text:
    LODGE v. WAYNE COUNTY CLERK.
    1. Officers — State Legislature — Members—Eligibility to Office-Board of County Auditors.
    Under section 7, article 5, of the Constitution, a member of the legislature is not ineligible to become a candidate for a member of a board of county auditors, since the duties of the latter office are purely local in their character, referring entirely to affairs of the county. Fyfe v. Kent County Cleric, 149 Mich. 349, distinguished.
    2. Same — State Legislature — Members—Eligibility to Office —Incompatibility of Duty — Effect.
    Section 6, article 5, of the Constitution, does not preclude a member of the legislature from being a candidate for a county office; the effect of such election, if the duties of the office are incompatible with the duties of a member of the legislature, would be to vacate ipso facto the office first held.
    Mandamus by John C. Lodge to compel Thomas F. Farrell, clerk of Wayne county, to place relator’s name upon the county primary election ballot.
    Submitted January 19, 1909.
    (Calendar No. 23,219.)
    Writ granted February 2, 1909.

      Merriam, Yerkes & Simons (Guy A. Miller, of counsel), for relator.

      Philip T. Van Zile, Prosecuting Attorney, for respondent.
   Montgomery, J.

The relator is a member of the present legislature elected from the district comprising the city of Detroit. There is to be elected at the coming spring election in the county of Wayne a board of county auditors. On the 11th of January the petitioner presented a petition complying with the Wayne county primary election act, so-called, signed by the requisite number of enrolled voters, asking that his name be placed upon the primary ballot to be used at the coming primary election, and deposited the requisite fee. The respondent refused to accept and file the petition, and returned the same, together with the fee tendered, upon the ground that petitioner was not eligible as a candidate for the office of auditor; he being a member of the legislature. The present petition for mandamus asks that respondent be required to accept the fee, and place his name upon the ballot.

The sole question raised by the answer to the order to show cause is that indicated, namely, whether the relator is rendered ineligible by the fact that he is a member of the present legislature. This question must turn upon the consideration of sections 6 and 7 of article 5 of the new Constitution. Section 6 provides that no person holding any office under the United States or this State or any county office, except notaries public, officers of the militia, and officers elected by townships, shall be eligible to or have a seat in either house of the legislature, and all votes for any such person shall be void. Section 7 reads:

“No person elected a member of the legislature shall receive any civil appointment within this State, or to the senate of the United States, from the governor, except notaries public, or from the governor and senate, from the legislature, or any other State authority, during the term for which he is elected. All such appointments and all votes given for any person so elected for any such office or appointment shall be void.. No member of the legislature shall be interested directly or indirectly in any contract with the State or any county thereof, authorized by any law passed during the time for which he is elected, nor for one year thereafter.”

The contention on behalf of the respondent is that the latter section renders the relator ineligible, and the case of Fyfe v. Kent County Clerk, 149 Mich. 349, is cited in support of this contention. A similar provision of the old Constitution, namely, section 18, art. 4, was there construed, and it was held that the relator in that case, being a member of the legislature at the time, was not eligible to election as a delegate to the constitutional convention. This holding was based upon the concession of counsel in the case, as well as upon the conclusion of the court, that the delegates to the constitutional convention are State officers. Such delegates were certainly performing a most important function on behalf of the State, and it was held that the relator came directly within the constitutional provisions last above quoted. It was said:

c ‘ The duties of delegates to the constitutional convention relate exclusively to affairs of State. They have no other function to perform than a State function. The only question, therefore, is: Does such an officer receive his appointment or election from any other State authority than the three just previously mentioned ? If the framers of the Constitution meant to exclude members of the legislature from eligibility to ether State offices, no language could be more comprehensive than that of c any other State authority.’ These are State officers elected by State authority. They receive a civil appointment from State authority.”

It must be obvious that the electors in choosing a State officer are performing that duty on behalf of the State, and that they are to the extent to which they act a State authority.

But is that true of the voters of Wayne county when choosing from among their number a county officer whose duties consist of adjusting claims against the county? Under the present Constitution (section 9, art. 8), the board of supervisors is given exclusive power to fix the salaries and compensation of all county officials not otherwise provided by law. The board of supervisors — in counties having county auditors, such auditors — shall adjust all claims against the respective counties. Appeals are authorized from the decision of the board of supervisors or auditors to the circuit court in such manner as shall be prescribed by law. It is to be noticed, therefore, that the county auditors, under this provision of the Constitution, are limited in their duties to the functions which their title implies, that of an auditing board, and that their duties consist of auditing claims against their respective counties. The powers fixed by the new Constitution are less broad than existed under the old Constitution. It is to be noted that the office was not created while the relator was a member of the legislature, and the duties of the office are purely local in their character, referring entirely to the affairs of the county. The case is clearly distinguishable from Fyfe v. Kent County Clerk, and we think it clear that the relator is not precluded by section 7 from becoming a candidate for the office in question. Section 6 of the article appears not to be relied upon by respondent, but, as it is to be read in connection with section 7, it is perhaps proper to say that that section deals with the eligibility of those holding office under the United States, State, or county to become candidates for a seat in the legislature. It does not preclude one who has been chosen to the legislature from being a candidate for a county office. The effect of the election to a county office, if it is held to be incompatible with the office of representative, would be to vacate ipso facto the office of representative. See Attorney General, ex rel. Dust, v. Oakman, 126 Mich. 717; Attorney General, ex rel. Moreland, v. Detroit Common Council, 112 Mich. 145 (37 L. R. A. 211).

The relator is entitled to the writ of mandamus as prayed. As the question involved is one of public concern, no costs will be awarded.

Ostrander, Hooker, Moore, and MoALVAY, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    PECK v. GRAND TRUNK WESTERN RAILWAY CO.
    1. Railroads — Crossings — Negligence — Contributory Negli- •' GENOE.
    In an action for negligently causing the death of plaintiff’s decedent at a crossing near a station at which a train then just past due was not scheduled to stop, it appeared that for a considerable distance in the direction from which the train was coming objects were plainly discernible; that the automatic electric bell was ringing; that the customary signals were given by the approaching train; and that defendant’s station agent and others attempted to warn decedent before driving upon the track. Held, that decedent was guilty of contributory negligence, and a verdict should have been directed for defendant.
    2. Same — Crossings—Flags—Failure to Display — Eeeeot.
    In such action, the failure of the flagman at the crossing to use a white flag, as required by the rules of the company, would not excuse the contributory negligence of plaintiff’s decedent, or amount to an invitation to him to go upon the track, in the absence of evidence that he knew of such requirement and relied upon it; it appearing that no flag had in fact ever been used.
    Error to Genesee; Wisner, J.
    Submitted January 13, 1909.
    (Docket No. 78.)
    Decided February 2, 1909.
    Case by Kate L. Peck, administratrix of the estate of William A. Peck, deceased, against the Grand Trunk Western Railway Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Harrison Geer and William K. Williams, for appel-. lant.

      Brown & Farley, for appellee.
   Ostrander, J.

