cyc. p. 945; Johnston v. Insurance Co., 106 Mich. 96 (64 N. W. 5); Leder v. Insurance Co., 175 Mich. 470 (141 N. W. 646). We find no error here.

o. An examination of the entire record satisfies us that there was evidence to support the judgment as amended, and we cannot say that such recovery was against the great weight of the evidence.

The other assignments of error have been examined, and we find no reversible error in the record.

The judgment below is affirmed.

Kuhn, Ostrander, Bird, Moose, Steers, Brooke, and Person, JJ., concurred.


text:
    FISK v. FIRE ASSOCIATION OF PHILADELPHIA.
    1. Insurance — Adjuster—Denial of Liability — Proofs of Loss —Waiver.
    An insurance adjuster, when acting in the line of his employment, has authority to waive presentation of proofs of loss by denying liability of the company; and his authority may be implied where the company informed plaintiff that the adjuster was looking after its interest.
    2. Same — Denial of Liability — Evidence—Weight of Evidence.
    Where plaintiff testified that during ’ at least three interviews the adjuster declared that the company was not liable and would not pay, which statements the adjuster denied, the question of denial of liability and refusal to make payment was an issue for the jury, and their finding in favor of plaintiff cannot be said to be against thq great weight of the evidence.

      Error to Sanilac; Beach, J.
    Submitted January 10, 1916.
    (Docket No. 81.)
    Decided July 21, 1916.
    Assumpsit by Charles Fisk against the Fire Association of Philadelphia, a foreign corporation, on a fire insurance policy. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Phillips & Jenks, for appellant.

      Fred A, Farr (C. F. Gates, of counsel), for appellee.
   Person, J.

.This action is upon a policy of fire insurance and in the circuit court plaintiff recovered a judgment for $1,000 and interest. The errors alleged by defendant on appeal are not numerous, and, of those argued, such as relate to the language used by plaintiff’s, counsel in the examination of witnesses, and before the jury, cannot be considered, because not covered by proper assignments.

It is conceded that the policy was in force when the fire occurred; the destruction of the property insured, or of a large portion of it, is not denied, and there is no question raised as to the value of the property. The sole defense, practically, is that proofs of loss were not furnished as. required by the terms of the policy. And while a copy is not given in the record, it must be assumed that the policy in question is a Michigan standard policy, with the usual terms. Plaintiff concedes that full and sufficient proofs of loss were not furnished, and claims that such proofs were waived by the company through its adjuster, who, he testifies, absolutely denied the company’s liability under the policy, and declared that it would not pay anything upon the loss. The adjuster, who was sworn as a witness on behalf of the company, unqualifiedly denied making such statements, or any of them, and the question of fact, thus raised, was submitted to the jury, who held with the plaintiff.

The defendant does not argue that a disclaimer of liability and a refusal to make payment by the company would not relieve the plaintiff from the necessity of making proofs of loss. This court has held that such an attitude on the part of the company would make proofs of loss unnecessary. Popa v. Insurance Co., ante, 237 (158 N. W. 945). But defendant does insist:

First. That the jury, in finding such disclaimer and refusal to have been made by the adjuster, acted against the great weight of the evidence.

Second. That an adjuster for an insurance company has no authority, by virtue of his employment, to bind the company through such disclaimer and refusal.

Considering the latter proposition first, it has been determined in this State that an adjuster, when acting in the line of his employment, has such authority. Popa v. Insurance Co., supra. This might not have been quite clear when the appeal was taken, although it was practically so held in Morgan v. Insurance Co., 130 Mich. 427 (90 N. W. 40). In. the instant case, however, the authority of the adjuster was even more apparent. In reply to a letter from plaintiff’s attorney asking that the loss be paid at once, the company replied that the adjuster was looking after its interest in the matter, and that the letter had been referred to him for an answer. The fair implication from this is that the adjuster had full charge of everything relating to the loss. It is true that the letter was written after the adjuster had denied the company’s liability, but there is no indication that his authority was any less at the time of the denial than it was when the inquiry by plaintiff’s attorney was referred to him.

