author: Brooke, J.

text:
      In re ALLISON.
    Witnesses — Examination — Evidence — Constitutional Privilege — Contempt.
    In a disbarment proceeding, petitioner was called as a witness and questioned in regard to his imprisonment and whether he had signed an exhibit consisting of a narrative, not made under oath, of his entire career, which was alleged to have been used by the board of pardons and the governor in the investigation which resulted in petitioner’s conditional pardon. Petitioner, on the advice of counsel, refused to answer the question, claiming his constitutional privilege. Held, that, as the document was not sworn to, and that on oath petitioner might be obliged to disclose a different state of facts, he was justified in refusing to answer; and the court being unable to determine as a matter of law that such answer would not tend to incriminate the witness, an order adjudging him guilty of contempt was improvidently entered.
    Certiorari to Jackson; Parkinson, J.
    Submitted February 16, 1909.
    (Calendar No. 23,195.)
    Decided March 16, 1909.
    John H. Allison was adjudged guilty of contempt in refusing to answer certain questions in regard to his imprisonment in the State prison at Jackson.
    Reversed.

      James J. Noon and N. H. Stewart, for petitioner.

      Benjamin Williams, Prosecuting Attorney, for the people.
   Brooke, J.

This is a proceeding to review an order of the circuit judge of Jackson county adjudging the petitioner guilty of contempt in refusing to answer certain questions put to him in the course of an examination before a commissioner, and ordering his incarceration until said questions should be answered.

The petitioner is an ex-convict, having been convicted in 1900 for bank robbery and sentenced to a term of 17 years at hard labor. In 1904 the petitioner escaped from Jackson prison and was at large for several years, but was finally rearrested and returned to the prison some time in 1907. On March 1, 1908, he was given a conditional pardon by the governor and pardon board of the State of Michigan, and has since said conditional pardon been residing in the city of Jackson. In the fall of 1908, Courtland P. Ducomb, Harry R. Wair, and Francis E. Lambert, committee, as plaintiffs, prosecuted charges against one Joseph E. Talbot, as defendant, in the circuit court for the county of St. Joseph, State of Indiana. In the amended complaint of said committee, it charged said Joseph E. Talbot with having aided the petitioner in his escape by furnishing to him and his fellow fugitives, Slater and Spellman, food, shelter, clothes, weapons, and money at or near the city of South Bend, Ind. In the prosecution of said complaint said committee caused a commission to issue to one Walter A. Cunningham, of the city of Jackson, and a subpoena was served upon the petitioner, Allison, requiring him to appear before said commissioner for examination. The petitioner did so appear, but before appearance consulted attorneys J. J. Noon and N. H. Stewart and was represented by them at the time of his examination before the commissioner. The members of the prosecuting committee were present in person and by counsel at said examination. After some preliminary questions were asked and answered touching the original arrest and conviction of the petitioner, he was interrogated in part as follows:

“Q. I will ask you whether or not you were under that sentence imprisoned in Jackson prison.
“Mr. Noon: I think I will say to you, Mr. Allison, that you can exercise your constitutional right to refuse to answer by advice of counsel, and if you feel that answer tends to incriminate you.
‘A. That is my position in the matter. * * *
“Q. I will ask you, Mr. Allison, when, if at all, you escaped from Jackson prison after being confined ?
“Mr. Noon: One moment, Mr. Allison. I object to that for the reason you have a right to exercise your constitutional privilege.
“Q. Do you still refuse to answer the question ?
“A. Yes, sir. * * *
“Q. Mr. Allison, did you, together with Spellman and Slater, escape from Jackson prison on or about the 9th day of August, 1904 ?
“Mr. Noon: I advise you, Mr. Allison, you may refuse to answer that question, relying on your constitutional privilege if it would tend to incriminate you.
“Q. Do you refuse ?
“A. Yes, sir. * * *
“Q. I will ask you if Slater, Spellman, and yourself did not immediately go from the State of Michigan, after escaping from Jackson prison about August 9, 1904, into the State of Indiana.
“Mr. Noon: Same advice, Mr. Allison.
Q. Do you refuse ?
“A. Yes, sir. * * *
“Q. State whether or not you were near or about the premises of Theresa Hertram, commonly called ‘Mother’s Place,’ together with Larry Spellman and Harry Slater, on or about the 12th day of August, 1904.
“Mr. Noon: Same advice, Mr. Allison, as to that question.
‘ ‘ Q. Do you refuse ?
“A. Yes, sir.
“Q. State whether or not one of your party, Spellman, Slater, or yourself, called up John Talbot, from the Her-tram place and asked him to come out and join you; that you were there and wanted to see him.
“Mr. Noon: I advise you, Mr. Allison, you may rely on your constitutional privilege and refuse to answer.
“Q. Do you refuse to answer ?
“A. Yes, sir.
“Q. I ask you whether or not you are acquainted with Joseph E. Talbot of the city of South Bend.
“Mr. Noon: You may refuse to answer that, on my advice as counsel.
“Q. Do you refuse to answer ?
“A. Yes, sir. * * *
Q. State whether or not John W. Talbot, at the home of Joseph E. Talbot, on the evening of August 12, 1904, gave Larry Spellman, Slater, or yourself, two guns or revolvers.
“Mr. Noon: You may refuse to answer that, Mr. Allison, for a like reason.
“Q. Do you refuse to answer ?
“A. Yes, sir.
“Q: State whether or not John W. Talbot and Joseph E. Talbot provided you, Spellman, and Slater with clothes, which you used in exchange for the prison clothing that you wore at the time of your arrival in South Bend, on or about August 12th.
“Mr. Noon: You may refuse to answer that question for a like reason.
“Q. Do you refuse to answer ?
“A. Yes, sir.. * * *
“Q. State whether or not John Talbot, on or about the 12th day of August, 1904, at the home of Joseph E. Talbot, gave you, meaning by ‘you,’ yourself, Spellman, or Slater, about $25 in money.
“Mr. Noon: You may refuse to answer that, Mr. Allison, if the answer tends to incriminate you with all other answers.
“Q. Or any sum of money F
“Mr. Noon: I want it to be shown when he refuses to answer it is for that reason, and that is the reason, that the answer may tend to incriminate him. That has been the ground upon which you refuse to answer each and every question, that it would tend to incriminate you.
The Witness: Yes, sir.
“Q. State whether or not did you leave the city of . South Bend on or about the 12th day of August, 1904, secretly, continuing your journey down through the State of Indiana.
“Mr. Noon: You may refuse to answer that, Mr. Allifeon, exercising your privilege.
“Q. Do you refuse to answer ?
“A. Yes, sir; for the reason stated before.
“Q. (showing witness paper) I will refer to this as ‘Exhibit A.’ I have a document in my hand I will identify by being referred to by ‘ Exhibit A.’ I will ask you if the signature attached to that document is your signature.
Mr. Noon: You may look it over, Mr. Allison, and you may refuse to answer, if the answer will tend to incriminate you. Take the paper and look at it. I want to say, Mr. Allison, if that paper contains anything in reference to your escape from the prison or your alleged escape from the prison, you may refuse to answer in the exercise of your constitutional privilege that it may tend to incriminate you.
“A. I refuse to answer that question on the ground I believe it will tend to incriminate me.
“Q. I will ask you whether that is your signature.
Mr. Noon: That is what he refuses to answer.
“Q. I ask you whether that instrument marked ‘Exhibit A ’ is not a confession made by you while confined in the Jackson prison, January 3, 1908.
“Mr. Noon: You may refuse to answer that, Mr. Allison, for a like reason.
“A. Yes, sir; I do, because I think it will tend to incriminate me.
“Q. I will ask you if you did not sign this instrument as your confession, stating the facts surrounding and incident to the Richland bank robbery, your conviction on the charge, your sentence and confinement in Jackson prison, your escape from Jackson prison, your going into the State of Indiana, in and about the city of South Bend, where you received assistance and aid in concealment and your escape from Joseph E. Talbot and John W. Talbot along about the 12th day of August, 1904.
“Mr. Noon: Same objection, Mr. Allison, and this is the exercise of your privilege.
“A. I shall decline to answer that question on the ground that it will tend to incriminate me.”

The foregoing is but a portion of the examination of the witness, but is sufficient to indicate the character of the testimony sought from the petitioner. Upon his refusal to answer the several questions above set forth and others of a like nature, the matter was taken before the circuit judge, who, after hearing counsel for petitioner and for the committee prosecuting the disbarment proceedings, ordered the petitioner to answer the questions or starid committed to the county jail. This is the order we are asked to review.

