author: Ostrander, J.

text:
    BARRIBEAU v. CITY OF DETROIT.
    Municipal Corporations — Personal Injuries — Defective Sidewalks — Notice of Injury — Sufficiency — Detroit Charter.
    A notice of claim for injury on a defective sidewalk, served on the corporation counsel of Detroit, which merely states that the injury was caused by a defective sidewalk at the corner of certain named streets is insufficient under the charter (section 46, Act No. 463, Local Acts 1895), there being four corners at a street intersection, and the description of the place not being sufficiently specifio to aid the description of the defect.
    Error to Wayne; Rohnert, J.
    Submitted December 5, 1906.
    (Docket No. 44.)
    Decided February 5, 1907.
    Case by Dulice Barribeau against the city of Detroit for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.
    It is one of the provisions of the charter of the city of Detroit that:
    “No action shall be brought against said city, nor any of its boards, commissions or officers, for any negligent injury unless it be commenced within one year from the time when the injury was received, nor unless notice shall be given in writing within three months from the time of such injury to the head of the law department or to his chief assistant of the time, place and cause of such injury and of the nature thereof.” Section 46, Act No. 463, Local Acts 1895.
    A notice of which the following is a copy was served upon the corporation counsel:
    “Detroit, Michigan, Aug. 13, 1904.
    “To the Hon. T. E. Tarsney,
    “ Corporation Counsel, “ City.
    ‘ ‘ Dear Sir: Take notice: That on Saturday, July 16 1904, Miss Dulice Barribeau was injured by falling on a defective and improperly constructed sidewalk at corner of Howard and Twenty-First streets. Her injuries consisted of dislocation of wrist and fracture of radius of the right arm and numerous other serious and painful injuries.
    “Without waiving any right she may have to recover full and adequate damages for the injury she has sustained by reason of the failure of the city of Detroit to provide and maintain a proper and safe sidewalk at the place above named, and for the purpose of avoiding the expense and annoyance of litigation, she will accept the sum of one thousand dollars ($1,000), in full settlement of her claim against the said city of Detroit by reason of the injuries above described.
    “A. L. Richardson,
    “ Attorney for Dulice Barribeau.
    “Business address: Legal Department P. M. R. R. Co., Detroit, Mich.”
    Suit was begun against the city by declaration, filed March 38, 1905, which contains the following averments:
    “ At a point at the intersection of the north side of Howard street with the east side of Twenty-First street, the sidewalk on the said streets, at the point aforesaid, had become in an unsafe, improper, and dangerous condition, to wit: The sidewalk on the east side of Twenty-First street immediately north of the north line of Howard street was built of cement, and the sidewalk on the east side of Twenty-First street immediately south of the north line of Howard street was built of planks on a level about eight inches higher than the level of the cement sidewalk immediately north of it, so that there was an abrupt rise of about eight inches in the sidewalk on the east side of Twenty-First street at the north line of Howard street, and at said rise there was an open and unguarded space of about six inches between the top of the cement sidewalk and the bottom of the planks in the plank sidewalk so that a pedestrian stepping from said cement sidewalk upon said plank sidewalk was in danger of catching his foot under the edge of the most northerly plank in said plank sidewalk and being thrown upon said plank sidewalk, so that the said sidewalk was not in a condition reasonably safe and fit to be traveled upon;” and that while the plaintiff was “passing along the sidewalk on the east side of Twenty-First street at the point aforesaid, where the same had become unsafe, she, the plaintiff, was violently thrown to the sidewalk by reason of catching her foot under or stumbling over the planks, at the place of the abrupt rise aforesaid.”
    There was a plea of the general issue with notice that defendant would insist in its defense that no sufficient notice of the claim, of the time, place, and cause of the injury, and of the nature thereof, was ever served upon the corporation counsel or his chief assistant. The cause coming on to be tried, the plaintiff proved service of the said notice, and, further, the filing with the city clerk of a petition reading:
    “Detroit, Mich., Sept. 29, 1904.
    “To the Hon. Members of City Council, “ City.

      “Gentlemen: Your petitioner, Dulice Barribeau, by her attorney, Austin L. Richardson, represents that on July 16, 1904, she was seriously injured by falling on a defective and improperly constructed sidewalk at the intersection of the north side of Howard street with the east side of Twenty-First street. Her injuries consisted of a dislocation of wrist and fracture of the radius of the right arm, and numerous other serious and painful injuries. She hereby makes claim for the damages sustained by her as above described. Without waiving any right that she may have to recover full and adequate damages for the injury she has sustained by reason of the failure of the city of Detroit to provide and maintain a proper and. safe sidewalk at the place above named, and for the purpose of avoiding the expense and annoyance of litigation, she will accept the sum of one thousand dollars ($1,000.00) in full settlement of her claim against the said city of Detroit by reason of the injuries above described.
    “A. L. Richardson, “Attorney for Miss Dulice Barribeau.
    “Business address: Fort St. Station, Detroit, Mich.”
    This was, on October 5, 1904, presented to the common council, referred to the committee on claims, and no further action taken. It was admitted that the following correspondence was had:

      “ Detroit, Mich., Nov. 4, 1904.
    “ Hon. Timothy Tarsney,
    “ Corporation Counsel,
    “ Detroit, Mich.

      “ Dear Sir: On July 16, 1904, Miss Dulice Barribeau received injuries, caused by falling on a defective walk. On August 15 notice was served on you, and on Sept. 29th on the city council an offer of settlement was made.
    “ The city has had a reasonable time in which to adjust this claim, but it has not done so, and so we hereby give you notice that unless this matter is adjusted before Nov. 15, 1904, suit will be commenced. Please acknowledge receipt of this letter.
    “Yours very truly,
    “A. L. Richardson, •
    “ Atty. for Miss Barribeau.”
    “Detroit, Mich., Nov. 5,1904.
    “A. L. Richardson,
    “Legal Department P. M. R. R. Co.,
    “Detroit, Michigan.
    “ Dear Sir: Your letter of the 4th inst. re Barribeau claim has been received. The matter of the claim has been referred to the committee on claims of the council, and is there pending and will be heard in its regular order. We remain,
    “Very truly yours,
    “Timothy E. Tarsney,
    “ Corporation Counsel.”
    To the-introduction of further testimony it was objected that the notice served upon the corporation counsel did not sufficiently describe the place and cause of the injury alleged in plaintiff’s declaration, and upon the motion of counsel for defendant the court, for the reason that the place of the injury was not sufficiently specified, directed a verdict for defendant. Later, a motion to set aside the verdict and grant a new trial was made and denied. In directing a verdict, and also in denying the motion for a new trial, the court stated there are four corners at Howard and Twenty-First streets and the rule which was stated and applied in denying the new trial was:
    “ I think it is sufficient objection to the notice if the court cannot say, as a matter of law, from the notice itself that the corporation counsel could not b'e misled by it.”
    One ground for a new trial asserted was that, in directing a verdict before plaintiff had closed her proofs, she was prevented from showing, by parol, that the notice was sufficiently accurate to enable the corporation counsel, by the exercise of reasonable diligence, to locate the defect in the sidewalk to which the notice related. Plaintiff having brought the record of the proceedings here by writ of error, the writ was dismissed because no judgment had been entered. Barribeau v. City of Detroit, 146 Mich. 392. Later, by agreement of counsel, a judgment nunc pro tunc the issuing of the writ of error was entered, for which reason, no others being considered, and upon stipulation of counsel, the cause is regarded as pending in this court.