As to the first proposition, it is not shown by the record that the jury acted against the weight of the evidence in finding that the adjuster did deny the company's liability, and did refuse payment of the loss. The fire by which the loss occurred took place atCroswell on the 11th day of May, 1914. On the 19th of that month, plaintiff had an interview with the adjuster, who had been sent to Croswell by the State agent of defendant, and several other interviews took place between them, the last being on the 11th day of June. Plaintiff testified that at the first interview, after he had furnished the adjuster with certain papers asked for, the latter accused him of building the fire by which the goods were destroyed, saying “it was a hell of a funny fire and that he would never pay a dollar of the insurance.” . The plaintiff also testified that during at least three of the interviews the adjuster declared that the company was not liable and would not pay. The adjuster denied these statements, and it was his word against the plaintiff’s. It was also shown that the adjuster did cause the origin of the fire to be investigated by a deputy fire marshal, and that the investigation resulted in the plaintiff’s arrest and trial for arson, and that upon trial he was acquitted. There was proof, also, that subsequent to the last interview between plaintiff and the adjuster, which took place on June 11th, several letters passed between plaintiff’s attorney and the company and the adjuster, in which correspondence the attorney was demanding payment of the loss, while the adjuster was insisting that nothing further could be done until the fire marshal had completed his investigations, when the matter would be taken up again. It is urged by counsel for defendant that this correspondence is inconsistent with an absolute denial of liability by the defendant, and that it shows a willingness on the part of the adjuster to make payment if the investigation should turn out favorable to the plaintiff. The correspondence and all of the facts were, however, before the jury, and were undoubtedly thoroughly considered in determining the attitude of the company as to payment. It was not impossible that plaintiff’s attorney should still attempt to procure an adjustment of the loss, even after a denial of liability; and the answers of the adjuster were carefully guarded, and did not purport to retract any refusal he may have made as to payment. The question as to the adjuster’s denial of liability and refusal to make payment was fairly before the jury, and there was sufficient testimony upon either side of the proposition to make their determination conclusive. This was the opinion of the learned circuit judge who heard the case, and his opinion was undoubtedly correct.

The judgment is affirmed.

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


author: STEERE, J.

text:
    GATEWOOD v. CONSOLIDATED COAL CO.
    1. Master and Servant — Personal Injuries — Promise to Repair Defect.-
    An assurance to plaintiff that the length of wire he had been using for the purpose of dynamiting stumps was safe and to use it until a longer one should be furnished was not such an assurance as would relieve the plaintiff of assuming the risk of his injury from the known danger.

      2. Same — Assumed Risks.
    When, plaintiff undertook the work of blasting he knew he was engaging in an employment that involved the use of a dangerous agency and voluntarily assumed not only the generally known and ordinary perils of such service, but such other risks as became apparent to him from observation and experience.
    3. Same — Evidence—Contributory Negugence.
    Testimony that plaintiff knew the wires with which he was dynamiting stumps were short and that he complained to his superior and asked for longer wires but was assured the wires were safe, and to use them until longer ones were furnished, that plaintiff used more dynamite in blasting than was required or safe, and was injured as a result, and that he had been properly warned, held, to be insufficient to relieve plaintiff of the charge of contributory negligence and that the court should have directed a verdict for the defendant.
    Error to Saginaw; Kendrick, J.
    Submitted April 17, 1916.
    (Docket No. 10.)
    Decided July 21, 1916.
    Case by Albert Gatewood against the Consolidated Coal Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      Humphrey, Grant & Humphrey, for appellant.

      Purcell & Travers, for appellee.

      The general question of the rights of a servant who continues work on the faith of his master’s promise to remove a specific cause of danger is reviewed in a note in 40 L. R. A. 781. And for authorities on the question of contributory negligence as a defense to an action based on a breach of a master’s statutory duty, see note in 49 L. R. A. (N. S.) 526.

   STEERE, J.

