text:
    ST. JOHN v. WAYNE CIRCUIT JUDGE.
    1. Depositions — Parties—Witnesses.
    The deposition of a party to an action may be taken at the instance of the opposing party.
    2. Contempt — Attachment—Discretion.
    The denial of a petition to attach a witness for contempt on refusal to answer questions before the circuit court commissioner is not an abuse of discretion where the questions might tend to incriminate the witness and the circuit judge imposes a condition that the petitioner show the materiality of the questions asked.
    Mandamus by Robert St. John to compel Morse Rohnert, circuit judge of Wayne county, to vacate an order denying a petition for an attachment in contempt proceedings.
    Submitted March 19, 1910.
    (Calendar No. 23,906.)
    Writ denied May 7, 1910.

      Philip A. McHugh and William Henry Gallagher, for relator.

      William D. Ellsworth, for respondent.
    It appears from the answer that relator is plaintiff in an action of assumpsit pending in the circuit court for the county of Wayne, entitled Robert St. John, Plaintiff, v. Frances Sullivan, alias Dolly Sullivan, alias Frances True-dell, alias Dolly Truedell, Defendant, but has filed no declaration therein. He caused a notice to be given under the provisions of 3 Comp. Laws, § 10136, addressed to said defendant, in and by which notice she was informed that she was a material and necessary witness for the plaintiff in the said cause, and that her testimony would be taken by deposition de bene esse before Samuel L. May, circuit court commissioner, at his office in the city of Detroit on the 18th day of February, at 10 o’clock in the forenoon, at which time and place she was notified and commanded to attend. The notice proceeds as follows:
    “This testimony is to be so taken for the reason that you are a necessary and material witness for and in behalf of the plaintiff in this cause; for the further reason that the purposes of justice will be aided thereby; and for the further reason that said plaintiff has reasonable cause for apprehension that your testimony cannot be had at the trial of said cause, by virtue of the fact that you are about to go more than fifty (50) miles from the place of the trial of said cause, and beyond the confines of the State of Michigan, to wit: to Chatham, in the Dominion of Canada, to remain there until the trial of said cause is concluded.”
    Relator (said plaintiff) also caused to be issued by said commissioner a subpoena, addressed to said defendant, commanding her to appear before him at the time and place mentioned in the notice, to give evidence in a certain case pending in the circuit court for the county of Wayne, etc. This subpoena was personally served upon said defendant. Defendant appeared before the circuit court commissioner at some time during the forenoon of February 18th, was sworn and examined by counsel for relator for an hour or so, when adjournment was taken until 2:30 p. m. the same day. In the afternoon an attempt was made to proceed with the examination. Upon the advice of her counsel the witness declined to answer the interrogatories put to her, and the commissioner thereupon certified to the circuit court the said questions, his rulings, and the refusals to answer. Relator petitioned the circuit court for the county of Wayne for an attachment to bring defendant before the court to answer the petitioner’s charge of misconduct and contempt in refusing to answer the interrogatories. The Honorable Morse Rohnert, one of the judges of said court, made an order which, after reciting the petition, and that counsel had been heard, concluded:
    * ‘ That the petition for attachment be denied, unless the said plaintiff shall satisfactorily cause it to appear to this court that a certain deposition de bene esse, at which said alleged misconduct and contempt upon the part of the said defendant in refusing to answer the interrogatories propounded to her by counsel for the plaintiff was being taken before Circuit Court Commissioner May, on account of at least one of the causes set forth in plaintiff’s notice of taking testimony, which was served upon the said defendant as a basis for taking said deposition de bene esse, and that said deposition de bene esse was being taken in good faith, and not for the purpose of discovery or unduly prying into defendant’s case.”
    Relator, having moved for the vacating of said order, asks for a writ of mandamus to compel the circuit judge to vacate said order and issue the writ of attachment. The only objection made before the commissioner was the one that relator had not made it appear affirmatively that any of the reasons set out in the notice in fact existed. The respondent returns, however, that he became convinced that the deposition was not taken for the purpose of using the same upon the trial of the cause, but for the purpose of tracing a certain sum of money, which could in no way be material in an action of assumpsit, and was strongly inclined, from the arguments and statements of counsel, to the belief that none of the grounds set forth in the notice in fact existed. He further returns that he was strongly inclined to the belief that relator was not acting in good faith in attempting to take the deposition of defendant.
    In the brief for relator it is said that the question before the court is:
    “Under section 10136, 3 Comp. Laws, is it necessary that the reasons stated in the notice of taking testimony of a witness must be shown by proof to exist before the testimony of such witness may properly be taken and the examination of such witness proceeded with ?”
    In the brief for respondent is discussed the proper construction of the statute and the propriety of the remedy asked for.
   Ostrander, J.

(after stating the facts). It is the contention of relator that a question of law is presented, and that it is immaterial what conclusions of fact were reached by the respondent. No part of the answer appears in the printed record. Nor could we have known, except by reference to the files in the office of the clerk of this court, what answer was made by respondent. We discover no irregularity in the practice pursued by relator in the proceeding to secure the deposition. The deposition of a party to an action may be taken at the instance of the opposing party. Young v. Kent Circuit Judge, 116 Mich. 10 (74 N. W. 206). The witness attended at the time and place specified in the notice, and if the testimony called for had been given, and if upon the trial of the cause conditions warranted the reading of the deposition, we perceive no reason for excluding it for failure to comply with the statute provisions. We mean by this that the objection made by the witness, namely, that relator did not before proceeding with the examination offer proof, by affidavit or otherwise, that a statute reason for taking the examination, as stated in the notice, existed in fact, would not be a valid objection to the use of the deposition at the trial. If the witness had refused to attend before the commissioner pursuant to the notice, she might have been compelled to do so by the order or process of the court, “in the same manner as witnesses may be compelled to appear and testify in court.” We do not feel called upon to determine whether, if the witness had refused to attend, the court in compelling attendance might have acted upon the showing which was made, or whether it would have been improper to require a further showing.

When a court is asked to bring before it, by its process, a witness who has refused in another place to answer questions, for the purpose of meeting charges of misconduct and contempt in so refusing, the court may consider the character of the interrogatories to which answers were refused. In this case the examination of the witness was made a part of the petition for the attachment. It is returned to this court as a part of the answer of respond* ent. The ruling of the circuit judge with respect to the precise issue presented amounted to no more than this: That relator must make it appear that the testimony called for was material. And while the objection that it was immaterial was not made before the commissioner, that fact did not preclude the judge from refusing to compel answers to questions so framed as to clearly indicate that relator was seeking, not only to trace the disposition made of a certain sum, or of certain sums, of money admitted by her to have been at some time in her possession, but to incriminate herself with respect to its disposition. In other words, we are of opinion that the circuit judge abused no discretion in requiring that relator advise him of the materiality of the testimony sought to be elicited before compelling the witness to answer the interrogatories.

The writ of mandamus will not be issued to set aside his ruling.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    MALKOWSKI v. OLFS.
    1. Pleading — Variance—Declaration.
    Where proof of a portion of the facts alleged in plaintiff’s declaration will warrant a recovery, a failure to prove the remaining allegations is immaterial.
    a. Same.
    Evidence introduced without restriction is available in support of any issue that it tends to prove within the pleadings.

      3. Negligence — Pleading.
    An allegation and evidence that the defendant released his hold on a heavy box which plaintiff was helping him unload, permitting it to fall on plaintiff, entitles the plaintiff to a verdict, notwithstanding the failure to prove further allegations that the defendant ordered the driver of the wagon to turn the horse at the time the box fell.
    4. Same — Trial—Special Question.
    A special question which involved the question whether or not defendant ordered the driver to turn the horse, and which was therefore inconclusive of the plaintiff’s right to recover, although answered in the negative, is not sufficient to support a judgment for the defendant non obstante veredicto.

    Error to Wayne; Murfin, J.
    Submitted April 6, 1910.
    (Docket No. 8.)
    Decided May 7, 1910.
    Case by Joseph Malkowski against Peter Olfs for personal injuries. A judgment for defendant non obstante veredicto is reviewed by plaintiff on writ of error.
    Reversed. -

      James R. Neill, for appellant.

