text:
    PARKE, DAVIS & CO. v. GRAND TRUNK RAILWAY SYSTEM.
    1. Pleading — Amendments—Parties— Substitution — Servio^ oe Process.
    Where suit was commenced against the Grand Trunk Railway System, under the erroneous impression that it was a corporation, while in reality it was only an operating name used by the real defendant, the Grand Trunk Railway Company of Canada, a motion to amend the pleadings, after plaintiff had made its case on the merits, by substituting the name of the real defendant for the one named was properly denied, in the absence of evidence that service was made upon an officer of the real defendant.
    2. Same — General Issue — Waiver by Counsel.
    It cannot be said that defendant’s counsel waived the defect by pleading the general issue, where it nowhere appears that he was in court on that particular occasion representing the real defendant; the plea being filed for the defendant named in plaintiff’s declaration.

      Error to Wayne; Tappan, J., presiding.
    Submitted June 5, 1919.
    (Docket No. 60.)
    Decided October 6, 1919.
    Case by Parke, Davis & Company against the Grand Trunk Railway System for the negligent killing of plaintiff’s horse. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      George J. Haines (Charles M. Woodruff, of counsel), for appellant.

      Harrison Geer, for appellee.
   Bird, C. J.

The Michigan Air line Railroad Company, which extends from Richmond to Jackson, passes through plaintiff’s farm in Oakland county. One of its horses passed on to the railway right of way and track, by reason of a defective fence, and was run down and killed by a passing train. Plaintiff brought suit against the Grand Trunk Railway System to recover its damages. Suit was commenced by declaration and the return of service indorsed thereon shows the following:

“State op Michigan, i
“County of Wayne, j ss>
“I hereby certify and return, that on the 11th day of May, A. D. 1917, I served the declaration of which the within is a copy, on Grand Trunk Railway, the defendant named in said declaration, by delivering to George W. Alexander, local treasurer of said railway, said defendant, at the city of Detroit, in said county of Wayne, a true copy thereof and of the foregoing rule to plead, the notice relating thereto, together with a true copy of the notice to appear and plead, attached thereto as hereto attached.
(Signed) “Edward F. Stein,
“Sheriff of Wayne County.
“By Edmond A. Lodge,
“Deputy Sheriff of said county.”

Harrison Geer, of Detroit, an attorney, filed a plea of the general issue on behalf of the Grand Trunk Railway System. Later the matter came on for trial and after plaintiff had made its case on the merits the showing was made by attorneys Geer and Williams that the Michigan Air Line Railroad was one of several independent Michigan railway corporations which were being operated by the Grand Trunk Railway Company of Canada, but that George W. Alexander upon whom service was made was not local treasurer of the Grand Trunk Railway Company of Canada but was secretary of the Michigan Air Line Railroad Company. It was further shown that these Michigan lines of railway so owned and controlled by the Grand Trunk Railway Company of Canada were operated under the name of the Grand Trunk Railway System but that said Grand Trunk Railway System was not a 'corporation but was simply an operating name used for convenience. It further appeared that Harrison Geer, who filed the plea, was the attorney for the Grand Trunk Railway Company of Canada and had been for upwards of 20 years.

Upon this showing a motion was made by counsel for a directed verdict in behalf of defendant. At this stage of the proceedings plaintiff asked permission of the trial court to amend the proceedings by striking out the name of the defendant “The Grand Trunk Railway System” and substituting therefor the name of “The Grand Trunk Railway Company of Canada.” The conclusion of the trial court was that plaintiff’s motion to amend should be denied and that defendant’s motion for a directed verdict should be granted. Plaintiff brings error.

1. Several errors are assigned. The important one is the assignment directed at the refusal of the court to grant the amendment. Counsel invoke the rule which has prevailed in many reported cases that where the right party has been sued by the wrong name and service has been made upon the right party, the proceedings are amendable by substituting the name of the right party. This rule is well stated in 31 Cyc. p. 487, as follows:

“As a general rule, under the statutes, a misnomer of a plaintiff or defendant is amendable unless the amendment is such as to effect an entire change of parties. But where the right corporation has been sued by the wrong name and service has been made upon the right party, although by a wrong name, an amendment substituting the true name of the corporation may be permitted. * * * Where a corporation is known by several names and is sued under one of them, an amendment placing, the fact of the identity of the corporation in issue is proper.”

This rule was followed in Daly v. Blair, 183 Mich. 351, cited by plaintiff’s counsel.

In applying this rule, great care should be exercised to see that the right party has been served with process. Herein lies the inherent weakness of plaintiff’s position. Plaintiff asked the trial court for permission to amend by substituting the name of the Grand Trunk Railway Company of Canada. It is clear that this permission should not be granted unless the Grand Trunk Railway Company of Canada had been served with process. The return shows that service was made upon George W. Alexander, local treasurer of the Grand Trunk Railway Company of Canada, but the uncontradicted proofs show that he was not local treasurer of the Grand Trunk Railway Company of Canada but was secretary of the Michigan Air Line Railroad Company. It is not shown that George W. Alexander was an official of the Grand Trunk Railway Company of Canada, or that he was even its agent. It is true a showing was made that the Grand Trunk Railway Company of Canada was the lessee of the Michigan Air Line Railroad and that George W. Alexander was its secretary, but that proof would not make Alexander an official or an agent of the Grand Trunk Railway Company of Canada. This will clarify if we keep in mind that both, the lessor and lessee, are independent corporate entities. Had counsel asked to amend by substituting the name of the Michigan Air Line Railroad Company for the Grand Trunk Railway System, he would have been in a much better position to have urged the application of this rule because service was made upon the secretary of that company and the damage occurred on that company’s road. The cases which counsel cite in support of their argument are cases, so far as the record shows, in which service was made upon the right party but by wrong name. Such a case is Daly v. Blair, supra. We are of the opinion that the trial court was right in refusing the amendment because plaintiff’s proofs did not show that service was made upon the party which he offered as a substitute defendant.

2. Plaintiff also urges that defendant’s counsel waived the defect by pleading the general issue. We think not. Counsel filed a plea for the defendant named in plaintiff’s declaration, namely, the Grand Trunk Railway System, and while it was shown that there was no such corporate entity as the defendant named, and that Mr. Geer was attorney for the Grand Trunk Railway Company of Canada, it nowhere appears that he was in court representing the Grand Trunk Railway Company of Canada. Mr. Geer was a witness and .was cross-examined by plaintiff’s counsel. There seems to have been no good reason why Mr. Geer should not have been asked the direct question, whether he was representing the Grand Trunk Railway Company of Canada when he filed the plea. The question, however, was not asked and the proofs fail to show that Mr. Geer was representing that company on that particular occasion.

The judgment of the trial court is affirmed.

Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.

The late Justice Ostrander took no part in this decision.


source: Caselaw Access Project

author: Bird,. C. J.

license: Public Domain

text:
    OTTAWAY v. GUTMAN.
    1. Appeal and Error — Sufficiency of Plaintiff’s Testimony— Directed Verdict — Questions Reviewable.
    On appeal from a directed verdict for defendant, the question as to whether plaintiff’s testimony is sufficiently convincing to support a verdict is not before the court.
    2. Negligence — Personal Injuries — Automobiles—Contributory Negligence — Evidence—Question for Jury.
    In an action for personal injuries caused by defendant’s automobile to plaintiff when it backed upon him and struck him as he was crossing defendant’s private driveway on the sidewalk on a public street, his testimony that he looked and did not see any automobile coming, although the day was clear, his eyesight and hearing were good, there were no obstructions in the way, and the garage was 92 feet from the sidewalk, held, although improbable, to present a question of fact for the jury.
    3. Same — Directed Verdict.
    That plaintiff looked in the direction of the automobile so indifferently as not to see it coming, did not make him guilty of contributory negligence, as a matter of law, nor does the,, improbability of his testimony produce such result.
    Bird, C. J., and Brooke, J., dissenting.
    Error to Wayne; Webster (Clyde I.), J.
    Submitted June 4, 1919.
    (Docket No. 41.)
    Decided October 6, 1919.

      Case by James Ottaway against William Gutman for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      La%, Edwards, Eyster & French, for appellant.

      Schmahriedt & Toms, for appellee.
   Bird,. C. J.

(dissenting). While walking in a westerly direction on the north side of Leicester court, in the city of Detroit, plaintiff, an elderly man, was knocked down by defendant’s automobile, which, at the time, was being backed out of his yard, by his son. Plaintiff testified that as he was approaching the driveway he looked in the direction of the garage and driveway but saw nothing of the automobile until it backed against him, that it knocked him down and broke his hip and resulted in making his left leg considerably shorter than his right one.

At the conclusion of plaintiff’s testimony the trial court directed a verdict for defendant for the reason that plaintiff’s own testimony showed that he was guilty of contributory negligence,. Plaintiff argues that that question was one for the jury. Plaintiff testified, upon direct examination, as follows:

“As I approached along Leicester court, there was a vacant lot near the place where this accident occurred, next to Mr. Gutman’s house. There was nothing between the house and the vacant lot that I saw. The garage set back. There is a driveway running up to the garage from the sidewalk. I was crossing that driveway on the sidewalk. I was walking right along.
“Q. What were you doing?
“A. I was looking. I kept looking and looking to see if there was anything, and I didn’t see nothing, and I went across and this struck me. I saw something black and the car hit me.
“Q. You looked to see whether or not anything was coming out of the driveway as you approached?
“A. I looked and looked all the way along — always looked.
“Q. Then when did you first see the car?
“A. I did not see it. I saw something black and it struck me. The next time I looked, then at the moment I was struck I saw the car, not before. I don’t know what part of the car hit me. It was the front end or the back end of the car hit me. Yes, the back end. It knocked me down.”