Plaintiff recovered a judgment for personal injuries resulting from a blast of dynamite, which he exploded while in defendant’s employ, engaged in blasting stumps in the process of clearing land on a farm of defendant, located in Buena Vista township, Saginaw county. Some time prior to the accident in question defendant purchased from plaintiff, or his wife, a house and some lots adjoining this farm, taking plaintiff, who was a farmer, into its employ under an arrangement that he should continue to reside in the house, which was then moved and, repaired, and work upon the farm, acting as resident foreman or head workman under the direction and control of a Mr. Pugh, who was general superintendent in charge of several farms owned and operated by defendant.

From early in July, 1912, until he was injured on January 28,1913, plaintiff had mostly worked at clearing an unimproved portion of this farm, using dynamite as an aid to that end. During most of this time the blasting was amongst small stumps and bunches of brush, requiring varying, but not large, charges. He had, however, become familiar with the nature of dynamite and the method of using it in clearing land, and had fired so many shots that he declined to estimate the number, beyond stating it was at least 1,000. The blasts were fired by an electric battery, carried in a small box, which was connected by two wires with the sticks of dynamite after they were placed under or in the object to be blasted. Percussion caps affixed to the charge were attached to the wires from the battery, and when the blast was all set it was fired by turning a little crank on the battery, which sent a current of electricity to the caps, causing the explosion. Small wires four feet long, or more, were attached to the caps on the sticks of dynamite to which the battery wires were connected in preparing for a blast; 250 feet of wire, or a doubled line 125 feet long, was provided to carry the electric current from the battery to the cap connections; 40 per cent, dynamite was used, stated to be a “weak strength.” Plaintiff testifies that in the job of clearing upon which he commenced work in July they used dynamite from the beginning “and carried it straight through”; that the amount used for a blast “wasn’t only from half a stick to a stick and a half or two sticks, according to the size of the timber we got into, until we got into the big, heavy stuff, big heavy stumps, and then he (Pugh) showed the way himself.”

Pugh made frequent visits to the farm, watching and directing the progress of plaintiff’s work, cautioning him against using more dynamite than was necessary to produce desired results, both for economy and because it was dangerous, telling him the more he used the greater was the danger. Early in the progress of the work he found plaintiff had put his son, a young man 18 or 19 years of age, at loading and firing the blasts, and told him it was decidedly wrong to allow the boy to handle dynamite, cautioned him of the dangers attending its use, and said he wanted him to put his son at other work, to which plaintiff assented. Thereafter a workman named Campbell, whom plaintiff hired by permission of Mr. Randall, defendant’s general manager, worked with and assisted plaintiff in the blasting. Campbell testified that he had some previous experience in blasting stumps with dynamite, that plaintiff was his “boss,” and directed him in his work when Pugh was absent.

In the morning of the day plaintiff was injured Pugh visited the farm, and while there gave directions for blasting some large stumps. He remained until noon and took charge of the work, directing plaintiff and Campbell how to do it, blasting three of the large stumps himself, one of which Campbell and Pugh both testified was three feet in diameter, using five sticks of dynamite in the largest ones and four under a smaller one. Plaintiff stated that he “was there to watch him, and see how he wanted it done,” but did not observe how many sticks of dynamite were used, nor ask Pugh about it, because it “wasn’t none of my business.” Pugh left at noon. During the afternoon, after blasting two large stumps safely, plaintiff was struck over the eye and injured by a flying piece from an elm stump about two feet in diameter which, he had charged with nine sticks of dynamite. The full extent of his injuries, while in dispute, is not involved in the controlling questions presented here.