      William Look (Duncan Q. Beath, of counsel), for appellee.
    This is an action to recover damages for a personal injury received by the plaintiff while in the employ of the defendant on February 13, 1908. At said date the defendant was engaged in the business of manufacturing, selling, and delivering safes, vaults, large iron and steel boxes, etc., in the city of Detroit, and had been so engaged for a number of years. The plaintiff had been in the employ of the defendant for about five months before the injury complained of as a common helper, and had assisted in the delivery of safes, vaults, and boxes before the day above named. Plaintiff had previously worked in the Krupp gun factory in Germany. On the day of the injury the plaintiff, assisted by the defendant and others, loaded an iron or steel ash-box, weighing from 800 to 1,000 pounds, on a truck, for the purpose of delivery in the rear of the Scripps property on Trumbull avenue, Detroit. The delivery was made and had under the direct control of the defendant. Upon the arrival of the truck with said box at said premises, the truck driver drove to a place indicated by the defendant. At that point the truck driver blocked the wheels of the truck with two stakes, and thereupon went to the head of his horse, and stood, holding the bits. As soon as the truck was stationary and blocked, another man and the plaintiff went upon the truck and shoved the box towards the rear end of the truck. While so engaged the defendant directed the plaintiff to come down from the truck and stand near the rear wheel thereof to assist in guiding the box in case it swerved either way. And the plaintiff claims that while he had hold of one corner of said box, and the defendant had hold of the other corner of the rear end thereof, the defendant ordered the teamster to turn the horse a little, and at the same time the defendant released his hold of the opposite side of the box, causing the whole weight of the box to be precipitated from the rear end of said truck to and against the plaintiff, throwing him to the ground, and badly crushing his right leg and left foot.
    The declaration alleges in one count a number of acts of negligence on the part of the defendant. The following excerpts from the declaration will illustrate our meaning:
    ‘ ‘ That, while plaintiff, defendant, and the other employé of the defendant were engaged in the removing of said iron box from the said truck at the place of delivery, the defendant carelessly, negligently, and wrongfully ordered and required plaintiff to take a position between said box and a high fence; that the place where plaintiff was required to stand, while in this position, was covered with ice and very slippery; that during the process of unloading said box was shifted to the rear of the truck so that one-half of the same projected past the rear end; that while in that position the defendant personally ordered the driver of said truck to drive forward from underneath said box, the defendant at the same time releasing his hold on the opposite side, and causing the whole weight of said box to bear down upon plaintiff; that, owing to the ice underneath plaintiff’s feet, and the sudden slipping and falling of said large box, plaintiff was thrown to the ground and badly injured, as hereinafter set forth.”
    After alleging the duty of defendant, the declaration proceeds in this language:
    “Yet the said defendant . * * * did not provide a proper system of removing said box from said truck, and did not refrain from ordering the driver of said truck to drive from underneath the said box while the plaintiff was the only support of the same, and did not inform plaintiff that he, defendant, had released his hold on said box, and that plaintiff was the only support of the same, and did not refrain from attempting to unload said box at a dangerous place, where the ground was covered with ice, and did not inform plaintiff that he, defendant, was about to order the driver of said truck to drive from underneath said box, and did not refrain from releasing his hold on the opposite side of said box without first warning plaintiff that he intended to do so. By reason whereof, on the day and date aforesaid, while the defendant was in default as aforesaid, and while the plaintiff was free from any contributory negligence or want of care on his part, and owing to the defendant releasing his hold on said box, and ordering the driver of soÁd truck to suddenly drive forward, the said box was precipitated from the rear of said truck to and against the plaintiff, throwing him heavily to the ground, and badly crushing his right leg and left foot,” etc.
    Upon the trial the plaintiff testified in reference to the circumstances of the injury, as follows:
    “After the tank had been lifted up by the Belgian, who was on the wagon, Mr. Olfs took hold of the left side, and I was on the right side. Both of us were behind the wagon, and the Belgian lifted it up like that (illustrating). They slid it a little, but not much, and the boss, Peter Olfs, said he should turn the horse. He said, ‘ Turn the horse,’ to the teamster, and, when the teamster started turning the horse, the wagon turned a little also. When the wagon turned, Mr. Olfs said, ‘ Look out! ’ and everything came from the wagon, and it fell upon me. When the tank fell upon me, Mr. Olfs stood at the wagon. As the horse turned the tank was too heavy, and Peter Olfs let go. It was too heavy, and I could not hold it up after he let loose, and I fell down and the tank fell upon me. It struck me here on my right leg, and it caught me on the left leg. , The right leg was broken. The left knee was not. They took the stakes from the wagon, and raised the tank and pulled me out.
    “ The Court: Did Mr. Olfs call to look out, before he let go the tank, or after he let go ?
    “A. He said, ‘ Look out! ’ and let go.
    “Q. At the same time ?
    “A. At the same time.

      “Mr. Look: Didn’t he say, ‘Lookout!’ and then run away?

      “A. Let go and went away. He said ‘ Look out!’and walked away, and the tank fell upon me.”
    On cross-examination the plaintiff testified in part:
    “ There was ice there, but I didn’t slip on the ice. The ice didn’t have anything to do with my falling. Mr. Olfs asked the teamster to move the horse. He said, ‘ Turn the horse a little on the side,’ in German. I knew this teamster. * * *
    “Q. Now, you think that Mr. Olfs and the Belgian and yourself might have held this box up, do you ?
    “A. I think it was too heavy for the three of us.

      “Q. You think it was too heavy for the three; and then the Belgian let go on the top, did he ?
    . “A. As he turned the wagon, the box fell off.
    “Q. What were you expecting to do with this box that was balanced on the'rear of that truck ?
    “A. Hold fast to it. I and Olfs were holding it.”
    On the part of the defendant, the driver in charge of the horse testified that the horse did not move at all from the time they started to move the box until it was on the ground, and that the defendant did not order him to move the horse. The defendant testified that the plaintiff had been out delivering large safes or trucks or heavy objects during all of the time he had worked for defendant; that plaintiff was engaged as a general helper. Defendant denied that he told plaintiff to hold onto the box, but told him to stay by the side of it and watch it. He testified that he, defendant, had no hold of the box at all. He said:
    "I never touched the box at all. I never called out to the driver to move his horse, when he had the box almost off the truck. There was no occasion to move the horse. He could not move because the truck was blocked. The horse never moved at all. He stood still. I told plaintiff to ‘ Look out! The box is coming.’”
    At the close of plaintiff’s evidence the attorney for the defendant moved for a directed verdict on the ground:
    (1) That no negligence on the part of the defendant had been shown.
    (2) That the risk was assumed by the plaintiff.
    (3) If there was any negligence, it was the negligence of a fellow-servant.
    (4) That the plaintiff was guilty of contributory negligence.
    The motion was denied.
    At the close of all the evidence in the case, the attorney for the defendant renewed his motion for a directed verdict, and added as another ground for the motion — that there was a variance between the declaration and the proof, the declaration alleging that it was a slipping on the ice and frozen ground that caused plaintiff to fall under the box; that the testimony shows an altogether different state of facts, it being claimed by the testimony of plaintiff that he was holding the box, and that it was because defendant let go of the box that it fell. The circuit judge again denied the motion, but stated that he thought there was only one issue and that was whether or not the jury believed the testimony of the plaintiff that the defendant ordered the horse to move without warning the plaintiff. In the charge the circuit judge used the following language:

      “ On the other hand, if you should find that the master and this injured man were working together, unloading this box from the wagon, and the master without a moment’s warning or notification let go of his side so that it precipitated the entire weight upon the plaintiff, the plaintiff not having any reason to apprehend any action of that sort, then I think that would be negligence on the part of the master.”
    The circuit judge submitted the following special question to the jury:
    “ Did the defendant, Peter Olfs, order the truck driver, Graham, to move his truck forward, while the steel box was being unloaded ? ”
    The jury returned a general verdict for plaintiff for $500 damages, and answered the said special question in the negative, whereupon the court directed a judgment for the defendant, under the provisions of section 10237, 3 Oomp. Laws, on the ground that the answer to the special question was inconsistent with the general verdict, and that the answer to the special question governed and was controlling. Error was assigned by the plaintiff upon this ruling and direction, and he has brought error, and the single question presented is whether the court erred in entering a judgment for the defendant.
   Stone, J.

{after stating the facts). This declaration was not demurred to. The logic of the verdict of the jury was that the defendant, without notice or warning to the plaintiff, let go his hold upon the box, and precipitated the entire weight upon the plaintiff, and that the box fell upon the plaintiff and injured him, and that the defendant did not order the truck driver to move the truck forward while the box was being unloaded. If the court was correct in that part of the charge quoted, and we think it was, the jury might find the defendant liable, even although he did not order the driver to move the truck forward. Where proof of a portion of the facts alleged will support a recovery, a failure of proof as to the rest is immaterial. Marquet v. La Duke, 96 Mich. 596 (55 N. W. 1006). Evidence introduced without restriction is available on any issue which it tends to prove, and which is within the pleadings. 17 Cyc. p. 820.