      Charles McPherson and John C. Bills, for appellant.

      J. Walter Dohany and Denton Guinness (Timothy E. Tarsney, of counsel), for appellee.
   Ostrander, J.

(after stating the facts). The objections to the notice are (1) that the cause of the injury —the defect in the sidewalk — is not sufficiently stated; (2) that the place where the injury occurred,is not located with sufficient certainty.

In Oesterreich v. City of Detroit, 137 Mich. 415, the notice set out that claimant “suffered an injury by reason of a defective sidewalk’’and that “the cause of the injury was a defect in the sidewalk laid along Biddle street at said place,” describing the place. The notice was held to be sufficient. In Tattan v. City of Detroit, 128 Mich. 650, the notice stated the cause of the injury to be “by my falling on a defective sidewalk.” These cases must be held to rule the present case, on this point, unless it can be said that, because of a more precise description of the place of the injury, in each of those cases, the statement of the cause of the injury was aided and made sufficiently certain. In the case first above cited, the place was described as at a certain point, on a certain side of a certain street, between two certain streets, named, and “about one hundred feet westerly of” one of said streets. In the Tattan Case, after stating that the cause of the injury was “falling on a defective sidewalk,” the notice proceeds:

“Said defective sidewalk was * * * on the south side of Cherry street, between Sixth and Seventh streets, and extending from Seventh street to the first alley east of Seventh street.”

It is not made a ground of the decision, in either case, that the statement of the cause of injury was aided by the description of the place of injury. It is apparent, however, that in each case it was, to some extent, so aided, by the precision of statement used to designate the place.

The learned trial judge, in delivering his opinion, stated:

“There are four corners at Howard and Twenty-First streets, not only the street crossings but also the walks in front of the lots at the corners which might be covered by this designation of the location. There are the city crossings as well as the walks in front of the lot. By crossings I mean not only the street crossings, but also the sidewalks built on the corners, in the angles between the extended lines of the front and side of the corner lots. By the walks in front of the lot I mean the walks abreast of the lots within the side lines of the lot extended.”

The truth of the facts is not questioned. Counsel for plaintiff are undoubtedly correct in saying that, in a given case, a description of the most general character, when applied to the ground, may locate the place with the utmost exactness (Carr v. Ashland, 62 N. H. 665), and in such a case the notice itself might seem to be defective, when, aided by intelligent application of the facts stated, by testimony, or by judicial cognizance, it would be found to be precise and definite. See, also, City of Lincoln v. O'Brien, 56 Neb. 761; Connor v. Salt Lake City, 28 Utah, 248; Harder v. City of Minneapolis, 40 Minn. 446. The rule in New Hampshire is, in Carr v. Ashland, thus stated:

“If the statement so designates the place that the officers of the town, being men of common understanding and intelligence, can, by the exercise of reasonable diligence and without other information from the plaintiff, find the exact place where it is claimed the damage was received, it is in this respect sufficient because it fully answers the purpose of the statute. Whether upon the' information contained in the statement the place could be found by the exercise of reasonable diligence is a question of fact, to be determined upon the evidence by the court at the law term.”

The rule adopted by some of the courts to the effect that the sufficiency of the notice must be determined in the light of extraneous evidence showing the situation and surroundings of the place sought, upon the trial, to be proved to be the place of the injury, ought not to be adopted without restrictions. The requirement that a notice be given is not alone for the purpose of affording the officers of the city opportunity for investigation. It is also for the purpose of confining the plaintiff to a particular “ venue ” of the injury. In determining the sufficiency of the notice, excepting perhaps as to the time of the injury, the whole notice and all of the facts stated therein may be used and be considered to determine whether it reasonably apprises the officer upon whom it is required to be served of the place and the cause of the alleged injury. The nature of the defect stated may aid in locating the place, and the place may be stated with such particularity that a very general statement of the defect (cause of the injury) may be aided. Sargent v. City of Lynn, 138 Mass. 599. But to be legally sufficient, a notice must contain a description of the place of the accident so definite as to enable the interested parties to identify it from the notice itself. Benson v. City of Madison, 101 Wis. 312; Carr v. Ashland, 62 N. H. 665; Larkin v. City of Boston, 128 Mass. 521; Rogers v. Inhabitants of Shirley, 74 Me. 144; Lee v. Village of Greenwich, 48 App. Div. (N. Y.) 391. This rule permits a construction of the statute provision which does not emasculate it and one which is in accord with the opinions of this court in Brown v. City of Owosso, 126 Mich. 91; Tattan v. City of Detroit and Oesterreich v. City of Detroit, supra. When parol evidence is required to determine both the place and the nature of the defect, a reasonable notice has not been given to the city.

There is in this case no quéstion of waiver of a proper notice, and it is clear, from the allegations of the declaration, that no fair attempt was made to give to the corporation counsel the notice which the charter contemplates shall be given. The court below reached a right conclusion, and the judgment is affirmed.