The breaches of duty alleged in plaintiff’s declaration, upon which it is sought to predicate actionable negligence, are, condensely stated, failure to provide plaintiff a safe place to work, to advise and warn him of the dangers incidental to blasting stumps, especially when the ground is frozen, and of exploding dynamite with electricity in doing such blasting, failure to furnish him wire of sufficient length to operate the battery used in firing the blasts at a reasonably safe distance from the place of explosion, and neglect to supply him with sufficient wire for that purpose after promise to do so by the superintendent in charge of the work. The only ground upon which recovery was permitted, and an issue of fact submitted to the jury by the trial court, was the alleged breach of defendant’s promise and duty to furnish plaintiff with more wire for use in blasting. The court instructed the jury, correctly we think:

“That there is no evidence in this case showing or tending to show that the plaintiff was not sufficiently instructed and warned as to the dangerous character of these appliances and of the business which he was performing, the apparatus used, and the general dangers surrounding the business, and the fact that he had been working upon this job in the manner in which he was for some seven months prior to the happening of this accident, and as he must have been well informed concerning the apparatus he was using, as the same was open and obvious; * * * I feel it my duty, therefore, to charge you that the claim that plaintiff was not properly instructed, or had not proper knowledge concerning this matter, should not be considered by you, in view of the fact that he had been engaged in the business for seven months, having charge of it.”

It appeared that the wires for connecting the battery with the charge to be exploded had become reduced in length while in defendant’s use by little pieces being blown off the ends when blasting. The testimony as to their length at the time of the accident is in conflict; plaintiff claiming it to have been 55 feet, and defendant 75.11 feet.

It was claimed that plaintiff complained to Pugh on three different occasions of the shortness of the wires, asking him for longer ones, but was ordered to continue its use under both assurances that it was sufficiently long to safely use and a promise that longer wires would be furnished. Manifestly the degree of safety, or danger, in firing a blast was contingent on the size of the charge fired as well as the length of the wires. Plaintiff controlled the size of the charge and knew the length of the wires. Under the theory that the testimony upon this subject raised an issue of fact as to an exception to the general rule of .assumed risk —in the .particulars of defective appliances, complaint by the workman, promise to supply or repain, and continuing in employment using the defective appliance in reliance upon such promise — the court submitted that question to the jury. Accepting in full all plaintiff’s testimony upon that subject as true, which defendant denies, we find in it no certain promise of Pugh to repair, or furnish longer wire, in reliance upon which plaintiff was relieved from assumption of the immediate and obvious risks incident to continuing the work he was engaged in. His testimony as to complaints and promises, which it is claimed required submission of that question to the jury, is as follows:

“It was about three weeks before my injury that I had my first talk with him. * * *
“Q. What did you say to him, and what did he say to you?
“A. I asked him if he couldn’t get us a longer wire. I told him I thought that wire was getting pretty short and that it was dangerous.
“Q. What did he say?
“A. He said it was not. He said to me to go ahead and use it until he got another wire.
“Q. Then did you have any other talk about it?
“A. At another time I did. It was about a week afterwards, after the first one. * * *
“Q. Now, what was said at that conversation?
“A. He said it was safe — to go ahead and use it until he could get a longer wire.
“Q. What, if any, excuse did he give for not furnishing the wire?
“A. He didn’t give any.
“Q. Then did you have any other further talk with him about it?
“A. The same day when I got hurt, at noon, Mr. Campbell was there.
“Q. Now, go on and state what you said to Mr. Pugh,
“A. I asked Mr. Pugh if he couldn’t give us a longer wire. He said, ‘That is perfectly safe.’ He said, ‘Go ahead and use it until I get another one.’ ”

We discover in this no promise that a longer wire would be furnished at any time. At most, there was but an intimation that one might be some time, with assurances that the one in use was sufficient and reasonably safe, if properly used. At the time of the last claimed complaint and assurance Pugh had worked with the blasting appliances himself during the forenoon, and had just safely blasted a larger stump than the one plaintiff was injured in blasting. Plaintiff makes no showing that he would have quit, but for promises to furnish longer wire. He was experienced in the use of dynamite and the effect of explosions in blasting stumps, had equal knowledge with Pugh how the appliances were used and the length of the wire. Recovery cannot be predicated in this case on bare assurances of safety. Kean v. Rolling Mills, 66 Mich. 277 (33 N. W. 395, 11 Am. St. Rep. 492); Rohrabacher v. Woodard, 124 Mich. 125 (82 N. W. 797); Hayball v. Railway Co., 114 Mich. 135 (72 N. W. 145); Riffel v. Truck Co., 180 Mich. 673 (147 N. W. 522); Kelley v. Davison, 185 Mich. 123 (151 N. W. 671).