The allegation that the defendant, without notice or warning to the plaintiff, released his hold upon the box, and thus precipitated it upon the plaintiff, and injuring him, stated a substantive cause of action, and, if proved, would entitle the plaintiff to recover, although the jury found that the defendant did not order the driver to move the truck. If this is so, the special question was not controlling, and the answer in the negative was not inconsistent with the general verdict for the plaintiff. Pigott v. Engle, 60 Mich. 221 (27 N. W. 3); Banner Tobacco Co. v. Jenison, 48 Mich. 459 (12 N. W. 655); Cousins v. Railway Co., 96 Mich. 386 (56 N. W. 14); Central Savings Bank v. O'Connor, 132 Mich. 578 (94 N. W. 11, 102 Am. St. Rep. 433); Burke v. Electric Co., 147 Mich. 172 (110 N. W. 524); Ward v. Campau, ante, 85 (125 N. W. 734). We think that the question was inconclusive, and in no sense controlling of the general verdict. For the error pointed out, the judgment of the circuit court will be reversed.

While we might direct the circuit court to enter a judgment in accordance with the general verdict, owing to the course which the trial took, we have concluded to order a new trial, and the same is ordered accordingly.

Moore, McAlvay, Brooke, and Blair, JJ., concurred.


author: Brooke, J.

text:
    PEOPLE’S ICE & FUEL CO. v. FIELD PURE ICE CO.
    1. Contracts — Sales—Construction.
    A contract by plaintiff which was about to retire from the ice business and defendant which was to take it, to sell its ice, approximating fifteen hundred tons, to the defendant, turn over its list of customers and refer all inquiries to the buyer, who should have for use, free of charge, wagons, ice tongs and scales, while purchasing the ice; and by defendant to purchase of the plaintiff all the natural ice purchased by defendant prior to the succeeding August; plaintiff not to be liable for the destruction of the ice by fire, cannot be construed as an option to purchase the specified amount of ice, and operates as a sale.
    2. Same.
    A particular clause in a contract cannot be so construed as to do violence to the intention of the parties as disclosed by the whole instrument.
    Error to Kalamazoo; Knappen, J.
    Submitted April 7, 1910.
    ( Docket No. 25.)
    Decided May 7, 1910.
    Assumpsit by the People’s Ice & Fuel Company against the Field Pure Ice Company for the breach of a contract for the sale of certain ice. A judgment sustaining a demurrer to the declaration is reviewed by plaintiff on writ of error.
    Reversed.

      Jackson & Fitzgerald, for appellant.

      William It. Fox, for appellee.
    The parties to this action entered into a written contract as follows:
    “This agreement made this 29th day of April, 1909, between the People’s Ice & Fuel Company, a corporation, party of the first part, and the Field Pure Ice Company, a corporation, party of the second part, witnesseth: That the party of the first part, in consideration of the agreemeñts hereinafter contained to be performed by the party of the second part, agrees to sell to the party of' the second part all of the ice now in the icehouse of the party of the first part, at Austin Lake, in the county of Kalamazoo and State of Michigan, and in its icehouse in the city of Kalamazoo, and being approximately fifteen hundred tons, at the rate of three (#3.00) dollars per ton, in ton lots, party of the first part to deliver the ice at Austin Lake f. o. b. cars at Austin Lake, and the ice at the ice-house in the city of Kalamazoo, at said icehouse. Party of the first part further hereby sells and assigns to the party of the second part its list of ice customers, and agrees to refer all inquiries for the purchase of ice to the party of the second part. The party of the first part agrees to load on cars at Austin Lake in time for the night freight all ice for which it receives orders prior to four o’clock p. m. of the day previous. Party of the first part further agrees that the party of the second part shall have the use, free of charge, while purchasing this ice, of three wagons and of such ice tongs, and scales of the party of the first part, as the party of the second part may need. Party of the second part agrees to purchase of the party of the first part all of the natural ice purchased by it prior to August 1st, 1909, and pay for the same three dollars ($3.00) per ton, payable upon delivery. It is mutually agreed that settlement will be in accordance with the railroad weights of all ice from Austin Lake ice-house, and in accordance with the weight at the icehouse of the party of the first part, in the city of Kalamazoo, for ice at said icehouse. It is further mutually agreed that all ice shall be delivered in such quantities, not less than car lots, as party of the second part may order. Party of the first part not to be liable for destruction of ice by fire.
    “ In witness whereof, the said parties have hereunto set their hands and seals the day and year first above written.
    “The People’s Ice & Fuel Co.,
    “By Petes Leenhouts, Sec. Mgr.
    “The Field Pure Ice Co.,
    “ By C. M. Field, Sec’y and Gen. Mgr. ”
    Under this contract defendant took and paid for 626 tons of ice before August 1, 1909. It thereupon refused to take any more ice, and plaintiff disposed of the balance at an alleged loss. Plaintiff brought suit upon the contract to recover the damages it had sustained, because of its breach by defendant. To plaintiff’s declaration defendant interposed a demurrer, based upon its construction of the contract, which was that under the terms of the contract it took merely an option on approximately fifteen hundred tons of ice, but obligated itself to purchase none, and therefore that the declaration did not state a cause of action. A judgment sustaining the demurrer having been entered, plaintiff has removed the ease to this court by writ of error.
   Brooke, J.

(after stating the facts). The sole question at issue in this case is the proper construction of the contract.

After a careful examination of the contract itself, and due consideration of the situation of the parties thereto, we find ourselves unable to agree with the conclusion reached by the learned circuit judge. The contract, taken as a whole, indicates that both parties were engaged in the ice business in the city of Kalamazoo; that the plaintiff was about to retire from that business, and the defendant was about to take over the same. To that end the plaintiff agreed, first, to sell all its ice, both in its house in the city and in its house at Austin Lake (approximately fifteen hundred tons) to defendant; second, to sell to the defendant its list of customers; third, to refer all inquiries for ice to defendant; fourth, to permit defendant to use free of charge while purchasing this ice (obviously referring to the fifteen hundred tons) wagons, ice tongs, and scales. Defendant then agrees:

‘ ‘ Party of the second part agrees to purchase of the party of the first part all of the natural ice purchased by it prior to August 1st, 1909, and pay for the same three dollars ($3.00) per ton, payable upon delivery.”

It is then mutually agreed that plaintiff shall not be liable for the destruction of the ice by fire. If the defendant’s construction of this contract is correct, then it had made an agreement with plaintiff whereby plaintiff was bound to keep all its ice in storage until August 1st, subject to great shrinkage, and to turn over to defendant its list of ice customers and all inquiries for ice, and, in return therefor, it would receive nothing, for defendant contends it was bound to take no ice at all under the clause quoted, but only agreed to take such natural ice as it might care to purchase before August 1st from plaintiff.

This construction we think clearly untenable. We believe that a fair reading of the entire contract indicates an intention on the part of the plaintiff to sell, and on the part of the defendant to buy, all of the ice in question, and that the clause of the contract above quoted means that the transaction shall be completed before August 1, 1909. This limitation was inserted for the obvious reason that the subject-matter of the contract was liable to constant shrinkage through melting. A construction of this particular clause of the contract, which would'do violence to the intention of the parties as disclosed by the whole instrument, is not permissible. Baker v. Baird, 79 Mich. 255 (44 N. W. 604); Beadle v. Improvement Co., 140 Mich. 199 (103 N. W. 554).

The judgment is reversed, and a new trial ordered.

Moore, McAlvay, Blair, and Stone, JJ., concurred.


text:
    BOLAND v. WASHTENAW HOME TELEPHONE CO.
    1. Telegraphs and Telephones — Trespass—Injury to Trees—
    Statutes — Highways.
    By Act No. 16, Pub. Acts 1899, containing a proviso that the construction and maintenance of telephone wires must not injure any trees along the highway, the rule announced in Wyant v. Telephone Co., 123 Mich. 51, is changed and 2 Comp. Laws, § 6691, amended so that an adjoining property owner may recover for injuries to his trees that project into the highway and that may be cut or trimmed by a telephone company whose wires occupy the highway.