Plaintiff’s intestate on April 9, 1906, drove his horse upon the track of the defendant railroad company at Swartz Creek, in Genesee county, immediately in front of the west-bound fast passenger train, known as No. 3, which did not stop at that station, and was instantly killed. The record presents two issues — one the negligence of the defendant; the other the contributory negligence of the decedent. We give attention to the latter issue only, because we are satisfied that the decedent as matter of law was chargeable with negligence contributing to his injury. The Grand Trunk Western Railway Company’s tracks cross Mill street at Swartz Creek very nearly at right angles. Substantially Mill street runs north and south, and the testimony of the county surveyor, undisputed, is that the angle made by the tracks with the street is one of about 70 degrees. The train was due at Swartz Creek at 2:11 p. m. It arrived at 2:15 p. m. Plaintiff, who lived south and east of Swartz Creek, who was about 34 years old, and, so far as appears, was physically normal, drove into the village in the morning with a single horse and an open buggy. His movements in the village are traced in the testimony to and after the dinner hour and to and at the time when he procured his horse and wagon from the shed where they had been left and started to return to his home. The facts concerning his journey from the village to the railroad crossing are practically undisputed. From the platform of the railroad station, which is on the north side of the tracks, a train approaching from the east can be seen nearly a mile away. On the east side of Mill street, the first house north of the tracks is 85 feet distant from the tracks. One going south and passing this house can see a man walking on the railroad tracks 612 feet east of the crossing. At a point 75 feet north of the north rail, a person on the highway can see men walking on the track 1,175 feet east of the crossing. At 50 feet north of the crossing one can see the white fence about half a mile east of the crossing. From this point to the crossing the view to the east is practically unobstructed. As decedent passed over the bridge some 60 rods north of the crossing, he encountered an acquaintance to whom he made salutation, and who said to him, “The fast train is coming,” or, “Look out for the train,” motioning in the direction from which it was coming. Witness had just heard the train whistle. The witness heard what decedent said. Whether decedent understood him no one can tell. At the time of the accident the electric automatic bell, stationed north and east of the crossing, was ringing from the time when the west-bound train appeared in sight until after the accident. The usual printed sign, asking travelers to stop, look, and listen, was fastened up on the north side of the railroad company’s right of way. For a distance of 75 feet or more north of the track there was nothing to prevent one driving on the road from turning a horse to the west on practically level ground and driving up to the railroad station. The train approached at a speed of from 45 to 50 miles an hour and consisted of the locomotive and seven cars; two of the cars being Pullmans and one a dining car. Decedent drove towards the track at a rate of speed estimated by those who saw him as 10 miles an hour — “ drove fast.” If he had looked to the east at any time during the last 75 feet that he traveled, he must have seen the train. The train whistled for the crossing one-half mile east of the station. It also whistled for the station. A woman living 210 feet north of the crossing on the west side of Mill street saw decedent drive to the track, saw the train, heard its roar and whistle, heard the automatic i bell ringing, although she was in her house with doors and windows closed. “ Of course,” she says in her testimony, “I was supposing he would stop every minute, but he did not.”

The theory of the plaintiff is sufficiently indicated in two of the requests to charge, which, with modifications, were given to the jury:

“ I charge you that if the decedent, William A. Peck, by the exercise of ordinary care and prudence, by looking up the track in the direction of the approaching train, could have seen it in time to have avoided the injury, the omission to do so would amount to such negligence as would defeat the plaintiff’s right of action, unless you find that his attention at the time was directed to the two men at the crossing, one of whom it is conceded was an employé of the company, whose duty it was to warn the public of the approach of the fast trains not scheduled to stop at Swartz Creek, and that he had a right to rely on the conduct of the employé on the crossing and treat it as an assurance of safety, and that the circumstances were such as a man of ordinary care and caution would have so treated it. * * *
“ If the jury find that a person of ordinary care and prudence driving a horse and buggy as Peck was, after seeing the signals given and in view of all the other circumstances of the case, might by exercising proper care and diligence have ascertained that the train was approaching from the east at the time of the accident, then the plaintiff cannot recover in this case, however negligent the railway company might has been, and although the flagman was not at his post provided with a flag to give warning, unless you find that the defendant by its own act or the act of its duly authorized agent had thrown Peck off his guard, and that he did act under all the circumstances as would a man of ordinary care and caution.”

The testimony supposed to sustain this theory may be briefly stated. By an order made in the year 1899 the commissioner of railroads had directed the crossing to be protected by a flagman to notify the public of the approach of passenger trains not scheduled to stop at the station between the hours of 6 a. m. and 7 p. m. each day, except Sunday. There were two of such trains, one in each direction, daily. A rule of defendant, known as rule 197, required white signals to be used by watchmen at public crossings to prevent persons and teams from crossing when trains are approaching. In fact, no flag had ever been used. Instead, the station master, or, as upon this occasion, his assistant, had, after starting the automatic bell to ringing, gone upon the track in front of the approaching train, given to the engineer of the train, with his hand, a signal indicating that the track was clear, and had then stood in the street in position to warn travelers until the train passed. It does not appear that decedent had knowledge of the order for a flagman, of the rule of the company, or that he had ever crossed -the track at or near the time when one of these trains was due there. He was not deceived or misled by failure to employ a signal which had never been employed. The failure or neglect to display a flag was not evidence that the crossing could be made with safety, and was not an invitation to him to attempt it. Was he otherwise invited or misled by the employés of defendant or by circumstances and surroundings for which the defendant was responsible or by both ? On the south main line of track, east of the crossing and distant from it from 80 to 100 feet, stood a locomotive with freight cars attached, bound west, and waiting for the passenger train to pass. It had been standing there some minutes. The station master’s assistant, having signaled the engineer of the passenger train, in doing which he faced the east, turned and looked to the north, saw decedent approaching and some rods to the north of the track. To him he made signals, using his arm and hand, the palm of the hand towards the north, moving the hand back and forth. A man employed at a nearby elevator and who stood near the defendant’s employe made similar signs, and then both left the track of the approaching train, and moved to the south to and beyond the other main line tracks. The tracks are separated by a space of about eight feet. Having taken a position in the highway south of the south line of tracks, they again faced the north, and, seeing that decedent had not slackened speed, was driving fast, and within twenty feet of the north rail, they ran towards him, signaling.

“As his horse was just on the plank of the railroad crossing, he [Peck] faced the east and saw this fast train and stopped his horse. He jerked it right back on its haunches.”

This is from the testimony of the elevator man. The witness Lottie Brewer, already referred to, who was looking from the window of her house 210 feet away, saw the signal given to the engineer and the signals given to decedent. She says:

“Mr. Peck did not pay any attention. He drove right on the track. He stopped his horse just a moment. Then the train struck him.”

There is testimony tending to prove that the automatic electric bell was sometimes rung when freight trains passed. It is claimed it may reasonably be supposed that decedent inferred from the signals that'the freight train was about to change its position, and that it was desirable that he should cross the tracks before it occupied the highway. It is said, also, that the freight train not being in motion, it would appear to decedent that he had ample opportunity to cross in safety. No one can know what was passing in the mind of decedent. We have read the entire record with care and with the aid of the brief for appellee. W e have discovered no testimony tending to prove that he was invited by the situation or by any passive or active conduct on the part of defendant’s employé to go upon the crossing. He was not only not invited, but reasonable efforts were made to acquaint him with a danger which was evident, and which the most ordinary prudence on his part would have discovered. If he saw the signals which were made to him, which seems doubtful, he could not have misinterpreted them. No one else who saw them did so. The court should have instructed the jury that the negligence of plaintiff’s intestate forbade a recovery.

The judgment is reversed, with costs of both courts, and a new trial granted.

