text:
    WILLIAMS v. HAMMOND.
    Mortgages — Foreclosure—Payment—Discharge.
    Upon an appeal from a decree discharging a mortgage on complainant’s farm, as paid, and on review of the evidence and issues of fact, the decree of the trial court is affirmed as warranted by the evidence.
    Appeal from Cass; Des Voignes, J.
    Submitted November 5, 1913.
    (Docket No. 77.)
    Decided October 2, 1914.
    Bill by Isaac N. Williams against M. Grace Hammond and another to cancel a mortgage as satisfied and paid. From a decree for complainant, defendant Hammond appeals.
    Affirmed.

      W. C. Jones and Carr & Eby, for complainant.

      David Anderson, for defendant Hammond.
   Bird, J.

The thing sought to be accomplished by the filing of the bill of complaint in this cause is the cancellation and discharge from record of a real estate mortgage for $1,600, which complainant gave on his farm in the year 1875. His claim is that the mortgage has been paid. The defendant denies that it has been paid, and claims that there is still due upon it upwards of $5,000, and by way of affirmative relief prays for a decree of foreclosure. The sole issue is whether anything is yet due on the mortgage. The chancellor before whom the hearing was had found in favor of the complainant, and a decree was made discharging the mortgage from record. Defendant M. Grace Hammond appeals from this decree.

The mortgage was given in January, 1875, by complainant, and bore interest at the rate of 10 per cent. His claim is that he made payments thereon from time to time as the years passed, sometimes getting a receipt, and at other times getting no receipt, relying upon the promise of the mortgagee to indorse the same on the mortgage. He claims that these payments continued to be made until April, 1897, when he let the mortgagee have a horse, cow, and a harness, with the understanding that it was to be in full settlement of the balance due on the mortgage. The complainant had no memoranda of payments which he claimed to have made. This was explained by the fact that he could neither read nor write. The original mortgagee was one Murdock, who assigned the mortgage in March, 1888, to L. R. Anderson, who in turn assigned it to the defendant, his daughter, in March, 1904. Applying the payments indorsed on the notes, the defendant claims there is still due thereon the sum of $5,'750.50. If we take into consideration only the payments which are indorsed on the notes, the defendant is undoubtedly entitled to the decree which she claims. We think, however, after a careful examination of the record, that we should not disregard all the other evidence in the case which shows that other payments were made to Mr. Anderson and never indorsed.

The complainant testified that he made other payments for which he held no receipts, reciting, in some instances, the circumstances under which they were made, and in others where they were made, and that the balance was settled by turning over the horse, cow, and harness. His testimony was corroborated by his wife and other members of his family, and by other witnesses who apparently had little, if any, interest in the controversy. This testimony we shall not discuss in detail. If this testimony by itself is not strong enough to discharge the burden of proof which rests upon the complainant, when considered in connection with certain conduct of Anderson and his daughter, we think the chancellor might well conclude as he did that complainant’s case was established. To some of these things we shall refer briefly. Mr. Anderson owned the mortgage from 1888 to 1904, and called upon the complainant frequently for money. These demands continued down to the time when complainants say that Anderson received the horse, cow, and harness in payment of his claim. This is conceded to be the last payment made. During the next seven years, Anderson was in that vicinity a part of the time and a part of the time he was in the West, but on two or three occasions while living in the West he returned and visited his former home. If defendant’s theory is true that there is now $5,750 due on the mortgage, there must have been upwards bf $3,000 due before Mr. Anderson went West. The record shows that he was a good business man, and thrifty, and it is somewhat difficult to understand why he should have permitted a mortgage, with $3,000 and upwards due upon it, to drift along for seven years and better without taking any steps to enforce its collection, especially when that sum was very nearly the value of the farm. We think this has a strong tendency to corroborate the testimony of complainant that the balance due on the mortgage was settled in April, 1897, when the horse, cow, and harness were turned over to the mortgagee.

Another argument which is made by complainant’s counsel which has some force is the fact that defendant had already collected upwards of $7,000 on the other mortgages which were included in the assignment with the one in question, in which assignment the entire consideration named was only $4,000. The force of this argument is somewhat weakened, however, by defendant’s testimony that she did not purchase them; that the assignment was made for the purpose of enabling her to collect and discharge them.

Upon the hearing the mortgage was not produced, and the daughter could not find it among her father’s papers. Her father, the assignor, died in 1909. She produced the notes with their indorsements. She testified she did not know how much was due upon the mortgage, and by her conduct and testimony she clearly evinced a doubt as to whether the payments were all indorsed upon the notes. After the assignment was made, the supervisor testified she stated to him that there was only “about $300” due on the mortgage. She also visited complainant and requested to see his receipts and took memoranda of them, and when pressed for a reason, upon cross-examination, why she wanted to see the receipts, she said:

“I saw the notes before the assignment was made. I did not figure up the amount due because one never could tell what had been paid, what they had receipts for, that is, receipts that had not been indorsed.”

These statements upon her part give rise to the belief that she herself thought there might have been payments made and not indorsed by her father. Some other questions are presented by the record, but in view of our conclusion that the testimony fairly shows that the mortgage has been paid, it will be unnecessary to discuss them.

The decree is affirmed, with costs of this court to complainant.

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


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    CONROY v. HAFFNER.
    1. Evidence — Bocks of Account — Banks.
    The books of a private bank- showing the ownership of a note, which plaintiff claimed was not owned by the bank but by the payee, who had placed it in the bank for collection, were inadmissible in behalf of the defendant to sustain his contention that the bank had title to the note; defendant being part owner of the bank and having made the entry as cashier. It might not be admitted as a memorandum made by a third party, but was objectionable as hearsay.
    2. Same — Best Evidence — Correspondence.
    Although it might be competent to, show, on cross-examination of the plaintiff, that he had written or had failed to write to defendant relative to a certain matter, the question was incompetent if it called for the contents of the letter.
    3. Bills and Notes — Requests—Payment.
    Where the plaintiff claimed that the payee of a note executed by plaintiff and held by defendant owed him a stated sum on a separate account and plaintiff desired to pay the note, except that amount, which he deposited with the defendant to protect the indorser on the paper, the charge of the court that if no such arrangement was made and the money paid to satisfy the debt, plaintiff could not recover, sufficiently presented the issues to the jury; there was no error in refusing to charge that if the bank purchased the note in due course, plaintiff could not recover.
    Error to Shiawassee; Miner, J.
    Submitted November 18, 1918.
    (Docket No. 141.)
    Decided October 2, 1914.
    Assumpsit in justice’s court by Thomas Conroy against George Haffner for money had and received. From a judgment for defendant, plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Peter B. Lennon (Byron P. Hicks, of counsel), for appellant.

      Willis L. Lyons, for appellee.
   Bird, J.

This case originated in justice’s court, and involves a claim of $84. The defendant prevailed in justice’s court, but in the circuit court plaintiff was given a judgment for his claim. The circumstances out of which the controversy arose are as follows: Plaintiff Conroy purchased a stallion for $517.50 at his neighbor Hawley’s auction sale, and gave his note therefor, due in one year. Plaintiff claims that, when he executed the note, Hawley agreed to leave it at the Corunna or Lennon Bank, and at its maturity he could have a renewal, if he desired. A few days before it was due, the Lennon Bank notified him of the date of maturity. Later he tendered payment, part in cash and the balance in a promissory note, but the note was refused on the ground that Mr. Hawley would not accept it. Defendant Haffner at this time advised plaintiff that Hawley still owned his note, and that he had it for collection. Subsequently plaintiff went to the bank with funds sufficient to pay the note, but explained to defendant that Hawley was indebted to him in the sum of $84, and he wanted to apply the account on the note, but he wanted to avoid making his indorser any trouble. At the suggestion of defendant, the $84 was left with him personally, to be applied on the note, when Hawley’s consent should be obtained. The application was never made nor the money returned to plaintiff. The defendant denied that the $84 was left with him personally, and denied that Hawley was the owner of the note, but that the bank bought it soon after it was given, and when due plaintiff paid it. The assignments of error relate to the rejection of evidence and to the charge of the court.