    2. Same — Construction.
    The language of the statute applies alike to construction and to maintenance.
    3. Same.
    The fact that a tree which the defendant trimmed had been cut and trimmed prior to plaintiff’s ownership of the land would not justify the trespass.
    4. Same — Municipal Corporations — Ordinances—Evidence.
    Without evidence connecting defendant with an ordinance of the municipality that authorized a corporation of a different name to construct telephone lines in the streets, the enactment could not add to its rights, and, in any event, the ordinance would be invalid as against the subsequent amendment of 1899.
    5. New Trial — Appeal and Error — Bequest eoe Beasons.
    Befusal to grant a new trial is not reviewable in the absence of reasons given or a request made therefor.
    Error to Washtenaw; Kinne, J.
    Submitted April 7, 1910.
    ( Docket No. 28.)
    Decided May 7, 1910.
    Trespass quare clausum fregit by Charles A. Boland and another against the Washtenaw Home. Telephone Company. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      A. J. Sawyer & Son, for appellant.

      J8. B. Norris (M. J. Cavanaugh, of counsel), for appellees.

       As to liability to abutting owner for mutilating trees in highway by erecting poles or stringing wires, see note to Cartwright v. Liberty Telephone Co. (Mo.), 12 L. R. A. (N. S.) 1125.

   Stone, J.

This is an -action of trespass on lands, brought by the plaintiffs in justice’s court to recover damages which they claim to have sustained by reason of the defendant cutting certain limbs and branches from an oak tree standing and growing on the land of the plaintiffs, and just inside the street line and fence, the limbs of which tree extended into the street. The trespass is alleged to have been committed on July 2, 1909. The plaintiffs recovered a judgment in justice’s court, from which the defendant appealed to the circuit court, where the case was tried by a jury, and the plaintiffs recovered a verdict and judgment of $85. The defendant has brought the case here on writ of error. There are seven assignments of error which will be considered later.

It appears that a,bout the year 1905 the defendant company extended its telephone line northward through the city of Ann Arbor to the village of Whitmore Lake, and it claims that it was necessary for it to place its lines on the opposite side of the street from the Bell Telephone Company lines along the same streets and highways, and that to do so it was necessary for it to string its lines through the branches of the tree in controversy. It appears that at the time of construction of this telephone line, the defendant had also cut and trimmed said tree, but the jury was instructed that the damages, if any, should be confined to the injuries done to the tree on July 2, 1909, and at no other time. The testimony was conflicting as to the extent of the cutting, and the injury to the tree. When asked how many limbs were cut off, and how large they were, the plaintiff testified:

“About six limbs, I should judge. It. may bo more. They may be about from 12 to 15 feet long — the limb after it was cut off. They were cut so close that where they are is on the inside of the fence, from four to six inches from the body of the tree. There was one that was cut about 10 feet away from the tree. * * * I should judge the limbs that were cut were about two inches in diameter, some of them, and some more. I couldn’t say how many more. I didn’t measure them, but I should judge about two or three inches through, something like that. The tree looked pretty bad after it was cut. One side of the bottom was cut out from top to bottom. About three feet below the wires there were limbs left. A great hole was left there.”

He further testified that the effect of the cutting was that it damaged the looks of the tree very much, and that it will probably never be what it was before the cutting. And that the tree stands inside the fence a few inches, and that the limbs of the tree ran out east, possibly 12 or 13 feet. There was other testimony on the part of the plaintiff as to the extent and effect of the cutting and injury. On behalf of defendant, its manager testified that at the cutting two limbs were cut two inches in diameter, and that the other limbs were branches of these two; that it was necessary, in order to keep telephone communications, that this tree should be trimmed. He described the effect of contact of the wire with a limb, and said that the trimming was not as much as was necessary, and that he must trim the tree more; that the tree had not been damaged, and that it was impossible to put the wires on that side of the road without touching the tree. The franchise claimed to have been granted to the defendant by the city of Ann Arbor was received in evidence.

The first assignments of error which are argued by defendant are the sixth, seventh, and eighth. They will be considered together. They are as follows:

“ (6) The court erred in submitting the case to the jury, and not directing a verdict for the defendant in accordance with the defendant’s first request to charge as follows:
“ ‘Under the statutes and laws of this State and the evidence in this case, the plaintiffs are not entitled to recover, and you must render a verdict of no cause of action.’
(7) The court erred in refusing to give the defendant’s second request to charge, which was as follows:
“ 'Under the statutes and laws of this State, the defendant was granted a franchise to build a telephone line over the highway, as shown by the testimony in this case, and that in accordance with the right thus conveyed the said defendant, some time in the year 1903, did build a line of telephone along the highway, and over the property mentioned in the testimony, and in the declaration in this cause, and that at that time the right was conferred, by statute and the laws of this State, upon the defendant to trim such trees as was necessary in order to construct said line, and that under that statute and the laws that then existed the said defendant trimmed thp tree in question, and built its line in the same condition it is now built. And if the jury should find from the evidence in this case that the trimming done to the tree in controversy was simply to remove the subsequent growth of said tree, and to prevent its further growth, then these plaintiffs are not entitled to recover in this case, and your verdict should be no cause of action. ’
“(8) The court erred in denying the defendant’s motion, at the close of the testimony, to direct a verdict for the defendant for the reasons assigned in said motion.”

These assignments of error raise the principal question in the case. The defendant claims that the evidence disclosed the fact that the defendant had in some way secured the right to cut or trim this tree from the former owner, and had exercised that right before the plaintiffs were owners of this land. It would have been more accurate if it had been claimed that the defendant had built its line, and had trimmed this tree, before the plaintiffs became the owners of the land, and that when plaintiffs purchased the land the line was then established, where it now is. There was no evidence that the defendant had ever secured the right to cut or trim the tree, other than that given by existing law. Counsel refer to the case of Wyant v. Telephone Co., 123 Mich. 51 (81 N. W. 928, 47 L. R. A, 497, 81 Am. St. Rep. 155), and cite therefrom this language:

“That the grant by the State to run telephone lines along the highways of the State of necessity carried with it the right to protect those lines and make them effective by cutting trees, or trimming tre9s, or removing trees, so far as was necessary to permit the company to successfully operate their lines.”

The record in the above case shows that it was begun September 22, 1898, and the cause of action necessarily arose before that date. At that time section 6691, 2 Comp. Laws, was in force. It was as follows:

“ Every such corporation shall have the power to construct and maintain lines of wire or other material, for use in the transmission of telephonic messages along, over, across or under any public places, streets and highways, and across or under any of the waters in this State, with all necessary erections and fixtures therefor: Provided, That the same shall not injuriously interfere with other public uses of the said places, streets, and highways and the navigation of said waters.”

By Act No. 16, Public Acts 1899, the above section was amended, so that the proviso now reads as follows:

“Provided, That the same shall not injuriously interfere with other public uses of the said places, streets and highways, or injure any trees located along the line of such streets or highways.”

The language of this statute must be held to apply alike to the construction, and also to all acts in the maintenance of telephone lines, wherever situated; the language being:

“Every such corporation shall have power to construct and maintain lines of wire or other material,” etc.

It appears from the record that the defendant constructed its initial line out North Main street, and in front of the property of the plaintiffs, in the year 1905. It must be held, it seems to us, that the rule in Wyant v. Telephone Co., supra, has been changed by legislative enactment, and at the time when the defendant, in its alleged maintenance of its telephone line, went upon the property of the plaintiffs and cut and trimmed said tree, if in. such cutting and trimming it injured said tree, the defendant had no statutory authority so to do; but, on the contrary, it was expressly forbidden so to do, by the plain language of the statute. We think that there was a question of fact for the jury as to whether the tree was injured or not, and as to the nature and extent of the injury if it was injured. The case seems to have been fairly submitted to the jury upon this question. The court said:

“The cutting of this tree is admitted by the defendant to have been done by the defendant. The defendant further insists that in the cutting of this tree no injury was done whatever to the tree. If you find from the evidence that the defendant was right about that, your verdict should be no cause of action. On the other hand, the plaintiff insists that the cutting of this tree was a serious injury to the tree.
Mr. Norris: And to his land.
The Court: Very well, and to his land. Now, if from the evidence you find that the cutting of this tree injured the property of the plaintiff, I think he would be entitled to recover. So it will be a mere question of fact. If you come to the question of damages, if you find any injury done to this tree, you will determine the extent of that injury, and endeavor to compensate the plaintiff for the injury thereto. But it has no reference to the land whatever; it is the injury to the tree, and nothing else.”