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


author: Montgomery, J.

text:
    HALLADAY v. DETROIT UNITED RAILWAY.
    1. Service of Process — Interurban Electric Railways — Street Railways — Judicial Notice — Evidence.
    Under Act No. 208, Pub. Acts 1901, providing that service of process may be made upon any corporation owning or operating any interurban electric railway in this State by serving the same “upon any conductor upon any of the cars of such company along the line of or at the end of the railroad of such company,” with the proviso that such service “shall not apply to conductors on electric railways operating within the limits of incorporated cities,” the service upon a conductor in a city through which such road passes is sufficient, when, by the terms of the act, such service may be made “along the line of or at the end of the railroad,” and the “end” is necessarily within the limits of an incorporated city, since the court takes judicial notice that there are no interurban electric railways in the State not having a terminus in a city; said proviso relating to electric railways operated wholly within the limits of incorporated cities.
    2. Constitutional Law —Statutes — Joint Defendants — Residence — Venue.
    Act No. 225, Pub. Acts 1901, providing that where suit is brought against joint defendants, one or more of whom shall not reside in the county where the suit is brought, and a defendant shall be served therein, plaintiff may sue out a summons to the sheriff of the county where a defendant not so served may be found, or may cause a copy of the declaration, with notice of the rule to plead, to be served on the defendants not elsewhere served in any county in the State, does not violate the Constitution, article 6, § 27, declaring that the right of trial by jury shall remain.
    Certiorari to Washtenaw; Kinne, J.
    Submitted January 12, 1909.
    (Docket No. 61.)
    Decided February 2, 1909.
    Case by Mary A. Halladay against the Detroit United Railway and the Detroit, Jackson & Chicago Railway for personal injuries. There was an order denying a motion, to quash, and defendant Detroit United Railway brings certiorari.
    Affirmed.

      Brennan, Donnelly & Van De Mark, for appellant.

      Arthur J. Waters and Lehman, Biggs & Lehman, for appellee.
   Montgomery, J.

An action was instituted by the plaintiff in the circuit court for the county of Washtenaw against the two defendants, service was had upon a conductor in charge of one of the cars of the defendant the Detroit, Jackson & Chicago Railway, in the city of Ann Arbor, and thereafter service was had upon the defendant the Detroit United Railway, in the county of Wayne. A motion was made to quash the service of the declaration, and the present proceeding is certiorari to review the order denying that motion.

Two claims are made: First, that the service of the declaration upon the conductor in the city of Ann Arbor was not in compliance with the statute, Act No. 208, Pub. Acts 1901; and, second, that Act No. 225, Pub. Acts 1901, in authorizing the joining as defendants of nonresidents of the county in which the action is planted, is in violation of section 27, art. 6, of the Constitution.

Act No. 208, Pub. Acts 1901, is entitled:

“An act to provide for the service of processes, notices and writings upon all corporations owning or operating electric railways in the State of Michigan.”

It provides:

“Whenever in any suit or proceedings, either in law or equity, it shall become necessary to serve any process, notice or writing upon any corporation owning or operating any interurban electric railway in the State of Michigan, it shall be sufficient to serve the same upon any station agent, or ticket agent, at any station or depot along the line of or at the end of the railroad of such company, or upon any conductor upon any of the cars of such company along the line of or at the end of the railroad of such company, and such service shall be deemed as good and effectual as if made on the officers, stockholders or members, or either of them, of such company: Provided, That the modes of service herein provided for shall be in addition to those already in existence: And provided further, That the provision for service upon conductors of electric railways shall not apply to conductors on electric railways operating within the limits of incorporated cities.”

It is claimed that the proper construction of this statute is that service is authorized to be made upon any conductor of an interurban car only along the line of travel, but that, when service is made within the limits of a city through which the railway passes, such service must be made upon the station agent or ticket agent. We think this is not the correct construction. The provision is that service may be made upon any conductor upon any of the cars of the company along the line of or at the end of the railroad of such company. This provision relates, by the terms of the act, to interurban electric railways. A service at the end of the railroad must necessarily, therefore, be within a city or village, as the court will take judicial notice that there are no interurban electric railways in the State not having a terminus in a city, and, if service be made upon the conductor at the end of such railroad, it must be within the city limits.. It was to preclude any possibility of the claim that this provision for service should be held to apply to ordinary electric railways in cities that the last proviso was adopted, which proviso must be held to relate to street railways' wholly operated within the limits of incorporated cities.

Act No. 225, Pub. Acts 1901, is an amendment to an act entitled:

“An act to facilitate the commencement of suits against joint defendants residing in several counties.”

This act was originally adopted in 1861, and has been amended at various times since. But during all this time, in some cases, defendants residing in several counties might be joined in a single action. The amendment introduces no new principle, except that it extends the right of joining the defendants to a different class of actions.

As affecting the constitutional right of a trial by a jury of the vicinage, however, if that right is infringed by the present statute, it has been during all the history of this legislation. The question, however, of the constitutionality of the statute upon this ground has not, to our knowledge, been previously raised. ■ On the contrary, in the very late case of Rosenthal v. Rosenthal, 154 Mich. 533, the amendatory act was treated as valid, no constitutional question being raised. The provision of the Constitution is that the right of trial by jury shall remain. It shall be deemed to be waived in all civil cases unless demanded by one of the parties in such manner as shall be prescribed by law. To hold that this provision makes it necessary that the parties to a joint action be sued only in the county in which the defendant resides is to compel the bringing of two actions where one has heretofore been permitted.

The effect of declaring this act unconstitutional would be even more far-reaching than this. For upon the same reasoning it would follow that no defendant could be sued in a county other than that of his residence. We do not think that the constitutional provision was intended to have any such construction as this. The common practice of ordering a change of venue in civil cases defeats a party of his right of a trial by jury of the county of his residence. But it has never been conceived that for this reason such provisions for a change of venue are in conflict with the Constitution. A change of venue has been permitted since the organization of the State for reasons other than those of the inability to secure a jury.

The objection is not sustained. The order of the circuit judge will be affirmed, with costs.

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


author: Per Curiam.

text:
    WATKINS v. DETROIT UNITED RAILWAY.
    Servicie of Process — Constitutional Law — Statutes—Street Railways.
    This case involving a construction of Act No. 208, Pub. Acts 1901, and the constitutionality of Act No. 225, Pub. Acts 1901, follows the case of Halladay v. Railway, ante, 436, presenting the same questions.
    Certiorari to Washtenaw; Kinne, J.
    Submitted January 21, 1909.
    (Docket No. 134.)
    Decided February 2, 1909.
    Case by William H. Watkins, administrator of the estate of George E. Howard, deceased, against the Detroit United Railway and the Detroit, Jackson & Chicago Railway for the negligent killing of plaintiff’s intestate. There was an order denying a motion to quash, and defendant Detroit United Railway brings certiorari.
    Affirmed.

      Brennan, Donnelly & Van De Mark, for appellant.

      De Vere Hall, for appellee.
   Per Curiam.

This case is ruled by the opinion in Halladay v. Railway, ante, 436.


text:
    MUIR v. KALAMAZOO CORSET CO.

    1. Contracts— Set-off — Evidence — Burden of Proof — Question for Jury.
    Where, in an action for commissions under a contract of employment, defendant pleaded items of set-off against plaintiff’s account, the burden of proof was upon defendant as to such items; and, the testimony being in conflict, the verdict of the jury is controlling, in the absence of some positive rule of law to the contrary.
    2. Same — Accord and Satisfaction — Consideration — Subsequent Modification of Contract.
    In such action, it appeared that, by the terms of a written contract, plaintiff was to receive weekly stated sums in money, the remainder of the commissions earned to apply on an account owing to defendant. Plaintiff claimed that, owing to a change in the services he was rendering, the written contract was abrogated and an agreement made whereby the old account was canceled and the value and compensation for such services were to be determined on the completion of the work. Held, that the agreement for the cancellation of the old account, if made, was not without consideration, and the question of the modification or abrogation of the written contract was properly submitted to the jury.
    3. Principal and Agent — Scope of Employment — Additional Duties — Compensation.
    The performance by an agent of services outside of the scope of his employment will not support a claim for additional compensation, in the absence of an agreement to that effect or some custom supporting such recovery.
    4. Same — Money of Prinoipal — Duty to Account — What Constitutes — Waiver.
    An agent is bound to account to his principal for money of the latter coming into the hands of the agent for disbursement, such “account” under the law being a detailed statement; and a waiver of a weekly itemized statement is not a waiver of an accounting at some time.