1. The discount register of the bank was offered in evidence to corroborate the defendant that the bank, and not Hawley, was the owner of the note. Objection was made thereto, and sustained. This is assigned as error. The defendant argues that this testimony was material as bearing upon the ownership of the note. His argument is based upon the theory that the entry was “memoranda made by a third party.” We think counsel is in error in assuming that it was memoranda made by third parties. The bank was a private one, and defendant was a part owner thereof. He was also cashier. The entry in the bank register was made by himself. In view of these facts, the entry should not be considered as one made by a third party. The rule governing the admission of memoranda made by one of the parties to the litigation should be applied here. Such memoranda is regarded as self-serving and inadmissible. Weaver v. Bromley, 65 Mich. 212 (31 N. W. 839); Caldwell v. Bowen, 80 Mich. 382 (45 N. W. 185); Hodges v. Power Co., 109 Mich. 547 (67 N. W. 564); Collins v. Shaw, 124 Mich. 474 (83 N. W. 146); Stabler v. Clark, 155 Mich. 26 (118 N. W. 605).

2. Plaintiff was asked upon cross-examination:

“Did you ever write to Mr. Haffner here, or have your attorney write to him and ask him about Mr. Hawley’s property, whether there was anything around that you could get hold of or not to get this $84?”

The question was objected to because immaterial. The court, however, appears to have excluded it on the ground that it asked for the contents of a writing. The question was objectionable on the latter ground, because it not only inquired as to the fact of his having written a letter concerning the matter, but also asked for the contents of it.

3. The trial court was requested to charge that:

“If the jury finds that Hawley sold the note to the bank in the ordinary course of business, then Conroy was obliged to pay the amount of the note, $517.50, to the bank, and cannot recover anything in this case.”

The charge of the court fairly shows, we think, that this request was covered. After reciting to them the claims of the plaintiff, he instructed them that:

“But if at that time there was no such agreement, and no such understanding, and that the money was given to the defendant for the purpose of paying this note, and the note was delivered to him at that time, then, in that case, the plaintiff could not recover.”

In connection with this assignment, defendant complains that his theory of the case was not given to the jury by the court. We are of the opinion that the court fairly stated the claims of the parties to the jury, and gave the law applicable thereto. We have examined the other errors assigned and find no reversible error in them.

The judgment of the trial court is affirmed.

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


text:
    BALCH v. RADFORD.
    1. Landlord and Tenant — Estoppel—Tax Title — Summary Proceedings — Circuit Court Commissioner.
    The tenant being estopped to dispute his landlord’s title, unless a change has occurred in interest subsequent to the making of the lease, in summary proceedings for the possession of a house and premises' occupied by the defendant, such tenant was estopped to set up a change of title, arising from a tax sale of the leased property, by virtue of which title had vested in the purchaser at the time the premises were rented.
    2. Same — Forcible Entry and Detainee — Jurisdiction oe Circuit Court Commissioner.
    It is not a defense which ousts the circuit court commissioner of jurisdiction of summary proceedings for the possession of real property, that prior to the making of a lease, the title of the landlord has been divested by sale of the property for city taxes.
    Ostrander and Bird, JJ., dissenting.
    Error to Wayne; Van Zile, J.
    Submitted November 14, 1913.
    (Docket No. 126.)
    Decided October 2, 1914.
    Rehearing denied December 19, 1914.
    Summary proceedings by Mary E. Balch and others against George W. Radford for possession of premises occupied by respondent. Judgment for complainant in both commissioner’s court and circuit court.
    Affirmed.

      Thomas A. E. Weadoek, for appellant.

      Gray & Gray (Harrison Geer, of counsel), for appellees.
   Bird, J.

(dissenting). These proceedings had their beginning before a circuit court commissioner to oust the defendant from the possession of certain premises in the city of Detroit. Judgment of ouster was entered by the commissioner, and a like result was reached in the circuit court. The appellant insists in this court, as he did before the commissioner and in the circuit court, that the commissioner had no jurisdiction to try the case because the issue involved a question of title, to real estate.

It appears that defendant and his wife mortgaged their homestead, known as 74 Hancock Avenue East, in 1895, to one George W. Balch. Failing to make payment in accordance with the terms of the mortgage, a foreclosure and sale followed, and the preniises were purchased by the mortgagee. The equity of redemption expired on September 10, 1910. The defendant then leased the premises for seven months from the purchaser. This lease expired on April 10, 1911. The possession of the premises was then demanded by the complainant, and defendant refused to yield it, claiming that the relation of landlord and tenant no longer existed between them; that he was a tenant of another who had acquired a deed for 99 years of the premises through certain tax sales made by the city of Detroit for delinquent city taxes for the years 1906-07. See charter of Detroit 1904, chapter X.

It further appeared that the possession of the premises was demanded of defendant by Laing, the owner of the tax deeds, both before and after the lease expired, and that the latter demand was accompanied by an exhibition of his tax deeds. Defendant advised complainant of these demands. To the latter demand, which was that defendant should either accept a lease from him or surrender possession, the defendant accepted the lease, and has ever since recognized Laing as his landlord. It is said that when these facts appeared, and defendant offered to show paramount title in Laing, the commissioner was sufficiently advised that the title to real estate was involved, and therefore it was his duty to dismiss the case for want of jurisdiction. On the other hand, it is contended that to permit this defense to prevail would be to set at naught the well-known maxim that “a tenant may not dispute the title of his landlord.” Defendant admits that he was a tenant of complainant, and he recognizes the rule that he could not, while holding possession under complainant, contest his title, unless some change had taken place in the title subsequent to the leasing, but he insists that after the lease expired he was constructively evicted by one who had a paramount title, and, after being so evicted, he attorned to the owner of that title. Complainant replies that if there were any defect in the title, it existed at the time of the leasing, and for such defect defendant could not contest it either before or after the lease expired. And it is said that inasmuch as Laing received his tax deeds prior to the leasing, namely in 1907 and 1908, no change in the title had taken place; that complainant had the same title when he was before the commissioner that he had when the lease was made.

The basis of the estoppel which prevents a tenant from contesting his landlord’s title is the fact of possession. After the tenant has been actually or constructively evicted, or has surrendered the premises, the possession is at an end and he is at liberty to try titles with his landlord. Nims v. Sherman, 43 Mich. 45 (4 N. W. 434); McGuffie v. Carter, 42 Mich. 497 (4 N. W. 211); Jenkinson v. Winans, 109 Mich. 524 (67 N. W. 549). But, it is argued by complainant that defendant can contest the title only when some change occurs therein after the date of the leasing; that he may not contest the state of the title at the time of the leasing. This would be true if he undertook to, contest the title while the relation of landlord and tenant continued to exist, or, in other words, while he was holding possession under the landlord, but it would not be true if the tenant had surrendered or been evicted, because after that he is out of possession or is holding under another, and he may then contest any title under which the complainant claims, whether the same was acquired before or after the leasing. 24 Cyc. p. 948; Smart v. Smith, 13 N. C. 258.

The disagreement of counsel over the law arises largely because complainant argues the case on the assumption that the defendant was still holding possession of him when this proceeding was commenced, while the defendant argues it on the theory that he was holding possession under another. We- think .the case is ruled by Jenkinson v. Winans, supra, and that the proffered proofs of defendant put the title in issue, which issue the commissioner had no power to try. Bennett v. Robinson, 27 Mich. 26; Foss v. Van Driele, 47 Mich. 201 (10 N. W. 199); Riggs v. Sterling, 51 Mich. 157 (16 N. W. 320); Mulder v. Corlett, 54 Mich. 80 (19 N. W. 756); Butler v. Bertrand, 97 Mich. 59 (56 N. W. 342); Jenkinson v. Winans, 109 Mich. 524 (67 N. W. 549); Northern Michigan Building, etc., Ass’n v. Fors, 171 Mich. 331 (137 N. W. 154).