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


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    PEOPLE v. COOK.
    1. Convicts — Offenses—Prosecution—Procedure.
    Act No. 118, Pub. Acts 1898, providing for the prosecution and punishment of convicts committing crimes in prison, contemplates the ordinary complaint, warrant, and information in such cases, except that the warrant is directed to the warden of the prison; and the fact that the warrant in such a case describes accused as an “ inmate ” instead of a “ convict ” is not prejudicial to him.
    2. Same — Warrant—Defect—Waiver by Warden.
    If the warden of the prison in which a convict accused of crime is confined sees fit to produce him before the examining magistrate, and before the circuit court for trial, on a warrant technically defective, that is no concern of the accused, and he is not prejudiced by the waiver on the part of the warden of technical defects in the warrant.
    8. Constitutional Law — Distribution of Powers — Power of People to Chance Distribution.
    The people have an inherent right to so amend the Constitution as to take away from, or add to, the powers of either department of the government.
    4. Same — Indeterminate Sentence Law — Validity.
    The indeterminate sentence law of 1905 (Act No. 184), vesting in the board of pardons and the warden the power to parole and recall prisoners before the expiration of the time for which they are sentenced to prison, the benefits of which the convict may avail himself of or not as he chooses, in no way interferes with executive or judicial constitutional authority.
    5. Same — Distribution of Powers — Review of Conviction and Sentence.
    Neither the board of pardons nor any other officer or board has any constitutional right to question, examine into, or determine the justice of a sentence, or to question the propriety of a conviction, the people through their Constitution having placed that power exclusively in the courts.
    6. Same — Indeterminate Sentence Law — Cruel and Unusual Punishments.
    The indeterminate sentence law of 1905 (Act No. 184), providing for a sentence in all cases to imprisonment for not less than the minimum, nor more than the maximum, term prescribed by the statute punishing the crime, does not provide for any cruel or unusual punishment.
    7. Same — Persons Entitled to Raise Constitutional Question.
    Whether the provision for cumulative sentences contained in the indeterminate sentence law of 1905 (Act No. 184) is valid is of no concern to one not sentenced under that provision, the defect pointed out not being one that would invalidate the entire statute.
    Error to Ionia; Davis, J.
    Submitted October 18, 1906.
    (Docket No. 170.)
    Decided February 5, 1907.
    Fred Cook was convicted of an assault with intent to murder, and sentenced to imprisonment for not less than twelve and one-half nor more than twenty years in the State house of correction and branch of the State prison at Marquette.
    Affirmed.
    The respondent was convicted and sentenced under the indeterminate sentence law, November 20, 1904, to the Michigan reformatory at Ionia, for larceny, for not less than six months nor more than five years. While a convict he committed an assault upon another convict, and was charged with and convicted of an assault with intent to murder, November 29, 1905, and sentenced to the State prison at Marquette under the indeterminate sentence law. Act No. 184, Pub. Acts 1905.
    The principal error relied upon for the reversal of the conviction and the discharge of the prisoner is that the complaint, warrant, and information under which he was convicted are fatally defective. Prior to the passage of Act No. 118, Pub. Acts 1893, a convict who committed a crime in a prison could not be taken from the prison where he was confined, brought before a-justice of the peace for examination, and before the circuit court for trial until the expiration of the sentence which he was then serving. The reason of this was not that a crime had not been committed, but that the law made no provision for taking the convict out of the control of the prison authorities and placing him upon trial for the second offense. The act above referred to provides for a trial for a crime committed in the prison. The provisions of the law are as follows:
    “ Seo. 64. That any convict now or hereafter confined in any prison, for any term other than life, and who during the term of such confinement shall commit any crime punishable under the laws of this State by imprisonment in such institution, shall be subject to the same punishment as if the crime had been committed at any other place, or by a person not so confined.
    “ Sec. 65. The circuit court of the county in which the prison is shall have jurisdiction over cases arising under the foregoing section, and the proceedings thereto pertaining shall in all ways conform to the law and rules in case of like offenses occurring elsewhere, except that. the. examination may be held in one of the offices of the penal institutions where the crime is committed, at the option of the justice of the peace before whom the complaint may be made, and that the warrant shall be made in the ordinary form, shall be directed to the warden of such prison, and shall set forth that the accused is imprisoned in such prison under and by authority of the laws of the State of Michigan; and further, that the convict so confined shall remain in the custody of such warden subject to the order of the circuit court of the county in which such'prison is located.”
    The complaint before the justice of the peace was in the usual form, making no reference to the fact of his confinement in the house of correction. The warrant was directed, as the statute requires, to the warden of the house of correction. It recited that the respondent was then “ an inmate of the house of correction at Ionia,” and summoned the warden to produce the accused before the justice. The respondent waived examination and was committed to the house of correction to await trial. The information was in the usual form, charging an assault with intent to murder one Bert Fenton, and contained no reference to the fact that the respondent was a convict in the prison. Upon reading the information to the respondent, he stood mnte, and a plea of not guilty was entered by order of the court. At the conclusion of the evidence counsel for respondent requested the court to direct a verdict of not guilty and discharge the respondent, because neither the warrant nor the information alleged that the respondent was a convict imprisoned for a term other than life.

      William K. Clute, for appellant.

      Frank M. Burbank Prosecuting Attorney, for the people.
   Grant, J.

(after stating the facts). The statute does not make any change in the form of complaints for criminal offenses; neither does it require any change in the form of the information. It does require that the proceedings—

“ Shall in all ways conform to the law and rules in case of like offenses occurring elsewhere, except that the examination may be held in one of the offices of the penal institutions, * * * and that the warrant shall be made in
the ordinary form, shall be directed to the warden of such prison, and shall set forth that the accused is imprisoned in such prison under and by authority of the laws of the State of Michigan.”

The warrant was served as the law directs. The warden produced the respondent in obedience to such warrant, and all the forms of law were complied with from the beginning to the end of the proceedings. The warrant uses the word “inmate,” instead of “convict.” The failure to follow the precise language of the statute was not prejudicial to respondent. It had no connection whatever with the commission of the crime for which he was charged. The warden might, perhaps, have refused to produce the respondent in obedience to the writ, because of the technical noncompliance with the statute; but it cannot be invoked in behalf of the respondent to set aside the conviction, and cause his discharge. Criminals ought not to be turned loose upon the community for such bare technical errors. The statute contemplates the ordinary complaint, the ordinary warrant, and the ordinary information. In addition, it requires the warrant to he directed to the warden who has the respondent in charge. If the warden sees fit to produce the prisoner before the examining, magistrate, and before the circuit court • for trial, upon a warrant technically defective, that is no concern of the prisoner. His rights are not prejudiced by the waiver on the part of the warden of technical defects in the warrant.

Counsel for the respondent attack the constitutionality of Act No. 184, Pub. Acts 1905. The constitutionality of this act was argued by counsel and discussed in Re Manaca, 146 Mich. 697. While the constitutionality of this act was not directly involved in that case, in so far as it was determined in the opinion of my Brother Moore ; it is unnecessary to cover the ground again. We therefore adopt that opinion so far as applicable to this. The reasons asserted against its constitutionality are: (a) It encroaches upon the judicial power of the government which is lodged in the courts; (6) it provides for cumulative sentences not mentioned in its title; (c) it imposes unusual punishments. The provision for imposing an indeterminate sentence is substantially the same in this act as it was in Act No. 136, Pub. Acts 1903. This provision was sustained in Re Campbell, 139 Mich. 597.

After the decision in People v. Cummings, 88 Mich. 249 (14 L. R. A. 285), holding an act unconstitutional which was substantially the same as the present act, the legislature submitted an amendment (art. 4, § 47) to the Constitution which was adopted. That amendment is as follows:

. “ The legislature may, by law, provide for indeterminate sentences, so called, as a punishment for crime, on conviction thereof, and for the detention and release of persons imprisoned or detained on such sentences.” Pub. Acts 1903, p. 452.

That indeterminate sentence act was published in full in the opinion in People v. Cummings, and the constitutional amendment was adopted with reference to the well-known provisions and policy of the indeterminate sentence laws which had been enacted in this and some other States. If that amendment to the Constitution took away any of the power which had theretofore been lodged in the judiciary or the executive, the people exercised a right inherent in them to adopt a constitutional amendment taking away from, or adding to, the powers of either of the departments of government. The design of the indeterminate sentence law is to reform criminals and to convert bad citizens into good, citizens, and thus protect society. In order to accomplish this result, the theory is that, when the prisoner has shown by his conduct that he may turn from his criminal career, he should have an opportunity, under favorable circumstances, to make the test. He is in prison for a definite time. Any release therefrom is a favor to him. Such release does not necessarily involve a judicial or an executive act. The release of a prisoner under the old law before the expiration of his term of imprisonment for good behavior has never been held an interference with judicial or executive power.

The paroled prisoner is regarded as still under the control of the prison authorities. When the prisoner applies for his parole, he applies under the provisions of the law, agrees to its terms, and fully understands that for the misconduct provided in the statute he may be taken back to serve out his term of sentence. This power of recall is lodged in the warden, subject to review by the board of pardons. The prisoner applies for and obtains his release upon those terms, and no other. They are of the very essence of the indeterminate sentence law. Without the power to retake the prisoner there would be no incentive to good behavior through fear of being again imprisoned. This power of release and recall may be vested in any officer or board without any interference with judicial or executive constitutional authority. If the prisoner chooses not to avail himself of these beneficial provisions of the law, he can remain in prison and serve out his full sentence.