He further testified, upon cross-examination:

“As I walked down Leicester court I knew that this driveway was there. I had seen it before. I could not tell how wide the lot is just east of Mr. Gutman’s house. I never measured it. There is a difference in lots. The house that is next east of Mr. Gutman’s sets back from the sidewalk a short distance. It was between 8 and 9 o’clock in the morning, broad daylight. My hearing was good then.
“Q. As you came along Leicester court this morning, did you look up this driveway to see whether there was an automobile coming?
“A. Yes, sir.
“Q. You recall distinctly that you looked?
“A. Yes, sir.
“Q. Did you see anything?
“A. No, sir.
“Q. You could see clear to the garage?
“A. Yes, sir.
“Q. When you were the whole width of the lot, whatever it is, that distance away, you could see clear to the driveway?
“A. Certainly.
“Q. Now, you looked and did not see anything?
“A. Yes, sir.
“Q. Then what did you do, after you looked and saw nothing?
“A. Why, I kept walking right along.
“Q. Started walking right along, and you walked the width of that lot; did you look again?
“A. I looked all the way across.
“Q. Then you looked all the way, as you walked across that vacant lot, you were looking back at the garage or at the driveway?
“A. I was looking that way; I don’t know as I was looking at the garage; I was looking that way.
“Q. So that you could have seen any automobile which was coming down that driveway?
“A. Certainly.
“Q. Now, as you got to the driveway, let’s just suppose this is a vacant lot (indicating). Now, I am walking across the vacant lot and here is the driveway coming down here (indicating). As you came to the driveway, just before you stepped in front of the driveway, did you look up that way?
“A. As I got to the edge of that driveway, I was still looking up towards the back of the lot. I saw nothing coming so I stepped into the driveway, that is, in front of the driveway, to walk across it, and immediately I was struck. Yes, quicker than lightning. It must have come quicker than lightning to hit me and I could not tell how far the garage is back from the sidewalk.
“Q. So that as you stood at the edge of the sidewalk, and there was no automobile coming, by the time you stepped onto the driveway or in front of it, this automobile came from — well, somewhere in the rear to the sidewalk and struck you?
“A. I say that is where I was hit, right there.
“Q. When you were standing at the edge of the driveway you saw nothing?
“A. Yes, sir.
“Q. By this time did you stop there, Mr. Ottaway, or were you walking right along all the time?
“A. I was walking right along all the time. I generally walk a pretty good gait.
“Q. From the time that you stood beside the driveway until you stepped in front of it, you were struck by something?
“A. I was struck by the car. * * *
“Q. I just want you to explain to the jury how this that I am going to say could possibly happen. Now, you are standing right beside this, driveway that goes up from the sidewalk, and you testified you were looking up that driveway all the time, and you could see clear to the rear of the lot, that is, to the back of the house anyway, and you saw nothing, you saw no automobile, and the next instant as you stepped up in front of the driveway you were struck by an automobile?
“A. Yes, sir.
“Q. Now, explain it.
“A. Well, now, as you stepped up here to get on the sidewalk that automobile came right from the back of the house, but I could not see it, I never seen it at all, you see, but it came there just like lightning and struck me; the first I seen was something black; the auto did not have — only the width of the house to come.
“Q. It had the distance from the sidewalk to the house, and the .depth of the house, at least that far?
“A. Yes.
“Q. And it came that distance and struck you, while you were stepping in front of it?
“A. Yes, sir. Well, I was walking along.
“Q. No, while you were walking from the edge of the driveway in front of the driveway?
“A. Yes, sir.
“Q. And that driveway is just as wide as the automobile’s wheels are apart, isn’t it?
“A. I think so.”

Had plaintiff been walking along the sidewalk in the usual manner, casually observing what was going on within his immediate view, his version of the collision would have probably stated a case for the jury, but when he states that as he reached the edge of the driveway he was looking up the driveway toward the garage and no car was in sight and that he proceeded to go across it and before he could do so the automobile collided with him, he states a case which, to say the least, imposed upon himself the duty of either going across in safety or of discovering the car and avoiding it. Having failed in either one or the other of these duties it follows that he was guilty of contributory negligence. The record shows that defendant’s dwelling was 15 feet and the garage 92 feet from the sidewalk. If the automobile were in the neighborhood of 92 feet distant when he was at the edge of the driveway, it would have had to move with great celerity to collide with him before he reached a place of safety, as two steps would have carried him over the driveway. It does not appear that there were any obstructions which cut off his view, in fact it appears that there were not, and it appears from his own testimony that the morning was bright, that his eyesight and hearing were good and that he was walking at “a pretty good gait.”

We are of the opinion that the trial court was not in error in directing a verdict for the defendant as the testimony stood at the close of plaintiff’s proofs. The judgment should be affirmed.

Brooke, J., concurred with Bird, C. J.

Fellows, J. The court having directed a verdict, we have not before us the question of whether the testimony of the plaintiff was sufficiently convincing to support a verdict in his favor. It may be highly improbable that the automobile could come a distance of 92 feet without plaintiff seeing it had he looked in its direction as he walked along, even though it came “quicker than lightning”; but the credibility of such testimony was primarily for the jury. The place of accident was a private driveway crossing the sidewalk. No one claims that plaintiff would be guilty of contributory negligence because he did not stop, look and listen before crossing such a way. That he looked in that direction so indifferently as not to see the car coming did not make him guilty of contributory negligence, as a matter of law, nor does thé improbability of his testimony produce such a result. I think plaintiff made a case for the jury and that the trial judge erred in directing a verdict against him. In my judgment a new trial should be granted with costs to plaintiff.

Moore, Steere, Stone, and Kuhn, JJ., concurred with Fellows, J.

The late Justice Ostrander took no part in this decision.


author: Bird, C. J.

text:
    STRAUS LAND CORPORATION v. DUPUIS.
    1. Assumpsit — Declaration—Nature of Action.
    Where a declaration alleged that defendant promised to sell plaintiff certain land at its cost price, but that he charged more than the cost price, and it is expressly stated that the action is in assumpsit to recover the overpayment, and reliance is had upon defendant’s promise, the action is one of assumpsit, and it is immaterial that tortious conduct is alleged by way of aggravation.
    2. Same — Trial—Instructions—Tort.
    The conduct of the trial court in treating the action as one of fraud and 'deceit and in instructing the jury that, for plaintiff to recover, the necessary elements of fraud and deceit must be found, held, reversible error.
    S. Same — Evidence—Admissibility.
    The action being to recover the overpayment, evidence of the value of the land was inadmissible.
    Error to Wayne; Law, J., presiding.
    Submitted June 5, 1919.
    (Docket No. 43.)
    Decided October 6, 1919.
    Assumpsit by the Straus Land Corporation, Limited, against Dennis R. Dupuis for an overpayment on the purchase of land. Judgment for defendant. Plaintiff brings error.
    Reversed.

      George E. Brand, for appellant.

      J. O. Murfin (John H. Rodd, of counsel), for appellee.
   Bird, C. J.

Riverview subdivision to the city of Windsor, Canada, was owned in 1914 by defendant and one Dr.' Augustus Soper. Because of ill health Dr. Soper went to California in November, 1915, and, after staying there for a time, concluded to remain. He was desirous of disposing of his interest in the subdivision and defendant was equally anxious that he should, as he wanted a co-tenant who would be helpful to him in managing and disposing of the lots. The opportunity to purchase Dr. Soper’s interest was called to the attention of plaintiff, which was a corporation of much experience in buying and selling real estate. It is the claim of plaintiff that defendant offered to sell D,r. Soper’s interest at cost price, stating that the cost price was $55,000 and one-half of the mortgage indebtedness thereon, which was approximately $15,300, making the total price $70,300. After investigation the proposition was accepted by plaintiff and the purchase made. Soon afterwards plaintiff learned that the cost price to defendant was not $70.-300, but was $52,300, and it brought this suit in assumpsit to recover the overpayment. A trial of the issues before a jury resulted in a verdict for defendant.

County of Wayne, SS.

And now comes the Straus Land Corporation, Limited, an Indiana corporation, plaintiff herein, by Selling & Brand, its attorneys, and complains of Dennis R. Dupuis, of the city of Windsor, county of Essex, province of Ontario, defendant herein, in a plea of trespass on the case upon promises or assumpsit, and files this declaration in continuation of suit, the defendant having heretofore been duly summoned.

1. Plaintiff’s counsel complains because the trial court treated its declaration as one for fraud and deceit. This misconception, it is claimed, led the court into errors respecting the admission of evidence and the instructions to the jury. Plaintiff’s counsel throughout the trial insisted that the action was purely one of assumpsit and endeavored to keep the conduct of the case within the theory of assumpsit. The trial court was of the opinion that the action was primarily one of tort, of fraud and deceit, and that while the declaration was in assumpsit it was a good declaration in assumpsit only because section 12350, 3 Comp. Laws 1915, made it so, and that to recover plaintiff must establish a case of fraud and deceit, and after doing so the statute would permit it to recover in assumpsit.

We think it appears from the language of the declaration, which will be found in the margin, that it is a declaration in assumpsit. It is expressly stated to be in assumpsit and the facts which are set up therein show that assumpsit or a promise is relied upon. Plaintiff counts upon the promise of defendant, not upon his tortuous conduct in falsely representing the cost price. In short, plaintiff says “You promised to sell me a one-half interest in the subdivision at cost price. You did afterwards sell it to me at what you claimed was the cost price. I paid you for it. Since paying you I have learned that you charged me more than the cost price and I want you to make your promise good and refund to me the excess which I paid you over cost price.” This is assumpsit and nothing more. It shows a reliance upon defendant’s promise. The mere fact that matters by way of aggravation are set up does not change the declaration to one of tort. Hoey v. Harty, 48 Mich. 191. It is clear to us that plaintiff is basing his recovery upon the failure of plaintiff to make good his promise and is not seeking to recover damages for defendant having falsely represented the cost price./Even though it could be said there was an element of tort in the transaction the tort grew out of a contract relation, and when this was the situation at the common law the tort could be waived and assumpsit, maintained. 1 Green’s Practice, 178. The case under consideration clearly falls within the doctrine of the following cases: Young v. Taylor, 36 Mich. 25; Barnard v. Colwell, 39 Mich. 215; Hidey v. Swan, 111 Mich. 161. See also, Moore v. Middlebaum, 8 Mich. 449. Under this view the charge of the court which compelled the jury to find the necessary elements to recover in an action of fraud and deceit was reversible error.