The commissioner having no jurisdiction to try the issue, it would follow that the circuit court on appeal had none. Mulder v. Corlett, supra.

The judgment of the circuit court should be reversed and the proceedings before the commissioner quashed, with costs, of all courts to defendant.

Ostrander, J., concurred with Bird, J.

BROOKE, J. I am unable to agree with the conclusion reached by my Brother BIRD in this case. He regards the case of Jenkinson v. Winans, 109 Mich. 524 (67 N. W. 549), as controlling, while I am of opinion that the facts in that case so differ from the facts in the case at bar as to render it valueless as a precedent for the result reached by my Brother. Indeed, I regard the case as distinct authority for a contrary result. In the case at bar Laing’s title matured on September 16, 1910, as evidenced by his tax deeds. On September 28, 1910, Balch’s title became absolute under foreclosure' proceedings. The title being in this condition, the defendant on October 27, 1910, entered into a lease for six months with Balch. Thereafter no change occurred either in the title of Laing or Balch. In Jenkinson v. Winans, supra, it is apparent from a careful examination of the opinion that O’Neill, to whom Winans attempted to attorn, acquired his title after the inception of the relationship of landlord and tenant between Winans and Jenkinson. This court said: -

“Though the tenant cannot show that the lessor had no title to the premises when the tenancy commenced, he may show that the lands have been sold at tax sales, and the landlord’s title thereby extinguished. The estoppel extends only to the title which the landlord had at the time of leasing. If that title has been extinguished, it may be shown; for then the landlord has no right to the possession.”

In the case at bar the defendant is attempting to, set up the title. Laing. had acquired before he entered into his lease with Balch. In other words, he seeks to show that Balch had no title at that- time. This is distinctly forbidden by all the authorities. I am of opinion that the question of title was not raised by the evidence in the case, and that the commissioner-had jurisdiction to proceed to judgment. Byrne v. Beeson, 1 Doug. (Mich.) 179; Stevens v. Hulin, 53 Mich. 93 (18 N. W. 569); Butler v. Bertrand, 97 Mich. 59 (56 N. W. 342); Gage v. Sanborn, 106 Mich. 269 (64 N. W. 32).

The judgment is affirmed.

McAlvay, C. J., and Kuhn, Stone, and Steere, JJ., concurred with Brooke, J. Moore, J., did not sit.'


author: McAlvay, C. J.

text:
    ANDREJWSKI v. WOLVERINE COAL CO.
    1. Master and Servant — Workmen’s Compensation — Death — Construction of Statute.
    Act No. 10, Extra Session 1912, providing compensation for injuries to employees, or for their death in the course of their employment (2 How. Stat. [2d Ed.] § 3939 et seg.), is in derogation of the common law and should he strictly construed, although it is a remedial statute and creates a right against one who would not otherwise he liable.
    2. Same — Amount of Compensation.
    Where a servant has worked in his employment for practically the whole year preceding his injury, his average annual earnings are known or ascertainable and the average weekly wages are to be determined by finding one fifty-second of the annual earnings.
    3. Same — Term of Employment.
    If the workman has not been employed during substantially the entire year, but his daily wage or salary is fixed, or known, his average earnings as a basis of compensation will be 300 times the daily wage or salary. In case his employment has been limited in term, or there is insufficient data from which to determine his annual earnings, they are to be determined by taking 300 times his daily wage or salary, or the daily wage of similar workmen in like employment.
    4. Same — Irregular Employment.
    Decedent worked in a coal mine in the Saginaw valley. The employment was not continuous, but operations were carried on for an average of 2Í1 days in a year. Payment was fixed by contract on the basis of the number of tons produced, and the amount that each miner received depended on the coal which was sept up on his number. During the year which preceded the death of deceased, the mine in which he was employed was operated 148 days, and he received $507.45. While the mine was not in opera/tion, he worked as a cement block layer for another employer, earning nearly the same amount of wages. Held, that the first three classes mentioned under section 11' of the compensation act were intended to include workmen who were employed during substantially the whole year prior to the accident, and that it would not be reasonable or fair to apply such methods of compensation to the- case of deceased, and that the average annual earnings should be computed on the basis of the average for the preceding eight years, as provided by the fourth classification under this section of the law.
    Certiorari to the industrial accident board.
    Submitted November 5, 1913.
    (Docket No. 40.)
    Decided October 2, 1914.
    Rehearing denied January 29, 1915.
    Anna. Andrejwski presented her claim for compensation for the death of her husband, Joseph Andrejwski, against the Wolverine Coal Company. From the order entered awarding compensation, contestant brings, certiorari.
    Reduced and judgment entered.

      George M. Humphrey (Humphrey, Grant & Hum- ' phrey, of counsel), for appellant.

      Coumans & Gaffney, for appellee.
   McAlvay, C. J.

This case is brought to this court by the appellant upon a writ of certiorari to review the decision and order of the industrial accident board in affirming an award theretofore made in said cause by the arbitration committee therein. There appears to be but little dispute upon the material facts in the case.

Joseph Andrejwski, deceased, was claimant’s husband, employed by appellant in its mine No. 2. On November 18, 1912, in the course of his employment, he came to his death by an accident, which occurred without fault of either party. At this time both the employer and employed had voluntarily made their election to come under and be governed by the employers’ liability and workmen’s compensation act, being Act No. 10 of the Public Acts of Michigan, Extra Session 1912. (2 How. Stat. [2d Ed.] § 3939 et seq.) Claimant is the sole dependent of deceased entitled to such compensation as may be granted under said act. Deceased had worked as a miner continuously in this mine for ten years before this accident, during all of the time the mine was being worked. This is a coal mine operated by appellant, and is located near Bay City in the Saginaw valley district. This is the principal coal mining district in this State, and includes the operation, under similar conditions, of a number of companies and mines. The mine in question and the other mines in this district do not run continuously during the entire year; some entirely suspend operations for several months during the summer, and others do not operate during a portion of each month, in a measure caused by the fact that operations are controlled by the sales of the product, which depend entirely upon orders. Operations also depend upon weather conditions.

The record shows that no mine in the district runs or has ever run 300 days in the year. It also appears from the operations of these mines for the years 1909 to 1912, inclusive, that the coal mining industry in this district has been carried on on the average for only 211 days in each year.

The miners are paid on contract by the ton and work on numbers. The amount paid depends on the amount each miner sends up on his number. Two or three miners may work together and send up the coal on the number of one of them. The price paid miners is regulated by what is called a “scale” made between the operators and the union, and one of the things always taken into consideration in fixing the wages of miners in this district is that the mine does not run steadily and the miner can only work when it does run.

For the year immediately preceding deceased’s death, mine No. 2, in question, was operated 148 days. On his number coal was sent up 131 days, for which he received a total of $507.45. During the time when the mine was idle in this year, deceased was working outside of this employment for another employer as a cement block layer and earned $487.14.

It is conceded that compensation is due and payable to the appellee as sole dependent of deceased, and it is also conceded that such compensation is to be paid weekly for the period of 300 weeks.