I fully concur in the views of the learned attorney for the respondent that the board of pardons has no constitutional right to question, examine into, or determine the justice of a sentence, or to question the propriety of the conviction. The people through their Constitution have placed that power exclusively in the courts. No other officer under the Constitution is clothed with the power to review the judgments of the courts.

Under the constitutional amendment and the indeterminate sentence law enacted under it, however, the legislature may confer upon the governor, the warden, the prison boards, or the so-called board of pardons the power to determine whether the conduct of a prisoner is such that he may safely be released and allowed his temporary freedom, and to determine whether he has chosen to turn from his criminal ways and become a law-abiding citizen, or whether he has violated his contract of parole. The power to determine the conditions of a release and the violation of the release is no more judicial than was the power under the old law to determine under what conditions a prisoner might shorten his term of imprisonment. The law does not provide for any unusual punishment. The legislature may fix one definite punishment for any crime, or it may fix a minimum and a maximum. When a constitutional law has fixed the punishment for an offense, a sentence under that law is not cruel or unusual within the meaning of the Constitution. One judge might sentence a man convicted of larceny for one year, and another might sentence the same man for the same offense for five years. When the judge imposes a sentence within the law, his sentence is not a cruel or unusual punishment. It is laws providing for cruel and unusual punishments that the Constitution refers to and prohibits, and not sentences by courts under constitutional laws.

It is unnecessary to determine the question raised as to. cumulative sentences. The entire act would not be held unconstitutional even should this provision be held void. The prisoner in this case is not concerned in that question. The legislature may lawfully provide that prisoners who have twice previously been convicted of a felony shall not be eligible to parole. The circuit judge in imposing sentence found:

“It appearing from examination of the respondent, under oath, that he is thirty years of age and has five times been convicted of the crime of larceny and burglary, and has twice before, while serving sentence, stabbed other convicts, and that the causes of said conduct are a lawless disposition and violent, temper,
“Therefore it is ordered and adjudged by the court now here that the said Fred Cook be confined in the said State house of correction and branch of the State prison in the Upper Peninsula, Marquette, Michigan, at hard labor, for a period of not less than twelve years and six months, and not more than twenty years from and including this day.”

The wisdom of the law which places criminals of such character beyond the power of harm cannot be questioned. •Whether the act sufficiently provides for the determination of the question of previous convictions may be doubtful. But, if it were defective in this regard, the whole law could not be held void for that reason.

The decisions upon the indeterminate sentence law passed in other States are cited in People v. Cummings, and need not be cited or rediscussed here. They are the decisions in view of which the legislature submitted and the people adopted the above amendment.

The conviction is affirmed.

McAlvay, O. J., and Carpenter, Blair, and Moore, JJ., concurred.


author: Montgomery, J.

text:
    SCHELSKE v. TOWNSHIP OF ORANGE.
    1. Appeal and Error — Review — Presumptions — Finding op Facts.
    In a casé tried to the court without a jury, the finding of facts must show every fact essential to support a judgment against defendant, but where no amendments were proposed and the attention of the court was not called to the alleged defects by special objections or otherwise, the findings will be aided by all reasonable intendments.
    2. Highways and Streets — Personal Injuries — Action—Finding op Facts — Suppiciency.
    In an action against a township for injuries resulting from a defective highway, the court found that the highway was in a dangerous condition; that plaintiff, while using ordinary care to avoid injury, sustained injury through no fault of his but by reason of the dangerous condition of the highway; and that defendant had notice of this dangerous condition a sufficient time to have placed the highway in a proper condition. Held, that the finding that the highway was dangerous should be treated as equivalent to a finding that it was not reasonably safe, and, so treated, the necessary facts to support a judgment against defendant appeared.
    3. Same.
    A finding that the highway was in a dangerous condition, owing to the placing of logs on either side of the beaten track, is to be treated as including a finding that there was an unwarranted obstruction to travel at that point, and it is not necessary that the finding should show the width that the highway had been opened for public use, and that the logs were within the limits of the highway as opened for travel.
    4 Trial — Findings op Fact — Suppiciency.
    A finding which includes all the facts necessary to be averred in a declaration is sufficient without a finding negativing any possible qualification of the facts found.
    5. Highways and Streets — Personal Injuries — Actions—Findings — Negativing Statute.
    In an action against a township for injuries from a defective highway, the declaration or findings need not negative the statute (section 3444 1 Comp. Laws) providing that the highway must have been in use 10 years prior to plaintiff's injury, such proviso being matter of defense.

      Error to Kalkaska; Chittenden, J.
    Submitted November 13, 1906.
    (Docket No. 119.)
    Decided February 5, 1907.
    Case by Otto Schelske against the township of Orange for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Ernest C. Smith, for appellant.

      J. L. Boyd, for appellee.
   Montgomery, J.

Plaintiff recovered in an action for personal injuries alleged to have been received by reason of the defendant’s neglect to keep a certain highway in a condition reasonably safe and fit for public travel. The case was tried before the court without a jury. Findings of fact and law were filed. No amendments were proposed, nor were any exceptions filed. The case is brought here on writ of error, and is presented under the single claim that the findings do not support the judgment. The findings were as follows:

‘£ First. That the highway in question was a legally laid out highway under the control of the defendant township.
Second. That at the time the accident in question occurred said roadway was in a dangerous condition owing to the placing of logs on either side of the beaten track.
Third. That the plaintiff was traveling upon said highway in the pursuit of his ordinary business and in an ordinarily cautious and prudent manner.
Fourth. That, in passing the load of Jogs in question, he used ordinary care and caution to avoid injury, and that the injury resulted through no fault or negligence of the plaintiff, but by reason of the dangerous condition of the highway because of the logs piled adjacent to the beaten track.
“Fifth. That the defendant township had notice of the dangerous condition' of the highway a sufficient time to have placed the same in proper condition.
Sixth. That the injury that the plaintiff sustained is of a permanent character, and that his earning capacity has been impaired.
“ It therefore follows, as a matter of law, that the defendant is liable for any damages sustained by the plaintiff by reason of said accident as set forth in plaintiff’s declaration.”

The defendant contends that the finding of facts is to be treated as in the nature of a special verdict, and that every fact essential to show defendant’s liability must be found; citing Adams v. Champion, 31 Mich. 233; Gardner v. Thayer, 50 Mich. 128, and other cases. It is doubtless the rule that the essential facts must be found, but where no amendments are proposed and the attention of the trial court is not attracted to the alleged defects by special objections or otherwise, the findings as filed will be aided by all reasonable intendments. Peabody v. McAvoy, 23 Mich. 526; Neib v. Hinderer, 42 Mich. 451; Hart v. Doyle, 128 Mich. 257.

Construing these findings in accordance with these rules, we discover that the circuit judge has found that the highway in question was in a dangerous condition, that plaintiff, while using ordinary care to avoid injury, sustained injury through no fault of his but by reason of the dangerous condition of the highway, and that defendant had notice of this dangerous condition a sufficient time to have placed the highway in a proper condition. If we treat a statement or finding that the highway was dangerous as equivalent to a finding that it was not reasonably safe, the necessary facts to warrant a judgment appear to be present. The rule that all reasonable intendments shall be indulged in support of the judgment plainly requires this construction of that finding.