1. The said defendant was the owner on, to wit, the first day of June, 1916, of an undivided one-half interest in those certain parcels or tracts of land situate, lying and being in the town of Sandwich, county of Essex and province of Ontario, and being composed of lots numbers one (1) to eight (8) inclusive (Description).

2. Said defendant was the owner, as above stated, of an undivided one-half interest and one Doctor Augustus Soper was the owner of the other undivided one-half interest in the premises in the preceding paragraph described, said Doctor Soper being then and now a resident of California.

3. Said premises were incumbered by mortgages, one held by Robert T. Gray, the unpaid balance of whiéh was sixteen thousand six hundred ($16,600) dollars, and four (4) mortgages covering various lots, held by William J. Pulling, the unpaid principal of which was fourteen thousand ($14,000) dollars.

4. The above described property had at one time belonged entirely to the said Doctor Augustus Soper who had sold an undivided one-half interest to the defendant herein.

5. In, to wit, the month of May, 1916, the defendant was introduced to certain of the officers of plaintiff and proposed to plaintiff that the plaintiff buy the undivided one-half interest still remaining in the said Doctor Soper, informing plaintiff, through its officers, that because said Doctor Soper was a sick man, troubled with asthma, who had gone to California and would never return and because there were family ties between said Doctor Soper and defendant, he was willing and glad to help dispose of Doctor Soper’s interest without any profit to himself, said' defendant; that he (defendant) had an option to purchase the undivided one-half interest of the said Doctor Soper and was desirous of having plaintiff the owner of the other undivided one-half interest in said real estate in place of said Doctor Soper; defendant stated that if plaintiff would buy the undivided one-half interest of said Doctor Soper upon which defendant had such option, he, the said defendant, would let plaintiff have the undivided one-half interest of said Doctor Soper at exactly the price that it would cost him, the said defendant, from said Doctor Soper, and would turn the property over to plaintiff at exactly' what he, said defendant, was paying for it.

6. And plaintiff avers that the said defendant represented to plaintiff that the price which he, the said defendant, was paying Doctor Soper was fifty-five thousand ($55,000) dollars in cash, plus the assumption of one-half of the said mortgages on the property, amounting to, to wit, thirty thousand six hundred ($30,600) dollars.

7. And plaintiff avers that it relied upon the representations made by the said defendant as to the price and cost of said property to him and did agree to pay to the said defendant what he asked for said undivided one-half interest, believing that what it was paying to the said defendant was exactly the same amount the defendant was paying to Doctor Soper, as represented by the said defendant.

8. And plaintiff paid to the said defendant fifty-five thousand ($55,000) dollars, substantially, in cash, and did assume the one-half of the said mortgages which said one-half amounted to fifteen thousand three hundred ($15,300) dollars, making the total purchase price seventy thousand three hundred ($70,300) dollars, which plaintiff paid to defehdant as the purchase price of Doctor Soper’s one-half interest in said property.

9. And plaintiff avers that since such purchase, it has learned that by arrangement between said Doctor Soper and the said defendant long prior to the purchase by defendant of Doctor Soper’s remaining one-half interest and without regard to the sale thereof, as part of the consideration of the purchase of the first one-half of said property from Doctor Soper, the said defendant had assumed the entire Gray mortgage and that it was incumbent on said Doctor Soper to pay no part of said mortgage and that it was incumbent upon defendant to pay all of said Gray mortgage.

10. Plaintiff further avers that it has since learned that the price paid by defendant to Doctor Soper for- the interest sold to plaintiff was forty-five thousand ($45,000) dollars in cash and the assumption and agreement to pay the one-half of the Pulling mortgage which it was incumbent upon said Doctor Soper to pay, making the full purchase price paid by the said defendant to the said Doctor Soper for the undivided one-half interest sold by the said defendant to plaintiff, forty-five thousand ($45,000) dollars plus seven thousand ($7,000) dollars, or fifty-two thousand ($52,000) dollars, the said defendant having received from plaintiff, in cash, or its equivalent, or by the assumption of mortgages, seventy thousand three hundred ($70,300) dollars.

2. This erroneous view of the character of the declaration was undoubtedly responsible for the other errors which are alleged. It is complained that proof of the value of the subdivision was admitted in evidence. This, of course, • was inadmissible under the theory that the declaration was in assumpsit to recover the overpayment. Norris v. Home City Lodge, 203 Mich. 90. Proof of the value of the interest was immaterial. Whether it was worth more or less than plaintiff agreed to pay for it, plaintiff was entitled to have the interest which it purchased at cost price.

11. And plaintiff avers that in accordance with the agreement entered into under which plaintiff purchased said undivided one-half interest in said lands from the defendant, plaintiff was to have the same at the price that said undivided one-half interest cost the defendant from Doctor Soper. 12. And plaintiff avers that the said defendant, by his misrepresentations, obtained from plaintiff, to wit, eighteen thousand three hundred ($18,300) dollars, more money than he was entitled to under said agreement, all of which came to the knowledge of the plaintiff after it had paid over said moneys to said defendant.

13. And thereupon, the said defendant, afterwards, and on, to wit, the first day of November, 1916, in consideration of the premises respectively, then and there promised the plaintiff to pay to it the said sum of money so overpaid by plaintiff to defendant on request. That the said defendant has disregarded his said promise and has not, although often requested sp'to do, paid any of the sums of money, or any part thereof, to the plaintiff’s damage of twenty-five thousand ($25,000) dollars, and, therefore, it brings suit.

3. Other errors are assigned but the consideration of the case thus far will furnish a solution for them. The case must be reversed and a new trial granted, with costs of both courts to the plaintiff.

Mooee, Steeee, Beooke, Fellows, Stone, and Kuhn, JJ., concurred.

The late Justice Osteandee took no part in this decision.


text:
    E. C. HUMPHREYS CO. v. RATHBONE MANFG. CO.
    1. Contracts — Construction — Instructions — Set-off and Recoupment.
    In an action for the purchase price of a carload of iron, where defendant claimed as an offset damages for plaintiff’s failure to deliver iron under another contract made in November, 1917, under which three cars were immediately ordered, although by its terms shipments were not to begin until January, 1918, an instruction by the court to the jury that no orders given by defendant for shipment prior to January should be considered in determining defendant’s damages, held, correct.

      2. Same — Modification of Contract — Construction—Waiver.
    Where plaintiff insisted upon a change in the contract in regard to the terms of payment, to which defendant reluctantly consented, on January 4th, upon plaintiff’s promise that shipments would begin immediately, defendant’s contention that thereby plaintiff waived the time fixed in the contract for shipments to begin, so as to render it liable for damages for failure to ship on orders given prior to January, held, not tenable.
    3. Same.
    Where defendant’s order, given on January 4th, was later canceled or merged in an order given on January 25th, so that plaintiff was not in default until it failed to make shipment of said order, the construction given the contract by the court that plaintiff would not be in default if shipment was made upon the last day of January, held, not prejudicial. .
    Error to Kent; Brown, J.
    Submitted June 6, 1919.
    (Docket No. 31.)
    Decided October 6, 1919.
    Rehearing denied December 23, 1919.
    Assumpsit by. E. C. Humphreys Company against the Rathbone Manufacturing Company for goods sold and delivered. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Hall & Gillard, for appellant.

      Lombard & Hext, for appellee.
   Bird, C. J.

Plaintiff is a sales agent for pig iron on a commission basis and has its office in the city of Detroit. Defendant is engaged in the business of manufacturing soft gray iron castings in the city of Grand Rapids. On November 19, 1917, plaintiff sold to defendant a car of number one iron to be paid for not later than January 20, 1918. This car is referred to in the record as the Grand Trunk car. It was delivered to defendant in Grand Rapids. Defendant refused to accept it because it did not grade up to number one iron. Subsequently the price was reduced by agreement 50 cents a ton and defendant accepted it but never made payment therefor.

Some time after the 5th of January, 1918, defendant purchased from plaintiff, by telephone, a car of “high silicon iron,” which was also delivered to defendant at Grand Rapids: Defendant took exception to the quality of this car and it was subsequently resold by plaintiff to other parties.

On November 19, 1917, at the same time the Grand Trunk car was contracted for, the parties entered into a written contract by which plaintiff sold to defendant 850 tons of iron of various grades, to be delivered monthly over the first half of the year 1918. No iron was ever delivered under this contract.

These contracts were separate and independent of each other. Plaintiff, being unsuccessful in getting its pay for the Grand Trunk car, began this suit on April 17,1918, to recover therefor, and also to recover damages for defendant’s failure to accept and pay for the car of “high silicon iron.”

' Defendant gave notice under the general issue that it would set off its. damages which arose by reason of plaintiff’s failure to deliver iron under the 850-ton contract. The conflicting claims of the parties were tried out before the jury and they found a verdict for plaintiff for the amount of $1,672.70, which was due on the Grand Trunk car, but refused to award defendant any damages on its matters of set-off. Defendant has assigned error.