Plaintiff offered no evidence of the customary and proper length of wire commonly furnished and used by prudent and careful persons for blasting of the kind he was engaged in. It appeared that the equipment with which he was supplied had been efficiently used without accident by himself and Pugh in blasting stumps, both small and large, even to green elm stumps over two feet in diameter, when carefully done, with moderate, but adequate, charges of explosive. Plaintiff, in testifying as to their general manner of taking out stumps by the use of dynamite, said, “Mr. Pugh ordered us to make light shots on them, to loosen them,” and had subsequently cautioned him, at least “one time,” as he admitted, about his using too much dynamite. Yet for the blast which injured him he loaded the stump with nine sticks of dynamite. He had watched Pugh blast a larger stump that morning with five sticks, and was there “to see how he wanted it done,” although he denies knowing how many sticks were used. In a series of equivocal replies as to how he came to use so many sticks, he stated:

“There wasn’t any amount of dynamite mentioned; only he said to fill the holes full.”
The holes were bored under plaintiff’s directions after Pugh left, and when asked if that was not left to his judgment, he replied:
“I don’t know whether it was left to my judgment or not. * * * It wasn’t left to me any more than it was to Campbell.”

Campbell testified that he said to plaintiff “it was quite dangerous.” to put in so much dynamite; that he would not himself turn the crank, and told him, “I wanted Mm to give me lots of chance to get away,” and “I took and went away.” Plaintiff stood in the open, to fire the blast, and .it was shown that he would have found protection from flying pieces by stepping behind a brush pile, there being four large ones, from 4 to 10 feet high, within 40 feet of the stump, and beyond that a large one, from back of the thickest portion of which to the stump was 75 feet.

When plaintiff undertook this blasting, he knew he was engaging in an employment involving the use of a dangerous, agency, and voluntarily assumed, not only the generally known and ordinary perils of such service, but such other risks as became apparent to him from observation and experience. In doing the work it was his duty to “make light shots,” as he had been instructed, according to the .equipment and results to be accomplished, resort to all readily available means of protection, and exercise such care and caution as a reasonably careful and prudent person would under like circumstances. To recover in this action it was incumbent upon him to prove that he did so, and was guilty of no contributory negligence. From what plaintiff is shown to have done and seen, and admitted he knew and understood, the conclusion seems to us inevitable that his own carelessness, recklessness, and misconduct in overcharging this blast and then needlessly exposing himself when firing it amount to such contributory negligence on his part as precludes recovery.

The judgment is reversed, without a new trial.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Brooke, and Person, JJ., concurred.


author: Steere, J.

text:
    HINES v. PICTORIAL REVIEW CO.
    1. Names — Fictitious Trade Name — Evidence.
    "Where plaintiff sued defendant for goods returned upon the termination of an agency for certain patterns, testimony tending to show that plaintiff was doing business under an assumed name, which, was not legally authorized by filing the certificate of membership required by statute, was properly excluded, as irrelevant, under proofs that the contract was with plaintiff in her own name, that correspondence between the parties was addressed to her and goods invoiced to the individual in her own name.
    2. Evidence — Value—Qualifications.
    It was not erroneous to permit plaintiff to testify relative to the market value of the goods upon proofs that the price charged her at wholesale was the value, and was the amount at which she inventoried the goods, where she had been in the business a year and a half and had acquired some knowledge of the respective values of the goods.
    3. Same — Compromise and Settlement — Value—Recoupment.
    For goods returned by the agent to "vendor the defendant was required to allow a credit of their reasonable value, regardless of whether or not there was a new or compromise agreement between the parties if it accepted "and retained them. *
    4. Same — Trial.
    The court did not err in charging on the subject of rebate or allowance for goods returned, that the fair and reasonable value of the same was not to be determined from the price charged for them by plaintiff but from what they would bring on the market, over and above the cost of reselling, having in mind the fact they were secondhand goods and must be resold.
    Error to Lenawee; O’Mealey, J.
    Submitted April 12, 1916.
    (Docket No. 120.)
    Decided July 21, 1916.