The sole question presented for determination is the amount of the weekly compensation to be paid. The case, therefore, involves the construction of section 11 of part 2 of Act No. 10, heretofore mentioned, which deals exclusively with the matter of “compensation.” This section reads as follows:

“Sec. 11. The term ‘average weekly wages’ as used' in this act is defined to be one fifty-second ^part of the average annual earnings of the employee. If the injured employee has not worked in the employment in which he was working at the time of the accident, whether for the employer or not, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary which he has earned in such. employment during the days when so employed. If the injured employee has not worked in such employment during substantially the whole of such immediately preceding year, his average annual earnings shall consist of three hundred times the average daily wage or salary which an employee of the same class working substantially the whole of such immediately preceding year in the same or a similar employment in the same or a neighboring place, shall have earned in such employment during the days when so employed. In cases where the foregoing methods of arriving at the average annual earnings of the injured employee cannot reasonably and fairly be applied, such annual earnings shall be taken at such sum as, having regard to the previous earnings of the injured employee, and of other employees of the same or most similar class, working in the same or most similar employment, in the same or neighboring locality, shall reasonably represent the annual earning capacity of the injured employee at the time of the accident in the employment in which he was working at such time.”

The construction of this section of the statute is for the first time before this court, and our statute, although similar in many respects to other statutes of like import in England and some of the United States, differs quite materially from all of them as to the rules provided for determining the amount of compensation to be paid those entitled thereto under it.

It will therefore be proper to give consideration at the outset to the conditions giving rise to the necessity for such legislation, and also the objects sought to be accomplished and the radical changes brought about by its enactment. Such legislation has undoubtedly been brought about by present industrial conditions which have for years continued to take increased toll from the numbers of those employed, on account of the increased hazards connected with manufacturing, transportation, and kindred industries.

Heretofore if an employee has been injured or killed in any employment in which he was engaged, he, or those representing him or dependent upon him, could recover for such injury or death only when the same could be attributed to the negligence of the employer. Experience has shown that such conditions were unsatisfactory, and results arising from such litigation often worked great injustice to one or both parties. From these conditions has been evolved legislation of this character upon the theory that' the industry which occasioned such injuries should, as a part of the cost of production, bear the burden by compensation for the same.

The act in question, like all similar acts, provides for compensation, and not for damages, and in its consideration and construction all of the rules of law and procedure, which apply to recover damages for negligently causing injury or death, are in these cases no longer applicable, and there is substituted a new code of procedure fixed and determined by the act in question. This legislation, then, is a new departure and creates a new liability, resting upon one class in favor of another, without reference to any negligent conduct of the class upon which the burden is cast. In other words, this legislation is wholly in derogation of the common law. It is legislation which awards compensation for the accidental industrial injuries to be added to the cost of production.

This statute, being ino derogation of the common law, should be strictly construed, and that fundamental principle must be applied, although it is remedial and provides a remedy against a person who otherwise would not be liable. This act is entitled:

“An act to promote the welfare of the people of this State, relating to the liability of employers for injuries or death sustained by their employees, providing compensation for the accidental injury to or death of employees and methods for the payment of the same, establishing an industrial accident board, defining its powers, etc.”

This entitling would indicate that this legislation was justified on the ground that it is a proper exercise of the police power of the State. In its construction we enter a new field, to consider only the question of compensation, and to turn absolutely away from the idea of damages.

The compensation provided for is based upon average weekly wages of the injured or deceased party, 50 per cent, of which is to be paid weekly to him or his dependents, for various periods of time, according to the nature of the injury or the length of the disability. The average weekly wages of the employee must always be determined by dividing his average annual earnings by 52.

By section 11 of part 2 of this act the legislature specifically provided the manner in which the average annual earnings of each employee should be determined by making four classifications, under one of which every case to be considered and determined under this statute must fall. Attention will now be given to these classifications, quoting and construing them in the order in which they appear in this section:

First. “The term 'average weekly wages’ as used in this act is defined to be one fifty-second part of the average annual earnings of the employee.”

While this sentence is in fact a definition, it is also a classification. There is practically no disagreement between the attorneys for the parties upon this matter. - It is admitted that, where an employee has worked in the employment in which he was injured for practically the whole year immediately preceding his injury, his average annual earnings are fixed and known, and to determine by this definition his average weekly wages requires but a simple mathematical computation. That this was the legislative intent clearly appears from the initial clauses of the second and third classifications which immediately follow, both of which treat cases where the injured employee ■has not so worked.

Second. “If the injured employee has not worked in the employment in which he was working at the time of the accident, whether for the employer or not, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary which he has earned in such employment during the days when so employed.”

This class is intended to -include those cases where an employee who has not worked in the employment in which he was engaged at the time of his injury, whether for the same employer or not, during substantially the whole of the year immediately preceding his. injury, where his daily wage or salary earned is fixed and known. In such case his average annual earnings will be 300 times such average daily wage or salary earned in such employment during the days when so employed.

Third. “If the injured employee has not worked in such employment during substantially the whole of such immediately preceding year, his average annual earnings shall consist of three hundred times the average daily wage or salary which an employee of the same class working substantially the* whole of such immediately preceding year in the same or a similar employment in the same or a neighboring place, shall have earned in such employment during the days when so employed.”

This class is also intended to include those cases where an employee has not worked in the, employment in which he was engaged at the time of his injury during substantially the whole of such .year immediately preceding; there being, by reason of the limited term of service, no data from which his average annual earnings can be determined. In such case such earnings shall consist of 300 times the average daily wage or salary which an employee of the same class, working substantially the whole of the preceding year, in the same or similar employment, in the same or a neighboring place, shall have earned in such employment during the days when so employed.

Fourth. “In cases where the foregoing methods of arriving at the average annual earnings of the injured employee cannot reasonably and fairly be applied, such annual earnings shall be taken at such sum as, having regard to the previous earnings of the injured employee, and of other employees of the same or most similar class, working in the same or most, similar employment, in the same or neighboring locality, shall reasonably represent the annual earning capacity of the injured employee at the time of the accident in the employment in which he was working at such time.”

This classification includes all cases—

“Where the foregoing methods of arriving at the average annual earnings of the injured employee cannot reasonably and fairly be applied.”

This is the sole test fixed by the legislature to determine whether or not a case comes within this class.

The question in the instant case for the court, upon the facts presented by this record, is to determine under the* provisions of which of the four classifications of this statute the average annual earnings of this employee must be ascertained. It is clear that the first, second, and third classes of cases relate to employments which continue during substantially the entire calendar year. About the first there is no question. The same initial language used in the second and third classifications indicates that the legislature still had in mind employments at which employees worked substantially the whole of the year immediately preceding an injury. The employment in which the injured employee in the instant case was engaged at the time of his injury was not an employment of that character. It was not an employment in an industry which continued operations during substantially the entire year. The record shows that this is the case, not only in the Saginaw valley district, but everywhere in the coal mining industry. It also shows that the miners were paid according to the number of tons of coal mined by them, and that, under the system of operations, the miners worked on numbers; that frequently two or more miners get out coal and send it up to the surface upon one number; that the man to whom the number belonged would receive the pay for the entire output, and the miners would divide it among themselves. It also appears that the coal mines in the Saginaw valley district worked on an average of 211 days in each year. How will it be possible, in fixing the average annual wages of deceased, to adapt these facts to the rules established by the legislature in classes 1, 2 or 3 ?

In our opinion the “methods of arriving at the average annual earnings of the injured employee” set forth in these classes “cannot reasonably and fairly be applied.” We must therefore conclude that it comes within the fourth classification, where such average annual earnings must be determined to be such sum as, “having regard to the previous earnings of the injured employee, and of other employees of the same or most similar class, working in the same or most similar employment, in the same or neighboring locality, shall reasonably represent the annual earning capacity of the injured employee at the time of the accident in the employment in which he was working at such time.” Applying this rule to the undisputed facts in the instant case, we find that he was paid by his employer, in this employment in which he was engaged during the time the mine was operated the preceding year, the sum of $507.45; that the average time in which the coal mining industry operated in that district was 211 days. It is clear, from the manner in which the men worked on numbers in this employment, that the above sum but approximately represents his entire earnings. The terms of this fourth classification indicate that the amount of compensation in the cases which come within it can only be approximated. We have already intimated that the legislative intent in enacting this legislation was to place the burden of compensation for losses caused by industrial injuries and deaths upon the several industries as part of the cost of production, in this manner to be borne by the public generally. •

The foregoing consideration of these four classifications shows that the term “average annual earnings” of the injured employee, as used in this act, means his average annual earnings in the employment in which he was engaged at the time of his injury. This appears so clearly and emphatically that it is impossible to arrive at any other conclusion and preserve what appears to have been the legislative intent to exclude other earnings in different or concurrent employments, and thus be able to distribute the burden of compensation to each of the several industries wherein the injuries and deaths may occur.