To make clear the matters in dispute, it will be helpful to explain that defendant, on the trial, conceded it owed plaintiff $1,672.70 for the Grand Trunk car. The jury were instructed to allow plaintiff this item. The trial court held that no recovery could be • had by plaintiff for damages growing out of defendant’s failure to accept the car of “high silicon iron” because the oral contract involved more than $100, and was void under the statute of frauds. The question of damages growing out of plaintiff’s refusal to deliver iron under the 850-ton contract was submitted to the jury and they, as has been said, refused to find any damages for defendant. The controversy over the Grand Trunk car may be laid aside as well as the controversy over the car of “high silicon iron,” as plaintiff has not assigned error. This confines the controversy in this court to the questions growing out of the 850-ton contract. The material portions of this contract are as follows:

“Contract covering sale of foundry iron.
“Quantity: Eight hundred fifty tons.
“Grade: Southern or northern, seller’s option.
“Specifications: See other side.
“Price: See other side per ton on 2,240 lbs., buyer to pay freight tax.
“Delivered: Furnace with freight allowed to Grand Rapids.
“Freight: Cash. >
“Payment: Net. cash 30 days from date of invoice.
“Shipment: In about equal monthly quantities over the first half of 1918, * * * buyer to give seller the quantity of each grade to be shipped on or before December 1st, 1917.
“Seller shall not be responsible *for delays caused by strikes, differences with workmen, accidents at works, delays in transportation, or other causes beyond its control.
“Each month’s shipment to be treated as a separate contract, independent of the contracts for the shipments of other months.
“If this lot is delivered by installments, settlement is to be made for each lot as delivered, and the time of payment for such settlement as specified above is understood to be the essence of this contract.”

1. The following instruction to the jury is assigned as error:

“Under the evidence in this case the plaintiff was under no obligation to ship any iron to the defendant until the month of January, 1918, and no orders given by defendant for shipments prior to that time shall be considered by you in determining the damages which the defendant claims to have suffered in this case.”

Very soon after the contract was made, on November 19, 1917, defendant ordered several cars of iron on the contract, notwithstanding the contract did not obligate the plaintiff to commence shipment until January, 1918. After the iron was ordered defendant kept urging plaintiff by letter to fill the order. During the time that defendant was urging plaintiff to fill the order, plaintiff advised defendant that the terms of the contract with reference to payment would have to be changed from 30 days’ time to 10-day drafts subject to discount of one-half of one per cent., or the contract would be canceled. Defendant was loth to consent to the change. Many letters were exchanged between the parties in regard to it. Finally defendant consented to the change in payment as applied to the three cars which he had ordered. Plaintiff replied that the concession must go to the entire 850 tons or no iron would be shipped. Mr. Marshall, of defendant’s company, then went to Detroit and saw Mr. Shaw, of plaintiff’s company, «concerning it, and Mr. Shaw was firm in his demand that the change as to payment must extend to the entire contract. This was on the 29th day of December, 1917. Mr. Marshall did not consent to the change at that time but later, in a letter dated January 4, 1918, he consented to the change of payment as demanded and ordered three cars of number one and two iron. Mr. Marshall testified that Mr. Shaw advised him when in Detroit that if he would consent to the change, as proposed, he would begin shipment immediately.

It is the contention of defendant that the court was in error in charging as he did because plaintiff waived the time fixed in the contract for the shipments to begin in the event that it would waive the change in the payment.

The court instructed the jury, as a matter of law, that the plaintiff had breached the contract and was liable for such damages as defendant has shown it had suffered by reason thereof. The jury were then instructed as set out in the assignment heretofore quoted. The effect of this instruction was to narrow defendant’s recovery to the period between January 25th and April 17th, when the suit was commenced. We have read and considered the correspondence (which is too voluminous to print) involved in this contention but we are not persuaded that the parties intended to change the terms of the written contract by the claimed subsequent oral arrangement. But even if they did we are unable to see how it' would enhance defendant’s damages. It is conceded that defendant did not agree to the change in payment until its letter of January 4th. At that time plaintiff’s duty had arrived to make shipments under the contract. Defendant’s order of three cars of number one and two iron on January 4th was subsequently countermanded or merged in the order of January 25th for number three iron. Plaintiff’s failure to ship this iron placed it in default. This is the order which the court referred to in the instruction complained of. The court, in his instructions, opened the way for defendant to recoup any losses which he suffered from the date of this order up to the time the present suit was begun. We think this was as favorable as defendant had a right to demand.

2. The contract provides, with reference to the time of shipment, as follows:

“Shipment: In about equal monthly quantities over the first half of 1918, * * * buyer to give seller the quantity of each grade to be shipped on or before December 1, 1917.”

The construction which the trial court placed upon this language was that the plaintiff was under no obligation to commence shipments before January 1, 1918, and that if it made shipment upon the last day of the month it was a compliance with the contract.

It is insisted that this was error in view of Mr. Shaw’s promise to commence shipment immediately if defendant would consent to the change in payment. Independently of any modification in the contract this construction by the court was undoubtedly correct. Even if Mr. Shaw made the promise that shipments would begin immediately upon the consent being given to a change in payment, and that consent was given on January 4th, and the order given on that day was afterwards merged in its order of January 25th, the plaintiff would not be in default until it failed to make shipment of the order of January 25th.

There are some other assignments argued, but we are of the impression that there is no merit in them. The judgment will be affirmed.

Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred. Kuhn, J., did not sit

The late Justice OSTRANDER took no part in this decision.


text:
    DOYLE v. WIDRIG.
    1. Contracts — Trial—Oral Agreement — Disputed Question — Question fob Jury.
    In an action for certain automobile parts and repairs furnished by plaintiff, an automobile distributor, to defendant, a local agent for same, which liability defendant admitted, but claimed a set-off, alleging the making of an oral agreement between plaintiff’s manager and himself that he should be allowed a discount on the cost price of cars in addition to that provided in the written contract if he would purchase 25 additional cars, contradictory testimony as to the making of the claimed agreement, held, to present a question of fact peculiarly within the province of the jury.
    2. Same — Agent’s Authority — Question fob Jury.
    Evidence that defendant’s contract with plaintiff was made in said manager’s office, that he had charge of the associate dealers and sold them cars, that he hired and discharged the help and sometimes signed checks, and that plaintiff admitted that next to himself said manager was “it,” together with surrounding. circumstances, held, sufficient to send the question of his authority to make said agreement to the jury.
    3. Frauds, Statute of — Exception—Oral Agreement.
    Where defendant bought 25 additional cars under an oral agreement, and was allowed the claimed additional discount on the last four cars purchased, it cannot be contended that the agreement for said additional discount was void under the statute of frauds (3 Comp. Laws 1915, § 11835), because an oral one involving more than $100, since it comes within the exception therein provided.
    Error to Oakland; Rockwell, J.
    Submitted June 10, 1919.
    (Docket No. 89.)
    Decided October 6, 1919.
    Assumpsit in justice’s court by Thomas J. Doyle against Arthur S. Widrig for goods sold and delivered. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Monaghan, Monaghan, O’Brien & Crowley, for appellant.

      Charles S. Matthews, for appellee.
   Bird, C. J.

Plaintiff sued defendant to recover for certain automobile parts and repairs which he had theretofore furnished him. Defendant pleaded the general issue and gave notice of set-off. His claim was that plaintiff owed him on account of certain discounts on the manufacturers’ price of cars which he had purchased of him. Their matters of difference were submitted to a jury on plaintiff’s claim that defendant owed him a balance of $313, and on defendant’s claim that plaintiff owed him a balance of $362.50. The jury found for defendant and allowed him his entire claim. Following this a new trial was applied for and denied. Plaintiff has assigned several errors.

1. It is claimed the verdict was against the great weight of the evidence. Defendant admitted on the trial that he was indebted to plaintiff for parts and repairs in the sum which he claimed, but he insisted that plaintiff was owing him an amount sufficient to wipe out plaintiff’s claim and leave a balance due him of $362.50. The contested issue was whether the claimed set-off should be allowed. The proofs show that plaintiff was an automobile distributor for the Dodge Bros, cars for Wayne and Oakland counties, and that defendant had a written contract with plaintiff to work a portion of Oakland county. The contract covered a period of one year from July 16, 1916. Defendant contracted to purchase 25 cars. The discounts from manufacturers’ prices were stated in the contract as follows:

“The associate dealer’s purchases of complete motor cars shall be billed to the associate dealer and be paid for by him at the following percentages off the manufacturer’s list prices:

6 to 12 cars, inclusive, 15%

13 to 24 cars, inclusive, 16%

25 to 49 cars, inclusive, 17%

“Each percentage of discount as shown above, will apply only to its specific quantity of motor cars, and will not apply on the preceding quantity unit.”

Defendant had sold, up to February 1,1917,17 cars. About that date one Comstock, who was plaintiff’s general sales manager, called upon defendant at Pontiac and advised him that there was going to be a shortage of cars for the year 1917 and that they were going to advance in price, and suggested that he purchase all the cars he could and store them against the summer’s need. Defendant claims in this talk Com-stock promised him a discount of 18% on all cars he sold in the year if he would purchase 50. Acting on Comstock’s advice he purchased 25 additional cars, placed them in storage and insured them. Defendant sold during the year the 50 cars and 4 more. At the end of the season defendant wanted a settlement on the 18% discount basis but plaintiff refused, and at the trial he repudiated the contract of Comstock and denied that he had the authority to make such a contract. The testimony of defendant is in direct conflict with the testimony of plaintiff and Comstock. In addition plaintiff points to the fact that defendant accepted the discount named in the contract on cars up to and including the 49th, and paid for them, and argues that it is improbable that he would have done so if plaintiff was owing him at that time for additional discounts. Defendant, on the other hand, points to the fact that plaintiff allowed him the discount of 18% on the last 4 cars he purchased as proof of his assertion that the agreement was made. Upon cross-examination both parties offered plausible explanations of their conduct in these respects. There was other testimony which made for and against their respective contentions. It can readily be gathered from the foregoing that the question was peculiarly one of fact and clearly within the province of the jury. The jury could have found either way without being open to criticism. This being true, it would be improper for us to disturb it.