But it is insisted that the'finding should show the width that the highway has been opened for public use, and that these logs were within the limits of the highway as opened for public travel. It is said that these are material facts and must appear affirmatively. We are of the opinion that the finding that the highway was dangerous for the reason stated is to be treated as including a finding that there was an unwarranted obstruction to travel at that point. That such obstructions may justify recovery in a proper case is determined by the recent case of McEvoy v. City of Sault Ste. Marie, 136 Mich. 172.

It is next urged that there is no finding that the highway had been in use for 10 years prior to plaintiff’s injury. A technical objection may be properly met by a technical answer. Obviously a finding which includes the facts necessary to be averred in a declaration is sufficient without a finding negativing any possible qualification of the facts found. The rule of pleading is that, in declaring on a statute if there be an exception to the enacting clause, the pleader must negative the exception, but where there is no exception in the enacting clause but an exception contained in a proviso or subsequent section this constitutes matter of defense and need not be negatived. Myers v. Carr, 12 Mich. 63; People v. Curtis, 95 Mich. 212; Smalley v. Ashland Brown-Stone Co., 114 Mich. 104.

The statute here invoked, section 3444,1 Comp. Laws, is within the latter rule, and need not be negatived in the declaration or finding.

No error appears. The judgment is affirmed.

McAlvay, C. J., and Carpenter, Ostrander, and Hooker, JJ., concurred.


author: Carpenter, J.

text:
    SCANLON v. NORTHWOOD.
    1. Contracts — Consideration—Sufficiency.
    Where, after a building contract was partly performed, the contractor declined to complete it on the ground that he would lose money on it, the owner’s agreement to increase the contract price sufficient to pay the wages of the contractor’s employés and pay him day wages was founded on sufficient consideration.
    2. Evidence — Written Contract — Varying by Parol — Consideration.
    On the back of a written building contract was indorsed a memorandum, signed by the parties, stating that in consideration of the fear that the contract price would not compensate the contractor, the owner agreed to increase the contract price in a certain amount. Held, that parol evidence was admissible to show that prior to making the indorsement the contractor had refused to complete the contract, the consideration of a written agreement being provable by parol.
    3. Trial — Question for Jury.
    Where the defendant did not request the trial judge to submit to the jury the issue of a consideration for the contract upon which suit was brought, and the testimony of plaintiff showing a consideration was corroborated and undisputed, there was no error in treating it as a fact conclusively established.
    4. Same.
    In an action on a substituted contract, testimony of plaintiff that defendant claimed, after the new contract was made, that plaintiff was working under the old contract, does not require that the question which contract governed the work should be submitted to the jury, it being clear that plaintiff did not assent to the claim of defendant and that the claim was unwarranted.
    5. Same — Instructions—Misleading Effect.
    In an action on a substituted contract under which plaintiff was to have such an increased price as would insure him day wages, an instruction that it was not a question whether he built the building according -to the original agreement, because that agreement was waived by the later one, is not misleading as tending to induce the jury to believe he was not bound to comply with the original contract, since, as fairly construed, the substituted contract provided that plaintiff was not entitled to any additional compensation if that named in the original contract was sufficient.
    Error to Shiawassee; Smith, J.
    Submitted November 15, 1906.
    (Docket No. 50.)
    Decided February 5, 1907.
    Assumpsit by John Scanlon against John Northwood upon a building contract. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      John T. McCurdy, for appellant.

      Watson & Chapman, for appellee.
   Carpenter, J.

January 27, 1904, plaintiff and defendant executed a written contract whereby the former agreed to do the mason work, the lathing, and plastering of a house, to be built for the latter, for the sum of $500. June 21, 1904, while the work was progressing, and after plaintiff had received $270, the parties executed another writing whereby, in consideration “of fear that the contract price * * * viz., $500.00, would not be sufficient to compensate him” (plaintiff), defendant agreed to pay plaintiff “such sum of money after the contract price is exhausted, as will insure to him after the payment of all help employed by him * * * the usual or going day wages paid to others for performing like work.” Plaintiff having completed the work brought this suit to recover compensation.

The important question is whether the writing of June 21st constituted a binding contract. The circuit judge held that it did. Defendant contends that this holding was erroneous upon the ground that, plaintiff being obligated to do the work for $500, there was no consideration for his (defendant’s) agreement to pay more than $500. The testimony of plaintiff — and this testimony was corroborated by another witness and was not contradicted— tends to prove that, immediately before that writing was made, the parties had a conversation in the course of which plaintiff informed defendant that he “would not work any longer on the old contract.” This brings the case within the principle of Blodgett v. Foster, 120 Mich. 392, and compels us to hold that there was a consideration for defendant’s agreement. See, also, Goebel v. Linn, 47 Mich. 489; Moore v. Locomotive Works, 14 Mich. 266.

Defendant contends that plaintiff’s testimony above stated tended to vary the terms of the writing of June 21st, and was therefore inadmissible. We think this testimony was admissible under the familiar rule which permits the consideration of a written agreement to be proved by parol testimony. 17 Cyc. p. 648.

Defendant also contends that the trial court erred in not leaving to the jury the question of the existence of a consideration for defendant’s agreement. Defendant did not request the trial judge to submit this issue to the jury, and, as already indicated, the testimony of plaintiff relative to the consideration was corroborated and undisputed. Under the circumstances we think it was not error for the court to dispose of it as a fact conclusively established.

It is contended that the trial court should have permitted the jury to determine whether the work was done under the old contract or under the contract of June 21st. This contention is made because plaintiff testified that defendant claimed, after the new contract was made, that he (plaintiff), was working under the old*contract. It is quite clear that plaintiff did not assent to this claim of defendant and that the claim was unwarranted.

The trial court charged the jury:

“ It isn’t a question of whether he built the building according to the contract (the original contract) * * * because that contract was waived when this (the contract of June 21st) was signed.”

It is claimed that this was erroneous, because it had a tendency to induce the jury to believe that plaintiff was not bound to comply with the original contract, whereas “the first consideration was, Could the work have been performed within the contract price of $500 and net Scanlon day wages?” We think this criticism unwarranted. The statement under consideration, indicating (and very properly indicating) as it does that the rights of the parties are governed by the contract of June 21st, clearly implies — as that contract fairly construed provides — that plaintiff is not entitled to additional compensation if $500 is sufficient.

No other question demands consideration.

Judgment affirmed.