In making these .classifications which we have been considering, the known and recognized incidents of industrial employments were taken into consideration. The first three relate to employments wherein operations are carried on for substantially the entire year, and may be said to include the large majority of industrial employments in the State. That there were well-known industrial employments within this jurisdiction which were not so operated must also have been within the knowledge of the legislative body. That such employments were recognized and provided for is apparent from the terms and provisions of the fourth classification. If this conclusion is not correct, we must hold that the legislature has omitted a large class of employees from the benefits of this statute. Such a construction will never be given, where another and a reasonable construction can be adopted.

Act No. 10, under consideration, both by its title and by the provisions which it contains, indicates that it was general legislation intended to apply to all employees and all industrial employments within this State, and to provide compensation to all such employees for accidental injuries or deaths resulting therefrom. It is apparent, then, that the legislation was intended to make such provision, and that section 11 of part 2 of this act was intended to apply to all cases of accidental injuries or deaths occurring in such employments.

In our opinion the legislature by this statute did in fact make provision which applied to all cases of such injuries and deaths occurring in all employments, and that, in making such provision, they included the known and recognized incident of the employment of coal mining and other employments that such employments were not carried on during the entire year. Therefore, in determining the compensation to employees injured in such employments and in arriving at a fair and reasonable basis therefor, the computation must be made under the provisions of the fourth classification of this statute, and the amount of the average annual earnings of the injured employee ascertained as near as possible.

To charge this employment with compensation for injuries to its employees on the same basis as employments which operate during substantially 300 days in the year would be an apparent injustice, as such compensation would be based on the theory of impossible earnings by the employee in that employment which operated upon the average a trifle over two-thirds of a working year. This was recognized and provided for by the legislature by omitting from the fourth classification any requirement relative to the average daily wage or salary of an injured employee. This construction, in principle, appears to be supported by the English cases involving questions of like character. Kelly v. Spinning Co., Ltd., 43 Ir. L. T. J. 81; Bailey v. Kenworthy, 98 L. T. 333, 334; Carter v. John Lang & Sons, 16 Sc. L. T. 345-348; Anslow v. Colliery Co., 100 L. T. 786.

In the record is an exhibit showing the annual earnings paid by appellant to the deceased from 1904 to 1912, inclusive, amounting ~to $5,175.21. From this table we find that the average annual earnings paid to him during that period were $575.02, which we will take as a basis for the computation of the compensation to which the claimant is entitled. Having determined his average annual earnings, there remains nothing further to do, except to determine the average weekly wages, by dividing this sum by 52, the result of which is $11.06, as such average weekly wages. .One-half of this amount, being $5.53, would be the amount to be paid weekly to the claimant for a term not exceeding 300 weeks.

The conclusion of law, therefore, of the industrial accident board, in determining that the average weekly wages of deceased should be computed under the second classification of section 11 of part 2 of this act, was erroneous. Its order in affirming the award made in this cause by the arbitration committee therein is therefore reversed and set aside; and this court, in cases under this act brought to this court for review, being authorized by section 12 of part 3 of said act “to make such orders in respect thereto as justice may require,” does order and determine that said order of the industrial accident board be reversed and set aside, and an order entered by said board in said cause in accordance with the foregoing opinion, but without costs.

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


author: Brooke, J.

text:
    GARLINGHOUSE v. MICHIGAN CENTRAL RAILROAD CO.
    Master and Servant — Railroads—Car Repairer — Rules, Violation of — Habitual Unenforoement.
    A car repairer could not recover for alleged negligence of the railroad company in failing to enforce a rule to protect its employees while.they were engaged in work on a car hy displaying a blue flag on the car by day or blue lights by night, where it appeared from the opening statement of his attorney and from his testimony, given at a former trial, that he did not rely on the enforcement of such rule, but did reply on the promise of a superior fellow-servant to send a man to protect him, and that the accident occurred because of a failure to carry out the promise of protection.
    Error to Washtenaw; Kinne, J.
    Submitted January 16, 1914.
    (Docket No. 111.)
    Decided October 2, 1914.
    Rehearing denied April 28, 1915.
    Case by Frank W: Garlinghouse against the Michigan Central Railroad Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      A. J. Sawyer & Son and Arthur Brown (E. R. Sunderland, of counsel), for appellant.

      John F. Lawrence (T. D. Kearney, of counsel), for defendant.
   Brooke, J.

Upon a former trial of this case plaintiff recovered a judgment against the defendant of $10,000. This judgment was reviewed in this court. 174 Mich. 73 (140 N. W. 646). Reference is had to that opinion for a sufficient statement of the facts involved. Upon the present trial plaintiff’s counsel made an opening statement to the jury in the case, in the course of which he offered to prove:

“That the defendant at that time and for many years prior thereto had nominally in force a rule for the protection of car repairers called the ‘blue signal rule,’ by which car repairers and other employees of the car-repairing department, who had occasion to work on or about cars, were strictly forbidden to commence work on any car, the nature of which might require them to place themselves in a position on, under, or about the car, whereby its movement on the track could result in injury to them, without first properly protecting said car with a blue flag or flags by day, or blue lights at night; that this rule was, during the time plaintiff worked for defendant in Jackson, and for many years prior thereto, habitually and constantly violated in the Jackson yards; that for months at a time during those years there were no blue flags or blue lights provided in the Jackson yards for the use of the men; that the officers of the defendant who managed and made the rules were frequently in the Jackson yards during all those years, and were familiar with the practice of making repairs on the switch tracks of a character which required the men to place themselves in positions on,.under, or about the cars where the movement of the cars could result in injury to them, without the use of either blue flags or blue lights, and knew thát the blue signal rule was constantly and habitually violated in said yards, and that the men engaged in repairing cars in those yards were wholly without the protection of any rule or system making it reasonably safe to perform the work of repairing cars there.”

At the conclusion of the opening statement, defendant’s counsel'moved for a directed verdict, • which motion was granted, and judgment was entered thereon. Plaintiff now reviews that judgment in this court.

It is his claim that under the testimony of the plaintiff in the case, even though Downs be held to be a fellow-servant, he is nevertheless entitled'to recover, when he shows' that the rules formulated and promulgated for the safety of the employees of the defendant, including the plaintiff, were habitually violated to1 the knowledge of the officers of the company who “managed and made the rules.” This contention would have weight, were it not for the fact that plaintiff, as is shown by his testimony upon the former trial, stated that he knew nothing of the rule in question, and that he relied upon the assurances of Mr. Downs, his fellow-servant, to afford him protection. As stated in our former opinion, he testified:

“That he understood that this protection meant that the car foreman would send a man or men with him to stand alongside the cars and notify him of the approach of an engine with cars which would put him in danger by moving the cars where he was working.”

Under these .circumstances, it seems to us unimportant whether the rule in question was enforced or not, because plaintiff entered upon the service which caused his injury, not in reliance upon the rules, but in reliance upon a specific assurance given him by a fellow-servant, the consequences of whose negligence may not, under the authorities, be visited upon the master. A perusal of the opening statement, coupled with an examination of plaintiff’s testimony upon the former trial, convinces us that the learned circuit judge was not in error in directing a verdict for the defendant.

The judgment is affirmed.