2. But plaintiff says there was no competent testimony before the jury that Comstock had the authority to make the arrangement for the additional discount of 18%. It appears that Comstock was plaintiff’s general sales manager and that the contract with defendant was made in his office; that he had charge of the associate dealers and sold them cars; that he hired and discharged the help and sometimes signed checks, and plaintiff himself says as to Comstock’s authority, that next to him, Comstock was “it.” This testimony, together with the surrounding circumstances, was sufficient to send the question of his authority to the jury.

3. The further question is raised that the subsequent contract was an oral one involving more thán $100 and, therefore, void under the statute of frauds. That the contract being oral and void under the statute of frauds, it cannot be used under the rule which permits written contracts to be modified by subsequent parol contracts. The difficulty with this contention is that the agreement appears to come within the exception of the statute which provides that:

“A contract to sell or a sale of any goods or choses in action of the value of one hundred dollars or upwards shall not be enforceable by action, unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged, or his agent in that behalf.” 3 Comp. Laws 1915, § 11835, subd. 1.

The initial contract called for only 25 cars. In the agreement with Comstock defendant agreed to, and did, take 25 additional cars which he stored and insured. Besides this plaintiff allowed defendant the claimed discount on the last 4 cars, from which an inference is drawn that plaintiff understood the agreement as he did. The statute of frauds appears to have no application to this agreement.

We discover no reversible error in the proceedings. The judgment of the trial court is affirmed.

Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.

The late Justice Ostrander took no part in this decision.


text:
    SOLOMON v. RICHARDSON.
    1. Damages — Breach of Contract — Sales—General Rule.
    The general rule of damages for failure to deliver goods sold is the difference between the contract price and the market price at the time and place of delivery.
    2. Same — Measure of Damages — Market Value.
    If there were no market price at the place of delivery, then the market price at the nearest place where there was one could be shown, and the difference between this price and the contract price, with the added cost of transportation, would be the measure of damages.
    3. Same — Special Damages — Evidence.
    Where there was no testimony justifying the trial court in applying any other or different rule of damages than the general one, it was reversible error to apply a rule allowing special damages.
    On the question of measure of damages for breach of contract on sale of article that has no market price at place of delivery, see note in 57 L. R. A. 193.

      Error to Oscoda; Widdis, J.
    Submitted June 11, 1919.
    (Docket No. 1.)
    Decided October 6, 1919.
    Assumpsit by Selig Solomon against Frank H. Richardson for breach of a contract, for the sale of lumber. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Joseph H. Cobb and W. S. Cobb, for appellant.

      Hiram B. Smith (Glen Smith, of counsel), for appellee.
   Bird, C. J.

The parties to this suit entered into a written contract on December 18, 1915, by which plaintiff agreed to deliver to defendant at Masts Mill, near Mio, Oscoda county, 100,000 feet of sawed lumber at $20 a thousand. The principal item was 1,020 pieces of piling and the balance was special “bill stuff.” The delivery was to be made on or before February 15, 1916. About the middle of January plaintiff commenced to make deliveries of the lumber and continued to do so up to February 11, 1916, when a controversy arose between the parties over the inspection and rejection of certain timber which had been delivered. Considerable controversy ensued as to the extent to whieh the lumber should be rejected, and, not being able to agree, plaintiff advised the defendant that he would not complete his contract. He then brought this suit to recover the contract price for what he had delivered. Defendant pleaded the general issue and gave notice of recoupment. The matter was tried by the court without the aid of a jury. The court found that defendant was entitled to damages for nondelivery in the sum of $1,481.06. Deducting from this plaintiff’s credit of $418.84 left a balance- in favor of defendant of $1,062.22, for which amount judgment was rendered in defendant’s behalf.

1. Defendant claimed, and was permitted to show, over plaintiff’s objection, that he was obliged to go several miles from the place of delivery to purchase the balance of the timber, and that his total expenses in securing the same were $1,695.81. This sum included not only the purchase price but items of interest on money used to purchase the timber, interest on his profits which were withheld by the Eastern Michigan Power Company, car demurrage, traveling expenses in looking for the timber and the expense of six idle teams held in the woods several days waiting for the timber to be cut.

It is the contention of plaintiff that the general rule of damages for nondelivery of personal property should have been applied by the court and that the testimony did not justify the court in applying an enlarged rule of damages.

The real controversy is whether a state of facts was shown by the testimony which would justify the court in applying any other or different rule of damages than the general one for the nondelivery of personal property, namely: The difference between the contract price and the market price of the timber at the time and place of delivery.

It was said in Cuddy1 v. Major, 12 Mich. 368:

“To create such extraordinary liability there must, in every case, be something in the terms, of the contract, read in the light of surrounding circumstances, which shows an intention on the part of the vendor to assume an enlarged engagement, a wider responsibility than is assumed by the vendor in ordinary contracts for the sale and delivery of merchandise.”

This rule was followed in Henry v. Hobbs, 165 Mich. 183. It was there said:

“We do not think, however, that the facts as they appeared in this case would justify an enlargement of the rule. It appears that defendant knew that the apples were to be shipped to South Dakota, but it does not appear that the plaintiff informed him of the fact. The defendant was not informed that the apples had been resold or that the plaintiff desired them for any particular market, or for any special purpose, or that he had contracted to sell them for any particular price. Unless information of this character was imparted by the plaintiff to the defendant at the time the contract was made, the rule of special damages could not be lawfully applied. 2 Mechem on Sales, §§ 1761, 1762; 30 Am. & Eng. Enc. Law (2d Ed.), p. 216.”

The testimony discloses that plaintiff knew at or before the contract was made that the lumber was going to the Eastern'Michigan Power Company. The first talk Richardson had with plaintiff about the lumber, an agent of the Eastern Michigan Power Company was with him. Later the contract was prepared by Mr. Richardson in his own name, and at that time he stated to the plaintiff that he had an order from the Eastern Michigan Power Company for the lumber, but it does not appear that he had a contract with that company for the lumber nor that it was sold for any particular price, nor that he had contracted to deliver it to the power company at any particular time, nor that it was to be used for any special purpose other than its dimensions would indicate. The court stated, in making his finding, as bearing upon this question, that it was difficult to secure such timber in the vicinity of Masts Mill, but we are unable to find that there is any testimony to support this conclusion. The defendant claimed upon the trial that it had a contract with the Eastern Michigan Power Company, but it was not produced, and the testimony in relation to it was subsequently stricken out. Looking at the negotiation of these parties at the time the contract was made, we are unable to see anything in the contract or in the circumstances' attending the making of it, that would take the case out of the ordinary rule, especially in the absence of proof that there was no market value at the place of delivery. There was no showing, by defendant that there was no market price at the point or immediate vicinity where the delivery was to be made. This should appear before proof is made of special damages. If there were no market price at the place of delivery, then the market price at the nearest place where there was one could be shown. The difference between this price and the contract price, with the added cost of transportation, would be the measure of defendant’s damages. 35 Cyc. p. 638.

The judgment is reversed and a new trial ordered, with costs of this court to plaintiff.

Moore, Steere, Brooke, Fellows, Stone, and KUHN, JJ., concurred.

The late Justice Ostrander took no part in this decision.


author: Moore, J.

text:
    CITY OF BAY CITY v. SAGINAW-BAY CITY RAILWAY CO.
    1. Constitutional Law — Title of Act — Sufficiency. •
    Act No, 514, Local Acts 1903, annexing the city of West Bay City to, and consolidating the same with, the city of Bay City, and providing that the rights, privileges, or franchises granted by the common council of Bay City should extend over the entire consolidated city, held, not unconstitutional because not within the object expressed in its title.
    2. Municipal Coepoeations — Franchise in Streets — Extending Corporate Limits — Effect.
    Where a franchise is granted to use the streets of a municipality, and thereafter the territorial limits of the municipality are extended, the franchise immediately attaches without any further action on the part of the municipality to the newly acquired territory.
    3. Constitutional Law — Extending Corporate Limits — impairment oe Contract — Expired Franchise.
    Where a street railway company was operating in the cities of West Bay City and Bay City under separate franchises, expiring at different times, and the two cities were consolidated by Act No. 514, Local Acts 1903, upon the expiration of its franchise in the former city, the provisions of the franchise of Bay City immediately went into effect in the annexed territory, as provided in said act, the effect not being to impair a contract within the inhibition of section 10, Art. 1, Constitution of the United States, since the West Bay City franchise had already expired.
    Appeal from Bay; Wiest, J., presiding.
    Submitted June 3, 1919.
    (Docket No. 8.)
    Decided October 6, 1919.
    Bill by the city of Bay City against the Saginaw-Bay City Railway Company to restrain the operation of its street railway in certain territory. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Robert H. Lane, for plaintiff.

      James E. Duffy (Russell H. Neilson, of counsel), for defendant.
   Moore, J.

This suit Vas commenced by plaintiff filing a bill of complaint in chancery asking for an injunction restraining defendant from operating its street railway in the territory formerly West Bay City, and claiming that, the franchise granted by West Bay City having expired on October 10, 1917, the defendant was operating its road upon the territory in question without right.

Defendant maintained that both by operation of law and by the express terms of section 220 of Act No. 514, Local Acts of 1903, same being the consolidation charter, the terms and provisions of the franchise granted by the city of Bay City on September 2, 1902, became effective and in force in the annexed territory formerly West Bay City, and that it was lawfully occupying the streets and operating its railway.