The circuit judge in his return to the order to show cause has attached a certified copy of the petition for disbarment of Talbot in the Indiana court, and a copy of Exhibit A, the alleged confession of the petitioner, pur-

porting to have been made in January, 1908, by the petitioner after his rearrest and before his conditional pardon. Ah examination of the complaint filed by the committee shows that the facts touching the escape of Allison and Talbot’s alleged participation therein constitute but one of 15 several specifications of wrongdoing on the part of Talbot as an attorney at law. His conviction upon any one of the specifications would apparently warrant his disbarment. Exhibit A purports to be a history of the career of the petitioner, Allison, from the time of his birth to its date, January, 1908, and it may be presumed that the statements therein contained, in some measure at least, were used by the pardon board and the governor in reaching a conclusion which resulted in the conditional pardon of the petitioner. Exhibit A is not under oath, and the statements therein contained may not all be true. Nevertheless it unquestionably had its influence upon the pardon board and the governor in determining the fate of the petitioner. Under oath the petitioner might be obliged to disclose a different state of facts than that set forth in the exhibit, and might, because of such disclosure, not only lose the benefit of his pardon, but be prosecuted as well for the escape, which, under the statute, would involve a possible penalty of three years’ additional imprisonment. It is perhaps true that if, under oath, the petitioner answered the questions above quoted as counsel for the committee expected him to answer them — that is, in accordance with the contents of Exhibit A — he would not thereby tend to incriminate himself; but what authority has counsel or the court to assume that his answers would conform to the information contained in Exhibit A? Where the constitutional privilege is claimed by a witness under oath, the true rule is that it must obtain, unless the court is able to say, as a matter of law, that any direct answer to the question cannot tend to incriminate the witness. See 1 Burr’s Trial, p. 244; In re Moser, 138 Mich. 302; In re Mark, 146 Mich. 714.

This, as we have endeavored to point out, is not possible in the instant case. Petitioner was represented at the examination by competent and reputable counsel — themselves sworn officers of the law — and his position was taken deliberately under their advice and after an opportunity for consultation with them. It cannot be supposed that they themselves would be guilty of endeavoring to obstruct the due course of justice by their counsel, and no other conclusion can be reached if the committee’s counsel is secure in his position. From what is before us, it is apparrent that the petitioner has, since his escape, while at large, and since his conditional pardon, endeavored to reform and lead a blameless life. He should not be compelled, except upon the clearest and most convincing ground, to re-open under oath a most unsavory past, with the possible attendant result of incurring further penalty of the law.

The order requiring the petitioner to answer or stand confined will be set aside and held for naught.

Blair, C. J., and Grant, Montgomery, and Ostrander, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    CITY OF MUSKEGON v. BRENAN.
    Criminal Law — Appeal—Trial on Merits — Stipulations—Discharge — Effect—Certiorari.
    On complaint duly made and warrant regularly issued, respondent was convicted in justice’s court of violating a city ordinance. He appealed to the circuit court, and, upon stipulated facts and without a jury, the court held he was not guilty in manner and form as alleged and entered an order for his discharge, held, that the trial was upon the merits, and, the proceedings being criminal in their nature, the city was not entitled to a writ of certiorari. City of Grand Rapids v. Brandy, 105 Mich. 670, distinguished.
    Petition by the city of Muskegon for a writ of certiorari to review a judgment of acquittal in a proceeding against John R. Brenan for a violation of a city ordinance.
    Submitted March 3, 1909.
    (Calendar No. 23,290½.)
    Writ denied March 16, 1909.

      James E. Sullivan, for the writ.
   McAlvay, J.

This is an application for a writ of certiorari, in a certain proceeding instituted and prosecuted under a city ordinance, for the claimed violation of which a conviction was asked. The case was begun before the police justice of the city of Muskegon, against John R. Brenan, upon a complaint duly made, and a warrant regularly issued, charging said Brenan with engaging in the business of peddling from door to door in said city without having first obtained a license therefor, contrary to the provisions of an ordinance in such case made and provided. The respondent, Brenan, waiving a jury trial, was tried and found guilty as charged by and before the police justice, and adjudged to pay a fine of $50 within one hour, and, in default of payment, to be imprisoned in Muskegon county jail not to exceed 30 days. Brenan appealed to the circuit court for Muskegon county, where the case was tried before the court without a jury, upon a written stipulation of facts signed by the attorneys for both parties, and the following judgment was entered:

“The court, having heretofore heard this cause, after mature deliberation thereon, finds that the said respondent is not guilty in manner and form as the said city of Muskegon has in its complaint and warrant in this cause charged. Whereupon the said John R. Brenan and his surety are discharged from their recognizance.”

We are cited to the case of the City of Grand Rapids v. Brandy, 105 Mich. 670 (32 L. R. A. 116), as authority that certiorari is the proper remedy in this case. In the case cited an appeal was taken from police court to the superior court of the city of Grand Rapids, where that court, on motion of respondent, quashed the proceedings and discharged the prisoner. No trial was had upon the merits. This court held that the ordinance in question was valid, and held that a writ of certiorari was properly granted to compel the superior court to proceed with the trial. The cases are distinguishable. In the case at bar there was a trial and a judgment of acquittal. That the facts were stipulated made it none the less a trial upon the merits. Under the circumstances, whether the trial was for violation of an ordinance or a statute, the people have no appeal. When a court of inferior jurisdiction refuses to proceed with a trial, then this court has granted the writ. Ordinance cases are brought to this court, by defendants, on writs of certiorari, from city courts, where convictions have been had, but we are cited to no case, and we have been able to find none, where the people have any appeal after an acquittal on the merits, where the proceedings were criminal or quasi criminal in their nature. The adjudicated cases are to the contrary. People v. Swift, 59 Mich. 541; United States v. Sanges, 144 U. S. 310, and cases cited.

The writ is denied.

Blair, O. J., and Grant, Montgomery, and Brooke, JJ., concurred.


author: Blair, C. J.

text:
    STONEHOUSE v. STONEHOUSE.
    Specific Performance — Contracts—Deeds—Delivery — Equitable Title — Laches—Limitation of Actions.
    On a bill for the specific performance of a land contract, it appeared that, on complainant becoming of age, he desired to engage in business for himself; that his father, desiring him to remain at home, agreed if he would do so that he would compensate him therefor; that complainant did so remain; and that thereafter the father purchased certain property and later made a deed to complainant who went into occupation and expended large sums of money in improvements. The deed of said property was later held to be inoperative for want of delivery, and was set aside without prejudice to complainant’s right to file a bill for specific performance. Meld, that, under the contract and its performance, complainant was the owner of the equitable title, and as he was not obliged to assert such title until after it had been repudiated, the statute of limitations did not begin to run until such repudiation ; nor as a matter of law was he guilty of laches.
    Appeal from Kent; McDonald, J.
    Submitted January 12, 1909.
    (Docket No. 72.)
    Decided March 16, 1909.
    Bill by Albert Stonehouse against Delbert Stonehouse and others for the specific performance of a land contract. From an order overruling a demurrer to the bill, defendants appeal.
    Affirmed.

      Smedley & Corwin and Frank W. Hine, for complainant.

      Gleason & Lee, for defendants.
   Blair, C. J.

Complainant and his wife were defendants in the ease of Gleason v. Stonehouse, reported in 149 Mich., at page 611. The bill in that case was filed to set aside a deed of certain premises on the ground that the deed was never delivered, to determine that complainant was the owner of the undivided one-third thereof, and for an accounting. This court determined that the deed was not delivered, that the complainant was entitled to the rents and profits of her one-third interest, subject to any defense that might be made in the accounting case pending in the circuit court, and entered decree accordingly. The decree contains the following clause, viz.:

“Nothing herein contained shall, be construed as depriving the defendant, Albert Stonehouse, from any remedy he may have for a specific performance of a contract he may have had with said John Stonehouse in his lifetime for a conveyance to him, said Albert Stonehouse, of any or all of the real estate hereinbefore described.”

In pursuance of this provision of the decree, Albert Stonehouse filed his bill of complaint in the present suit for a specific performance of the alleged contract. To this bill the defendants demurred, the court overruled the demurrer, and defendants have appealed to this court.

The grounds of demurrer, as summarized by counsel for defendants in their brief, are as follows:

“ (1) The alleged contract is too indefinite and uncertain to be specifically enforced.
“ (2) Laches. Twenty-six years having elapsed before action brought after the right of action aecrued and 24 years since the father’s death.
“ (3) Statute of limitations.
“(4) The alleged contract was oral and void under the statute of frauds.
“(5) The alleged contract is void for want of mutuality.”

We are of the opinion that the contract is set out with sufficient definiteness and certainty. The contract is stated in the fifth paragraph of the bill, as follows:

“And your orator shows that when he became of age he expressed the wish to his father, said John Stonehouse, that he would like to leave home and go to work for himself, that he disliked housework and preferred to_ get into a more congenial business, and that at that time said John Stonehouse told your orator that his mother was unable to attend to the housework, and wished your orator to stay at home, and that if your orator would stay at home until the death of his mother and do the housework and look after the invalid mother and the younger children, that he (John Stonehouse) would pay him more than he could possibly earn at any other employment. That thereupon your orator agreed with his said father, in consideration of his father’s said promises, to stay at home and work for his father and mother until the death of his mother, doing the housework, looking after the younger children, and caring for his invalid mother, and did«so remain and work and care for said mother until her death as aforesaid.”

While the amount to be paid for complainant’s services was not certain, such amount was made certain after the mother’s death, by mutual agreement that the real estate in question should be purchased for complainant by his father.