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


text:
    EARLY v. TUSSING.
    1. Arbitration and Award — Contracts — Damages — Delay — Building Contracts.
    Under an arbitration contract submitting to the arbitrators questions relating to the performance of a contract for the construction of a building, and to questions of damage, labor or materials, the arbitrators obtained jurisdiction of the owner’s claim for liquidated damages, for delay, although it was provided in the construction contract that only in case of a disagreement as to the decision of the architect, in regard to work added to or taken from the plans and specifications, should the questions be arbitrated; and although by express terms in the arbitration agreement the contract was made the sole basis of arbitration. .
    2. Same — Damages.
    While it was competent for the parties to a construction or building agreement to stipulate for liquidated damages if the building should not be completed within the time fixed by the contract, the arbitrators could not apportion the damages between contractor and owner in accordance with the degree of blame for various delays, charging two-thirds of the damages to the contractors and the remainder to the owner.
    3. Same.
    Where the parties are mutually responsible for the delays because of which the building is not completed in time, the stipulation as to liquidated damages is annulled and, in the absence of some provision under which another date can be substituted, it cannot be revived.
    Appeal from Ingham; Wiest, J.
    Submitted November 19, 1913.
    (Docket No. 26.)
    Decided October 2, 1914.
    Rehearing denied April 28, 1915.
    Bill by Thomas Early and William Fitzpatrick against Daniel W. Tussing to review and set abide an award made by arbitrators. From a decree for defendant, complainants appeal.
    Reversed.

      McArthur & Dunnebacke, for complainants.

      Cummins & Nichols (Rollin H. Person, of counsel), for defendant.
   McAlvay, C. J.

The bill in this case was filed by complainants against defendant to set aside a certain award made by arbitrators. A hearing in the case resulted in a decree dismissing the bill of complaint. Complainants have appealed from such decree.

The statement of facts as presented in the brief of appellants is admitted by defendant to be “substantially correct as a history of the case, and probably as full in its recitals as is necessary to a general understanding of the controversy.” We take from complainants’ statement such facts as we consider material for the purposes of this opinion.

This controversy arises out of a contract made and entered into between the parties to this suit September 25, 1909, supplemented by an appendix thereto, whereby on the part of complainants it was agreed under its terms, which provided certain exceptions, to construct upon a certain foundation ready to receive the iron and mason work a certain six-story business block upon a vacant lot at the northwest corner of Washington avenue and Ottawa street, in the city of Lansing, for an expressed consideration of $37,500. Defendant first- obtained a lease of these premises in June, 1907, and in the winter of 1908-09 finally concluded to construct a business block upon them. The excavation for the basement was begun in March, 1909, and the foundation was completed in June or July following. A contract for the sidewalk was entered into by defendant in May, 1909. Another contract with a foundry company for the structural iron to be used in this building was also entered into by defendant in the same month. The foregoing contracts having been already entered into or completed, on September 25, 1909, as already stated, the contract between these parties was entered into. It will be necessary to state but few of its details. The building was to be completed on or before May 30, 1910. Complainants were “to complete and have ready for occupancy not later than March 1, 1910, all of the mercantile rooms of the basement, first and second floors,” which were parts of the building already leased to a mercantile firm to be ready for occupancy on that date. Concerning that portion of the building the contract contained the following agreement:

“It is further agreed that, should the contractors fail to finish the work of completing the storerooms aforesaid at the time agreed upon, they shall pay to or allow the owner by way of liquidated damages the sum of $25.00 per diem for each and every day thereafter the said works shall remain incomplete.”

' This is the - only provision for liquidated damages provided for in the contract or any later agreement between the parties.

The original contract of September 25, 1909, contained no agreement to arbitrate. Such agreement was contained in an appendix thereto, and only related to the refusal of either party to “accept the arbitrators’ decision in regard to the value of any works added [to] or omitted from the aforesaid plans and specifications.”

Complainants’ contract covered only the mason and carpenter work on this building. Certain material, equipment, and labor were expressly excluded, to wit, excavating basement and area, concrete retaining walls, structural iron, sidewalks, sidewalk lights, fire escapes, electric wiring, piping for compressed air, compressed air plant, gas-fitting, plumbing, steam pipes, and radiators, elevators, and machinery there.of, and the tables, counters, and shelving for the store. All of the above-enumerated material, equipment, and labor were to be furnished by defendant. Complainants were to place and imbed in concrete the iron bases for the columns in basement and erect the structural iron for the building; the first installment of this iron to be delivered at the premises for the use of complainants on or before September 29, 1909, and the balance as required by them. Complainants entered upon the construction of the building immediately after the contract was signed. On October 2d following it is admitted that the work of construction was suspended. Defendant claims that complainants stopped work because he refused to give a bond which they arbitrarily required. Complainants contend that the work stopped because of the default of defendant relative to furnishing necessary structural iron as agreed.

Defendant conceded in the case that on January 17th, during the construction of the building, a storm sewer, or drain, on Ottawa street burst at a point on the south side of, and opposite, the building, flooding the entire basement. It is also conceded that the building was not completed within the time fixed by the contract either as to the mercantile apartments or in its entirety. Complainants contend that, notwithstanding the delays which occurred, the walls were up and the building under roof within three days of the time fixed by the contract, and that the mercantile floors were ready for occupancy the first week in June, 1910.

On the contrary, defendant insists that the building was not completed until August 1st. After the building was completed complainants asked for a settlement and payment of a balance due, and after conferences between the parties had in August, September, and October, the parties, being unable to agree, although they had adjusted most of their differences, finally on November 4, 1910, agreed to and executed the following agreement to submit to arbitration :

“This agreement, between Thomas Early and Wm. Fitzpatrick, contractors, party of the first part, and Daniel W. Tussing, party of the second part, all of Lansing, Michigan, made and entered into this 4th day of November, nineteen hundred and ten, witnesseth as follows: That whereas the said Early and Fitzpatrick are the parties of the first part under a contract with the said Daniel W. Tussing as second party, dated September 25th, 1909, in which they agreed to build what was termed therein the ‘mason and carpenter jobs’ for the mercantile and office building situated on lot six, block ninety-six, of the said city of Lansing, and known as the Tussing Building; and whereas differences of opinion have arisen between the parties thereto (being the samé parties as are parties hereto), as to th'e amount due to said Early & Fitzpatrick under same contract:
“Now, therefore, it is covenanted and agreed by and between the parties hereto that the terms and conditions of the same contract dated September 25th, 1909, are held to be the true and correct contract under which the same building was erected; that the terrazza floors mentioned therein were by agreement of the parties not built; and that the contract, price for furnishing materials therein required to be furnished and the labor was $30,500.00, plus the cost of joist as stated in said contract.
“It is further covenanted and agreed by and between the paxties hereto that the said contract, in its true spirit and meaning shall be and is hereby unchanged; but it shall be, and is herein agreed that the claims of the parties hereto where disagreement has arisen upon questions involved in said contract of September 25th, 1909, shall be arbitrated by a committee of arbitration chosen according to the method agreed upon- in said contract. Provided always that the. arbitrators so chosen shall make the said contract of September 25th, 1909, as herein stated the basis of said arbitration.
“And it is agreed and covenanted by and between the said parties hereto that the findings of said committee so chosen shall be final and binding upon both parties; and we agree to. respect and defend the findings of the said committee whether upon question of performance, damage, labor, or material.
“Thomas Early. [Seal.]
“William Fitzpatrick. [Seal.]
“Daniel W. Tussing. [Seal.]”