Then followed the language, already referred to, that the damages, if any, must be confined to the cutting of July 2, 1909. We cannot agree with the contention of the defendant that it had a vested right to, at any and all times, do all necessary cutting and trimming of this tree, without reference to whether such act injured the tree or not. The amended statute applied to lines then constructed and to be maintained. There was no evidence upon which to predicate such claim, other than the fact that the tree had been cut before the plaintiff’s title began. Certainly one trespass could not be justified by proving an earlier one, where there was no prescriptive right shown. The claim of the defendant is well illustrated by the following testimony of its manager:

“Q. Irrespective of ownership and its damage, you claim the absolute right to cut this tree without regard to the damage to it ?
“A. If it is in the highway and interferes with the course of the line.
“Q. But this tree is not in the highway.
“A. The limbs were. Our poles are 35 feet high. If we had put this pole up 10 feet higher it would have made it worse. * * *
“Q. But you did not cure these contacts from the branches by cutting the branches off ?
“A. No, sir; we took the limb right off.
“Q. You might have saved yourself some trouble by cutting the tree down ?
“A. Yes, sir.
Q. Why didn’t you ?
“A. Didn’t think it advisable.
“Q. You did not claim to own the tree ?
“A. No, sir; and the telephone company did not claim to own the tree.”

An ordinance authorizing the Washtenaw County Telephone Company to construct a telephone line in the city of Ann Arbor, dated March 5, 1896, was received in evidence. It does not clearly appear from the record what, if anything, the defendant claims for this evidence. There was no evidence connecting it with this defendant, and it could not be valid if in conflict with the later statute. It does not clearly appear that the defendant ever made application for, nor did the city authorities ever locate, the defendant’s telephone line out Main street and in front of plaintiffs’ property, in so far as this record shows.

Error is assigned upon the refusal to grant a new trial. The record does not show that the court was requested to file reasons in disposing of the motion, and there is nothing before us in the matter. The remaining assignment of error relating to the charge of the court has been examined, but we are satisfied that there was no error in the charge, the substance of which we have quoted above.

We find no prejudicial error in the record, and the judgment of the circuit court is affirmed.

Moore, McAlvay, Brooke, and Blair, JJ., concurred.


text:
    CULVER v. AVERY.
    1. Vendor and Purchaser — Land Contracts — Fraud—Rescission.
    A purchaser of a house who has no experience in houses or carpentry, and so informs the agent of the vendor, is entitled to rely upon his representations that the house is of first-class workmanship, materials, and construction, and may rescind a contract of purchase for substantial defects in such particulars.
    2. Equity — Jurisdiction—Fraud—Equitable Relief.
    Courts of equity have concurrent jurisdiction with law courts to grant relief from the consequences of fraud, where one party has obtained an executory contract by fraud, and a cancellation is asked with an equitable lien for money paid and relief in the form of an accounting.
    3. Contracts — Equity—Fraud—Affirmance or Ratification.
    A vendee of a house represented to be of good construction and workmanship does not affirm the contract by remaining in possession six months and making repeated demands of the vendor to remedy defects, and making payments, if he acted with reasonable promptness after discovering the extent of the fraud and remains consistent with his notice of rescission.
    4. Equity — Retention of Jurisdiction.
    Equity having acquired jurisdiction of a cause will retain it to give such relief as will finally dispose of the controversy.
    Appeal from Wayne; Mandell, J.
    Submitted April 7, 1910.
    (Docket No. 15.)
    Decided May 7, 1910.
    Bill by Fred H. Culver and another against Waldo A. Avery to set aside a land contract on the ground of fraud, and for an accounting. From a decree dismissing the bill, complainants appeal.
    Reversed, and decree entered for complainants.

      Choate, Webster, Robertson & Lehmann (Ward N. Choate, of counsel), for complainants.

      Rowland M. Connor, for defendant.
   Stone, J.

The bill of complaint was filed in this cause by the vendees to set aside a contract for the purchase of a house and lot, on the ground of fraud and misrepresentation, and to be relieved from the forfeiture clauses of said contract for the same reason, and to establish an equitable lien on the property for the amount paid by complainants, less the rental value of the premises, and for an accounting.

It appears that the defendant, through his agents, James and Edwin B. Nall, advertised in a newspaper of September 4,1904, offering for sale certain houses on Moore place in the city of Detroit. It set forth that the houses were all on brick foundations, honestly built, and that the best materials were used in the construction, and that the workmanship was excellent. It is claimed that the complainant Ered H. Culver, attracted by this advertisement and the statements therein contained, called upon and talked with Edwin B. Nall, one of defendant’s agents, upon the subject; that Mr. Nall represented to said complainant that the house in question was a first-class house, and that the workmanship was first-class; that the materials, lumber, and everything were first-class; that the woodwork was Georgia pine, with oil finish; that the house was well constructed and built of good materials. It is further claimed that complainant Ered H. Culver had had no experience with houses, had never built or bought a house before, and had no experience with carpentry or plastering, and that he so told Mr. Nall, and that he relied upon his representations; that, so relying upon the representations of the defendant in.said advertisement, and those made by his said agent, the said complainant, on September 13, 1904, entered into a written land contract for the purchase of said house and lot from said defendant, which provided, among other things, for the sale of said house and lot for $2,300, of which $300 was to be paid on delivery of the contract, and $20 on the 13th day of each month thereafter; said payments to include interest at the rate of 6 per cent, per annum. Said contract contained the following provisions:

“7. And in case default shall be made by said second party, his heirs, executors, administrators or assigns, in any of the conditions above stipulated to be by him performed, it shall and may be lawful for said first party, if he shall see fit, to declare this contract void, such declaration to be made by brief notice thereof, addressed to said second party and delivered to him personally, or deposited in the post office at Detroit, Michigan, and said first party shall have the right to re-enter upon the said premises at any time after such default, and shall be at liberty to sell the same to any person or persons whomsoever, without being liable in law or equity to said second party or any person claiming under him for any damages in consequence of such sale, or to return any payments made on account of this contract, and any payments that shall have been made be held by said first party as stipulated damages for the nonperformance of this contract. And said first party shall have a right to recover all damages sustained by reason of the holding over of said second,, party without permission; and, in case this contract shall be so declared void, the party of the second part shall thenceforth be deemed a mere tenant at will under said first party and shall be liable to be proceeded against under the provisions of the statutes regulating summary proceedings to recover possession of land, being chapter 308 of the Compiled Laws of Michigan, 1897, and the acts amending the same, without notice to quit, notice to quit being hereby expressly waived by said second party.
“8. It is hereby expressly understood and declared that time is and shall be deemed and taken as of the very essence of this contract; and that unless the same shall in all respects be complied with by said second party at the respective times and in the manner above limited and specified, that said second party shall lose and be debarred from all rights, remedies or actions, either in law or equity, upon or under this contract.”

Complainants made payments as follows: September 13, 1904, $300, October 13, 1904, $25, December 9, 1904, $25, December 19, 1904, $25, and January 23, 1905, $25, on account of both principal and interest. The house was not complete at the time of the purchase, and defendant’s said agent agreed to complete it in every particular. Complainants moved into the house September ,19,1904. Complainant Fred H. Culver testified upon the hearing that he made repeated efforts to have defendant complete the house as promised. This not having been done, Mr. Culver wrote a personal letter to the defendant on January 17, 1905, and received the following:

“ January 20, 1905.
“Mr. Fred IT. Culver,
“ Detroit, Mich.
T>ear Sir: Upon receipt of your communication of the 17th, I called on Mr. Nall and found much to my surprise that he had done nothing toward the replacing of the door in your house, which he was instructed to do some time ago. I ordered him to place the order for same at once and he advised me yesterday that Frolich & Co. • would have the door completed today, and that it would be placed in your house within a day or two. In regard to the other work of which you spoke when here, I understand that the plasterer had been out and fixed the places which needed his attention. Mr. Nall said he would call at your place and report to me later today regarding everything, so I do not consider it necessary for me to make a personal visit, as I am very busy and cannot spare the time at present. In the meantime, however, I shall expect your prompt attention to the payment due on the 13th, in accordance with the terms of your contract.
“Yours respectfully,
“Waldo A. Avery.”