      5. Contracts — Accounting — Evidence — Instructions — Requests to Charge.
    Where, in such action, there was testimony tending to prove that, by agreement of the parties, plaintiff was relieved from the duty of rendering an itemized account of moneys sent to him for expenses, and that thereafter he settled with his principal and acquitted himself in that behalf to the satisfaction of the principal, it was not error to refuse requests to charge directing a verdict for defendant because plaintiff had failed to prove the amount actually expended.
    6. Appeal and Error —Scope op Inquiry — Matters not Considered on Trial — Assignments op Error — Necessity.
    The scope of inquiry in the Supreme Court is limited by the suggestions made to the trial court and the errors assigned.
    Error to Wayne; Donovan, J.
    Submitted January 14, 1909.
    (Docket No. 85.)
    Decided February 2, 1909.
    Assumpsit by Erwin T. Muir against the Kalamazoo Corset Company for commissions earned on a contract of employment. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      D. B. Hayes, W. G. Fitzpatrick, and Harry C. Howard, for appellant.

      May & Dingeman, for appellee.

      Rehearing denied May 25, 1909.

   Ostrander, J.

Plaintiff sued to recover commissions claimed to be due to him under a contract reading:

“Memorandum of agreement, made this 30th day of September, 1905, between the Kalamazoo Corset Company, of Kalamazoo, Mich., of the first part, and E. T. Muir, of Detroit, Mich., of the second part. The said Kalamazoo Corset Co. agrees: (1) To employ the said E. T. Muir as superintendent of all the retail departments owned by the said Kalamazoo Corset Co., or that shall hereafter be acquired during the life of this contract, it being understood that said E. T. Muir is to have general supervision of said departments. (2) To pay said E. T. Muir as compensation for his services a commission of five per cent, on the gross sales made by all of said retail departments now owned by the said Kalamazoo Corset Co. or that may be acquired during the life of this contract. Said commissions are to be due and payable monthly as earned. In consideration of the above the said E. T. Muir agrees: (1) To act as superintendent of the retail departments of the Kalamazoo Corset Co., and to devote his entire time to promoting the interests of said departments. (2) To visit said departments as often as directed by the said Kalamazoo Corset Co. (3) To pay all of his expenses incurred while acting as superintendent of the retail departments for said Kalamazoo Corset Co., it being understood that the commission named above is to cover salary and expenses. This contract to be in full force and effect from November 1, 1905, to January 1, 1907.”

Defendant pleaded the general issue with notice of set-off. The jury returned a verdict for the plaintiff for $1,419.85, and judgment was entered on the verdict. Defendant was refused a new trial.

It appears that defendant had employed plaintiff as a traveling salesman for the period of one year from November 1, 1904. The terms of the agreement are:

“(2) To pay the following commission on sales made by Mr. Muir. Five per cent, on goods sold for $4.50 per dozen and less. Ten per cent, on goods sold for $6.00 per dozen to $15.00 per dozen. Twelve and one-half per cent, on goods sold for $15.00 per dozen and upwards. (3) To guarantee to Mr. Muir a salary of $150.00 per month and his traveling expenses.' When his commissions amount to more than the above-named salary and traveling expenses then Mr. Muir is to pay his own expenses and work on a strictly commission basis. (4) While Mr. Muir is on a salary to pay his actual and necessary traveling expenses incurred while on the road while promoting their interests, such as car fare, bus fare, hotel bills, etc. Said expenses to be allowed only when presented in proper form giving items, dates incurred, places, etc. (5) To allow Mr. Muir to draw $25.00 per week to be applied on his salary and commission, it being understood that the balance of his commissions and salary are to be applied on the account mentioned below. In consideration of the above the said E. T. Muir agrees: (1) To act as traveling salesman for the said Kalamazoo Corset Co., and to devote his entire time to promoting their interests as directed by them. (2) While working on a salary, to render an itemized weekly expense account at the end of each week, covering all money actually expended in behalf of said Kalamazoo Corset Co., showing the amount of hotel bills in each town, fare between towns, giving names and dates and such other information regarding each item as may be requested by said party of the first part. (3) To take good care of all property placed in his charge, such as samples, sample cases, reference books, etc., and to turn over such property in good condition to said Kalamazoo Corset Company or its representative whenever so requested by said Kalamazoo Corset Company. (4) He also authorizes the said Kalamazoo Corset Company to charge to his personal account the sum of 11,103.29, the amount standing on the books of said Kalamazoo Corset Company growing out of the old E. T. Muir & Co., and Her Ladyship Corset Co. matters, ard agrees to pay the balance of his commission and salaiy over and above the $25.00 per week mentioned above to apply on his account. It is mutually understood and agreed: (1) That the territory to be covered by the said E. T. Muir is to be arranged later. (2) That this contract may be canceled by either party by giving the other party a thirty days’ notice with the understanding that such notice does not affect Mr. Muir’s agreement to pay the $1,103.29 mentioned above.”

The principal items of defendant’s set-off, disputed by plaintiff, arise out of the relations and dealings of the parties during the period covered by the terms of this contract. The sales made did not produce a sum equal to the monthly guaranty and expenses. After February 1, 1905, plaintiff did not render an itemized expense account. He claimed that the requirement was waived by defendant. The state of plaintiff’s account with defendant on November 1, 1905, when the second contract, the one in suit, took effect, was that plaintiff appeared to be owing defendant $2,102.27, the account including the charges to plaintiff of $1,103.29 for indebtedness which by the terms of the contract was to be charged to him, $997.11 for money advanced and not accounted for, and an item of $1.87 for merchandise. Stated in another way, it appeared that plaintiff had been paid during the period covered by the first contract $2,970. He was credited with his salary of '$1,800, with reported expenses $172.89, a total credit of $1,972.89. He had therefore received $997.11 for which he had not accounted, and no application in reduction of his indebtedness had been made.

Counsel agreed concerning the state of various accounts, and at the conclusion of the trial presented, respectively, for the use of the court and jury, computations showing the claims of the parties. These computations are:

Total commissions earned by Muir on last contract...............................-..........$9,918 62
Total commissions received....................__ 8,294 25
$1,624 37
Less the telephone charges -..................138 05
$1,488 32
Allowance made by Muir to settle old expenses... 150 00
$1,336 32
Interest, 15 months 5 per cent____________________ 83 53
Total claim of plaintiff-.......________________$1,419 85
The defendant claims he paid during the contract (first contract)--------------------------------$2,970 00
That the samples were not returned______________ 39 16
$3,009 16
Salary and expenses............................. 1,972 89
Balance-___________________________________, — .$1,036 27
Old account_____________________________________ 1,103 29
Balance due from plaintiff at the beginning of second contract...............................$2,139 56
Balance commission due (on second contract)____ 1,266 20
And that makes a balance due to the defendant according to their figures---------------------- $873 36