Under this agreement the arbitrators were selected and undertook to perform their duties as such. On November 16th they made a further agreement that the award should be made not later than December 1, 1910, and also an agreement authorizing the court to immediately enter a judgment on the award according to the findings. On the same day they began to take proofs, which was continued until November 30th following. On December 1st a majority of the arbitrators made and signed their findings and award On the same date, and before such award was made, these parties made and entered into an agreement in writing which was presented to the arbitrators, accepted by them, and made a part of their findings, and taken into consideration by them in determining their award. The following is the award, together with said agreement between the parties, which was made a part of it by the arbitrators:

“Lansing, Mich.-, Dec. 1st, 1910.
“To the Circuit Court for the'County of Ingham and State of Michigan — Greeting:
“The following is a schedule of findings by John C. French, Wm. E. Moore and John C. Schneider, a committee of arbitration in the case of Early & Fitzpatrick, contractors, plaintiff, and Daniel W. Tussing, owner, defendant, in settlement of matters in controversy under the contract for erecting the Tussing Building in the city of Lansing, Michigan.
“These findings are rendered with the distinct understanding that all bills for labor and material which the said Early & Fitzpatrick owe for said building shall be fully and promptly satisfied and paid by them.
“These findings are based on the contract between plaintiff and defendant, dated November 4th, 1910, and supplied by agreement November 16th, 1910, which submitted this case with the understanding that all accounts of every kind have been amicably and satisfactorily adjusted as per statement of both parties hereto attached, except those items entered in the left-hand column of this schedule, which items have been submitted, as aforesaid, have received our careful consideration after an impartial hearing of all evidence offered by both sides and have been adjusted by us as per the following schedule, to be paid by the respective parties named as follows:
“The court is hereby instructed to issue judgment to Daniel W. Tussing for the amount of $695.53 which is the balance due the said Daniel W. Tussing, according to the findings of the undersigned committee of arbitration in the aforesaid case, including every item which under the contract aforesaid, the evidence in the case, and the plans and specifications, were subjects under the articles of agreement by which the case was submitted to us, for our deliberation.
[Signed] “John C. French,
“John C. Schneider,
“Committee.
“To John C. French, Vm. E. Moore and John C. Schneider, board of arbitrators, of the account of Early & Fitzpatrick and Daniel W. Tussing, as submitted by the said Early & Fitzpatrick, contractors, and Daniel W. Tussing, owner of the Tussing Building, Lansing, Michigan, according to sworn articles of agreement entered into by the said parties and dated Nov. 4th, 1910.
“Appended hereto is a correct copy of a bill presented to Daniel W. Tussing by Early & Fitzpatrick, contractors for the Tussing Building, on October 10, 1910. This account totals $5,181.92. This account rendered by Early & Fitzpatrick was accepted by Daniel W. Tussing in its entirety, excepting such items only as had already been charged in D. B. Moon, the architect’s account of extras on said building. This account of extras submitted by D. B. Moon was O. K.’d by the contractors; therefore the items of raised floors in closets, $24.00, cutting hole through second floor, $5.00, two windows in Dancer-Brogan’s office balcony, $32.00, total, $61.00 (see page 4, D. B. Moon’s account of extras, items checked in pencil at the right), had been' included in D. B. Moon’s extras and O. K.’d by contractors. These items which have been acceptably settled by Mr. Moon’s bill for extras reduced the total Early & Fitzpatrick charge per bill of October 10, 1910, to $5,120.92. This $5,120.92, then, is the total amount charged against Tussing by bill submitted. Tussing adds to this $95.55, the contractor’s price for laying 14,700 brick and furnishing the mortar at their price of $6.50 per M. This makes the total net charge by Early & Fitzpatrick, according to their original statement of the account and modification that the architect’s account of extras O. K.’d by contractors, $5,216.47.
“Early & Fitzpatrick admitted credits against this total charge which were agreed to by both parties as follows:
Charge for 55 hrs. Dieterle’s men, at 17%c____ $9 62
59,577 old brick at $3.00 per M................. 178 73
$10,000 insurance, Feb. 1 to Aug. 1........... 50 00
$5,000 insurance, March 1 to Aug. 1.......... 18 75
$5,000 insurance, May 1 to Aug. 1........... 12 50
$5,000 insurance, June 15 to Aug. 1.......... 6 25
Half March heat bill......................... 54 02
Half April heat bill......................... 18 26
Half May heat bill.......................... 19 38
Rikerd bill for all lumber used by contractors. 2,394 91
Hardware trim (0. K.’d by Tussing and Fitzpatrick) .................................. 334 04
John Toolen’s bill, pump and fixtures........ 4 11
Total................................. $3,100 57
Original contractors’ total charge corrected.. 5,216 47
Total of the accepted credits................. 3,100 57
Balance due contractors on items of debit and credit as above entered, and excluding all items upon which any controversy exists .................................. $2,115 90
“Dated, Dec. 1st, 1910.
“The foregoing amount, $2,115.90, as an accepted charge against Daniel W. Tussing, taken into an account by you with such items as in your judgment come under the contract and the evidence submitted, and in accordance with the articles of sworn agreement by which we the parties, submitted the case to you, will constitute the total final settlement of the account according to your findings.
“Thomas Early,
“Will Fitzpatrick,
“In copartnership.
“Daniel W. Tussing.
“Witness: Beryl Cook.”

The foregoing is but a very brief outline of the facts in this case, but we think it is sufficient. The record contains about 800 pages, containing pleadings, testimony, and numerous exhibits, from which we have attempted to reduce the statement of facts to its lowest terms.

These parties entered upon this arbitration and practically concluded it before any attorneys were employed. Such part of the testimony and proceedings had before them as appear in the record were taken directly upon a typewriter as they occurred, and are made an exhibit in this case.

A careful examination of the pleadings and a reading of the entire record shows that on the part of appellants very many reasons were alleged and urged as grounds for vacating and setting aside this award. It would be practically impossible, and, we consider, unnecessary, to go into- the details of all of these complaints, for the reason that most of them, not because under other conditions their relevancy and merit , might not be necessarily considered in determining this case, but because the award made by these arbitrators eliminates them and reduces the questions necessarily involved to very narrow limits.

The first contention relied upon by appellants which we will consider is that the articles of submission to arbitration make the terms of the contract of September 25, 1909, the sole basis of the arbitration; that by the terms of such contract no arbitration was provided for upon any question except a disagreement as to the decisions of the architect in regard to the value of work added to or taken from the plans and specifications; and consequently that under such articles no question of liquidated damages on account of failure by the contractors to complete certain portions of the work within the specified time could be considered.

As far as the original contract with the appendix thereto are concerned, the contention of appellants is absolutely correct, but these parties voluntarily entered into this agreement to arbitrate independently of the original agreements of September 25, 1909, and which, although referring to and based upon such agreements, contain the following statement in its preamble :

“And whereas, differences of opinion have arisen between the parties thereto (being the same parties as are the parties hereto), as to the amount due to said Early & Fitzpatrick under same contract.”

We find further among the covenants and agreements to the articles of submission, the following:

“And it is agreed and covehanted by and between the parties hereto that the findings of said committee so chosen shall be final and binding upon both parties; and we agree to respect and defend the findings of the said committee, whether upon question of performance, damage, labor, or material.”

The liquidated damages provided for in the original contract in case of nonperformance by complainants were to be paid or be allowed to defendant; consequently a dispute “as to the amount due to complainants under the contract” would include the question of these liquidated damages. In the final clause of the contract above quoted the questions of performance and damage were included. Our opinion, therefore, is that under the articles of submission the question of liquidated damages was included. This is the important question in the case. From the record it appears that the basement rooms and first and second floors of the building, which were required to be completed by a certain date, being the only parts for the nonperformance of which liquidated damages were provided, were not so completed. On the part of defendant it was contended that this delay was of a duration of 150 days, all caused by the complainants.

The contention of complainants was that the first delay was caused by the nonfulfillment on the part of defendant of his express agreement to furnish the structural iron on a certain date and as required, and that the principal delay, which began January 17, 1910, was caused by the fault of defendant in excavating the area on the south side of the building so close to a defective storm sewer that it burst into the exeavation and flooded the entire basement with mud and water to a great depth, which, on account of the ensuing cold weather, became frozen so hard that it could not be removed, and created a damp condition which made impossible the plastering of the walls and completing the basement and mercantile floors any earlier.