Said complainant claims that, relying upon the repeated promises of the defendant, he made the payments as above stated. Said complainant testified that soon after making the last payment he made an examination of the house with a builder, and that they found the following conditions: That some of the doors would not open and shut properly, and that the windows would not shove up and down, and seemed to be on a slant, and one slanted one way and one the other; that the front door was too small for the easing. “You could see out down into the street. We had to keep a quilt nailed over the door, and came and went out the back door.” The newel post on the stairway was raised a half inch from the floor. “We had to put a moulding around the baseboard downstairs and upstairs.” The window at the front landing on the stairs was in a bad shape. The window cap and the casing had pulled away from the plaster. It was loose, and did not have enough nails to hold it. The window did not fit tight enough to keep the weather out. The running board along the bottom of the plastering up the stairs 'was in three pieces, was not properly nailed, and was pulling away from the plastering. Its joints did not fit. The plastering was cracked on the edge, and was not properly finished. In the front room uptairs the plaster did not come down to the top of the door. The door was not hinged properly; one hinge was set in and the other out on the edge, and it could not close. There were four or five doors that way. You could put your fingers under the mopboard. The windows left an opening in the window sills. The supports to the stoop were 34x4 stuck on a piece of paving block, and they settled and the porch drew away from the house in front and left a hole, and one could look in and see the plaster in the room back. In the bath room the baseboard pulled away, and one could see in between the partition. The water pipe ran down next the outside of the house, with nothing to protect it, and it froze. The house had settled downstairs, and the floor ran towards the center. The house was not firm, but would shake when one walked through it, and the floor was slowly settling. A big patch' of plastering fell down in the kitchen on February 3d. There was a three-foot crack in the corner of the kitchen. The surface of the plaster over the whole house was cracked. There was a big crack in the chimney, and it was settling, and there was danger of fire. There was a 13x13 beam running north and south supporting the house. It rested on a middle pier under its center, and was about an inch and a half on the cellar wall at one end. The other end only came up to the pier. There was another 12x12 piece on the pier, and to the beam two half-inch boards were nailed on the sides, holding the beam to the block on the pier. The beam did not reach the pier, and had sunk about an inch. These are only a part of the defects claimed and testified to by said complainant.

On February 24, 1905, complainant Fred H. Culver demanded in writing the return of the money which he had paid upon said contract, and tendered to the defendant a quitclaim deed of the premises, signed by himself and wife. His letter of that date to the defendant will show the complaint made by him. It was as follows:

“Detroit, Feb. 24, 1905.
“ To Waldo A. Avery:
“I hereby make demand for the repayment to me of the sum of four hundred dollars ($400.00) heretofore paid by me to you under a certain land contract nereinafter described, which contract I hereby repudiate for the reasons hereinafter given, less the reasonable rental value of said premises during my occupancy, and hereby tender to you said contract, a quitclaim signed by myself and wife covering the premises described in said contract, and offer to release all claims which I may have in said contract and land and surrender said premises to you and vacate the same. Said contract is dated Sept. 13,1904, is by and between Waldo A. Avery and Fred H. Culver, and covers all that certain piece or parcel of land, situate in the city of Detroit, county of Wayne, State of Michigan, known and described as lot forty-four (44) Moore Place, being a part of Hamlin & Fordyce’s Grand Eiver avenue subdivision.
“The reasons for repudiating said contract and making this demand and tender are as follows: Because said contract was entered into by me through fraud, misrepresentations and undue advantage on the part of yourself or agents, and because the house on said premises was represented by yourself or agents to be a first-class dwelling house in every respect, well built and built of good' materials, in first-class condition, dry, warm and tight, with a good foundation, with water, gas and sewer connections and plumbing well and properly put in, and in every way suitable for a dwelling house, when in fact it is not a first-class dwelling house, it is not built well, is not built of good or even proper material, is not in first-class condition, is wet, cold, and not tight, had not a good foundation, is now, when the ground is frozen, settling, has not water, gas and sewer connections and plumbing properly put in, and is not suitable for a dwelling house in its present condition. Among other particulars, part of the house is sinking, the floors have become uneven, the windows and doors shrunken, the plaster is cracking and appears ready to fall, part having already fallen, the baseboards are separating from both the plaster and the floor, the woodwork is shrinking, in fact you can see outdoors through the cracks which continually admit the wind, rain and snow, and are never certain as to when any part of the house may come down. These are but a few of the many defects which I hereby offer to specifically point out at any reasonable time you desire to inspect said premises. The condition of the premises has caused sickness and ill health to myself and family since our occupancy, and there is danger of the plaster falling at the present time, part having already fallen, and I shall look to you for all damages arising from any of said causes. This demand, tender and notice are given for the purpose of protecting my rights in the premises.
“Fred H. Culver.”

On March 7, 1905, the defendant served a written notice of forfeiture and demand of possession upon said Fred H. Culver, on the ground of nonpayment of the sums specified in the contract, and on March 18, 1905, the defendant commenced proceedings of ouster before the circuit court commissioner. Before that case was heard, and on March 33, 1905, the original bill of complaint in this cause was filed, and a temporary injunction restraining the prosecution of the suit before said commissioner was obtained and served. The bill was demurred to, and on April 5, 1905, the demurrer was sustained and the injunction was dissolved. On the same day a new summary proceeding was begun by the defendant, and on April 10th a judgmerit of ouster was entered, holding that said Fred H. Culver unlawfully held possession of said premises, and on April 15, 1905, complainants surrendered possession of the premises. Subsequently the bill of complaint in this cause was amended, the defendant, after the overruling of a demurrer, answered, and the case was put at issue and was heard upon the pleadings and evidence. As late as April 8th, Mr. Culver had a conference with defendant, at which the former renewed his complaints, and there was some talk of a settlement, but none was reached.

Upon the hearing Edwin B. Nall was sworn on behalf of the defendant. Among other things, he testified that complainant Culver came to him to buy a house; that witness told him they had a good, if not the best, proposition in that part of the city for a moderate priced house, at a moderate cost, on easy terms; that witness told Culver that the houses were well constructed, built of good material, and good houses for the price; that Culver and his wife examined the houses, and selected the one in question; that they had free access to the house, and every opportunity to examine it, and expressed themselves as satisfied with it; that complaint was made of the door and windows, and that they were fixed, but witness did not remember whether they were fixed immediately or not; that the plaster job in the kitchen was a poor one; that after complainants moved out, defendant put in new ceiling in the kitchen, and did some little repair in the house that did not amount to much; that the cellar was not changed. As to the settling of the house, one pier at the rear in the center of the house was defective. It was afterwards fixed. There was a little settling on account of the piers. On cross-examination Mr. Nall testified that after complainants went out, and before selling to another party, a new pier was built.

“Q. If that main joist, that main timber, if it came up just to the edge of the pier and it took a block just enough to carry it over the pier about an inch, boards on each side, you would not say it was well constructed ?
“A. If it did not rest directly on the pier I would not consider it so.
“Q. It would be a serious defect ?
“A. Yes; it would be a defect.
“Q. Is that so?
“A. Yes, sir.
"Q. It would cause the house to settle if the nails gave way ?
“A. It would depend upon how well it was spliced on the side.
"Q. If as a matter of fact the joists did come down an inch, the house would naturally settle ?
“A. The house naturally would settle.”

The defendant’s evidence tended to show that the com» plainant Culver examined the house and entered into the contract upon his own judgment. The complainants’ claim was that Culver relied upon the representations made by defendant’s agent, and was deceived thereby. After the hearing of the cause the bill of complaint was dismissed, with costs, and the complainants have appealed.

It is stated by counsel that the circuit judge dismissed the bill on the ground that complainants had an adequate remedy at law. No written opinion or reasons appear in the record. A careful reading of the evidence and record satisfies us that the equities of the case are with the complainants, and that they were entitled to the relief prayed for. It seems very clear that the representations made by defendant’s agent were of a substantial and material nature as to material, construction and workmanship of the house. And we find from the evidence that Mr. Culver had the right to, and did, rely upon the representations, and was deceived and injured thereby. Many of the defects developed after the complainants moved into the house, notably the settling of the structure, the sagging of the floors, the falling away of the porch, the defects in the cellar, and the freezing of the water pipes. Upon complaint some slight repairs were made by defendant, but it is not claimed that many of the most serious defects were remedied at all during the occupancy of complainants.

That courts of equity have concurrent jurisdiction with the law courts to grant relief from the consequences of fraud and misrepresentation is a proposition too firmly established in the jurisprudence of this State to be. now questioned. Especially is this true where one party has obtained an executory contract by fraud, and the injured party asks for a cancellation of it, for an equitable lien upon property for money paid on such a contract, and for an accounting.

It is urged by defendant’s counsel that complainants affirmed the contract by continuous possession for over six months, by repeated demands for the remedying of defects, and the making of changes, and by making certain of the payments under the contract after many of the defects were known to them, and Mestler v. Jeffries, 145 Mich. 598 (108 N. W. 994), is cited in support of the position. The cases are easily distinguished. The extent of the fraud practiced upon complainants was not discovered until long after they went into possession. The time they remained in possession after that, before the offer to rescind and deed back, was not an unreasonable one. The last payment was made in January. The true doctrine is that a party intending to rescind a contract because of fraud must be prompt in communicating the fraud when discovered; and consistent in his notice to the opposite party of the use he intends .to make of it. The letter of Ered H. Culver to defendant, of date February 24, 1905, meets these requirements.