      Assumpsit in justice’s court by Harriet Hines against the Pictorial Review Company for the value of goods returned to defendant. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Charles L. Robertson and James H. Cornelius, for appellant.

      Baldwin, Alexander & Russell, for appellee.
   Steere, J.

This case was commenced in justice’s court, some time prior to October, 1913, and reached this court after three trials, one in justice’s court and two in the circuit court of Lenawee county to which it had been appealed. It was first tried in the circuit court on January 15, 1914, resulting in a verdict and judgment for plaintiff in the sum of $80.76, which, upon defendant’s motion for a new trial, was set aside on the ground that the verdict was excessive. Upon retrial, had October 15, 1914, a verdict was rendered and judgment entered in favor of plaintiff for $53.91, from which it is removed to this court by a writ of error.

The maximum amount involved, aside from possible interest on balances, appears to be between $73 and $74, claimed as yet owing plaintiff for merchandise returned to defendant with its permission, originally invoiced to her at $187.68, which amount she sought to recover less an account she was owing defendant of $72.80, and a credit for $41.33 secured by her after this action was begun, in some justice’s court proceeding called by the trial court a “garnishee suit” and by defendant’s counsel a “suit in attachment” against “the James H. Howell Company, with whom the Pictorial Review was doing business.”

Plaintiff resided at Adrian, Lenawee county, Mich., where her two daughters conducted a small store, selling ladies’ furnishings, fancy goods, embroidery, etc., under the name of “Hines Sisters.”

Defendant is a foreign corporation having its principal offices and place of business in the city of New York, engaged, as its letter head indicates, in issuing the “Pictorial Review, Pictorial Review Fashion Book, Pictorial Review Styles, Pictorial Review Patterns,” and selling them through agents together with patterns of various kinds and descriptions, moñograms, fashion sheets, embroidery catalogues, and other analogous productions inferentially relating to fashions, modes, and ornamentation of ladies’ wearing apparel, all of which is collectively designated by defendant in its letters as “stock” and “goods.”

It is conceded that plaintiff and defendant, on December 16, 1910, entered into some sort of an arrangement by which she handled'defendant’s goods at the Hines Sisters’ store in Adrian. Both parties to this business relation refer to it as an agency. Defendant’s counsel state in their brief that the parties entered “into a written or printed contract,” the contents of which, so far as this court is concerned, is left largely to inference. Aside from the information as to its nature disclosed when it is mentioned in certain letters of the parties discussing their differences, or when incidentally referred to in the oral testimony, the only hint that it was in writing, or who signed it, is by a witness of defendant, who states “Exhibit A, the contract of December 16, 1910, was signed ‘Mrs. Harriet Hines.’ ” ' We have searched the record in vain for Exhibit A.

Plaintiff testifies, in part:

“I entered into a contract with defendant. It was December 16, 1910. I was engaged in the Pictorial Review pattern business and sold fashion sheets and monthly magazines, the quarterly fashion book and embroidery catalogue, and conducted business at 5 East Maumee street. I was in half the store operated by the Hines Sisters, who were Florence and Edna Hines and are my daughters. I was not connected with the Hines Sisters, and my business was just Pictorial Review patterns and monograms, and I continued this business for about a year and alhalf. I discontinued the business with the Pictorial Review Company about the last of April, 1912, and they told me that I could discontinue my agency, pack my goods, and inclose it and ship them and they would give me a proper adjustment. I returned the goods August 8th.”