“That said property was purchased by said John Stone-house for your orator, and for the sole purpose of securing for your orator a permanent location for his drug business, and was so stated by said John Stonehouse, and said property was purchased on the expressed understanding that said property was to belong to your orator in consideration for his services to said John Stonehouse as aforesaid. * * * That said John Stonehouse, in his lifetime, claimed no interest in said premises and said rents, but told your orator at different times that said premises and said rents belonged to your orator, and that said property was purchased for your orator and in pursuance of his contract so made with your orator as aforesaid, and that he, said John Stonehouse, claimed no interest therein. * * * And your orator further shows that in the latter part of 1882, or the early part of 1883, said John Stonehouse told your orator that he would make a deed of said property to your orator, as he had agreed to do, and that as soon as he got back to his home at Maple Hill he would have a deed made out to your orator of the property hereinbefore described, and signed' by himself and wife, Anna Stone-house, and send the same to your orator. That in pursuance of said agreement said John Stonehouse and his wife, Anna, on the 7th day of May, 1883, executed a deed of said premises to your orator. That said deed was properly witnessed and acknowledged by said John Stone-house and wife, and the same afterwards came to the possession of your orator and was by him duly placed on record in the office of the register of deeds of Rent county, Mich., on the 1st day of June, 1883, and is recorded in liber 148 of deeds, at page 488. That shortly after the execution of said deed, and a short time prior to his death, said John Stonehouse informed your orator that he had made a deed of said premises to your orator in accordance with his said agreement, and told your orator to get the deed and place it on record at any time your orator desired so to do. * * * And your orator shows that, ever since the purchase of said property as aforesaid, your' orator has been in actual possession of said premises under the agreement made with said John Stonehouse that said property was to be his in consideration of services rendered said John Stonehouse by your orator, and ever since the making of said deed by said John Stonehouse and wife, your orator has occupied said premises in perfect security, believing that said deed was perfectly valid, and that the same had been legally delivered to him, and up to the time of the filing of said bill by said Bentley and Gleason no question was ever made by anyone that said deed was not a good and valid conveyance, and that your orator’s title was not a perfect one by virtue of the deed aforesaid.’

Under the showing made by his bill, complainant was given, and accepted, the premises in satisfaction of and in accordance with, his agreement with his father. He subsequently obtained a deed which he placed upon record, believing it to be a valid conveyance, and occupied under it, as he supposed, for 20 years. He expended about $12,000 in improvements and had no suspicion of any infirmity in his title until 1903. Under such circumstances, complainant was the owner of the equitable title. Maas v. Insurance Co., 148 Mich. 432; Bakker v. Fellows, 153 Mich. 428. Complainant was under no obligation to assert his equitable title until after a repudiation of his right, and the statute of limitations did not begin to run against him until such repudiation. Neither can he be held guilty of laches, as a matter of law. Low v. Low, 173 Mass. 580; Michie v. Ellair, 54 Mich. 518.

We are of the opinion that the other questions discussed in the briefs require no further consideration, and the order of the circuit court is affirmed, with costs.

Grant, Montgomery, Ostrander, and Moore, JJ„, concurred.


text:
    COMSTOCK v. TAGGART.
    1. Appeal and Error — New Trial — Refusal to Grant — Exceptions — Neoessity.
    The refusal of the court to grant a new trial on the ground that the verdict and judgment rendered thereon were against the weight of the evidence cannot be considered on appeal, where no exception was taken to the denial of the motion.
    2. Same — Evidence—Admissibility—Warranty.
    In an action on a promissory note given as a part of the purchase price of a horse, testimony of & verbal warranty in regard to the horse was not prejudicial to plaintiffs rights, where the only substantial difference between the verbal and the written warranty was as to the time and place of return of the horse in case he did not fulfill the terms of the warranty ; the essential feature of the warranty being whether or not the horse was “a sure foal getter,” which question was properly submitted to the jury.
    3. Sales — Warranty—Delivery—Time—Instructions.
    In such action, it appearing upon the undisputed evidence, as well as by the admissions in defendant’s plea and notice, that the sale was made on a certain day, and that the only question for the jury was whether a written guaranty bearing an earlier date was given and accepted as part of the transaction, it was error to refuse an instruction that if such guaranty was so given it was the only guaranty by which plaintiff was bound.

      4. Same — Breach of Warranty — Damages—Instructions.
    Where, in such action, defendants under their plea and notice sought to recoup damages for breach of a warranty, the court properly instructed the jury, if they found for defendants, that the measure of damages, was to be determined by the value of the horse at the time of sale, if he had been as represented, less the amount of the note in suit and whatever sum had been indorsed on certain other notes not yet due and which had been pledged as collateral security for the payment of plaintiff’s note to a third party; the action of plaintiff in placing the notes out of his control amounting to an acceptance of them as payment.
    Error to Shiawassee; Miner, J.
    Submitted January 12, 1909.
    (Docket No. 63.)
    Decided March 16, 1909.
    Assumpsit by Martin D. Comstock against Clark Taggart and others on a promissory note. There was judgment for defendants, and plaintiff brings error.
    Reversed.

      Austin JE. Bicharás, for appellant.

      Thomas D. Meggison, for appellees.
   Blair, C. J.

This is an action on a promissory note for $600, being one of three notes executed by the 13 defendants for the purchase price of a stallion. The other two notes were for $800 each. The notes were dated August 29, 1904, and were payable, respectively, on October 1, 1906, 1907, and 1908. Defendants pleaded the general issue and gave notice that, prior to and at the time of the sale of the stallion, “ which sale was made by the delivery of said notes to plaintiff on, to wit, September 14, 1904,” at Central Lake, Antrim county, plaintiff’s agent and the plaintiff, in person, warranted that the stallion was absolutely sound and a sure foal getter, and plaintiff did personally warrant that the stallion “was a first-class foal getter and did then and there expressly warrant said stallion to get with foal at least 90 per cent, of all the mares he would serve for breeding purposes,” etc.; that the stallion was worthless as a foal getter, and they claimed the right to recoup their damages. Defendants gave evidence tending to show that there was a verbal warranty that the horse was a sure foal getter, and that they might return him, if dissatisfied, at any time before the third note fell due, to the livery barn in Central Lake, and that they had so returned him. Plaintiff gave evidence tending to show that the warranty was in . writing and was as follows:

“Byron, Mich., August 29, 1904.
“This article witnesseth: That whereas, I have this day sold to the Central Lake Horse Breeding Association the French coach stallion, Navigator, No. 1,675, now therefore I hereby guaranty the above-named horse to be a sure foal getter, also a reproducer of good stock with proper care and handling. In case he should not prove so I agree to take back said stallion by October 1, 1906, and return to the Central Lake Horse Breeding Association their notes or money or replace him with another horse of the same breed and size upon delivery of the above-named horse at M. D.' Comstock’s barn at Byron, Michigan, in as good and sound condition as he is at present. This is the only contract given by me and is not to be changed or varied by any promises or representations of my agents.”

The case was submitted to the jury and a verdict returned for defendants assessing their damages at $1,466.

Plaintiff has brought the record to this court for review upon the following assignments of error, viz.:

(1) The court erred in overruling plaintiff’s motion for a new trial.
(2 and 3) That the court erred in refusing to strike out certain testimony.
(4) The court erred in refusing to give plaintiff’s eighth request to charge.
(5) The court erred in charging as to the effect of the written guaranty if given “after the notes were signed and the bargain made.”
(6) The court erred in his instruction as to the meaning of the terms “a sure foal getter.”
(7) The court erred in charging the jury in relation to the question of damages.

1. The ground of the motion for a new trial was that “the verdict of said jury and the judgment entered thereon are unjust as being against the weight of the evidence.” In response to a proper request from plaintiff, the circuit judge filed his reasons for denying the motion. In order to render such decision reviewable, the statute requires that exception shall be taken thereto. 3 Comp. Laws, § 10504; Knop v. Insurance Co., 101 Mich. 359; Pearl v. Township of Benton, 136 Mich. 697; Culver v. Railroad Co., 144 Mich. 254; Moffet v. Sebastian, 149 Mich. 451. We find no exception in the record to the decision of the circuit judge denying the motion, and therefore cannot consider it.

2 and 3. Certain testimony was received against objection, as follows:

“ At that time Mr. Comstock said the horse would pay for himself, that we wouldn’t have to pay a cent for him. I had very little talk with Comstock at the time. That the horse was full blooded and would have to breed after himself. * * *
“Q. What did he say about the earnings and the guaranty as to them ?
“Mr. Richards: I object to that. If it was said it would not be the basis of a warranty. It would not constitute a warranty. It would not be the statement of any fact to be the basis of a warranty.
The Court: I will receive it for the present. (To which ruling plaintiff then and there excepted.)
“A. He said we had nothing to lose and everything to gain. He said if this horse had not earned the price of himself when these notes became due, he says, ‘You can take him back to the barn.’ He says, ‘You ain’t paying one dollar for that horse, not a dollar.’ He said the horse would pay for himself under those guaranties, that he would be a sure foal getter and that if he didn’t we could return him.”

Counsel for plaintiff contend:

“That this testimony was incompetent and immaterial and prejudicial, for the reason that, if the statements were made as claimed by the witness, they could not be the basis of a warranty. They were simply expressions of opinion. They were promissory in their nature and were not the statement of any fact.”

Even if this testimony was inadmissible as not tending to prove a warranty, still we do not think its reception could have been prejudicial as the case was submitted. Substantially the only difference, as stated by counsel in their briefs, between the verbal warranty and the written warranty, was as to the time and place of return, which, according to the verbal warranty, was to be made at the livery stable at Central Lake, at any time before the third note fell due. The essence of the warranty was that the horse should be “ a sure foal getter,” and whether he was or was not was the question submitted by the court. The answer to this question depended upon the testimony of several witnesses for each party as to what constituted “a sure foal getter,” and whether the use of the stallion as testified to by his handlers brought him within the class. We do not think the determination of this question could have been so prejudiced by the reception of the testimony in question as to justify a reversal.