Upon the question of the right to file a bill in equity, in a case like this, we might cite more than a score of cases. We shall only cite the case of Fred Macey Co. v. Macey, 143 Mich. 138 (106 N. W. 722, 5 L. R. A. [N. S.] 1036). The whole subject is there discussed, and most of the Michigan decisions are reviewed. As Justice Hooker said in that case, it would be “threshing old straw” to discuss the cases. It is proper to say, however, that the case of Mack v. Village of Frankfort, 123 Mich. 421 (82 N. W. 209), and kindred cases are easily distinguished from this case. In the case last cited the bill called for a money judgment, and did, not show that the equity powers of the court were at all necessary for its enforcement. Here, upon the ground of fraud, the complainants ask to be relieved from the forfeiture clause of the contract, for an equitable lien upon the premises for the money paid upon the contract, and for insurance and taxes, and for an accounting to determine the amount due them, over and above a fair rental of the property while used by them. The principle that equity, having once acquired jurisdiction, will retain it, to give such full relief as will finally dispose of the controversy, is well settled in this State. See cases cited in Hall v. Nester, 122 Mich. 146 (80 N. W. 982).

The decree below is reversed, and one will be entered for complainants in accordance with the prayer of the amended bill, with costs of both courts to complainants.

The decree will remand the cause for an accounting upon the basis here indicated.

Moore, MoAlvay, Brooke, and Blair, JJ., con-, curred.


text:
    WESTGATE v. TOWNSHIP OF ADRIAN.
    1. Constitutional Law — Title of Aot — Sufficiency.
    If the amendment to a statute might have been incorporated in the original act under the original title, it is not in violation of article 4, § 20, Const, of 1850, requiring the object of the enactment to he single and expressed in its title.
    2. Same — Statutes—Words and Phrases.
    By the term “regulate” in the title of Act No. 145, Pub. Acts 1887 (§§ 5543-5545, 2 Comp. Laws), both government and restriction are intended.
    3. Same.
    Any provisions germane to the subject expressed in the title may properly be included in the act or added thereto by amendment, and it is sufficient if the title fairly expresses the subject or is sufficiently comprehensive to include the several provisions relating to or connected with that subject.
    4. Same — Statutes—Title—Steam Vehicles.
    The purpose of Act No. 71, Pub. Acts 1903, amending Act No. 145, Pub. Acts 1887, regulating the use of highways by steam engines, is sufficiently described in its title.
    5. Statutes — Steam Engines.
    The right to recover damages for injuries received upon the highways of the State, in consequence of the negligence of municipalities, is purely statutory, and the legislature has the undoubted power to modify, abridge, or even abolish it by appropriate action; which was as properly taken by amending the original act as by amending 2 Oomp. Laws, § 3442, et seq., so long as the amendment is germane to the subject of the act affected.

    Error to Lenawee; O’Mealey, J.
    Submitted April 8, 1910.
    (Docket No. 41.)
    Decided May 7, 1910.
    Case by Robert Westgate against the township of Adrian for injuries to a traction engine caused by a defective bridge. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Smith, Baldwin & Alexander, for appellant.

      Bird & Sampson, for appellee.

       As to liability of township for defects in highways, see note to James v. Wellston Township (Okla.), 13 L. R. A. (N. S.) 1219.

   Brooke, J.

Plaintiff is the owner of a steam traction engine, used by him to provide power to run a threshing machine or grain separator. When moving from farm to farm, plaintiff usually hitched the separator behind the engine, which furnished the power to propel itself and haul the, separator. The engine, when supplied with the water necessary for its operation, weighed approximately eight tons. On September 9, 1907, while moving said engine over a bridge located upon one of defendant’s highways, the bridge collapsed, permitting the engine to fall through and become damaged. A verdict having been directed for the defendant, plaintiff has removed the case to this court by writ of error.

The title of the original act (Act No. 145, Pub. Acts 1887) is as follows:

“An act to regulate the use of steam engines, steam wagons or other vehicles, which are, in whole or in part, operated by steam, on the public highways of this State, and to prohibit the blowing of steam whistles upon the public highways of this State.”

By Act No. 71, Pub. Acts 1903, the original act was amended by providing—

“ That no township shall be liable for any damages sustained by the breakage of any bridge or culvert by any steam engine or steam vehicle, weighing more than six tons.”

It is the contention of appellant that this amendment is unconstitutional, for the reason that the title to the act is not broad enough to cover the matter embraced in the amendment, and is therefore in violation of section 20, art. 4, of the Constitution (1850). This court has frequently held that, if the amendment might have been incorporated in the act under its original title, this section is not violated. Pratt Food Co. v. Bird, 148 Mich. 631 (112 N. W. 701, 118 Am. St. Rep. 601); People v. Gadway, 61 Mich. 285 (28 N. W. 101, 1 Am. St. Rep. 578); Attorney General, ex rel. Maybury, v. Bolger, 128 Mich. 355 (87 N. W. 366). It will be noted that the original title contains the word “regulate.” Under that term, very broad powers may be exercised. It means both government and restriction. Dillon v. Railroad Co., 43 N. Y. Supp. 320; City of Rochester v. West, 164 N. Y. 510 (58 N. E. 673, 53 L. R. A. 548, 79 Am. St. Rep. 659); McWethy v. Power Co., 202 Ill. 218 (67 N. E. 9).

Any provisions germane to the subject expressed in the title may properly be included in the act, or added thereto by amendment. It is sufficient if the title fairly expresses the subject, or is sufficiently comprehensive to include the several provisions relating to or connected with that subject. Cooley on Constitutional Limitations (6th Ed.), p. 172; People v. Mahaney, 13 Mich. 481; People v. Kelly, 99 Mich. 82 (57 N. W. 1090); Soukup v. Van Dyke, 109 Mich. 679 (67 N. W. 911); Fortin v. Electric Co., 154 Mich. 316 (117 N. W. 741). We think the title in question is clearly broad enough to comprehend the subject-matter of the amendment.

It is urged that by the amendment the right of action conferred by section 3442, 1 Comp. Laws, is destroyed or abridged; that the amendment itself is repugnant to section 3442 and therefore void. The claim is made that section 3442 might properly have received such an amendment, but that the act under consideration could not. The right to recover damages for injuries received upon the highways, etc., of the State, in consequence of the negligence of the municipality, is purely statutory, and the legislature has undoubted power to modify, abridge, or even abolish, that right by appropriate action. That it chose to abridge that right by an amendment to one act rather than another is of no consequence, so long as such amendment is germane to the subject of the act amended.

The judgment is affirmed.

Moore, McAlvay Blair, and Stone, JJ., concurred.

       2 Comp. Laws, §§ 5543-5545, including subsequent amendments.


text:
    TOWNSHIP OF JASPER v. MARTIN.
    1. Homestead — Conveyance—Deeds—Signature op Wipe.
    The lease of a portion of lessor’s homestead is void without the signature of his wife.
    2. Adverse Possession — Landlord and Tenant.
    Possession of land under the void lease could not ripen into adverse possession, the user being not hostile but permissive.
    3. Same.
    A mere permissive possession, or one consistent with the title of another, however long continued, cannot ripen into a title by adverse possession.
    4. Dedication — Lease—Homestead.
    Although a portion of a person’s homestead is leased to a township for municipal purposes, in consideration of one dollar rent, and subsequently occupied about thirty-six years by the township for a hall, in the absence of evidence of a parol gift or the wife’s signature, a dedication cannot be implied.
    5. Estoppel — Landlord and Tenant.
    Notwithstanding its invalidity, the lease recognized the title of the lessor by the agreement to pay rent, and estopped the lessee from disputing the agreement to pay.
    6. Evidence — Ancient Documents.
    A lease found among old papers in the office of the township clerk, bearing no indicia of fraud, and not shown by evidence to be fraudulent; executed thirty-six years previous to the institution of suit, may be treated as an ancient document the execution of which need not be proved.

    Appeal from Midland; Dodds, J.
    Submitted April 8, 1910.
    (Docket No. 45.)
    Decided May 8, 1910.
    Bill by the township of Jasper against Robert H. Martin to quiet title to certain land. From a decree for complainant, defendant appeals.
    Reversed, and bill dismissed.

      Robert H. Lane, for complainant.

      C. W. Qiddings, for defendant.

       As to necessity of proving ancient document by subscribing witness, see note to Garrett v. Hanshue (Ohio), 35 L. R. A. 341.

   Stone, J.