Defendant admits that the direct cause of the flooding of the basement at this time was on account of his excavation, as stated, and the record so shows in his testimony; but he claims that, had the complainants theretofore pushed their work as they should have done, he would have had the area walls completed and thus prevented the flooding. Defendant’s claim was that complainants alone caused a delay of 150 days after the 1st day of March, for which he was entitled to the liquidated damages of $25 a day. This question of liquidated damages for the nonperformance by complainants of their contract in this respect was taken into consideration by the arbitrators, and, as the award signed by a majority shows, they found “150 days’ delay in completing store, at $25.00 per day, as per contract September 25th, 1909.” An examination of this “schedule of findings” by a majority of the arbitrators shows that they undertook to, and did, in said schedule put down in a column all of the items they considered and passed upon, and in two columns opposite each item, which in the schedule had the following captions: “To be Paid by Early & Fitzpatrick,” “To be Paid by D. W. Tussing,” — and set down under each caption the amounts of these items charged to each party to the arbitration. Under the item relative to the number of days’ delay in completing the store, they charged to complainants for 105 days of such delay $25 per day, making the sum of $2,625. This was practically the entire amount charged against them in the award. It was included with a few other small items charged against complainants, amounting to but $186.43. The total charges found against them was $2,811.43. From this amount the arbitrators deducted the sum of $2,115.90, being the amount agreed upon by the parties and accepted and acknowledged in writing by defendant as due and owing by him, and directed to be taken into account by the arbitrators. This left a balance in favor of defendant of $695.53, which the arbitrators awarded to him. For this amount the arbitrators instructed the court to enter judgment in favor of defendant. The award was filed December 2d, and on December 3d the court entered judgment thereon. This judgment was afterwards vacated on the ground of irregularities.

Following this, various proceedings were had in relation to the confirmation of the award until the filing of the bill in the instant case. We avoid any discussion of the charges and countercharges made in the briefs in this case as to the activity of defendant in drafting many papers relative to the arbitration proceedings and other matters, and also as to the conduct of the complainants and their testimony, for the reason, as stated in regard to some of the questions raised in the case, the court does not consider that they require any discussion.

As appears from what we have already stated, the crucial questions are whether these arbitrators apportioned the damage for delays, and, if so, whether such action can be sustained.

■ The record contains a large amount of testimony upon the subject of the delays in completing those portions of the work limited by the contract. As already stated, the testimony of defendant shows that his excavation was the proximate cause of flooding the basement, the freezing of which was the direct cause of a long delay of at least 8 weeks. His letter to com* plainants, one of the exhibits in the case, in referring to this, said “that certain unforeseen accidents, etc., made temporary modifications of this time limit necessary needs no consideration here, as we all understand that. * * * ”

The two arbitrators who took part in the award have found that the completion of the store portions of the building was' .delayed 150 days. They have charged two-thirds of such delay against complainants, which they have included in their final award against them. In law this amounts to an apportionment of these liquidated damages between these parties, and in effect a finding and determination that one-third of the time of delay was caused by the defendant.

It appearing from the record and from the award of the arbitrators that defendant was responsible in part for the delays in building this work by complainants, we must consider whether the apportionment of the damages made by the arbitrators can be sustained by this court.

The jurisdiction of a court in equity to consider and determine questions here involved is admitted by defendant. It is not disputed by either party but that this case falls well within that class of cases where parties may lawfully agree upon stipulated damages to be paid by a contractor in case of failure to complete the work contracted for by the date fixed. From our examination we are satisfied that the great weight of the authorities is in favor of the proposition that such damages for delays cannot be apportioned, and this rule has been applied both in courts of law and in equity. While the cases directly in point are not numerous, this rule of law has been recognized both in the courts of England and the United States.

We quote from an eminent English authority, as follows:

“Where the liquidated damages are stipulated for at so much per day or per week, there must be a definite date from which they are to run. If no such date is fixed by the contract, or if by the operation of intervening circumstances the date fixed by the contract has ceased to be operative, and there is no provision in the contract under which another date can be substituted, all right to recover the sum stipulated for as liquidated damages has been put an end to, because there is no date from which the penalties can run.” 3 Halsbury’s Laws of England, pp. 243-245, and cases cited in footnotes.

The learned author continues by saying that, where provisions are inserted in a contract in order to avoid destroying the right to. liquidated damages by fixing a date, such right will remain. Cases coming within this class are readily distinguished from those where no such provisions are inserted, and they are clearly distinguished by the above author, as follows:

“The cases relating to release from the obligation to pay liquidated damages for delay in consequence of some delay caused by the employer seem to fall into three classes: (1) where a power to extend the time has been properly exercised; (2) where there was such a power, but it has not been properly exercised; and (3) where there was no such power.”

' After discussing the first class of cases, which is not applicable to this case, the author proceeds:

“The other two cases, where there is power to extend, but such power has not been exercised, and where there is no power to extend, may be considered together.
“In either of these cases the effect of delay caused by the employer is to set the time at large, and exonerate the builder from liquidated damages for delay, the general rule of law being that the performance of a condition is excused by obstruction on the part of the obligee.”

Other English authorities are Holme v. Guppy, 3 M. & W. 387; Dodd v. Churton, L. R. 1 Q. B. (1897) 562.

The same rule has been applied by the United States courts, both Federal and State. Mosler Safe Co. v. Safe Deposit Co., 199 N. Y. 479 (93 N. E. 81, 37 L. R. A. [N. S.] 363); Jefferson Hotel Co. v. Brumbaugh, 168 Fed. 867, 94 C. C. A. 279.

In Mosler Safe Co. v. Safe Deposit Co., supra, the court said:

“Where the parties are mutually responsible for the delays, because of which the date fixed by the contract for completion is past, the obligation for liquidated damages is annulled and, in the absence of some provision under which another date can be substituted, it cannot be revived.”

These American cases above cited were most of them on the chancery side of the court, and were all cases relative to questions arising under building contracts. An examination of these cases shows that the same conditions prevail in some of them which occurred in the instant case. Jefferson Hotel Co. v. Brumbaugh, supra.

It will be remembered that complainants had a contract only for the mason and carpenter work of this building, while defendant undertook all the excavation, the construction of the area walls and sidewalk, and all other things necessary to complete the building. The complainants were entitled to all the time intervening between September 25th and March 1st in which to construct the parts agreed to be finished by that date, and any delay caused by defendant during those dates could not be attributed to complainants. Such an interference amounted to a breach of contract on his part, and by reason thereof defendant lost all right to recover liquidated damages for delays. The justice of the rule is apparent. It is founded both upon reason and authority. The conelusion and award of the arbitrators upon this proposition was a gross and palpable mistake of law, and cannot be sustained. The award must therefore be vacated and set aside.-

During the hearing of this case the record shows counsellor for defendant stated in open court that in case this award was set aside complainants were entitled to a decree against defendant for the amount of $2,115.90, less $186.43, the amount of the small items allowed against the contractors by the arbitrators. This was the amount stipulated and agreed upon by and between the parties in their settlement of accounts.

In our opinion, complainants -are entitled to a decree in this case for such amount. A decree will therefore be entered in this court vacating and setting aside the ward of the arbitrators and declaring that defendant is indebted to complainant for a balance due them on their contract in the sum of $1,929.47, with interest from December 1, 1910. The lien of complainants for that amount, together with interest and all costs, is declared to have attached to said building and the leasehold interest of defendant in and to the premises upon which it is located.

Said decree will further provide that such amount with interest and all costs be paid by defendant to complainants on or before six months from the date of such decree, and that in default thereof the interest of defendant in said building and premises shall be sold in like manner and form as in cases of sales upon foreclosure of mechanic’s liens; complainants to recover against defendant all costs of both courts to be taxed.

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