4. Plaintiff’s eighth request to charge was as follows:

“If you find that on the day the business of selling this horse by plaintiff to defendants was finally closed up and completed, and as a part of the same transaction plaintiff gave to the defendants a written warranty or guaranty of the horse as claimed by the plaintiff, and that if you find the guaranty under which plaintiff sold the horse was as claimed by plaintiff, then such written warranty or guaranty constituted and is the only warranty upon which defendants can rely in this case, and the only warranty by which plaintiff is bound, and if you find the warranty was in writing and as claimed by plaintiff, and if the horse did'not comply with such warranty, it was then the duty of defendants to have returned the horse to plaintiff’s barn in Byron, Mich., by October 1, 1906; and it appearing without dispute in this case that the defendants did not return the horse to plaintiff’s barn in Byron, plaintiff is entitled to a verdict in this case.”

This request the court refused “to give except as in the instruction already given.” Defendants’ counsel contend that all that was material in this request was covered by the giving of plaintiff’s third, fourth, fifth, sixth, and seventh requests to charge. The third request stated that plaintiff had offered evidence “tending to prove that he sold and delivered the stallion,” etc.; the fourth, that “if the horse in question was sold by the plaintiff to the defendants under this written warranty,” etc.; the fifth, “if you find that the plaintiff sold and delivered, etc., under the written warranty;” the sixth, ‘ ‘ if the horse in question was sold and delivered, etc., under a written warranty;” the seventh, substantially the same. It will be observed that all of these requests are predicated upon a sale or a sale and delivery of the horse under a written guaranty. Under the undisputed evidence the delivery of the horse was made on September 14, 1904. Defendants’ counsel contend that the notes were signed and the sale of the horse completed prior to the 14th of September, 1904.

“The parties’ minds in this case had fully met on all essential requirements previous to the date of their organization. Plaintiff had shown defendants the horse and made certain warranties concerning him. Defendants had signed for shares of stock and signed their joint and several notes for said horse. Nothing remained to be done to complete the sale ” — citing authorities to the effect that title may pass without delivery.

The court also instructed the jury as follows:

“I further charge you that it is not necessary that a representation in order to constitute a warranty should be simultaneous with the conclusion of the bargain, but only that it should be made during the course of the dealings which lead to the bargain, and should then enter into the bargain as a part of it, and I charge you in this connection that if the bargain had been closed and the notes given before the plaintiff delivered his written guaranty, if you find he did so deliver a written guaranty, then the written guaranty has no bearing in this case, and the rights of the parties must depend upon such guaranties as were made before the bargain was closed, unless you find that the defendants accepted written guaranty as a guaranty which should govern and control in this case.”

Certain special questions were submitted to the jury, the first being:

“ Did the sale and delivery of the horse in question by plaintiff to defendants take place on the 14th day of September, 1904 ? ”

The jury asking for instructions as to the manner of answering this question, the following occurred:

The Court: Well, that is two questions.
The Foreman: But the trouble is the two questions are united in one, and according to that question we must answer—
The Court: If they both did not take place on that day, your answer would be, ‘No.’ If they both did take place that day, if you found that, your answer would be, ‘Yes.’ As long as they put two questions in one, they must receive an affirmative or negative answer as to both the questions.”

There was testimony tending to sustain this eighth request. In fact the statement in defendants’ notice— “which sale was made by the delivery of said notes to plaintiff, on, to wit, September 14, 1904” — constituted an admission that the sale was made on that day. Circuit Court Rule 7e.

Under the undisputed evidence, the notes were not all signed on the same day, but on different days, and were not completely signed until the said 14th of September, when the last signatures were attached. It is apparent from the testimony that the plaintiff was selling the horse to a proposed association of individuals for $2,200 and not interests in the horse to individuals for a less sum. It is also apparent from the record that the purchasers of the horse intended from the beginning to form a company or association of some kind to manage the horse, and the evidence tended to show that the individuals who signed the note did so with the understanding that the whole purchase price was to be subscribed for before their obligations were to become binding. The purchasers of the horse did not give their individual notes for a specified interest in the horse, but signed notes making them jointly and severally liable for the entire purchase price. We do not think it could have been contemplated that the notes should become operative until they were fully signed. Defendants’ witness Drake testified:

“I didn’t intend to sign; wanted him to get farmers. I held off, and there was a half share that was $100, which was not paid, and the boys, when they got in the barn, they insisted on my taking it, so I took it. * * *
“ Q. When did the several defendants meet to close the matter up ?
“A. That afternoon with Mr. Comstock and met all together in Central Lake, in the livery barn office.
“Q. Were all these defendants present there ?
“A. I think there was one or two that was not. I think Mrs. Eckhart was not there. I didn’t see her anyhow, and I think Montgomery was not there at that time. * * *
“Q. What was done, after you got there all together, about signing any notes ?
“A. Why, they all got together, as I said a minute ago. I was not a signer at that time yet. They got to work and drew up these notes. I think Mr. Comstock drew them up. I won’t be too positive about that today. The notes were drawn up, and the parties were there signed, and after they had all got through signing I took stock in the horse. We organized our association that same day. I was elected treasurer of the association.”

The “agreement entered into by the undersigned stockholders of the Central Lake Breeding Association ” provided for a president, secretary, treasurer, manager, and a board of three or five directors, and prescribed their duties. It further provided, among other things, as follows:

“ The .net earnings of the horse shall be divided pro rata among the stockholders at the annual meeting of the association, but no money be paid over to any stockholder until he has paid into the association his proportion of the note given in payment of the' horse and due in that year. Any stockholder failing to make payment when due of the amount he owes on stock in the association shall forfeit his stock and all interests in the stud fees earned by the horse to the other stockholders of the association.”

"We are of the opinion that it conclusively appears from the defendants’ plea and notice and the evidence, that, while individuals signed the notes prior to the 14th of September, they were not completely signed, nor were they delivered to plaintiff, until said day, when the horse was also delivered, and that this question should not have been submitted to the jury as an open question. The only open question on this branch of the case was whether the written warranty was given and accepted as a part of the transaction. Under the circumstances, we think the court erred in refusing to give this request.

7. As to the two $800 notes, plaintiff testified:

“I am the owner of the two $800 notes which were given at the same time as the note sued on in this case was given. They are pledged as collateral security to my own note for $1,000. I indorsed them by writing my name on the back of them.
“ Q. Is there any other indorsement on those notes besides that ?
“A. $200 is indorsed pro rata on the two $800 notes and the note in suit. The notes are deposited as collateral with a bank in Flint. Davis Bank there — Davison, he is vice president or cashier, or something.”

The court, in effect, instructed the jury that if they found for the defendants, they would then first determine the value of the horse at the time of the sale if he had been as represented, and from such amount deduct $784; this latter amount being substantially the amount of the $600 note and the pro rate share of $200 indorsed pro rata on the three notes. This instruction was within the ruling of this court in Christie v. Crawford, 152 Mich. 400, unless the court erred, as contended by plaintiff, in treating the notes as payment. Plaintiff having placed the two $800 notes out of his control and brought suit on the $600 note, the court did not err in treating them as accepted by plaintiff as payment. If defendants made any profits from their use of the horse, such profits should be definitely shown.

There are no other questions which require consideration, in our opinion.

The judgment is reversed, and a new trial granted.

Grant, Montgomery, Ostrander, and Moore, JJ., concurred.


author: Grant, J.

text:
    MADILL v. COMMON COUNCIL OF THE CITY OF MIDLAND.
    1. Intoxicating Liquors — Local Option — Sufficiency of Petitions — How Determined — Elections.
    Where the county clerk was in doubt as to the validity of certain petitions for the submission of the question of prohibiting the manufacture and sale of intoxicating liquors within the county, and filed the returns and affidavits with the board of supervisors at the time of their regular meeting, his failure to find that the submission of the question was asked for by a sufficient number of votes was not fatal to the proceedings; since, under the statute (section 5417, 2 Comp. Laws), such duty rests upon the board of supervisors, and their determination is conclusive and final.
    2. Same — Local Option — Sufficiency of Affidavits.
    In such proceedings the determination of the sufficiency of affidavits attached to the petitions and returns is lodged in the board of supervisors, and their action made final.
    3; Same — Local Option — Proceedings of Board — Record.
    The action of the board, after the adoption of such resolution on the 18th of the month, in taking a recess until the 22d to enable the clerk to enter the proceedings upon the record, and on the adjourned day in open session the proceedings were read, approved, and signed, was not in violation of the statutory provision requiring such order to be entered in full upon the journal of the proceedings of the board that day, and to be signed by the chairman and clerk before final adjournment.
    4. Same — Local Option — Elections—Canvass op Votes.
    Where the board, on the day provided by statute (section 5422, 2 Comp. Laws) for canvassing the result of such election, met and appointed a committee to tabulate the vote from the returns of the different precincts, and took a recess until the following day when the report of said committee and the returns were submitted and the proposition declared to be carried, was not fatal to the validity of the election; such provision being directory.
    5. Same — Local Option — Elections—Result—Publication op Resolution.
    The omission, by mistake, on the part of the board, to designate the newspaper in which the resolution declaring the adoption of local option was to be published does not affect the validity of the election, where, on the following day, the omission was discovered, the mistake corrected, and the publication made as directed.
    6. Same — Local Option — Elections—Failure to Perform Ministerial Duty.
    In such proceedings, the failure of an officer to perform a purely ministerial duty does not affect the validity of an election.
    Certiorari to Midland; Dodds, J.
    Submitted March 16, 1909.
    (Calendar No. 23,273.)
    Decided March 23, 1909.
    Mandamus by Joseph W. Madill to compel the common council of the city of Midland to approve a liquor bond. There was an order denying the writ, and relator brings certiorari.
    Affirmed.