Plaintiff maintains that defendant’s claims are untenable, and further that if section 220 of said Act No. 514 gives the rights claimed by defendant, the legislature in passing it intended by an express act to convey privileges, and in that respect the local act violated the Constitution and is void. Plaintiff also claims that if section 220 gives the rights claimed by defendant, the title of said Act No. 514 does not justify such grant and the act in that respect is void, as violating the Constitution. Plaintiff also claims that if the franchise does extend as claimed by defendant, that defendant must obtain the consent of the common council and three-fifths of the abutting property owners upon the streets where it operates before it could continue operation in the territory formerly West Bay City.

Defendant maintains that upon annexation of West Bay City to Bay City, and the consolidation of the government of the two cities, the franchise granted by the common council of the city of Bay City on September 2, 1902, attached to and reached all the municipal territory, both old and new, save that the rights under the franchise granted by the common council of the city of West Bay City were expressly preserved to defendant and continued in force.

The trial chancellor dismissed the bill of complaint. The case is brought here by appeal and the contentions of the plaintiff in this court are the same as in the court below.

The annexation and consolidation of the former .cities of West Bay City and Bay City was completed under Act No. 514, Local Acts 1903. The title of said act is as follows:

“An act to annex the territory embraced within the city of West Bay City, to that of Bay City, and to consolidate the city of West Bay City with the city of Bay City, under the name of Bay City; to specify and fix the boundaries of the city; to consolidate the school system and the library systems of the said cities of West Bay City and Bay City; to provide for the assuming and payment of all the indebtedness and liabilities of the present cities of Bay City and West Bay City, and their school and library systems and to provide for the ownership of all their corporate property and rights; to define the corporate rights, powers and privileges of said city of Bay City and to repeal all acts and parts of acts inconsistent herewith.”

Section 220 of said act reads as follows:

“Sec. 220. All ordinances, by-laws, regulations and rules of the common council of the cities of Bay City and West Bay City now in force, and not inconsistent with this act, shall remain in force, until amended or repealed by the common council under this act, within the respective territories for which they were originally adopted: Provided, That all rights, privileges or franchises heretofore granted to any person, persons or corporations shall be continued in force by this act, but the common council of Bay City shall have all the powers, rights and privileges relative thereto as are now vested in the respective councils of said cities of Bay City and West Bay City, and save as herein provided the rights, privileges or franchises granted by the common council of Bay City shall extend over the entire consolidated city.”

Section 235 reads as follows:

“Sec. 235. Upon the consolidated city becoming organized by the election and qualification of the officers elected at the election to be held on the first Monday in April, nineteen hundred five, as hereinbefore provided, all former acts relating to the present cities of Bay City and West Bay City inconsistent with the provisions of this act, shall thereupon be superseded and repealed, except as otherwise expressly provided for by this act, but such repeal shall not affect any act or rights secured, created or established, or the title to any property acquired or any proceeding or transaction, tax, assessment, contract or public improvement had or commenced prior to the time this act takes effect, but every such act, claim, right or proceeding shall remain as valid and effectual as if this act had not taken effect.”

The dates, terms and expiration of the franchises are as follows:

“West Bay City franchise, granted for 30 years, October 10, 1887. Expired October 10, 1917. Bay City Consolidated Railway Co., granted for 30 years, July 24, 1893. Expires July 24, 1923. Bay City United Traction Co., granted for 30 years September 2, 1902. Expires September 2, 1932.
“The defendant, the Saginaw-Bay City Railway Company, is the owner and assignee of the above named franchises, and is now operating and conducting the street railway system in Bay City. There is no advantage or importance claimed by either parties to this litigation in or with the ordinance to the Bay City United Traction Company, September 2, 1902.
“The principal difference in the terms and conditions of the West Bay City franchise, and the Bay City United Traction Company franchise of September 2, 1902, is as follows:
“First — The time when each expires.
“Second — The 1902 franchise provides:
“‘Said grantee, its successors and assigns, shall petition the common council and obtain its consent, and the consent of three-fifths of the abutting owners of property on any street or part of street, before it shall erect any poles, string any wires or lay any track upon any such street in said city.’ Section 1, Franchise of 1902, page 469, Charter of Bay City.
“The West Bay City franchise does not contain any provision whatever requiring defendant to petition and obtain the consent of the common council of Bay City and the consent of three-fifths of the abutting owners, of property on any street before erecting poles, stringing wires or laying tracks, etc.
“Third — The 1902 ordinance provides:
“ ‘The said grantee, its successors and assigns, shall keep and maintain the street inside of the track and for an aggregate of two feet and four inches outside thereof in good order and repair, and to keep the same clear from filth and dirt and snow.’ * * * Section 6, Franchise 1902, page 472, Charter of Bay City.
“The West Bay City franchise does not contain any provision requiring defendant to pay any expense of pavement between the rails and for fourteen inches upon either side.”

Is the title of Act No. 514, Local Acts 1903, broad enough to justify the grant for which defendant is contending? The trial judge thought it was and we agree with him. See Westgate v. Township of Adrian, 161 Mich. 333; Attorney General v. Township of Springwells, 143 Mich. 523, and the cases cited therein.

The important question in the case is, What was the effect upon the franchises when West Bay City became a part of Bay City? It is said:

“And where a franchise is granted to use the streets of a municipality, and thereafter the territorial limits of a municipality are extended, the franchise immediately attaches without any further action on the part of the municipality to the newly acquired territory.” 4 McQuillan on Municipal Corporations, § 1674.

The question is not new in this State, People v. Railway, 162 Mich. 460, and City of Detroit v. Railway, 173 Mich. 314. It may be well to recall some of the language of Justice Steere in the last named ease:

“Counsel for relator broadly contend that the effect of any change in a municipal boundary is no longer an open question in this State, but that it was put to rest by the decision of this court in People v. Railway, 162 Mich. 460 (139 Am. St. Rep. 582). * * *
“This court, speaking through Chief Justice MONTGOMERY, said:
“ °We think it not unreasonable to nold that this mutual contract was made in view of the power of the legislature of the State to increase or diminish the territory within the city, and that neither the city nor the company contemplated that in case of an extension of the lines of the company within the city, either by purchase or acquisition from another company, an increased fare should be demanded’ — citing and reviewing Town ship of West Bloomfield v. Railway, 146 Mich. 198 (117 Am. St. Rep. 628), and Indiana R. Co. v. Hoffman, 161 Ind. 593 (69 N. E. 399).

“The opinion concluded as follows:

“ ‘We construe the ordinance to include any street railway constructed or purchased by the defendant which shall he within the city of Detroit as the limits of said city may from time to time be fixed by the legislature.’
“We think it can be said with certainty that, in a case where the question was pertinent and squarely presented in the briefs of counsel on both sides, argued and reargued, this court, in harmony with Indiana R. Co. v. Hoffman, supra, and the authorities there cited, now supported by the more recent case of Peterson v. Power Co., 60 Wash. 406 (11 Pac. 338, 140 Am. St. Rep. 936), has unequivocally declared it a general rule in this State that city ordinances, designed for the city at large, operate throughout its boundaries, whatever changes may be made in them, and that grants by such ordinances, though accepted and amounting to contracts are to be construed as made and accepted in contemplation of, and subject to such rules, unless the contrary is clearly expressed. * * *
“It is unquestionably the law, as a general proposition, that in purchasing the Greenfield and Fairview lines respondent acquired all rights originally granted by the franchises for such lines; and it is equally a general rule of law that those rights, once granted and accepted, could not be destroyed or abridged by subsequent general or local legislation. But it does not follow that respondent might not be in a position when those rights were purchased, by reason of other and previous contract obligations, so that as against certain parties and in certain localities all those rights could not be enjoyed or enforced by it. * * *
“That contract and previous contracts, embodied in ordinances to which it is supplemental, define respondent’s right of existence in the city of Detroit. Its primary rights in the city territory are by city grant. It has united, built up, and developed as an entirety a street railway system within the city, extending to and beyond its limits. It has absorbed by purchase and made a part of that system the township lines in question with their grants, and as á result of such unification and practical' combination, even though in name and form it may retain the original corporate organization of the subsidiary companies, it has made them, as to the city and within the city, an integral part of the whole and subjected them to the restrictions contracted for in the original city ordinances, thus defining and limiting its own rights under the township grants, within city territory, as subordinate to and dominated by said city ordinances.”

Counsel say these cases were overruled in Detroit United Railway v. Michigan, 242 U. S. 238 (37 Sup. Ct. Rep. 87). They contend the last-named case is controlling of the instant case and requires that a decree should be entered as prayed in the bill of complaint. Some language used in the opinion may be helpful.

It was said, speaking of the franchises involved:

“These several village and township grants were for terms that have not yet expired, and contain pro-, visions for five-eent fares within the territory covered by them.”

In speaking of the two cases appealed from this court which were heard as one:

“In each case plaintiff in error seasonably and expressly insisted that the several township and village grants above referred to were subsisting and valid contracts when the legislature of Michigan passed the acts extending the city limits, and that those acts, if so construed or applied as to affect or modify the contracts, were in conflict with section 10 of Article 1 of the Constitution of the United States. And it is upon the overruling of these contentions that the cases are brought here, under section 237, Jud. Code. * * *
“Coming then to the merits: Not only is it not disputed, but it is not open to serious dispute, that the original village and township grants were contractual in their nature. It appears that the recipients of those grants, like their successor, the plaintiff in error, became incorporated under the street railway act of 1867, of which section 13 provides that consent for the construction and maintenance of a street railway is to be given by the corporate authorities in an ordinance to be enacted for the purpose, and under such rules, regulations and conditions as may be prescribed' by such ordinance, but that no such railway shall be constructed until the company shall have accepted in writing the terms and conditions upon which they are permitted to use the streets. By section 14, after any city, village or township shall thus have consented to the construction and maintenance of street railways or granted rights and privileges to the company, and such consent and grant shall have been accepted by the company, the consent shall not be revoked or the company deprived of the rights and privileges conferred. And by section 20 the rates of toll or fare to be charged by the company are to be established by agreement between it and the corporate authorities, and are not to be increased without consent of such authorities. It is plain, as was pointed out by this court in Detroit v. Railway Co., 184 U. S. 368, 385 (22 Sup. Ct. Rep. 410), that the legislature regarded the fixing of the rate of fare as a subject for agreement between the municipality and the company. And in these cases, as in that, the terms of the several ordinances are such as clearly to import a purpose to contract under the legislative authority thus conferred.”