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


text:
    HENRY v. MICHIGAN SANITARIUM & BENEVOLENT ASS’N.
    1. Corporations — Trustees—Employment—Compensation.
    Though the dealings of a director or trustee of an ordinary corporation with the board of which he is a member are closely scrutinized, there is no rule which precludes such trustee from contracting to perform outside service for which he is to be paid.
    2. Same — Character op Servioes.
    A director or trustee of a corporation who Claims compensation for services must make it appear, not only that such services fall outside the scope of his regular duties, but that they were performed under circumstances sufficient to show that it was understood by the corporate officers as well as himself that the services were to be paid for by the corporation.
    3. Charities — Corporations—Trustees—Compensation.
    Section 8292, 3 Comp. Laws, expressly precludes the trustee of a charitable corporation from receiving compensation for services in the rendition of which the officers have simply-acquiesced, however strong the inference may be that compensation was expected, but the employment must be by the board of trustees in order to bind the corporation.
    4. Same — Employment.
    The appointment by the board of trustees of a charitable corporation of a member of the board as a member of the building committee having supervision over the construction of a sanitarium, and the act of the chairman of the board in informing him that the corporation wanted to hire him and would pay for his services to work for the sanitarium, do not constitute a contract of employment by the board of trustees under section 8292, 3 Comp. Laws, nor entitle the trustee to his pay for services performed in reliance on such contract.
    Error to Calhoun; Hopkins, J.
    Submitted November 15, 1906.
    (Docket No. 79.)
    Decided February 5, 1907.
    Assumpsit by Archibald R. Henry against the Michigan Sanitarium & Benevolent Association for services rendered. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      D. C. Salisbury (B. J. Kelley, of counsel), for appellant.

      Jesse Arthur, for appellee.
   Montgomery, J.

The defendant corporation is organized under chapter 224, 3 Comp. Laws. The plaintiff was, from 1902 until after the services for which he seeks to recover had terminated, one of the trustees of defendant. In the month of February, 1902, the sanitarium buildings were totally destroyed by fire, and some time thereafter its board of trustees decided to rebuild on the site of the old sanitarium. On March 25, 1902, at a meeting of the board of trustees, by vote of the board, a building committee was appointed, consisting of the plaintiff, Dr. C. E. Stewart, and Dr. J. H. Kellogg. The building committee remained in existence from the time of its appointment until the completion of the new sanitarium in June, 1904. Dr. Kellogg was chairman of the board of trustees, and had general management of the business part of the sanitarium about the time of the fire. About the time the building committee was appointed Dr. Kellogg informed plaintiff that the defendant wanted to hire him and would pay for his services to work for the sanitarium. The building committee had general supervision over the erection of the new sanitarium. It held meetings at 10 o’clock every day to consider the necessities of the hour and to determine what would be done. This committee met from 75 to 100 times during the time that plaintiff was working for defendant. Plaintiff’s claim is stated in the brief as follows:

“ Plaintiff in this case does not claim any compensation for services which he rendered as trustee, and he is seeking to recover in this case only for services which he rendered outside of his duties as trustee of defendant corporation, and among his duties enumerated above he was obliged to go over the country transacting business connected with the new sanitarium. He went to Detroit several times to look after freight rates; he went to Chicago several times for the same purpose; he secured a rate that was one-half or less of the regular rate. He took a trip to West Baden, Ind., to look at some new structures there. His authority was such that he discharged John McMichael, who was first employed as mechanical superintendent. ”

At the close of plaintiff’s case the trial judge directed a verdict for defendant on the ground that there had been no contract to pay plaintiff for this service shown. Section 5 of the act of incorporation, being section 8292, 3 Comp. Laws, contains the following:

“No trustees of such corporation shall be entitled to any conpensation except under some special employment by the board or authority expressed in the original deed or instrument of trust.”

Section 2, article I, of the by-laws of the defendant corporation, provides as follows:

“By a vote of not less than six trustees, any of the business of the corporation may be delegated to a committee of one or more trustees; such business may be a particular item of business, or a specified class of business. Such delegation shall be by resolution duly entered into the record book of the trustees.”

It is contended that the employment of plaintiff was outside his duties as trustee, and that the statute quoted presents no obstacle to his recovery of compensation for such services. While the dealings of a director or trustee of a corporation with the board of which he is a member are closely scrutinized, there is no rule which, in the case of an ordinary corporation, precludes such trustee from contracting to perform outside service for which he is to be paid. Ten Eyck v. Railroad Co., 74 Mich. 226 (3 L. R. A. 378). But, even in cases where there is no restriction placed upon the right to compensation, it is a well-understood rule that a director or trustee who claims compensation for services must make it appear, not only that such services fall outside the scope of his regular duties, but also that they were performed under circumstances sufficient to show that it was understood by the corporate officers as well as himself that the services were to be paid for by the corporation. See note to Ten Eyck v. Railroad Co., 3 L. R. A. 378 (74 Mich. 226); Brown v. Silver Mines, 17 Colo. 421 (16 L. R. A. 426); Eakins v. Bronze Co., 75 Mich. 568. The present case is not to be determined by the general rule alone, but by a construction of the defendant’s charter. The section above quoted expressly precludes the trustee from receiving compensation for services in the rendition of which the officers have simply acquiesced, however strong the inference may be that compensation was expected. It is clear, also, that any contract with Dr. Kellogg cannot aid plaintiff. The employment must be by the board in order to bind the corporation. The only evidence of a special employment of plaintiff by the board consists of his appointment as a member of a building committee. This falls far short of constituting a special employment which both parties expected to be compensated. Most boards of trustees repose in special committees certain powers, but always it is apprehended with the understanding that, when acting as a member of a committee, the trustee is really performing his duty as such. See Pew v. National Bank, 130 Mass. 391.

We must hold that the action of the board in this case did not amount to a special employment, entitling plaintiff to compensation, and that the circuit judge properly directed a verdict for defendant.

Judgment affirmed.

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


author: Moore, J.

text:
    PERRY v. REED.
    Waters and Watercourses — Surface Waters —injunction— • Evidence — Sufficiency.
    On a bill to enjoin the casting of water on complainant’s land by means of tile drains, evidence examined, and held, insufficient to entitle complainant to relief.
    Appeal from Shiawassee; Smith, J.
    Submitted November 15, 1906.
    (Docket No. 89.)
    Decided February 5, 1907.
    Bill by Ephraim Perry against Hiram Reed and Finley Reed to enjoin the casting of water upon complainant’s . land. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Watson & Chapman, for complainant.

      Albert L. Chandler, for defendants.
   Moore, J.

The complainant has a farm of 80 acres lying directly east of a 40 acres which complainant claims is owned by defendants. The bill is filed to enjoin defendants from throwing water by means of tile drains upon the land of complainant. The proofs were taken in open court. The trial judge was of the opinion that, if complainant had any grievance against defendants, he had an adequate remedy at law, and dismissed the bill of complaint without prejudice, and decreed that each party should pay its own solicitors and witnesses and should pay one-half the clerk’s and stenographer’s fees.

The complainant has brought the case here by appeal, claiming it was the duty of the judge to enjoin the defendants and to assess the complainant’s damages. We cite from the brief of counsel:

“ The law is well settled in this State that a landowner cannot by artificial drains or ditches collect water from natural receptacles and cast them in a body upon the land of an adjoining owner. Gregory v. Bush, 64 Mich. 37; Leidlein v. Meyer, 95 Mich. 586; Horton v. Sullivan, 97 Mich. 282; Cranson v. Snyder, 137 Mich. 340.
“It is equally well settled that where one person does damage to another by flooding his lands that the party aggrieved may enjoin him by a decree in chancery, and in the same case have damages assessed for his injury. Brown v. Gardner, Har. Ch. (Mich.) 291, at page 299; Hall v. Nester, 122 Mich. 141; Beal v. Chase, 31 Mich. 490, at page 535; Miller v. Stepper, 32 Mich. 194; Chase v. Boughton, 93 Mich. 285; George v. Electric Light Co., 105 Mich. 1.”