      Brakie J. Orr {Fred G. Dewey and Herbert 8. Orr, of counsel), for relator.

      Bay Hart and Bobert H. Lane, for respondent.

      The relator, a saloon keeper in the county of Midland, presented a liquor bond to the respondent under the general liquor law, asking for its approval. The respondent refused to accept the bond for the reason that the electors of Midland county at the preceding election had adopted prohibition. Relator then applied to the circuit court for the writ of mandamus to compel respondent to accept the bond. The circuit court held the election valid and confirmed the action of the respondent. The case is now before us upon the writ of certiorari. The question involved is the validity of the election wherein a majority of the electors voted for prohibition.
   Grant, J.

(after stating the facts). 1. The first objection is that the clerk did not ascertain that one-third of the qualified electors of the county had prayed for the submission of the question. The clerk, being in doubt as to the validity of some of the petitions, filed the returns and affidavits with the board of supervisors at their regular January meeting. The board of supervisors examined the papers, poll lists, etc., and adopted the following resolution :

“Whereas, eighteen petitions from as many townships and wards of Midland county praying that the manufacture of liquors and the liquor traffic be prohibited in said county, have been laid before the board of supervisors at the present session of the board by the county clerk of said county, which petitions have been duly examined, and upon which it appears that such petitions have been signed by more than one-third of the qualified electors of said county, as shown by the returns and canvass of the general election for State officers held in said county in November, 1906. The board finds that the highest vote cast for any State officer in said county in the last general election was two thousand five hundred twenty-eight votes, and that said petitions have been signed by nine hundred and eighty-three electors of said county: Therefore, resolved, and it is hereby ordered, that the question whether the manufacture of liquor and the liquor traffic be prohibited in Midland county under the provisions of Act No. two hundred seven (207), of the Public Acts of 1889, and the acts amendatory thereof and supplemental thereto, be submitted to the qualified electors of the said county at the next general election of township officers in the several townships, villages and cities in Midland county, to be held on the first Monday in April, 1908, to ascertain whether or not it is the will of th,e electors of the county that the manufacture of liquor and the liquor traffic should be prohibited within the limits of the county.”

The finding by the clerk is not a jurisdictional prerequisite to the action of the board of supervisors. His finding is not conclusive. Section 6 of the act (2 Comp. Laws, § 5417) requires an examination and determination of the question by the board of supervisors. The real question at that stage of the proceedings is whether the requisite number of electors have signed the petitions. The duty rests finally upon the board of supervisors to make this determination, and their action thereon is made final both by the statute and by the decisions of this court. Thomas v. Abbott, 105 Mich. 687; Attorney General v. Van Buren Circuit Judge, 143 Mich. 366.

2. Several objections are raised upon the sufficiency of the affidavits. The determination of all such questions is by the law lodged in the board of supervisors, and their action made final. In addition to the authorities above cited, see, also, People v. Hamilton, 143 Mich. 1.

3. After the adoption of the above resolution and doing other business, on the 18th day of January, the board took a recess until January 22d at 11 o’clock a. m., to allow time for the clerk to enter the proceedings in the record book. On the 22d the board met, and the proceedings of the 18th were read, approved, and signed in open session. The statute (section 5417) requires that “such order shall be entered in full upon the journal of the proceedings of the board that day, and the same shall be signed by the acting chairman and clerk of the board, before final adjournment.” The statute does not require that the proceedings shall be entered and signed on the very day of the proceedings. It only requires them to be entered upon the journal of the proceedings for the day, and to be signed before final adjournment. It is immaterial whether we call the action of the board a recess or an adjournment. It would probably be impossible in many cases to enter the proceedings upon the record and have them signed the day in which they took place. The board had adopted a rule that, “at any time that the board remains in session for the space of two hours without any business, it shall adjourn for the term.” The same power that made the rule can suspend it. But the rule is not applicable to an adjournment or recess for the purposes specified in this act.

4. Several objections are made similar to those raised . and decided in Thomas v. Abbott, supra. The return denies the material statements made in the petition upon these points, but aside from this denial the case, as the court found, comes directly within the decision of Thomas v. Abbott, 105 Mich., at page 692. See, also, Attorney General, ex rel. Scott, v. Glaser, 102 Mich. 396.

5. It is next insisted that the election is void because the board of supervisors did not ascertain, determine, and declare the result of the election on the first Monday thereafter. The board met on the first Monday (the 13th of April) and appointed a committee of five to tabulate the vote from the returns presented from the various voting precincts. The board took a recess until 8:30 a. m. the following morning, to enable the committee to complete their labors. At that time the reports and the returns were submitted and the proposition declared carried. The statute (2 Comp. Laws, § 5422) requires:

“The canvass, determination and declaration of the result, together with a tabular statement of all the votes cast, shall be entered in full upon the journal of their proceedings for that day, and the same shall be signed by the acting chairman and the clerk of the board.”

It would be a travesty upon justice to hold that the will of the electors must be defeated by the omission on the part of the board, or an inability on their part, to perform this duty on the precise day fixed; but the statute does not contemplate that the board of supervisors must accomplish this work on the first Monday after the election. The same section (5422) provides that if any such statement or poll list shall not be made, certified, or returned as provided, the board of supervisors may at such meeting send for the same and require the same to be certified, and made, etc. It is manifest that this requirement could not be complied with on the very day the supervisors meet to canvass the returns. The court properly held this requirement of the statute directory. Attorney General, ex rel. Scott, v. Glaser, supra.

6. It is also insisted that the election is void because the board of supervisors, in the resolution announcing that the proposition was carried, did not specify the newspapers in which the resolution was to be published. In that resolution, which is required by section 13 (2 Comp. Laws, § 5424), the board closed the resolution with the following :

That a copy of this preamble and resolution be published without delay once in each week until the first day of May next in 1908, a newspaper published and circulated in said county.”

By some error the newspaper was not designated in that part of the resolution. The statute does not require that that designation shall be contained in the resolution declaring the proposition carried. Section 14 (2 Comp. Laws, § 5425) requires the clerk to cause publication to be made in a newspaper published and circulated in the county to be designated by the board. It was undoubtedly the intention of the board to meet this requirement in the resolution declaring the vote carried, which would have been proper. On the following day they discovered their mistake and passed a unanimous resolution directing the publication in three newspapers, naming them. The publication was made as directed, and due affidavits of publication made and filed. The designation was timely and in compliance with the law.

7. The last objection relates to the alleged failure of the county clerk to record the affidavits of publication, together with the resolution, within the time and at the proper place, upon the records of the board of supervisors. Such record is not made a condition to the validity of the election. The statute provides (section 5426):

“ The prohibitory provisions of this act shall take effect and have full force within such county of this State on or after the first day of May, immediately following the adoption by the board of supervisors of such county of a resolution ordering such prohibition and upon the publication of the notice of the adoption of said resolution.”

The adoption of the proper resolution and the publication of a notice of its adoption are the only conditions required to put the law in force. The clerk acts in a ministerial capacity in recording these resolutions, and the will of the electors cannot be thwarted by his failure to properly perform a ministerial duty. People v. Hamilton, supra.

The judgment is affirmed, with the costs of both courts to the respondent.

Montgomery, Ostrander, Moore, and McAlvay, JJ., concurred.


author: Ostrander, J.

text:
    WERSTEIN v. BOARD OF SUPERVISORS OF CALHOUN COUNTY.
    1. Intoxicating Liquors — Local Option — Petitions — Withdrawal of Names.
    Signers to a petition for the submission to the voters of the question of prohibiting the manufacture and sale of intoxicating liquor in the county may not withdraw therefrom after the petition has been filed with the county clerk.
    2. Same — Looal Option — Petitions — Sufficiency—How Determined.
    Under section 5417, 2 Comp. Laws, as amended hy Act No. 183, Pub. Acts 1899, the determination of the board of supervisors, that a sufficient number of the qualified voters of the county had petitioned for the submission of the question of prohibiting the manufacture and sale of intoxicating liquor in tha county is final.
    3. Same — Local Option — Elections—Voters—Qualifications.
    One who is a registered elector is a qualified voter, under the local option law, although his name does not appear upon the poll lists.
    Certiorari to Calhoun; North, J.
    Submitted March 23, 1909.
    (Calendar No. 23,270.)
    Decided March 26, 1909.
    Mandamus by Leopold Werstein and others to compel the board of supervisors of Calhoun county to reconvene and set aside proceedings for the submission of the question of prohibiting the manufacture and sale of intoxicating liquor in said county. There was an order denying the writ, and relators bring certiorari.
    Affirmed.

      J. M. & J. L. Powers {Fred A. Baker and William O. Manchester, of counsel), for relators.

      Howard W. Gavanagh, for respondent.
   Ostrander, J.