It will be noted that in the computation made for the plaintiff no charge against him growing out of the dealings of the parties under the first contract, or previous thereto, is allowed, except an item of $150, and that in the computation made for defendant plaintiff is credited with but $172.89 of money paid out by plaintiff for expenses under the first contract. Assuming the first contract to have been in force and controlling during the period it was in terms made to cover, neither computation is a correct one. It is evident, and in argument is admitted, that plaintiff paid out a larger sum than $172.89 for his expenses. It is quite as clear that plaintiff did not earn enough money, under the terms of the first contract, to pay himself $25 a week and also pay the old indebtedness. It is the claim of the plaintiff that after he entered upon the performance of the first contract his duties were changed from those of a traveling salesman to include duties and to require the performance of services and the paying out of money for expenses in securing and superintending for defendant departments in various stores, in various cities, which departments were controlled by defendant for the sale of corsets. There was testimony tending to prove that in May, 1905, he by letter resigned his position. There is no testimony tending to prove that he stopped work. He later talked with Mr. Hatfield, defendant’s president, telling him he could not afford to work for $25 a week, and was told to go on, draw what money he wanted for traveling expenses, render the best service he could until the end of the year, and defendant would make him satisfied; that thereafter his work consisted almost entirely of looking after departments already purchased, and looking for and buying new departments. The testimony further tends to prove that in September, 1905 (the contract in suit was dated September 30, 1905, to take effect November 1, 1905), plaintiff was asked to make a proposition as the basis for a new arrangement, and replied that the old arrangement had not been closed. Defendant’s president told him, in substance, that on November 1st he would have paid $600 of his indebtedness, and as to the balance, “ I will wipe that out.” There was discussion and correspondence, renewed from time to time, concerning the expense account. Plaintiff’s testimony tends to prove that upon an occasion as late as April, 1906, or later, he was told that, crediting his account #172.89 audited expenses, there appeared to be a balance standing against him of some #1,599.27; that it was agreed that plaintiff should be credited with all of this amount except #150. Mr. Hatfield testified that he and plaintiff were trying to arrange some settlement, fair to both parties, of the matter of the expense account, although he denied that any arrangement was made. Plaintiff testified, over objection, that he had paid out for expenses about $1,600, for which he rendered no itemized statement. The effect of plaintiff’s testimony is this: The first written contract was not controlling of the rights or duties of the parties after May, 1905. The provision that plaintiff should draw but #25 weekly of his salary, the remainder to be applied in payment of his debt, was abrogated. The provision for a weekly itemized expense account had before that been waived. He had received #2,970, of which he should be credited $172.89, plus $1,599.27, less $150, making $1,622.16, leaving $1,347.84 as the sum received on account of salary. This left due him as salary, on the basis of $1,800 annually, $452.16, with an indebtedness of $1,103,29 to the company. The balance against him, therefore, on November 1,1905, was $651.13. This amount was credited to him, for services rendered, and, upon his payment of the sum of $150, balanced his old account.

As to the matters of set-off, defendant had the burden of proof. There was sharp conflict of testimony concerning many of the facts it sought to establish. The finding of the-jury was supported by testimony, and, unless some controlling rule of law forbids it, must stand. The con' tention that the testimony discloses no consideration for the alleged cancellation of the balance of plaintiff’s indebtedness to defendant is without merit. It is not the case of one forgiving a debt or accepting as full payment less than is agreed to be due and owing to him. According to plaintiff’s theory, it is the case of payment of the full amount due and owing by services, the value of which, and the compensation for which, were left to be settled by agreement. It is a rule .of law that where an agent is employed at a fixed salary or rate, and the principal imposes upon him, or he performs, additional duties, with enlarged powers, no extra compensation can be recovered, unless there is an agreement .to such effect, or some custom supporting such recovery. See 1 Am. & Eng. Enc. Law (2d Ed.), p. 1116; Schurr v. Savigny, 85 Mich. 144. The jury has found there was an express agreement modifying, if not abrogating, the written contract.

It may be admitted that as to the expense account the defendant had sustained the burden of proof when it showed the amount of money paid to plaintiff. The duty of an agent to account to his principal for moneys of the principal coming into his hands is not disputed. Mechem on Agency, § 528; Moyses v. Rosenbaum, 98 Ill. App. 7; Wolf Co. v. Salem, 33 Ill. App. 614. And it may be said, also, that an account, in cases like the present one, is a detailed statement. 1 Bouvier Law Diet. p. 63. It is clear, too, that waiver of weekly itemized statements of expenses is not a waiver of an accounting at some time. Plaintiff’s testimony goes much further than this. It is to the effect that he declined to render a detailed account of his expenses; that thereafter money was sent to him, as usual, with the understanding that he should not render such an account, and that in the end he acquitted himself to the satisfaction of his principal. In addition to this he testified, over objection, that he actually expended about $1,600 more than he had rendered itemized statements for. Error is assigned upon the ruling admitting this testimony and upon the refusal of the court to give certain requests to charge, neither of which requests took into account the alleged acquittance, and both of which directed a verdict for defendant upon this contention, if it was found that plaintiff had failed to prove what his expenses actually were. One of these requests, the seventh, was read to the jury by the court, the court, however, employing the word “ can ” where the word “must ” was used by counsel, in the connection “the jury must disregard his claim.” When he had concluded the reading the court said: “I want to look at this request, .because I have marked it doubtful. I think I will reach it in another place.” Whether this remark referred to the instruction just given or to a succeeding request is not, with certainty, disclosed. The subject was not again referred to in the charge, and the court immediately passed to and gave defendant’s eleventh request. The jury should not have been instructed as requested, and whether the instruction was or was not understood to be given is not important.

We do not agree with counsel for appellant when they say the positions taken by plaintiff with reference to his expense account were, first, that he had acquitted himself by agreement; and, second, that he had actually disbursed the total amount of unaccounted-for expense money. His contention was that he had been acquitted by his principal. He did not pretend to have kept an account, and in stating that he had paid out for expenses about $1,600 he was not rendering an account. It will be assumed, from the fact that he was willing to deduct $150 from this amount, that he regarded some items as not properly chargeable to defendant. Indeed he admits that he used $50 otherwise than in the business of his principal. There may be ground for just complaint concerning the manner of submitting this matter to the jury, but the scope of inquiry in this court is limited by the suggestions made to the trial court and the errors assigned. We have considered all of the errors assigned and argued, and are of opinion that the case was one for the jury upon all disputed facts, and that no reversible error is made to appear.

Judgment is affirmed.

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


author: Grant, J.

text:
    CHARLES H. WERNER & SONS CO. v. LEWIS.
    Justices of the Peace — Judgment on Note — Sufficiency.
    In justice’s court, under the statute (section 826, 1 Comp. Laws), the production and presentation in evidence of a promissory note is sufficient to support a judgment for its amount, in the absence of a denial under oath of the execution thereof at the time of pleading.
    Case made from Charlevoix; Mayne, J.
    Submitted January 18, 1909.
    (Docket No. 95.)
    Decided February 2, 1909.
    Assumpsit by Charles H. Werner & Sons Company against William J. Lewis for the amount of a judgment obtained in justice’s court. There was judgment for plaintiff, and defendant appeals.
    Affirmed.

      Knowles & Converse, for appellant.

      B. W. Kane, for appellee.
   Grant, J.

Plaintiff brought suit in assumpsit in justice’s court against the defendant. Summons was returned personally served. Defendant did not appear. Plaintiff filed a, declaration upon the common counts in assumpsit, and “especially upon a certain promissory note given by the above-named defendant to the above-named plaintiff, under date of November 26, 1895, for $45.89, due in six months, at 7 per cent, interest, and files the note with the court.” After waiting one hour the court rendered judgment for the plaintiff for the amount of the note. This suit is brought upon that judgment.