The defendants did not appeal.

There can be no serious difference of opinion as to the legal propositions. The important question is whether complainant has brought himself within these cases. Finley Reed is the son of Hiram Reed. The sister of the complainant, Ephraim Perry, married Finley Reed something more than nine years ago. • The parties were all friendly until in May, 1904. One of the drains about which complaint is made was built 1? years before the trial of the case, complainant having full knowledge of the intention to build it. His claim is that it has been extended. This is denied by defendants. The other drain was built 14 years ago. The complainant admits he was consulted about the building of the drain and consented thereto, but says he did not consent to the building of so long a drain as was built. The defendants insist that he was taken upon the ground and shown just what it was proposed to do, and consented that the drain might be.put in and maintained as long as his land remained a wood lot, and that it is still a wood lot. It is fairly well established by the record that complainant drained some of his land upon the land of defendants; the water thus drained being taken care of by the first-named drain.

It is the further claim of defendants that at the time this suit was brought they had removed tiles from .each of these drains, so that no water escaped from them to the premises of complainant. The record also shows that within a few days after this proceeding was begun defendants began to change the drains, and complainant admits that before the trial the change had been so completed, that no water came from defendants’ premises to his. The testimony is conflicting. Some of the conflict can be explained by the fact that some of the witnesses were testifying to the situation when the conditions were normal, while others testified to the situation while the March floods were on.

A careful reading of the entire record does not satisfy us that the complainant has brought himself within the cases cited by his counsel. We do not think he has any valid reason to complain of the decree.

It is affirmed, with costs of this court.

Carpenter, Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    FRUIT DISPATCH CO. v. Le SENO.
    1. Sales — Contract—Duty of Buyer — Obligation to Accept.
    In an action for .the price of a car load of bananas, evidence relative to the contract of purchase, consisting of letters, telegrams, and oral testimony, examined, and held, that if a contract evidenced by a certain writing was in force at the time of the sale, the buyer was bound to accept the fruit if of the grade or class ordered, pay for it, and if not satisfactory as to condition or quality, submit a claim for a rebate.
    2. Same — Contract—Abrogation—Evidence.
    Where a buyer and seller had a contract under which the buyer agreed to accept and pay for fruit shipped him on orders and make a claim for any defect of quality, and it is claimed that that contract was abandoned and another one made under which the buyer was privileged to reject any shipment not of the quality ordered, he did not, by thereafter accepting an unsatisfactory shipment and making a claim, waive the provisions of the second contract, but such conduct at most was evidence to be considered on the question which contract was in force on a later date.
    3. Same — Action for Prioe — Evidence—Suffioienoy.
    In an action for the price of a car load of bananas, evidence examined, and held, that whether the car load offered and rejected was “cargo run” as ordered was a question for the jury.
    4. Appeal and Error — Reoord—Costs—Amount Taxable.
    Where plaintiff in error prints a record of 394 pages, substantially a copy of the stenographer’s minutes being settled as a bill of exceptions, and the questions of law could have been properly presented with a record of 100 pages, his costs on reversal will be taxed on that basis, though counsel for defendant consented ,to the settlement of the bill, and the circuit judge certified that where the testimony was set out by question and answer, such course was necessary to a full understanding of the questions of law.
    Error to Jackson; Parkinson, J.
    Submitted November 15, 1906.
    (Docket No. 35.)
    Decided February 5, 1907.

      Assumpsit by the Fruit Dispatch Company against Nick Le Seno for goods sold and delivered. There was judgment for defendant, and plaintiff brings error.
    Reversed.
    Plaintiff, a fruit importing company, sued defendant, a dealer in fruits at Jackson, Mich., for the price of a car load of bananas, sold to defendant on August 24, 1903, and delivered f. o. b. at New Orleans. The order was given and accepted and fruit refused by wire. The messages are here set out:
    “11:48 a. m. Jackson, Mich., Aug. 24,1903.
    “ Fruit Dispatch Co.,
    “Detroit:
    “ Send car rejects Mailboat. Select stock.
    “N. Le Seno.”
    “1 p. m. Aug. 24, 1903.
    “N. Le Seno,
    “ Jackson, Mich.:
    “We cannot select fruit for any one. You must take regular cargo run. Shall we book your order ? Be quick.
    “F. B. Forbush.”
    “2:47 p. m. “ Jackson, Mich., Aug. 24, 1903.
    “Fruit Dispatch Co.:
    “ Send car Mailboat rejects. Answer.
    “ N. Le Seno.”
    “ Aug. 24, 1903.
    “ Nick Le Seno,
    “ Jackson, Mich.:
    “Have booked you car Mailboat rejects.
    . “ Fruit Dispatch Company.”
    “Jackson, Mich., 28 Aug., 1903.
    “ Refuse car; poor stock;
    “N. Le Seno.”
    “28 August, 1903.
    “ Nick Le Seno,
    “ Jackson, Mich.:
    “You must accept car and protect fruit. If quality poor, file claim.
    “Fruit Dispatch Company.”

      Testimony was introduced on the part of plaintiff tending to prove that at the time a general agreement existed between the parties, evidenced by the following writing:
    “June 12th, 1901.
    “Nick Lb Seno,
    “Jackson, Mich.
    “ Dear Sir: Your favor of recent date received and carefully noted. If we do not insist upon bank guarantee, will you promise to accept fruit, and in case anything is wrong, pay for your fruit and put in a claim ? Such claim will be handled promptly by us and if found to be just, will be paid you direct from New York. We will not do business with any one except in this manner. We will not accept a rejection under any circumstances; if there is anything wrong in the quality or condition of the fruit that we are to blame for, we are always willing to pay for same, but the matter must be investigated through our claim department. Please answer this letter and let us know whether you accept this proposition or not. If you do not, it is useless to try to do business with us except by giving us a bank guarantee.
    “Yours very truly,
    “Fruit Dispatch Company,
    “Resident Manager.”
    “Fruit Dispatch Co.: I understand and accept the above conditions of your company.
    “ N. Le Seno.”
    The declaration alleges, and there was testimony tending to prove, that the fruit delivered was the fruit ordered. It was the theory of counsel for plaintiff that, if bananas known as “ reject nines ” were delivered, defendant had no right to refuse to accept and pay for the fruit. Defendant introduced testimony tending to prove that the agreement of June 12,1901, had been abandoned, and was not in force, that the fruit delivered was neither “reject nines” nor “cargo run,” and that defendant was at liberty to refuse the fruit even if the said agreement was in force, if the fruit was not “ reject nines ” or if it was not “cargo run.” Upon these opposed theories the case was tried, the jury returning a verdict for the defendant.