The board of supervisors of the county of Calhoun, in January last, determined to submit to the electors the question of the prohibition within the county of the manufacture of liquor and the liquor traffic. Upon the application of certain persons claiming to be interested, the circuit court for that county granted, and there was issued and returned, an order to said board to show cause why it should not reconvene and set aside the proceedings in the premises. An answer was filed, was traversed as to various facts therein stated and as to various denials of allegations of the petition, and relators asked for an order framing various issues for trial. This order Was refused, and, after hearing counsel, the writ of mandamus was refused.

In several counties of the State similar proceedings were instituted at about the same time, were determined in the circuit courts, and applications were made for writs of certiorari to review such determinations. Writs were allowed in the cases where it appeared to be claimed that the record of the board of supervisors itself showed a failure or refusal to observe and obey statutory requirements. In granting the writs it was not supposed that any doubt would be created of the authority of Friesner v. Common Council of Charlotte, 91 Mich. 504; Covert v. Munson, 93 Mich. 603; Thomas v. Abbott, 105 Mich. 687; Attorney General v. Van Buren Circuit Judge, 143 Mich. 366 — in each of which cases it is held that the courts may not review the determination of the board as to “the sufficiency of the petitions and the requisite number of electors signing the same.” In the matter now before us it appears from the record of the board that suck a determination was made. The contention here of plaintiffs in certiorari, relators below, as we understand it, is that it also appears from the record of the proceedings of the board that it denied its power or its duty, or both, to determine whether those who signed the petition were qualified electors, and did determine that the affidavits attached to the petitions were conclusive. It is also claimed that the record of proceedings of the board shows affirmatively that a large number of those signing the petitions applied to withdraw therefrom after the petitions had been filed with the county clerk. The record does fairly support both of these contentions. The last one is disposed of adversely to relators upon the authority of Koerber v. Board of Sup’rs of Ionia Co., 155 Mich. 677, and Fischer v. Board of Sup’rs of Washtenaw Co., ante, 1. The petitions were not, it seems, accompanied by poll lists. Attached to each petition was an affidavit conforming with the statute. The petitions having been laid before the board, it was required to and did act. It made a determination, and, both as to the sufficiency of petitions and as to the requisite number of electors signing the same, the legislature has made such determination final.

If it could be said that the board did not in fact attempt to take any action other than to count names, and that what is now asked for is not a review of an alleged determination, but an order requiring a determination to be made, we should still be obliged to affirm the order of the circuit court. It appears from relators’ own showing that, unless qualified electors within the meaning of this statute are those only whose names appear upon the poll lists, the petitions were in fact signed by a sufficient number of qualified and registered electors. We have no doubt that a registered elector is a qualified elector within the meaning of the act.

The order of the circuit court is affirmed, with costs to respondent.

Blair, C. J., and Grant, Moore, and McAlvay, JJ., concurred.


author: Montgomery, J.

text:
    STRONG v. GRAND TRUNK WESTERN RAILWAY CO.
    1. Appeal and Error — Directed Verdict — Propriety—Examination oe Evidence.
    In determining whether a verdict should have been directed for defendant, it is the duty of the court to accept as truthful the testimony offered on behalf of plaintiff, and to give to such testimony, when subject to different inferences, that most favorable to plaintiff.
    2. Railroads —Personal Injuries —Crossings —Contributory Negligence.
    Plaintiff, in approaching a crossing of a railroad, had an unobstructed view of the track for 150 feet and attempted to cross without stopping to look or listen and was struck by a train running at the rate of 35 miles an hour. Held, that he was guilty of contributory negligence.
    3. Same — Personal Injuries — Negligence—Gross Negligence.
    In such action, it appearing that whatever negligence was attributable to defendant occurred before the discovery of plaintiff’s negligence, defendant could not be said to be guilty of gross negligence.
    Error to Eaton; Smith, J.
    Submitted November 10, 1908.
    (Docket No. 130.)
    Decided March 30, 1909.
    Case by Charles W. Strong against the Grand Trunk Western Railway Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed, and no new trial ordered.

      Harrison Geer and William K. Williams, for appellant.

      G. D. Blasier and Huggett & MoPeek, for appellee.
    The following is the map referred to in the opinion:

   Montgomery, J.

This action was brought to recover damages for the alleged negligence of defendant, resulting in a collision of the buggy in which plaintiff was riding with his wife, on the afternoon of August 30, 190'?', with the defendant’s west-bound passenger train at Charlotte, at about 5 o’clock in the afternoon. For a better understanding of the situation, a map which was introduced in evidence showing the surroundings is attached to this opinion. It will be seen that Cochrane avenue is a street 100 feet in width extending north and south and crossing defendant’s tracks. Munson street is 60 feet in width, and intersects Cochrane avenue at 163.30 feet from the center of the north track and extends east to Washington avenue. The first house north of the track and on the east side of Cochrane- avenue is 50% feet from defendant’s north line fence, and the second house is 85% feet north of the first, and a barn is 85 feet north of the second house and some east. On the east side of Cochrane avenue, and north of this track, are also certain poles and a tree which may be noted, and there is along the right of way an embankment which to some extent interferes with the view. A crossing whistling post is placed some 600 feet northeast of the center of Cochrane avenue. The track rises from that point to Cochrane avenue 8.45 feet. Beech Bros.’ foundry is 1,215 feet northeast of the center of Cochrane avenue. An open driveway extending .west from Cochrane avenue through the Charlotte Manufacturing Company grounds is 25 feet north of the north rail. There are two tracks of this railroad; the northerly being used by west-bound trains, and the southerly by eastbound trains. There was testimony offered on the part of the plaintiff tending to show that the defendant’s train approached this crossing from the northeast at an unusual and prohibited rate of speed, that the bell was not rung, and the whistle was not sounded at the whistling post. While the defendant’s testimony very strongly disputed that offered by the plaintiff upon the question of the signals, there was enough of conflict to carry the case to the jury. The case was submitted to the jury, and a verdict found for the plaintiff. This verdict is brought before us for review, and the questions presented are: First, whether there was negligence on the part of the defendant ; second, whether the plaintiff was guilty of contrib-. utory negligence; and, third, whether the defendant was guilty of “ gross or wilful negligence ” within the legal meaning of that term.

We will first consider the question of the plaintiff’s contributory negligence. It is contended that the plaintiff is . shown by his own testimony and that of his witnesses, taking the most favorable view which can be given it, to have been guilty of contributory negligence, as a matter of law. In determining this question, the contention of plaintiff’s counsel that the duty of the court is to accept as truthful the testimony offered on behalf of the plaintiff, and to give to such testimony, when subject to different inferences, that most favorable to the plaintiff, is accepted.

The plaintiff’s testimony as to the manner in which he approached this crossing was as follows:

“I was coming down from Mr. Riddle’s. It was somewhere about 5 o’clock. I was pretty well acquainted with the station there. I knew where the Michigan Central crossing was. I understood with reference to the trains running there and with regard to their stopping before crossing the Michigan Central track. I started from Mr. Riddle’s with the horse on a little shack. I was looking and listening, coming down listening and looking until I got near the railroad track. I could see everything clear. Nothing in sight. Nothing could be heard. I was listening. My wife was listening also. We were watching until — on both sides, looking ahead at the Michigan Central, nothing in the way, all clear. The last look I gave was to the left, and that train was on me, and that — the whistle blew. I did not hear any whistle for the crossing. Until it was on me as near as that, I did not hear any bell ring. I did not hear the train.”

It is contended by plaintiff’s counsel that this testimony shows conclusively that the plaintiff was looking and keeping a constant lookout. It is true he testifies that he was looking and listening, but how constantly or at what places he does not definitely state, so that, if we are able to say, as contended by defendant’s counsel, that for a distance of 80 feet or thereabouts before plaintiff reached the crossing with his horse, the train was in plain view, there is no obstacle to saying that the plaintiff could not have looked at the proper time in the direction of the approaching train.

The plaintiff caused certain tests to be made by Mr. Newcomb, Mr. Decke, and others, with a view of ascertaining at what distance from the track the approaching train would be visible to one approaching the track on Cochrane avenue riding in a buggy. Mr. Newcomb, who was county surveyor, testified that at a point 163.30 feet from the track, which would be at the center of the intersection of Munson street and Cochrane avenue, one sitting in a buggy could see 342 feet east of the center of Cochrane avenue. A rod farther south, or 146.80 feet from the track, he could see a man on the track 366 feet from the center of Cochrane avenue. Another rod farther south, or 130.30 feet from the track, he could see a man on the track 389 feet. Another rod farther south, or 113.80 feet from the track, he could see a man on the track 405 feet from the center of Cochrane avenue. Another rod nearer the track, or at 97.30 feet from the track, he could see a man 477 feet from the center of Cochrane avenue. And a rod farther south, which would be 80.80 feet from the track, a man could be seen 569 feet from Cochrane avenue. He added, in his testimony, “The nest rod farther you could see as far as the switch turn post leading into Beech’s factory. That would be 640 feet.” He further testified:

“ The last measurement that I made was at 48 feet north of the north rail. I could see down the line, and I stopped there. When I was 48 feet away, I could see the entire length, 1,615 feet.. I could see the whistling post at that place.”