Defendant objected to the admission of the judgment, because the justice’s docket does not show that evidence was given; that no witnesses were sworn, as required by subdivision 8, § 957, 1 Comp. Laws, which requires the justice to enter upon his docket, among other things, “the names of the witnesses sworn at the request of either party, stating at whose request, the objections, if any, made to the competency of a witness, and the decision thereon.” No evidence was required, further than the production and presentation of the note, under section 826, 1 Comp. Laws, which provides that any written instrument declared upon may be used in evidence upon the trial without proving its execution, unless its execution is denied upon oath at the time of pleading. There was no necessity for the swearing of any witnesses. The case is ruled against the defendant by O’Donnell v. Wade, 151 Mich. 103.

The judgment is affirmed.

Blair, C. J., and Montgomery, Hooker, and Moore, JJ., concurred.


author: McAlvay, J.

text:
    MITCHELL v. STATE BOARD OF LAW EXAMINERS.
    1. Attorneys — Admission to Practice — Examination—Statute Rules — Construction.
    In the construction of a law, its provisions must be considered as a whole; and under the statute relative to the admission of attorneys to the practice of law (sections 1122-1124, 1 Comp. Laws), a rule of the board of examiners requiring candidates for admission to correctly answer a minimum of 70 per cent, of all questions upon each subject is not in confict with the provisions of the statute so construed.
    2. Same — Board oe Law Examiners — Powers—Discretion—Review.
    The statute (sections 1119-1125, 1 Comp. Laws) relative to the admission of attorneys to the practice of law gives a large discretion to the board of examiners as to the rules and regulations governing the examination of applicants, the exercise of which will not be reviewed unless it clearly appears that there has been an abuse thereof.
    Mandamus by Walter B. Mitchell to compel the State board of law examiners to issue a certificate of qualification, and recommend relator’s admission to the bar.
    Submitted January 5, 1909.
    (Calendar No. 23,232½.)
    Application denied February 2, 1909

      Walter B. Mitchell, in pro. per.
   McAlvay, J.

Application is made by petitioner against the State board of law examiners for an order to show cause why a writ of mandamus should not issue requiring said board to issue to him a certificate of qualification and recommend his admission to the bar as provided by law. Petitioner alleges that he was examined for admission to the bar of the State by said board at its October session, 1908, and by the determination of the board, based upon said examination, it was held that he was not entitled to the certificate of qualification and recommendation. This action he claims was unauthorized and contrary to his just rights and to the provisions of the statute governing said board, although according to the rules and regulations relative to such examination as have been established by the board.

Petitioner contends that the rules and regulations which require that the answers of an applicant must average 70 per cent, of questions given in each branch of the law upon which an examination is held are contrary to the requirements of section 1123, 1 Comp. Laws, which provides :

“The applicant shall be required to submit to a written examination, which shall be prepared by such board, also an oral examination by the board, and shall be required to answer a minimum of seventy per cent, of the questions given him to entitle him to the certificate of the board.”

The petition has attached to it many exhibits showing his correspondence with the board, copies of the questions and answers as nearly correct as he can give them, together with his judgment upon the correctness of his answers, and the certificate given by the board showing his proficiency. • This statute is doubtless familiar to the profession, and it will not be necessary to discuss its general provisions; but we may say in passing that the results of the work of this board under the statute in elevating the standard of proficiency in the knowledge of the law of those who seek to be admitted to practice the profession in this State has been highly beneficial. The board is authorized (section 1122) to “make such rules and regulations relative to such examination as to them may seem proper.” One of the rules — the one complained of — is rule 4.

‘ ‘ Candidates will be required to answer correctly at least seventy per cent, of all questions upon each subject.”

The statute also provides (section 1124,1 Comp. Laws):

“And the secretary of the board shall furnish each applicant with a card, showing the proficiency he has attained in each branch or subject upon which he has been examined, whether a certificate is issued or not.”

This certificate was duly issued to petitioner strictly complying with the requirements of this statute.

It is claimed by petitioner that rule 4 of the board is in direct conflict with the 70 per cent, clause of section 1123, 1 Comp. Laws, which he construes as entitling an applicant to a certificate of recommendation for admission who answers 70 per cent, of the aggregate number of questions given at his examination, without reference to his percentage in any particular branch or subject upon which he has been examined, or the number of questions given upon each subject. We do not so construe the statute. Its provisions must be considered as a whole. It is apparent that the legislative intent as expressed in sections 1123 •and 1124, above quoted, was to require a proficiency of at least 70 per cent, to be attained in each subject upon which an examination was had, and was correctly interpreted by the board in the rule in question. It is apparent that it was not intended that a candidate would be considered entitled to admission who had not a passing standing in one-third of the subjects submitted for examination. In petitioner’s case, if his contention is correct, such would be the result. From his certificate, an exhibit to his petition, it appears that he was examined upon 23 different subjects, in 15 of which his percentage of correct answers as marked by the board was from 70 to 85 and in 8 from 20 to 53. He was given an average of 62 per cent.

The foregoing shows an average much below passing standing in one-third of the subjects considered, which included several of the most important branches of the law. He claims that in one of these an error occurred, and he should have been marked 100, instead of 52 per cent. If this claim were considered, no material change in the result would occur. This law has. necessarily left a large discretion in this board as to the rules and regulations it would make to govern it in these examinations and the details pertaining thereto. The exercise of this discretion will in ño case be reviewed by this court unless it should clearly appear that an abuse has occurred. A careful examination of this petition and the exhibits attached satisfies us that no question of abuse of discretion is presented.

The order to show cause is denied.

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


author: Moore, J.

text:
    NICHOLLS v. CHARLEVOIX CIRCUIT JUDGE.
    Municipal Corporations — Public Improvements — Wharves — Constitutional Law.
    A city of the fourth class is not prohibited under the Constitution of 1908 (article 8, § 23, or article 10, § 14) from entering into a contract for the erection of a public wharf upon lands owned by it at the foot of a street which terminates in nav. igable water.

    Mandamus by Harry Nicholls to compel Frederick W. Mayne, circuit judge of Charlevoix county, to vacate an order denying an injunction.
    Submitted January 20, 1909.
    (Calendar No. 23,227½.)
    Writ denied February 2, 1909.

      Robert W. Kane, for relator.

      Arthur L. Fitch, for respondent.

      As to right of city to erect wharf, see note to Madison v. Mayers (Wis.), 40 L. R. A. 645.

   Moore, J.

This is a proceeding by mandamus to compel the respondent to vacate an order denying an injunction to restrain the common council of the city of Charlevoix from entering into a contract for the construction of a public wharf upon lands owned by it at the foot of a street which terminates in the waters of Pine Lake, which waters are navigable waters. It is conceded that all the proceedings are regular.

Counsel for the relator states in his brief that the sole question is:

“ Has the legislature the constitutional power to authorize cities of the fourth class to erect and maintain public wharves ?”