And the court held:

“Because of the provision of section 10 of article 1 of the Constitution of the United States, it was not within the power of the State of Michigan by any subsequent legislation to impair the obligation» of those contracts, and since the judgments of the Supreme Court of that State gave such an effect to the annexation acts of 1905 and 1907, in conjunction with the ordinances of 1889, as to impair those obligations, the judgments must be reversed.”

While the Federal court reversed this court in the two cases named it placed its decision upon the ground that the practical effect of the decisions was to impair the obligation of contracts. The opinion indicates that the court agrees with this court in holding that the acquisition of the suburban lines was in effect an extension of the city railways. In the instant case, before the bill of complaint was filed the West Bay City franchise had expired. There was no claim that any of its provisions in the nature of a contract were annulled by the provisions of the Bay City franchise. The defendant concedes that under its present franchise it must comply with all of its provisions as indicated in a letter addressed to the common council reading in part as follows:

“In accordance with section No. 220 of the consolidation charter of 1905, the rights, terms and conditions of the franchise under which the Saginaw-Bay City Railway company is operating on the east side of the river will, after October 10, 1917, extend over the territory on the west side of the river and the company will then be operating its street car lines upon both sides of the river under the franchise granted to the company upon the east side of the river.
“The duties and obligations of the Saginaw-Bay City Railway Company, as expressed in these franchises, will, therefore, have to be performed by the company on both sides of the river in the same manner.
“After October 10,1917, the company will be obliged to pay for the construction and maintenance of the pavement between its rails and for 14 inches outside of its rails, the'same as has been done in the past on the east side of the river. All of the restriction and regulation in the franchise under which the company is now operating on the east side of the river, will have to be borne by the company on the west side of the river.”

We do not deem it necessary to discuss the other questions raised by counsel, though we have considered them.

The decree is affirmed with costs to the defendant.

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

The late Justice Ostrander took no part in this decision.


author: Brooke, J.

text:
    PHELPS v. BREVOORT.
    1. Boundaries — Agreement—Acquiescence—Controversy.
    To establish a boundary line by agreement and acquiescence, not only must there have been an express agreement, and monuments erected and acquiesced in, but a doubt or controversy must have existed as to the true line; otherwise the statute (3 Comp. Laws 1915, § 11975) prohibiting the conveyance of land by parol renders the agreement inoperative.
    2. Same — Adverse Possession.
    Where there was no dispute between the parties as to the true line and mi agreement as to the location of a fence erected by one of the parties separating their several holdings, the party advantaged by the erroneous location of the dividing line may not profit by the mistake.
    3. Same — Description.
    A description in a deed “600 feet in width,” held, to mean 600 feet at right angles.
    4. Evidence — Deeds—Ambiguity—Parol Evidence.
    Where there is no ambiguity in an instrument, parol evidence is inadmissible to vary or explain its meaning.
    Error to Wayne; Mayne, J., presiding.
    Submitted June 4, 1919.
    (Docket No. 37.)
    Decided October 6, 1919.
    Rehearing denied December 23, 1919.
    Ejectment by Ralph Phelps and another against Henry N. Brevoort and another. Judgment for plaintiffs on a directed verdict. Defendants bring error.
    Affirmed.

      Millis, Griffin, Seely & Streeter, for appellants.

      Orla B. Taylor, for appellees.
    In an action of ejectment plaintiffs seek to recover possession of a, strip of land about 20 feet wide and about 2,200 feet in length located on Grosse Isle, Wayne county, Michigan. On October 20, 1859, by a decree ©f partition in the circuit court for the county of Wayne, Private Claim No. 550 was subdivided. The map of said subdivision, Schedule A, is herewith subjoined. Lot 1 of said subdivision was by the terms of the decree assigned to the ancestor of Judge Henry N. Brevoort. He, together with his brother, Thornton E. Brevoort, inherited the whole of lot 1 and the interest of Thornton E. Brevoort passed to Henry N. Brevoort by warranty deed April 9, 1886. On December 15, 1894, Henry N. Brevoort sold the whole parcel by land contract to Rod A. Demme. This contract was discharged May 19, 1896, and a mortgage given by Brevoort to Demme on the same day. On December 6, 1897, Brevoort executed a deed to said Demme of a portion of said lot 1, described as follows:

      “Land in the township of Monguagon, described as the southerly 600 feet in width of lot 1 of the subdivision of the east part of Private Claim 550 on Grosse Isle, according to the plat thereof filed in the clerk’s office for Wayne county, in chancery (File No. 533), together with the rights and privileges appertaining thereto in the water front of said premises hereby conveyed to the channel bank of the Detroit fiver, also all rights, reversionary or otherwise, appertaining to said premises in the road or highway across the easterly end of said premises, also a right of way across the northerly 300 feet of said lot, 60 feet wide, the said right of way to be bound on the north by the Mill road; on the west by westerly line of lot 1; on the south by the northerly line of the premises hereby conveyed, and on the east by a line parallel to said westerly line of said lot 1 and 60 feet distant from it, subject to a mortgage of $19,000 given by first party to second party; also subject to any taxes since May 19, 1896, date of unrecorded land contract for sale of said premises to second party.”
    The title to said description through mesne conveyances now rests in the plaintiffs. On March 18, 1898, Brevoort executed a mortgage on the balance of lot 1, described as follows:
    “Land in the township of Monguagon, described as the northerly 300 feet in width of lot 1 of the subdivision of the east part of Private Claim 550 on- Grosse Isle, according to plat thereof in File No. 533 in the circuit court for the county of Wayne, in chancery, together with the rights and privileges appertaining thereto in the water front of said premises hereby conveyed to the channel bank of the Detroit river, also all rights, reversionary or otherwise, appertaining to said premises in the road or highway across the easterly end of said premises, and subject to a right of way 60 feet in width of the west end of the premises hereby conveyed as said right of way described in deed recorded in Liber 434 of Deeds, page 325.”
    On July 18, 1898, Brevoort executed a land contract on said last mentioned parcel to one Nehemiah C. Hinsdale, the description being as follows:
    “Land situated in the township of Monguagon, county of Wayne, State of Michigan, to wit: The northerly 300 feet in width from front to rear of lot No. 1 of the subdivision of the east part of Private Claim No. 550 on Grosse Isle, according to the plat thereof filed in the clerk’s office for Wayne county, in chancery (File No. 533), together with the rights and privileges appertaining thereto in the water front of said premises to the channel bank of the Detroit river, also all rights, reversions or otherwise appertaining to said premises in the road or highway known as the Horse Mill road, excepting and reserving from the above described premises a strip of land 60 feet wide from the westerly or rear end thereof.”
    Hinsdale failed to perform his contract and Brevoort retook possession of said premises and on May 4, 1900, executed a lease thereof to one Sherman, the description being as follows:
    “The following described premises, situate and being in the township of Monguagon, county of Wayne and State of Michigan, to wit: A strip of land three hundred feet wide from front to rear of the northerly side of lot No. one of the subdivision of said lot northerly side of lot No. 1 of the east side of Grosse lie, being part of Private Claim No. 550. Also a strip of land immediately adjoining the above mentioned parcel on the south, being six hundred feet front to rear of said lot No. one, said last mentioned parcel to be used for the pasture of horses and cattle only, for the term of one year from and after the first day of May, 1900, on the terms and conditions hereinafter mentioned, to be occupied for farming purposes.”
    It will be noted that the premises described in this lease include the property theretofore sold by Brevoort to Demme. This is accounted for by the fact that neither Demme nor his successors in title ever actually occupied the premises conveyed to them, and Mr. S. S. Babcock, the agent for the owner, had given Judge Brevoort permission to use said land for pasturage. At the time Brevoort deeded to Demme no fence separated the southerly 600 feet of lot 1 from the northerly 300 feet. During the time the northerly 300 feet was held by Hinsdale under his contract with Brevoort he caused to be erected a fence east and west dividing the southerly 600 feet from the northerly 300 feet. It appears that some years prior to the building of this fence and in 1895 when Demme was interested in the whole of lot 1 he had caused Surveyor Howard to make a measurement of the southerly 600 feet of frontage on the river road, which road ran at an angle in a northwesterly direction. Here there was set by Howard a stake. The fence built later (1898), by Hinsdale, was not built upon the line indicated by Howard’s stake, but upon a line some eight feet south thereof. At the time Hinsdale built said fence there was no agreement between him and the then owner of the southerly 600 feet as to its location. The location of the old fence and the line contended for by plaintiffs is shown on the following survey:
    The land between the old fence and the dotted line being that in dispute. The court, after hearing the proofs, made the following finding:

      “First, that the Broadhead line has been duly established for the purposes of this suit. Second, that the premises conveyed were to be 600 feet in width, measured at right angles to the line drawn and connecting due north and south, the northern and southern boundaries, or drawn at right angles to the Broadhead line. Third, that the defendant, Judge Brevoort, was holding the premises conveyed by law presumptively in the interests of the grantees of his conveyance, and in subordination to his own covenants in the instrument of conveyance. For that reason adverse possession does not attach until there has been some positive, unequivocal assertion of the title on his part. I fail to find such an assertion of title. Therefore, there is no question for the jury to decide. The jury will be directed to return a verdict for the plaintiffs against the defendant.”

      The judgment entered upon the verdict so directed is now reviewed in this court by defendants.
   Brooke, J.