He further testified that he presumed he could have seen a train of cars much farther than an individual. Plaintiff’s counsel, in their reply brief, referring to the testimony of the witness Newcomb that he could see 569 feet north of Cochrane avenue at a point 80.80 feet from the crossing, say: “ This is clearly a mistake. Mr. New-comb explains this observation as having been made 48 feet from the track.” And adds:

“There was absolutely no foundation for counsel to claim that the plaintiff at a point 80 feet from the crossing could have seen down the track 569 feet.”
The explanation referred to of this witness on redirect examination was as follows:
“Q. How far were you north of the track when you made the last sight ? That was the last sight, 48 feet. You could see the man at the switch at that time ?
“A. Yes, sir.
“Q. Could you see the man any further at your sixth sight, any further than at the switch ?
“A. That is the last time he stood there. When I drove up again I could see the whole length.
“Q. Then you were not 48 feet from the track when you could see clear down there, were you ? You were 48 feet when you couldn’t see down through according to your plat there.
“A. That is what I testified before. It was 48 feet when I took the last observation, and when I drove up I could see clear up there. This would be 28 feet.” ■

This testimony, however, does not dispute the testimony given on cross-examination, that, at a point 80.80 feet from the crossing, a man could be seen at a distance of 569 feet from the crossing, for on cross-examination the testimony of this witness further shows that he made a further observation after this one, taken at a point 80.80 feet from the crossing, and that at that later observation a man could be seen at a distance of 640 feet. This observation may have been taken at a distance of 48 feet from the rail, but there is no retraction of the statement that at 80.80 feet he could see a man at a distance of 569 feet. If this were in doubt, the testimony of Mr. Decke, on cross-examination, would corroborate the statement of the witness. He fixed the distance at which an individual could be seen from the track as still greater than that fixed by the witness Newcomb. His testimony was as follows:

“I stood at the center of Munson street and Cochrane avenue. I could sea 97 feet northeast of the north line of Munson street. A rod south of that, I could see 134 feet northeast of the north line; a rod south of that, 200 feet northeast of the north line. A rod south and standing in the center of Cochrane avenue, I could see 284 feet northeast of the north line of Munson street. A rod south of that, I could see 350 feet northeast of the north line of Munson street. I was then not far from 80 feet north of the center of the north track. We made some o ther observations south of that, but did not measure any distances to the northeast. At 80 feet I could see an individual walking on the track 350 feet northeast of the north line of Mun-son street. We had a buggy. I estimate that I would, be all of 6 feet above the surface of the ground. A man went down the track. I made observations twice. Mr. New-comb was there both times. The observations and measurements practically agreed at both times. I am positive about the distances I have given.”

When it is understood that the distance from the north line of Munson street to the center of the track on Cochrane avenue is 249 feet, if this witness’ testimony is accepted, then a man could be seen at a distance of 599 feet by one sitting in a buggy 80 feet from this track. It is also manifest, from the testimony, that as one approached the track, a view for a longer distance could be obtained, and while there is some reference to poles obscuring the view, it will be seen by a reference to the map that there was no obstruction which would seriously interfere with one approaching this crossing obtaining a view of the track for any distance in the range of vision after reaching a point within 80 feet of the track. Ordinarily this testimony would conclusively show that, had the plaintiff looked and listened and approached this crossing with any care whatever, he would have seen or heard the approaching train.

It is sought to avoid the conclusion that the plaintiff was guilty o£ negligence in this regard by this line of reasoning : It is said that the plaintiff had the right to rely upon the performance by the defendant of its statutory duties and at least to expect that the defendant’s train would not approach the crossing at a rate of speed which was prohibited or unusual, and that the plaintiff should not be charged with negligence in failing to anticipate that the defendant would violate its plain duty by approaching the crossing without warning and at a dangerous and unusual rate of speed; and it is said that, because of the rate of speed at which the train was approaching at a point 80 feet from the track, the train could not have been seen, and that, if the train was not then in sight, the plaintiff could, had the train approached at a rate not to exceed 10 miles an hour, have reached and passed the crossing without harm, and that therefore, if he took an observation at this point and drove on, it cannot be said, as a matter of la w, that he was guilty of contributory negligence in not continuing to look in that direction the whole distance. It will be noticed that by the plaintiff’s testimony there is nothing to indicate that he even brought his horse down to a walk at any stage. From reading his testimony the inference would be that his horse was on a trot, or “on a little shack,” as he says, up to the time that the train was directly on him. He testifies that he then attempted to turn his horse to the right from the track, and the horse got off the track, but the buggy was struck. There is, however, testimony given by one of the defendant’s witnesses, a Mr. Miller, that the horse was trotting until he came within 20 feet of the track, as he should judge, and that then the horse came down to a walk and came onto the track. He did not stop, but continued right along.

It is a fair inference, from this testimony, therefore, that the plaintiff in traversing this distance of 80 feet was traveling at an average rate of 5 miles an hour. It would have taken the plaintiff about 11 seconds to drive this distance of 80.80 feet. The testimony of plaintiff’s witnesses as to the speed of the train at the time it reached the crossing was that it was going 30 miles an hour. While the testimony as a whole very strongly indicates a much less rate of speed at this point, the plaintiff is entitled to the benefit of this statement. Two witnesses traveling side by side, Merrill and Platt, were passed by this train a short distance north of the 569-foot point, and one of them testified that it was running from 30 to 40 miles an hour, and the other that it was running 35 miles an hour. This, taken in connection with the testimony of the plaintiff’s witnesses that the rate of speed when it reached the center of Cochrane avenue was 30 miles an hour, and the admitted fact that the train was on an upgrade and with no steam on, leaves it beyond question that the speed of this train for this distance must have been, according to the testimony of plaintiff’s own witnesses, from 30 to 35 miles an hour. But if 35 miles an hour be accepted as the correct rate of speed, the plaintiff must have had an unobstructed view while the train was traversing a distance of 450 feet or thereabouts before reaching the crossing, and this view was open to the plaintiff at the very time when the danger was the most imminent, and when the duty of attention to the approaching trains was most imperative. Instead of bringing his horse to a stop in order that he might the better listen, or glancing up the track where his danger might have been discovered, he drove directly onto the track without stopping. We think the negligence of the plaintiff is made out. Shufelt v. Railroad Co., 96 Mich; 327; Jensen v. Railroad Co., 102 Mich. 176; and Grostick v. Railroad Co., 90 Mich. 594.

It remains to consider whether the plaintiff was entitled to go to the jury upon the claim that the defendant was guilty of gross negligence. The term ‘c gross negligence, ” which excuses the contributory negligence of the plaintiff, means in this State something more than a mere epithet characterizing the degree of negligence of which a defendant may have been guilty. The theory upon which a recovery is permitted by a plaintiff, himself guilty of contributory negligence, on the ground of defendant’s gross negligence, is that where the plaintiff’s precedent negligence has been discovered by the defendant or his servant, or should, by the exercise of ordinary care, have been discovered in time to have avoided the injury, and the subsequent negligence of the defendant results in an injury to the plaintiff, the previous negligence of the plaintiff is not a bar to a recovery. This rule was announced by this court in Richter v. Harper, 95 Mich. 221, and was followed in Borschall v. Railway, 115 Mich. 473. There is no testimony in this case which justifies an inference that the defendant’s engineer acted maliciously, or that, after discovering the concurring negligence of the plaintiff, he failed to do all that any reasonable man could do to avert the collision. Whatever negligence he had been guilty of had occurred before his discovery of plaintiff’s negligence. The case is one which appeals to the sympathy of the court; but, if we follow the fixed rules of law defining the duty of a traveler in approaching a highway crossing of a railway track, we see no escape from the conclusion that the plaintiff in this case was guilty of such concurring negligence as absolutely precludes a recovery.

The judgment will be reversed, and no new trial ordered.

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


text:
    MOODY v. MACOMBER.
    Appeal and Error — Chancery Appeals — Order Overruling Demurrer — Statutes—Construction.
    Act No. 340, Pub. Acts 1907, entitled “An act to regulate the practice on appeal in chancery cases,” does not in terms, nor by necessary implication, repeal Act No. 58, Pub. Acts 1883, permitting an appeal from an order overruling a general demurrer ; said act of 1907 indicating a purpose to regulate the practice only, and not to restrict or enlarge the right of appeal.
    Bill by Paul B. Moody, executor of the last will and testament of John B. Sutton, deceased, against John B. Ma-comber to set aside certain deeds and to quiet title. From an order overruling a demurrer, defendant appeals: On motion to dismiss the appeal.
    Submitted December 21, 1908.
    (Calendar No. 23,094.)
    Motion denied March 30, 1909.

      Geer, Williams & Halpin, for the motion.

      B. F. Reed, contra.
   Montgomery, J.

This is a motion to dismiss an appeal taken from an order overruling a general demurrer to a bill of complaint. It is claimed that by Act No. 340, Pub. Acts 1907, entitled “An act to regulate the practice on appeal in chancery cases,” the legislature has limited appeals to cases in which final decree has been passed in the circuit court in chancery. A history of the legislation upon the subject and of the decisions thereunder is briefly as follows: By chapter 176 of the Compiled Laws of 1871, being chapter 90 of the Revised Statutes of 1846, as amended, relating to courts of chancery, under the title, “Appeals to the Supreme Court,” it was provided, by section 143:

“Any complainant or defendant who may think himself aggrieved by the decree or final order of a circuit court in chancery, in any cause, may appeal therefrom to the Supreme Court.”