It is insisted the proposed improvement is a work of internal improvement within the inhibition of article 14, § 9, of the old Constitution of 1850, and article 8, § 23, and article 10, § 14, of the new Constitution of 1908. Counsel for relator in his oral argument repeated what is stated in his brief that he has but one authority, to wit, Attorney General, ex rel. Brotherton, v. Detroit Common Council, 148 Mich. 71, which sustains his contention. An examination of that case discloses that it did not relate to the erection of a public wharf. It is clearly distinguishable from the one at bar. As early as 1815 the city of Detroit was authorized to erect, repair, and regulate public wharves. Laws 1820, p. 175, § 14. It has exercised that right from then until now. It is doubtful if there is a city or village in the State having streets terminating upon navigable waters which is not exercising alike right. It is very significant that during all these years the right has not been successfully challenged. In Backus v. City of Detroit, 49 Mich. 110, the question was raised. Justice Cooley, speaking for the court, said in part:

“ The charter of the city confers power upon the common council to erect, repair, and regulate public wharves and docks at the ends of streets, or on the property of the city, and, acting in the assumed exercise of this authority, the city has entered into a contract with parties named in the bill for the construction of a wharf in extension of said street to the outer line of complainant’s wharves aforesaid.
“ This is an injunction bill to restrain the construction by the city of the wharf for whose construction a contract has been made. The superior court granted the relief prayed. It does not appear what use the city proposes to make of the wharf when constructed, and the complainant contests the right to construct it for any purpose whatever. His claim is that the slip is entirely upon his own land, and that the dedication terminated at the shore. If therefore the city has no authority to construct the wharf for any purpose, the decree from which the city has appealed must stand; but if the city may construct it for some purposes, but not for others, we should assume that the purpose intended was lawful, and sustain the appeal.
“This is an important question, for it is one that arises in many places, and considerable interests are likely to depend upon it whenever the land .affected by the supposed dedication is valuable for commercial purposes. Each party claims that the position contended for is eminently reasonable and just, and asks judgment on that basis; but each party claims also that its contention is sustained by authority.
“The river Detroit is a navigable river, in the Ameriican sense of that term. The site of the proposed wharf is covered by navigable water. It is not claimed that the wharf, if constructed, will in any degree obstruct or embarrass navigation, and, if a private individual were owner of the bank, his right to construct the wharf would be conceded.”

The opinion concludes:

‘ ‘ But it is not to be inferred, from what is above said, that in our opinion the city has a right to appropriate the end of the street to private uses, or to any uses inconsistent with the dedication. It would be premature for us to undertake to indicate precisely what the city may and what it may not do, since the question is not now before us. It is enough for us to say that the city derives its authority from the dedication of the public way, and that the construction of a wharf which shall give the means of access from the highway by land to the highway by water is not inconsistent with the gift.”

It is not likely the learned author of Constitutional Limitations would have overlooked the constitutional inhibition, if one existed. In Kemp v. Stradley, 134 Mich. 676, Chief Justice Hooker, speaking for the court, said:

“That a city may build a dock at the end of a street has been held in many cases. Barney v. Mayor and City of Baltimore, 1 Hughes (U. S.), 118; Angell on Highways, § 301; City of Newport v. Taylor’s Ex’rs, 16 B. Mon. (Ky.) 804; Mayor, etc., of New Orleans v. United States, 10 Pet. (U. S.) 717; McMurray v. Mayor, etc., of Baltimore, 54 Md. 103; Gould on Waters, § 106; 2 Smith on Municipal Corporations, § 1314; Dillon on Municipal Corporations (4th Ed.), §§ 110, 634 (note); Newark Lime & Cement Manfg. Co. v. Mayor, etc., of Newark, 15 N. J. Eq. 64.”

In conclusion he said:

“We think it unnecessary to go outside of Michigan for authority sustaining the right of the defendant city to build and lease wharfing privileges.”

In 1 Farnham on Waters and Water Rights, p. 565, it is said:

“The construction, maintenance, and control of wharves within its limits is so closely connected with the prosperity of a municipal corporation, and is so nearly allied to the power which it exercises over its streets, that no question has ever been raised as to the right of the legislature to authorize a municipality to own and maintain them. The property for the wharf may be secured by grant, purchase, or by condemnation proceedings; and the funds for its construction and maintenance may he obtained by taxation” — citing many cases.

We think the city of Charlevoix is authorized to do what it is attempting to do.

The writ of mandamus is denied, with costs.

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


author: Brooke, J.

text:
    SIEGEL v. WAYNE CIRCUIT JUDGE.

      1. Injunction — Propriety—Prospective Nuisances.
    On a bill to enjoin the erection of a building, on the ground that it would constitute a nuisance to adjoining property owners, it appeared that the lot on which such building was to be elected was subject to no building restrictions and was in a locality which was passing from a strictly residential to a business district; that the erection of the building itself was no injury to complainants’ rights. Held, that the issuance of an injunction restraining the erection of said building because of the business which was proposed to be carried on therein was not warranted.
    2. Same — Discretion oe Trial Court — Mandamus.
    While the discretion of the trial court in issuing and continuing in force a temporary injunction should not be lightly interfered with, facts and circumstances showing that defendants’ rights could not be preserved if compelled to wait for a final determination and decree justify a resort to a writ of mandamus to vacate an injunction improvidently issued.
    Mandamus by Benjamin Siegel and another to compel Joseph W. Donovan, circuit judge of Wayne county, to dissolve an injunction.
    Submitted January 26, 1909.
    (Calendar No. 23,221.)
    Writ granted February 2, 1909.

      Stevenson, Carpenter & Butzel, for relators.

      Geer, Williams, Martin & Butler, for respondent.
   Brooke, J.

The petitioners ask a mandamus against the respondent to set aside an order for an injunction. The petitioners are owners of a lot 60 feet wide, lying on the east side of Woodward avenue, and about 60 feet south of Brady street in the city of Detroit. Up to the time the bill of complaint upon which the injunction was issued was filed'there was upon said premises a residence and outbuildings used in connection therewith. Petitioners leased said premises under -an agreement to erect thereon a two-story building covering substantially the entire lot, to be used by their lessees as an automobile garage, and commenced to raze the old residence and outbuildings on said lot. Thereupon- Frank Scott Clark, owning premises immediately to the north of the lot owned by petitioners, and Elizabeth M. Frelinghuysen, owning the premises immediately south, filed their bill of complaint in the Wayne circuit court, setting up the fact of their respective ownerships, and the further fact that petitioners intended to erect on the lot between them an automobile garage, and averring that a garage so located would be a nuisance to them, and would cause them irreparable damage, and praying that the petitioners be restrained from proceeding with the erection of said building. Upon presentation of the bill to the respondent as circuit judge, an injunction was issued ex parte, which was in part in the following terms:

“We, therefore, in consideration thereof, and of the particular matters in said bill set forth, do strictly command you, under the penalty of $10,000 to be levied on your lands, goods, and chattels to our use, that you do absolutely desist and refrain, until the further order* of this court, from establishing or maintaining, or from commencing to establish or maintain, an automobile garage thereon.”

Thereupon the petitioners, who are made defendants in said bill of complaint, demurred to said bill for lack of equity and other reasons, at the same time answering, denying its equities, which answer was duly verified by oath. Shortly after a motion was made by the petitioners, based upon the files and records in the cause, for a dissolution of the injunction. The motion was made on December 31, 1908. Respondent filed an opinion, in part as follows:

“Under the showing made, which was forcefully argued, the injunction should be made permanent, so that each party can use his property in a way not to injure his neighbor’s peace and comfort. The motion to dissolve the temporary injunction is denied.”

On the 9th of January, 1909, the following order was made:

“ In this cause application having been made by defendants, Benjamin Siegel and Sophia Siegel, for a dissolution of the temporary injunction (os) either entirely, or (6) to the extent that the erection and completion of said building may be permitted, after hearing the arguments of counsel, it is hereby ordered by the court that said motion is denied in toto. It is further ordered that the oral application made by defendants, on the argument that complainant be required to file a bond to protect defendants against loss and damage resulting from the issuance of such injunction, if improperly issued, is likewise denied.”

Upon the entry of said order petitioners have asked this court for an order for a writ to set aside the injunction, which the circuit .judge in his order last quoted declined to do. The property owned by the petitioners is subject to no restrictions as to its use. The locality is one which for a period of several years has been passing from a strictly residential character. In the half dozen blocks on either side of the site in question many business places have been established lately.