The first indication of dissatisfaction on either side which we are able to discover from the record appears in a letter written to defendant by plaintiff, on January 2, 1912, complaining of defendant having put in another stock right across the road in the store of one James H. Howell, and insisting that the town was not large enough to support two agencies for the same patterns, “especially right opposite each other.”

In answer to a later complaining letter of plaintiff’s, defendant wrote her on April 20, 1912, saying, in part:.

“After careful consideration, we believe it will be best for you to close your agency at once. You are very much dissatisfied and, to be frank, the account has not been altogether satisfactory to us. * * * Please understand that you are privileged to return your stock to this office and upon receipt an immediate adjustment will be made. * * * Please see that inventory is sent us at the time it is shipped back.”

On June 18, 1912, defendant wrote her in answer to a letter of the 2d inst.:

“Although we thank you for the offer, we do not desire to transfer your Pictorial Review agency to your successor. It will be best for you to return your stock to this address and upon receipt an immediate adjustment will be made. We appreciate the way in which you have handled our patterns and regret that it is necessary for our business relations to close.”

In a letter of August 21, 1912, defendant wrote:

“Regarding the goods you are returning, when received they will be duly credited to your account, and our accounting department will take the matter up with yours to the adjusting of the account.”

On September 20th defendant acknowledged receipt of the returned goods.

On November 13, 1912, plaintiff wrote defendant complaining that she had received no answer to her letter of October 27th, nor anything in regard to the settlement of her account for goods returned August 8th, which they should have made with her long ago. This was answered on November 15, 1912, by a letter which discussed the goods she had returned, some of which it was claimed were not returnable and others not in good condition. A balance of $72.88 was claimed to be against her on defendant’s books, and an offer of $19.64 was made in settlement of the whole matter. She was also told:

“We wish you to understand clearly now that we are not obliged to take back any of these goods with the exception of $25 worth of patterns which would cover your standing credit indebtedness. * * * If you wish to accept this settlement We will send our check for this amount. If the settlement is not satisfactory to you, we must insist upon payment of your outstanding indebtedness amounting to $46.88” — concluding by asking what disposition she wished made of certain monogram and embroidery patterns claimed not returnable.

Further correspondence followed, and some time later, of the date we are not advised, plaintiff, while in New York, called at defendant’s place of business seeking an adjustment and went over the matter with its assistant sales manager of the pattern department. She testified that in their conversation she offered to take the patterns they claimed were damaged, and asked to see them, but was told they had been thrown out, and she was given no opportunity to examine them.

These pertinent facts stand undisputed. After^announcing to plaintiff its purpose to close her agency, defendant first informed her that it was her privilege to return the stock; next declined to permit her to turn the agency over to her successor, and stated it was best for her to return the stock; then wrote her that when the goods she was returning were received they would be duly credited to her account, each time assuring her of a prompt adjustment on receipt of the goods. Under this authority and with these assurances, she returned the stock of goods yet on hand. Defendant had written plaintiff to “see that inventory is sent us at the time it is shipped back.” She made an inventory of the stock returned, nailed it on the outside of the box as directed, invoiced at the cost price as originally invoiced to her by defendant, amounting to $187.68. Defendant received and retained these goods.

The quantity of goods returned and amount of invoice at original cost to her are not in question. The primary dispute between the parties was whether she was entitled to be credited with the invoice price, or only with defendant’s appraisement of the returned goods, when the promised adjustment should be made and a balance struck between what she owed and her credit for merchandise returned. Upon the trial her claim was for the market value of the goods returned, and defendant claimed a verdict should be directed in its favor.

Certain of plaintiff’s letters to defendant, though written in the first person, were signed “Hines Sisfcers,” and defendant sought to show by further testimony in that connection that she was in fact doing business in and under that assumed name, without having filed the certificate required by statute entitling her to maintain this action. Objection to that line of testimony was sustained, and error is assigned upon such ruling. Tlie contract which plaintiff made with defendant was in her own name; the statement of accounts rendered her by defendant were to Mrs. Harriet Hines; its letters to her were mostly addressed to Mrs. Harriet Hines, and all, so far as shown, sub-addressed to her as “Dear Madam”; the invoice of goods returned by her to defendant was in her own name and so acknowledged by defendant. Whatever her relations may have been with the Hines Sisters’ business generally, it is conclusively shown that the transactions involved here were with her personally, in her own name, and so recognized by both parties. The proposed testimony was irrelevant and properly excluded.'