This was followed by provisions prescribing the method of taking the appeal. It was held under this statute that an order overruling a demurrer was not a final decree or order in such sense as to entitle the defeated party to appeal. Bennett v. Nichols, 12 Mich. 22; Kirchner v. Wood, 48 Mich. 199. In 1883, by Act No. 58, this statute was amended so as to read in part as follows:

“Any complainant or defendant who may think himself aggrieved by the order overruling a general demurrer, or by the decree or final order of a circuit court in chancery in any cause, may appeal therefrom to the Supreme Court.”

No amendment in terms to this statute has been since enacted. But in 1907 by Act No. 340, entitled “An act to regulate the practice on appeal in chancery cases,” it is provided, by section 1, as follows:

“ Hereafter appeals in chancery to the Supreme Court of this State shall be taken and perfected under the provisions of this act, and not otherwise.”

By section 2 it is provided:

“Any person conceiving himself aggrieved by the decree of any court in chancery may, within forty days after the filing of the decree, claim an appeal from said decree to the Supreme Court of the State of Michigan,” etc.

It is the claim of the complainant in the present case that this statute in effect repeals the provisions of the act of 1883, and that the present law is to be construed the same as section 143 of the original act before the amendment. We think it was not the intention of the legislature to effect this result. The term “decree” is broad enough to include an order overruling a demurrer. See 16 Cyc. p. 472. It is true that such an order is not a final decree, but there is no such relation of the word “ decree” and “final order ” in the present statute as was found in the original section 143, from which it appears to have been deduced that the word “decree” in that case meant a final decree. But a more decisive reason is that the statute (section 143), as amended by the law of 1883, is not in terms repealed by the act of 1907, and, in view of the restrictive title of the act of 1907, we think it should not be held that it was repealed by implication. There is nothing in the title of the act, which is an act to regulate the practice on appeal in chancery cases, to indicate a purpose to either enlarge or restrict the right of appeal. Section 1 provides that appeals shall be taken and perfected in the manner prescribed by statute, and section 2 prescribes the manner of taking such appeals. The whole act indicates a purpose to regulate the practice only, and not to restrict or enlarge the right of appeal, and, as there is no repeal of the previous act, and the two acts can be reconciled, we think it should not be held that section 143 of chapter 176 of the Compiled Laws of 1871 has been repealed by implication.

The motion to dismiss will be denied, with costs.

Grant, Ostrander, Moore, McAlvay, and Brooke, JJ., concurred. Blair, O. J., and Hooker, J., took no part in the decision.


author: Moore, J.

text:
    RICE v. MALONE.
    Sales — Contracts—Construction—Instructions.
    In an action for goods sold, and delivered, under the terms of a written contract for the sale of certain articles of jewelry, in which it was agreed that it contained all the conditions and agreements between the parties; that the buyer would not countermand the order; that the goods should be shipped by express, to become the property of the buyer on delivery in good order to the transportation company; that the seller guaranteed that the purchaser would sell within one year an amount at retail equal to li times the amount of the order;: that if the sales were less than that amount the seller would buy back for cash at the purchase price all goods remaining on hand at the end of the year; and that the guaranty was given on condition that the purchaser should keep the goods displayed for sale and furnish the seller every two months an itemized list of all goods on hand. Held, that an instruction that plaintiff was bound to furnish goods of such quality as would sell at retail at the price mentioned as the “retail price ” at the head of one of the columns of the order, reads into the contract an agreement not contained therein, and was prejudicial to plaintiff’s rights.
    Error to Saginaw; Gage (Chauncey H.), J.
    Submitted January 11, 1909.
    (Docket No. 54.)
    Decided March 30, 1909.
    Assumpsit by Elver L. Rice against J. C. Malone for goods sold and delivered. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      George C. Ryan, for appellant.

      Kendrick & Harris (James H. Davitt, of counsel), for appellee.
   Moore, J.

Plaintiff is a wholesale jeweler. Defendant conducts a general store at Posters, Saginaw county, Mich. In the spring of 1906 an agent of the plaintiff called upon defendant with a line of samples, and took a written order for a bill of goods. The plaintiff accepted the order and forwarded the goods. The defendant refused to receive them. Later this suit was brought. A trial was had before a jury, which returned a verdict for defendant. The case is brought here by writ of error.

There are a good many assignments of error. It is not necessary to discuss all of them. The contract between the parties was in writing. The material parts thereof are as follows:

“read this order carefully.
c‘ Solid Gold Shell and Filled Rings. (Class No. 1.)
Retail
Per Doz. Amt. Each.
£ doz. gold filled band..................§3 00 §150 $50
1 doz. gold filled asstd. settings--------- 4 50 4 50 75
[Then follows a list of four pages of articles.]
“Warranty. — Any article of jewelry in this assortment not giving entire satisfaction to the user may be returned to us any time within five years from date of purchase, and we will repair or furnish a new duplicate article in its place. * * *
“Important Conditions. — In consideration of the conditions under which we sell our goods, we cannot accept countermands, and the purchaser hereby agrees not to countermand this order, either before or after it is received by us. This contract contains all the conditions and agreements between the parties, and no agreement is binding unless expressed in original order received by us. Purchaser hereby acknowledges receipt of a duplicate hereof. Jewelry is shipped by express and when we deliver goods to transportation company in good order they become the property of the purchaser, subject to all the conditions and safeguards contained herein, and cannot be returned for credit. Purchasers pay all transportation charges. All goods are shipped at our earliest convenience.
“Sales Guaranteed. — We guarantee that the purchaser will sell a quantity of jewelry which at retail will equal at least one and one-half times the amount of this order within one year from the date of purchase. If the sales are less than the above we agree to buy back for cash, at the purchase price, all goods bought of us and remaining on hand at the end of the year. This guaranty is given on condition that purchaser will keep this assortment displayed for sale and will furnish us every two months between the first and the fifth of the month, an itemized list of all goods on hand. * * *
“American Standard Jewelry Company,
“Detroit, Michigan.”
“April 3, 1906.
Gentlemen: Please ship about 2-3 of the goods described herein, which we hereby purchase on the above terms and conditions. We have read this order carefully and find same contains all the conditions agreed upon. “Order No. 1262.
“Signature of Purchaser, J. C. Malone.
“ J. S. Brooks. P. O., Burt. State, Mich.
(Salesman.)
“ Name of Express Office, A. M.
“Name of Freight Station, Fosters.
“No Goods Shipped on Consignment.
“ 705 Copyrighted 1905 by
“American Standard Jewelry Co.
“One show case 60x28x17 and suitable trays free of charge except transportation from factory; $25.00 in goods free at retail prices.”
As before stated, the order was accepted and the goods forwarded.
The trial judge properly held that it was his duty to construe the contract. He charged the jury in part as follows:
“ It is the duty of the plaintiff, in order to maintain his action, to show by preponderance of the testimony on his part that he did ship from Detroit, under the contract, two-thirds in quantity of the goods described in this written and printed contract, and that they were of the character and description mentioned in the contract, and also that they were of sufficient value, and that they would retail in open market at the price mentioned in the third column. That is the view the court takes of the contract. In other words, to illustrate, perhaps, in a more simple way, we will suppose that only one article was ordered, and that article was a locket. And I will read now from the contract: ‘ One-half dozen gold-filled, engraved front lockets.’ Supposing he had ordered two-thirds of a half dozen of just that single article. He would then have said practically to the American Standard Jewelry Company, or Mr. Rice: ‘ Mr. Rice, send me by express two-thirds of.a half dozen gold filled, engraved front, lockets, at a price of twelve dollars per dozen, so far as the price is concerned that I am to pay to you; but it is of such a quality and value as will retail in the open market at $3 a piece.’ I use this one line only to illustrate what I mean, because the retail price is stated here, and that is the order given by Mr. Malone, that the goods shall be of such a quality and character that they will retail each at that price. As I said before, it was the duty of the plaintiff to select from this stock articles that were of the character, and that would compare with the description, and would be of the value of the statement in this printed form. Before he can recover, he is bound to establish, by a preponderance of the testimony, as I have remarked, that he did select and ship — for it was all left for him to do — the amount and quality of the goods described in the contract. The real issue in this case is: Did he do so ? ”

Is this a proper construction to put upon the contract ? Are the words “ Retail Each ” at the head of one of the columns of the order a representation as to value of the goods ordered that would leave it, in case of a question arising, for a court or jury to decide whether the goods, in fact, would bring at retail the price there stated ? We think that is not a fair interpretation of the contract. The contract in effect is, as to those parts in controversy here, that the defendant orders from the plaintiff goods at certain prices which are to be continuously offered for sale by him at certain retail prices, and plaintiff guarantees that defendant will sell a certain quantity within one year, and, if the defendant does not do so, that plaintiff will buy back for cash at the purchase price all goods unsold. The purchaser agreed not to countermand his order, that the goods should become his when delivered to the express company, and that the contract contained all of the agreement between the parties. The interpretation put upon the contract by the trial judge read into it agreements which it did not contain. The plaintiff was entitled toan instruction in his favor for the amount of the order and interest.

The judgment is reversed, and a new trial ordered.

Blair, C. J., and Grant, Montgomery, and Ostrander, JJ., concurred.