In passing upon the question raised by the petition it is not necessary to determine whether or not an automobile garage, conducted in a proper manner upon the site in question, would become a nuisance to the complainants, and we, therefore, do not consider it. What was done by. the preliminary injunction, and what was intended to be done, as is clearly shown by the order denying the application to dissolve, was to enjoin the petitioners from the erection of the proposed building. We know of no authority which would warrant respondent in going to this length. As before noted, the petitioners’ land is burdened with no restriction, and they certainly have the right to erect upon it such structures as they deem proper, and to use the structures so completed for such purposes as please them, so long as in their erection and use they do no violence to the rights of the complainants. It is obvious to the court that in the erection of said building no such injury to complainants’ rights can be effected. • It is equally obvious that the erection of a building which can be used for lawful purposes, which would not affect complainants’ rights, ought not to be enjoined because of the possibility that after completion it may be used so as to constitute a nuisance. See Dalton v. Railway Co., 144 Ind. 121; Wolcott v. Melick, 3 Stockton (N. J. Eq.), 204; Diocese of Trenton v. Toman (N. J. Eq.), 70 Atl. 606; Windfall Manufacturing Co. v. Patterson, 148 Ind. 414 (37 L. R. A. 381). In the case of Torrent v. Common Council of Muskegon, 47 Mich. 115, Mr. Justice Campbell uses the following language :

“We also feel it our duty to refer to the danger of interfering in the outset of a case by injunction, with interests where delay may work great damage, without making full provision for redress by an adequate injunction bond. Defendants ought not to be subjected by the machinery of the law to irreparable mischief.”

The discretion of a circuit judge in the issuance and continuance in force of a temporary injunction ought not to be lightly interfered with. But there are cases, and we think the case at bar is one of them, where a final decree obtained by the defendants (petitioners) after months of delay, if it should be ultimately determined that they are entitled to such, would fall far short of preserving their rights. They might have suffered irreparable damage in the meantime. That mandamus in such cases is the proper remedy, has been fully settled in this State. See Board of Sup'rs of Wayne Co. v. Wayne Circuit Judges, 106 Mich. 166; Ideal Manufacturing Co. v. Wayne Circuit Judge, 139 Mich. 92.

The writ will issue.

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


text:
    TRIANGLE LAND CO. v. NESSEN.

    1. Taxation — Quieting Title — Adverse Claims.
    One claiming to be owner of an absolute title to lands derived through tax proceedings may not lay the foundation for a suit to quiet title under section 448, 1 Comp. Laws, by alleging a demand upon, and the refusal of, the former owner, out of possession, to disclaim all interest in the lands.
    3. Same — Cloud on, Title.
    In such a case, the record title of such former owner is not a cloud upon the title derived through the tax proceedings.
    Appeal from Lake; Rose, J.
    Submitted November 11, 1908.
    (Docket No. 152.)
    Decided February 2, 1909.
    Bill by the Triangle Land Company against J. O. Nessen and another to set aside a deed and to quiet title. From an order overruling a demurrer to the bill, defendants appeal.
    Reversed, and remanded.

      JS. 8. Atherton, for complainant.

      Dovel & Dovel, for defendants.
    Complainant sets out its title to certain land derived from a sale of the land for taxes levied in the year 1900. It avers that the statute notice was duly served upon defendants, who are the grantees named in the last recorded deed, made in 1893 and recorded in the regular chain of title, that thereafter more than six months elapsed, and that said defendants have neither paid nor tendered the money required to obtain a reconveyance of the tax title, nor instituted proceedings to contest the title. It is also further averred:
    “Your orator further shows that it is informed and verily believes, and therefore charges the truth to be, that the said land is wild, unoccupied, and unimproved land, and mat no person or persons has actual possession of said land, and that your orator is now in constructive possession of said land.
    “Your orator further charges that, owing to the uncertainty of tax titles and the law relating to the same, your orator has not the highest commercial title to said land, although it is entitled to and absolutely owns said land, but that many persons would hesitate and refuse to purchase said land from your orator and pay an adequate price therefor unless the cloud occasioned by the deed in favor of the said A. J. Dovel and J. O. Nessen be declared null and void by this honorable court as against your orator, and therefore your orator comes into this court to obtain its equitable rights and have its title in and to said land quieted.
    “Your orator further charges that the said A. J. Dovel and J. O. Nessen have commenced no suit or proceeding at law or in equity against your orator or the said Minnie H. Kellogg to try title to said land, nor have the said defendants herein offered to release their title to said land.
    “ Your orator further charges that the deed to the said A. J. Dovel and J. O. Nessen is a cloud upon the title of your orator to said land, and tends to depreciate the value thereof, and your orator is unable to sell said land for an adequate price, owing to said conveyance.”
    The prayer of the bill is that the deed to defendants be set aside and declared void, and complainant decreed to be the sole owner of the land. To this bill defendants interposed a demurrer, the grounds of which are:
    (1) That complainant has an adequate remedy at law.
    (2) That it does not appear by the bill that defendants in any manner interfered with complainant’s title or right.
    (3) That defendants are entitled to have the question of the legality of complainant’s alleged title determined at law.
    (4) The provisions of the tax law referred to in the bill, limiting the right of defendants to question or defend against complainant’s tax title, are invalid and unconstitutional, “ and complainant obtained no rights whatever under the alleged transfer.”
    From a decree overruling the demurrer, defendants have appealed.

       Headnotes prepared by Ostrander, J.

   Ostrander, J.

(after stating the facts). The bill is filed under 1 Comp. Laws, § 448. That section reads:

“Any person claiming the legal or equitable title to lands, whether in possession or not, may institute a suit in chancery against any other person, not in possession, setting up a claim thereto in opposition to the title claimed by the complainant, and if the complainant shall establish his title to such lands, the defendant shall be decreed to release to the complainant all claims thereto, and pay costs, unless the defendant shall, by his answer, disclaim all title to such lands and give a release to the complainant, in which case costs shall be awarded as the court may deem just.”

It does not appear by the bill of complaint that defendants are setting up any claim to the land in opposition to the title claimed by complainant. The case stated, therefore, is not one within the statute relied upon, and is unlike Flint Land Co. v. Fochtman, 140 Mich. 341. It is said that, because defendants do not now disclaim interest in the land, relief should be granted; that it is their duty to disclaim and to release all interest to complainant.

The matter set out in the fourth ground of the demurrer is, it is argued, an assertion of title in defendants. If the bill had been answered, and matter affecting complainant’s title adversely had been set up in bar of the relief prayed for, a different question would have been presented. See Flint Land Co. v. Godkin, 136 Mich. 668. I am not impressed with the idea that one who claims to be the owner of an absolute title to land derived through tax proceedings may lay the foundation for a second judicial determination of his rights by demanding of a former owner, out of - possession, that he disclaim all interest in the land. There is no statute which requires the owner of an original title cut off in tax proceedings to execute a release or to disclaim an interest in the land. His record title is not a cloud upon the title acquired through the tax proceedings. 2 Cooley on Taxation (3d Ed.), p. 1448; City of Detroit v. Martin, 34 Mich. 170. If he is in possession of the land and refuses possession to the tax-title holder, a writ of assistance issued on the footing of the original decree may be procured. If he is out of possession, asserting no title, he should not be amerced in costs and made to bear expense for refusing, upon the demand of the tax-title holder, made in or out of court, to do what he is under no obligations to do. But decision of the case at bar is rested upon the rule that the bill of complaint, no record evidence of a cloud upon complainant’s title being asserted, must aver that defendants had asserted title to the land or some claim thereto adverse to the title of complainant. Jenks v. Hathaway, 48 Mich. 536.

The decree overruling the demurrer is reversed, with costs of this court, and a decree sustaining the demurrer and remanding the record will be entered here.

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