The bill in this cause was filed on December 26, 1908, to remove an alleged cloud upon, and to quiet the title of, the complainant township to the premises in question. The facts are not much in dispute. They are substantially as follows: On May 25, 1872, one William Murray was the owner in fee of the W. £ of the W. i of the S. W. J of section 21, in the township of Jasper. • Said Murray at the time aforesaid resided upon the. said 40 acres of land as a homestead with his wife and family, and he had been so living there for some years prior to said date. Said homestead at that time did not exceed in value fl,000. On or about said 25th day of May, 1872, the said William Murray met R. O. Martin, A. J. Bates, Thomas Martin, and A. J. Martin (the last four named persons probably composing the township board of said township) at some place in said township, and the following described instrument was drawn, and probably signed by the parties.

We say probably signed, for the reason that there was no satisfactory evidence that William Murray signed the paper; but as it was found among other old papers in the office of the township clerk, and as there is no evidence or indicia of fraud, we think we should' treat this instrument as an ancient document, and that proof of its execution may be well dispensed with. It is as follows:

“ Know all men by these presents that William Murray of the town of Jasper in the county of Midland and State of Michigan of the first part, for the consideration herein mentioned does hereby lease unto the township of Jasper in the county and State aforesaid party of the second part and their assigns the following parcel of land to wit: ten rods square located in the southwest corner of section 21 in said township. With all the privileges and appurtenances thereunto belonging to have and to hold the same for and during of years the same shall be used for town purposes with the privilege to move or sell any building erected thereon. And the said party of the second part for themselves and their assigns do covenant and agree to pay the said party of the first part for said premises one dollar in full for rent, in testimony whereof the said parties have hereunto set their hands and seals this 25th day of May A. D. 1872.
“William Murray,
“R. C. Martin,
“A. J. Bates,
“ Thomas Martin,
“A. J. Martin, Clerk,
“Township Board of the Township of Jasper.
“ Signed, sealed and delivered in presence of
“William Hunt. “George Smock.”

The said township agreed to pay the consideration or rent named, and at once went into possession of the premises described in said lease (the same being a part of said William Murray’s homestead), cleared it, built a fence around it, and erected thereon a small frame building for a town hall for the use of said township, and said building continued to be so used and to remain on said premises, and was still on said premises when the bill of complaint was filed in said cause. On March 11, 1891, the said William Murray (his wife having died in the meantime) conveyed the said 40 acres to his daughter, Deborah Murray. She conveyed the same to her brother, Thomas Murray, on the 5th day of March, 1894. Said last-named person on July 3, 1894, reconveyed the same to his said sister, Deborah Murray, and the said Deborah Murray, being then married to one George J. Bunker, on the 18th day of February, 1902, conveyed said 40 acres of land for an expressed consideration of $1,600 to the defendant herein, in which said deed her husband, George J. Bunker, joined. All of said deeds, from William Murray down to and including the said deed to the defendant, were warranty deeds, and were all made without any exception of the lands described in said lease; said lease not being referred to in any of said deeds. All of said deeds were duly recorded in the office of the register of deeds of said county.

The defendant has lived in said township of Jasper since early boyhood, and he was 47 years old at the time of the hearing of this cause, which was in the month of April, 1909. He knew where the town house stood when he bought the premises above described, but he did not know under what terms or arrangement the township was occupying the house or premises. Soon after the purchase of said 40 acres by the defendant, he went to the township board to ascertain by what right, if any, the township was occupying the said 10 rods square, and he was informed by members of said board that they did not know. He then asked the board to look the matter up, saying that he was a poor man, and that, if the township had no right there, he would like a little rent. The board, on examination of the records, was unable to find any papers or records showing any right in the township to the premises. Matters remained in this condition until the fall following, when the board interviewed the defendant, and asked him what rent he would charge the township for the premises in question, and the defendant replied that he would leave it to the supervisor. Afterwards, and on June 26, 1903, the defendant, at the request of the township board, entered into a written lease with said township, whereby he leased to it the premises so occupied by said township for its town hall for a period of three years, from and after April 15, 1903, at an annual rental of $10, which amount was paid by said township to the defendant. At the expiration of this lease, at the request of said township board, another written lease was entered into by defendant and said township for said premises for a period of two years longer, at the same rental, which was paid by said township to the defendant. At the expiration of the last-mentioned lease, and at the request of the township board, the defendant entered into an oral lease of said premises for one year at the same annual rental, which rental was paid by said township to defendant. Under said oral lease (which did not expire until April 15, 1909) the said township of Jasper was occupying the premises in question at'the time of the filing of the bill in this cause. It is undisputed that the defendant knew nothing of the existence of the instrument (Complainant’s Exhibit 1), or of the claim of the township thereunder, until after this suit was brought. Such instrument or lease had been found by the township clerk about two years before the hearing of the cause. The leases above referred to as having been made between the defendant and said township were all made in pursuance of a resolution of the township board.

The cause, being at issue by the filing of a general replication to the defendant’s answer, was heard upon the admitted facts and the testimony taken in open court. The position of the complainant was stated by its solicitor at the hearing:

“We come into a court of equity, and ask a decree that we shall have the use of that property so long as used for township purposes under the lease; and, if the court should find the lease was not good, we ask a decree for title to the land under adverse, actual, and hostile possession.”
The circuit judge decreed that the right of possession, title, ownership, and fee in the said premises were and should be in and belong to the complainant, and, further, that defendant should repay to the said township the $60 received for rent, and that the said defendant should pay the costs. The defendant appealed.

In our opinion, to state this ease is to decide it. Under the statement of the case we must hold:

1. That the lease of a part of the homestead by William Murray without the signature of his wife was absolutely void. Mailhot v. Turner, 157 Mich. 167 (121 N. W. 804); 15 Am. & Eng. Enc. Law (2d Ed.), p. 674, subd. 4; Maatta v. Kippola, 102 Mich. 116 (60 N. W. 300); Lott v. Lott, 146 Mich. 580 (109 N. W. 1126, 8 L. R. A. [N. S.] 748).

2. It is undisputed that the complainant entered into possession of the premises under the lease, and the fact that the lease was void, because of the infirmity above stated, would not make the holding of the complainant hostile. The complainant entered into possession of the premises by the consent of the owner, to whom it agreed to pay the rental named. Such holding and occupancy could not in a hundred years ripen into an adverse holding, and the complainant would be equitably estopped from so claiming. 1 Cyc. p. 1059. A mere permissive possession, or one consistent with the title of another, however long continued, can never ripen into a title by adverse possession. Perkins v. Nugent, 45 Mich. 156 (7 N. W. 757); Smeberg v. Cunningham, 96 Mich. 378 (56 N. W. 73, 35 Am. St. Rep. 613); Butler v. Bertrand, 97 Mich. 59 (56 N. W. 342); 1 Am. & Eng. Enc. Law (2d Ed.), p. 794, and note, citing more than 50 cases from the courts in this country. As Chief Justice Marshall said in Kirk v. Smith, 9 Wheat. (U. S.) 241, 288:

“ It would shock that sense of right which must be felt equally by legislators and judges, if a possession which was permissive, and entirely consistent with the title of another, should silently bar that title.”

That possession was taken here in recognition of Murray’s title cannot .be questioned. Menter v. First Bap tist Church, 159 Mich. 21 (123 N. W. 585). There is no evidence of a repudiation of the tenancy in this case.

3. It appears by the testimony of the township clerk that he first saw the lease (Complainant’s Exhibit 1) about two years before he gave his testimony; that he found it among some old papers in the office. Yet with knowledge of the existence of this paper the township authorities made the last lease with defendant and paid the rental, which lease was in force when the bill of complaint was filed. Such conduct is hardly consistent with good faith.

We cannot agree with complainant’s contention that there was here a dedication of the land to the public. If there were such dedication, without the signature of the wife, it would be unavailing. In Greenwood v. School District, 126 Mich. 81 (85 N. W. 241), cited by complainant, there was no homestead question involved. There was here no parol gift, as was the case in Schafer v. Hauser, 111 Mich. 622 (70 N. W. 136, 35 L. R. A. 835, 66 Am. St. Rep. 403). It was a void lease, but there was recognition of the lessor’s superior title by the agreement to pay rent. Complainant is estopped from saying it did not agree to pay such rent. Such holding cannot ripen into a hostile holding. It entered as a tenant, and not as owner.

In our opinion the complainant Has no standing in this case. The decree below is reversed, and the bill dismissed, with costs of both courts to the defendant.

Moore, McAlvay, Brooke, and Blair, JJ., concurred. *