(after stating the facts). It is the first contention of appealing defendant, Neele Davis Brevoort, that she has title to the property in question through adverse possession of herself and her grantor. This contention is based upon the theory that the fence built in 1898 was built by agreement between the then owners of the adjoining parcels. In support of this contention the following authorities are cited from this State: Bower v. Earl, 18 Mich. 367; Bennett v. Robinson, 27 Mich. 26; and McCall v. Wells, 55 Mich. 171. It seems to us a sufficient answer to this claim may be found in the fact that Judge Brevoort did not deed the northerly 300 feet to his wife, the defendant Mrs. Neele Brevoort, until September 15, 1908, and that he had occupied the southerly 600 feet for at least eight years under the verbal authority from Mr. Babcock and had himself released it to Sherman by a description which clearly recognized the rights of the plaintiffs’ grantors in the whole of the lands described in the deed from Brevoort to Demme. A careful examination of the testimony of Judge Brevoort convinces us that he never had any intention of taking possession of any property which he had sold to Demme or of holding adversely to Demme and in contravention of his own covenants. He very probably believed that the fence built by Hinsdale was located upon the true line and this error seems to have been common among those interested in both parcels. It is, we think, quite clear from this record that, at the time the fence was built, there was. no agreement between Hinsdale, the then owner under contract of the northerly 300 feet, and the owners of the southerly 600 feet. Moreover, there never was a controversy between the owners of the northerly 300 feet and the owners of the southerly 600 feet as to the true line. We have frequently held that title to lands may not rest in parol and that where a division of lands is effected as. a settlement of a disputed boundary,—

“There must be, not only an express agreement, and monuments erected, which have been acquiesced in, but there must have been a doubt or controversy as to the true line; otherwise the case comes within the prohibition of the statute.” Olin v. Henderson, 120 Mich. 149, 158.

See, also, DeLong v. Baldwin, 111 Mich. 466; Turner v. Angus, 145 Mich. 679; Sheldon v. Railroad Co., 161 Mich. 503; Parsons v. Bills, 163 Mich. 415; Lake Shore, etc., R. Co. v. Sterling, 189 Mich. 366. From these authorities it is apparent that where there is no dispute between the parties as to the true line and no agreement between them as to the location of the fence separating their several holdings, the party advantaged by the erroneous location of the dividing line may not profit by the mistake.

We find the description in the deed from Brevoort to Demme to be entirely free from ambiguity. The words, “600 feet in width” mean 600 feet at right angles. As defined in Webster’s dictionary the word “width” is a “certain measure between the sides measuring in a direction at right angles to that of length.” Where there is no ambiguity in an instrument parol evidence is inadmissible to explain or vary its meaning. Longe v. Kinney, 171 Mich. 812, and cases cited.

It is unnecessary further to notice claims of the appellant as the above conclusions are controlling of the issue presented.

The judgment is affirmed.

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

The late Justice Ostrander took no part in this decision.


text:
    ROBINS v. DIRECTOR GENERAL OF RAILROADS.
    1. Railroads — Negligence—Death op Child — Crossing Accident —Excessive Speed — Question for Jury.
    In an action against a railroad company for the negligent killing of a hoy -5 years and 2 months old at a public Street crossing near the central part of a city, where hundreds of persons, including children, crossed daily, testimony that the train was running at from 40 to 60 miles an hour and that the electric hell was out of order, held, to present a question of fact for the jury as to defendant’s negligence.
    2. Same — Excessive Speed — Unanticipated Act.
    Where the train was running at an unlawful rate of speed, it cannot he held, as a matter of law, that the accident was caused hy the sudden and unanticipated act of the child.
    3. Same — Killing of Child — Negligence op Mother.
    The mother of a hoy 5 years and 2 months old is not, as a matter of law, guilty of negligence in permitting him to remain out of her sight for a few minutes on the porch of a hotel while she went into the office, during which time he wandered upon the tracks and was killed.

      On excessiveness or inadequacy of damages for personal injuries resulting in death, see note in L. R. A. 1916C, 820.

      4. Same — Evidence — Financial Ability of Father — Admissibility.
    Testimony of the father as to his financial ability, held, admissible for the purpose of bearing upon the probability of the child being put to work earning 'money for the father.
    5. Same — damages—Excessive Verdict.
    A verdict of ?1,275 for the negligent killing of a boy 5 years and 2 months old, held, not excessive.
    Error to Lenawee; Hart, J.
    Submitted June 13, 1919.
    (Docket No. 74.)
    Decided October 6, 1919.
    •Case by Laura A. Robins, administratrix of the estate of Theodore James Robins, deceased, against William G. McAdoo, director general of railroads, for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Herbert R. Clark, for appellant.

      B. D. Chandler, for appellee.
   Moore, J.

This suit was commenced to recover damages because of the death of plaintiff’s son who was killed in the city of Hudson at the intersection of the tracks of the New York Central Railroad Company and Market street. The negligence charged was the running of its passenger train across Market street at an excessive rate of speed and in not maintaining at said crossing a properly equipped electric bell. It is also charged that the engineer and fireman were not keeping a proper lookout. The population of the city of Hudson is about 2,800, and the Market street crossing is near the central part of the city and near the center of population, and within two blocks of the business center. Theodore James Robins on the date of his death was five years, two months, and eight days old. He was a bright, active boy in good health. At the time of the accident, Mr. and Mrs. Robins were living in Detroit. They were returning to Hudson to live and had shipped some of their goods there. Mrs, Robins with her children was stopping at the Brant Hotel which is situate on Market street about 80 feet south of the tracks of the New York Central railroad. At the Market street crossing the railroad company had maintained an electric bell. It was claimed this bell was out of order, that it would nearly always ring when trains were approaching from the west, but from the east it seldom rang and on the day of the accident the plaintiff contended and submitted proof that on the approach of the train this electric bell was not ringing.

It is claimed that just prior to the accident the mother of decedent was upon the porch of the hotel unpacking some goods and decedent and his little brother were in a swing upon the porch of the hotel, that about 10 minutes before the accident the mother stepped into the office of the hotel and was there at the time of the accident. It is claimed the train which killed the boy was about 10 minutes late. It consisted of a locomotive and 7 or 8 coaches, and it is claimed it did not slow down for the Market street crossing, but rah across the street in question at a speed estimated by witnesses for the plaintiff at 40 to 60 miles an hour. Just before the accident the decedent and his little brother were seen upon the sidewalk between the hotel and the railroad track. Two men crossed the track just in front of the train on the east side of Market street, and an older man passed in front of the train on the west side of Market street, and decedent followed him across the track and was struck by the locomotive when near the north side of thp track and instantly killed.

Several written requests were preferred by defendant all of which were given except two, which asked for a directed verdict. The jury returned a verdict for the plaintiff for $1,275. Defendant made a motion for a new trial which was overruled. The case is brought here by writ of error.

We quote from the brief of counsel for appellant:

“The principal and meritorious questions in the case are these:
“(1) Was the accident not due to the sudden and unanticipated act of the child, an act that the railroad company could not foresee or provide against?
“(2) Was the mother of deceased not guilty of contributory negligence such as to preclude recovery?
“(3) Was the railroad company guilty of any negligence that was the proximate cause of the accident?
“(4) Was there any evidence upon which a jury could base a verdict for damages?
“(5) Did the court err in permitting the father of deceased to testify as to his financial means?
“(6) Was the verdict not against the great weight of the evidence?
“(7) Did the court not err in permitting plaintiff to amend her declaration by adding the question of lookout as a, ground of negligence?”

It is claimed by defendant that it was the sudden and unanticipated act of the boy and no act of negligence of the defendant that caused the accident, counsel citing Hoover v. Railway Co., 188 Mich. 313, and Coessens v. Railway, 136 Mich. 481, and Czarniski v. Transfer Co., 204 Mich. 276. A reference to the earliest of these cases will show that it was held that the car was running at a lawful rate of speed, which differentiates it from the instant case, as made by the testimony on the part of the plaintiff. In the case of Hoover v. Railway Co., supra, the child was killed while a trespasser in the station yard of the railroad company. A different case from the one before us. There is some language in the opinion that may be helpful here:

“Back of that lies the rule that at places where there is reason to anticipate that persons, including children, may be upon the track, as in cities and towns, the train cannot be operated upon the presumption that the track is clear and need not be watched, but a proper lookout must be maintained with that degree of care which a person of ordinary prudence and caution, having in mind both the safety of the train with its passengers and persons ahead likely to be injured by it, would commonly exercise under like circumstances, according to the probability of danger at the portion of the track being traversed.”

In the other case cited it was held to be a question for the jury whether defendant was negligent. In the instant ease there was a great deal of testimony that the train was run at a high rate of speed at a crossing frequented by hundreds of pedestrians daily, including children, with a crossing bell out of order so that it did not ring. This feature of the case is governed by Nissly v. Railway Co., 168 Mich. 676 (Ann. Cas. 1913C, 719). There is a full discussion of the rights of an infant and the duty of a railway company in the case of Huggett v. Erb, 182 Mich. 524 (Ann. Cas. 1916B, 352), with a citation of many authorities; Block v. Railroad Co., 202 Mich. 341; Fischer v. Railway Co., 203 Mich. 668; and Green v. Railway Co., 110 Mich. 648. The last case also holds that the mother should not be held as a matter of law to be guilty of contributory negligence.

Was it error to allow the father to testify to his financial ability? The court cautioned the jury that this testimony could only be used as bearing upon the probability of the child being put to work earning money for the father. We think with the limitations put upon the testimony it was not reversible error.

Was the verdict so large it ought to be set aside? The case of Black v. Railroad Co., 146 Mich. 568, justifies the amount of the verdict. The case was tried with great care. We discover no reversible error.

The judgment is affirmed with costs to the plaintiff.

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

The late Justice Ostrander took no part in this decision.