The court permitted plaintiff to testify, over defendant’s objection, that the market value of the goods which she returned was $187, the wholesale price originally charged to her and the sum at which she had inventoried the goods when returned to defendant. In that connection she was also permitted to testify, for the purpose of showing the goods were new stock, that she had taken an inventory every six months, returning the old stock of patterns and buying new ones. The objections to this testimony were, “There is no showing she knows what the market value was,” and a general objection to “any testimony of- any transactions that she had previous to the return shipment of the goods, as being incompetent under the claim of plaintiff * *_ * for the value of the goods returned in pursuance to a certain claimed agreement ” and as immaterial. Plaintiff had been in the pattern business dealing in these goods for a year and a half, and necessarily acquired some knowledge of their wholesale and retail market value. We think her testimony as to value was competent for the jury to consider, and, as bearing upon how long she had kept these goods in stock, her testimony relative to returning old patterns and buying new ones.

Error is particularly assigned against a portion of •the court’s charge in which the jury was told that defendant’s proposal to return the goods, and plaintiff’s acceptance by actually shipping them as directed, constituted a new agreement under which defendant was authorized to appraise the goods and determine the value, but required to act in good faith and allow plaintiff “such credits as the goods were reasonably worth taking into consideration the kind, nature, and character of the same,” etc. Defendant urges that no new contract was entered into, for their minds never met on the essentials of a valid agreement; that the price for goods returned was left for future adjustment after defendant received them, and defendant’s subsequent offer was refused. While the terms of the correspondence may be incomplete as an executory contract, we are not prepared to hold that under the facts in this case the instruction was prejudicially erroneous, or misleading. If defendant accepted and retained the goods, it was its implied duty to allow plaintiff their reasonable worth.

Defendant has omitted from the record such pleadings as are necessary for a complete understanding of the questions raised, and plaintiff’s counsel assert in their brief that they did not declare upon any contract growing out of the letters which passed between the parties, but brought the action to recover, the value of these goods delivered to defendant at its request and accepted by it, for the value of which it was therefore liable.

The charge is somewhat lengthy, and excerpts may be selected from it which are questionable; but a careful consideration of the charge in its entirety, as an instruction to the jury upon the issue left to it, leads us to the conclusion that the single meritorious question of the value of these goods was ultimately fairly submitted in such manner as to be readily understood and create no prejudice against defendant. The court instructed the jury that the goods “were to be treated and regarded by the defendant company, not as new goods, but as secondhand goods in fixing the price which the plaintiff would be entitled to receive from the defendant company.” And, also:

“That the fair and reasonable value of the goods is not to be determined from what plaintiff paid for them, but from what they would bring on the market, over and above the cost of reselling; and in this connection you are to take into consideration the nature and character of the goods, and the season of the year, whether or not they were immediately resalable, if salable at all, or must be carried in stock until they became seasonable.”

In conclusion, the court further explained and distinctly instructed the jury that the two items of $72.93 and $41.33, before referred to, should be allowed defendant “as against any account you may find, if anything, that was a fair and reasonable market value of the goods.”

That the jurors canvassed the issue submitted to them fairly and understandingly, and did not arbitrarily award plaintiff the full invoice price claimed by her, is evidenced in the amount of their verdict, which we cannot say was excessive.

From this record, considered as a whole, we are constrained to conclude that a fair trial was had, the questions involved fairly submitted, and no prejudicial error demanding a reversal appears.

The judgment is affirmed.

Stone, C. J., and Kuhn, Ostrander, Moore, Brooke, and Person, JJ., concurred. Bird, J.. took no part in this decision.