      Mailboat bananas are those collected at various ports in Central America, principally in Honduras, by the boats of plaintiff Gompany. The fruit is graded, in part at least, according to the number of hands or clusters growing on a single stem; the hands varying in number from 6 to 11, being designated “ nines,” “eights,” “ sevens.” The witnesses were not quite agreed concerning the tests by which fruit is graded, properly, as ‘ ‘ reject nines,” or concerning the selection and choosing of the fruit as it goes from the boat to the cars. There is testimony to the effect that, if a bunch of bananas otherwise “nines” is defective because of a malformed or undeveloped hand, or if a hand is torn off or is scarred, it is rejected from the “nines” and is known as a “ reject nine.” On the other hand, there is testimony supporting the idea that a bunch with a hand torn off or badly scarred or dirty or bearing very thin fruit should not go into “reject nines;” that there is but one grade better than “reject nines” and that is “nines;” that a “ reject nine” is a little better than an “ eight” and not quite good enough for a “nine.” The fruit when loaded in vessels is distributed in compartments according to the number of hands or clusters, and upon arrival at port a diagram showing the location of the fruit and its grade is furnished and used in bringing fruit to the dock and the cars. Some further grading or classing of the fruit is made as it leaves the vessel. A witness described the process of transferring cargo from vessel to cars thus :
    “ Well, the first thing that is done, the ship is rigged. We have stages in the hatches so the fruit can be passed up, and when the unloading is commenced the bunches are passed up from stage to stage until it reaches the last or top stage. We have there at each hatch — and they are very large hatches — we have one man at each hatch; two men at the large hatches who class that fruit as it was taken out of the ship.
    “ The Court: That is done at Honduras where you are loading ?
    “ A. That is done at New Orleans in all cases. A classer directs the carrier to what car to go with the bunch. The cars are designated by flags, a red flag known as ‘9 or over,’ known as ‘9’s;’ a yellow flag designates the ‘reject 9’s;’a white flag denotes the ‘8’s;’ a blue flag denotes the ‘ 7’s.’ The classer at the ship’s side starts the carrier off by calling off the flag. He goes to this flag and he meets another inspector, or classer as you wish to term it, who gets a good look at the bunch, and if it is proper allows it to be put into the car. The men on the inside, as we know them as ‘car boys,’ take hold of the bunch and stow it into the car; that terminates the bunch.”
    As to the meaning in the trade of “ condition,” “ quality,” “cargorun,” plaintiff’s witness testified:
    “ Q. What do you mean by condition? Does that refer to the quality or don’t it ?
    “ A. No, it does not. We mean by condition that when fruit is fresh that the same is absolutely green, fresh — there is no ripes, we say it was in fine condition. * * *
    “ Q. Now, what do you mean by quality as distinguished from condition ?
    “ A. Well we grade the size, the fullness, and the cleanliness of the fruit against the quality.
    “ Q. But does that mean whether it has begun to decay or anything of that kind ?
    “ A. It has nothing to do with the condition — quality. * * *
    “ Q. This telegram to Le Seno saying that he would have to take the ‘cargo run.’ What does th,at term mean ?
    “ A. That term means the fruit as it ran from the cargo subject to rejection or culling out of our inspectors. In other words we don’t select, as the fruit comes out of the cargo, good, straight bunches, put into one man’s car and give some other man smaller sized bunches, but just as they come with the proper attention paid to culling or rejection in respect to damaged bunches or ripes and that sort of thing.”
    There is testimony tending to show that the car in question had been loaded before the receipt of defendant’s order. Another dealer in fruits at Jackson ordered from plaintiff and received a car load of rejects from the same steamer. Defendant was permitted to introduce testimony which placed before the jury a comparison of this fruit with the fruit sent to defendant, and to make use of the fact, appearing in certain documents in evidence, that the fruit in the car consisting of the same number of bunches and sold at the same price, weighed some 2,200 pounds more than that sent to defendant. It appears, also, that in forwarding the order of this other dealer from Detroit to New Orleans there was added by the plaintiff’s agent the words, “Don’t ship if fruit poor.” It is contended that this telegram was not in evidence but was improperly used by counsel for defendant in his argument to the jury. It is not disputed that bananas of the class “ reject nines,” “cargo run,” will vary somewhat in quality and condition, and that unavoidably a few bunches of lower grades become mixed with a car of “rejects.” The court gave the defendant’s fifth request, which was:
    ‘1 If you should believe that the plaintiff has shown by a preponderence of the evidence that the car in question was sold to the defendant under the terms of the contract of June 12, 1901, then I charge you that the plaintiff was bound to send to the defendant upon his order a car load of mailboat rejects, cargo run, and it must send the defendant mailboat rejects, cargo run, under any view of the case.”
    And he refused to give the following request preferred on the part of plaintiff:
    ‘ ‘ I instruct you that the language ‘ regular cargo run ’ as used in plaintiff’s telegram to Le Seno of August 24, 1903, does not refer to the kind or grade of bananas but to the quality of bananas, and, if the agreement of June 24, 1901, was in force on that day, the defendant Le Seno would not have a right to reject them for the reason that they were not ‘regular cargo run,’provided they were mailboat rejects.”
    He did charge the jury as requested by plaintiff’s counsel:
    “If the bananas when loaded into the car at New Orleans, and, when delivered to the railroad company, were mailboats rejects, cargo run, and the agreement of June 12, 1901, was in force, then I charge you that the defendant, Le Seno, was bound to receive them, no matter what their condition, or quality, when they reached Jackson.”
    A motion for a new trial was made and denied, and the record, with 44 assignments of error, has been brought into this court for review.

      Charles E. Townsend, for appellant.

      John Henigan (Richard Price, of counsel), for appellee.
   Ostrander, J.

(after stating the facts). Because plaintiff conceded the right of defendant to refuse the fruit if it was not of the class or grade “reject nines,” we need consider only whether, the agreement of June 12, 1901, being in force, he might also refuse the fruit if it was not “cargo run.” Some effect must be given to the contract for the particular car of fruit and to the understanding of the parties to be gathered from the terms employed. The order was, in any event, for mailboat rejects or “reject nines.” As given, it asked also for select stock. The reply was that the sellers would not select fruit for any one, and that, if defendant wished the fruit, he must take “regular cargo run.”' Upon these terms, the fruit was sold. It is clear that the term “ cargo run ” does not mean the same as average of the cargo or imply that the fruit placed in a particular car will be as good as that placed in some other car. This is made plain when it is considered how the fruit is loaded and unloaded. It is taken on board at various ports and placed according to grade in various compartments. A compartment filled with “nines” might receive fruit from many different ports. It is unloaded, evidently, in the inverse order of loading, and carried directly to cars, or, if then unfit for shipment, thrown upon the dock. Full and heavy bunches of fruit are graded precisely as lighter and leaner bunches are graded; the bunches vary considerably in weight, and the greater weight may result from maturity of the fruit. The term “cargo run” is not significant of quality, condition, or class of fruit. In this contract, it had no meaning other than taking the fruit of the grade or class ordered as it came from the vessel, with such inspection as was given the fruit, generally, at the dock. If the condition or quality of the fruit was not satisfactory to the buyer, and the agreement of June 12, 1901, was in force, he was bound to accept the fruit if it was of the grade or class ordered, pay for it, and submit a claim. The court was, therefore, in error in ruling otherwise.

We have examined the contention of appellant which relates to the subject of the abrogation of the agreement of June 12, 1901. It is the claim of plaintiff' that it was not in any way abrogated or superseded. It is a further claim that, if it was, by filing on July 26, 1903, a claim for allowance for bad fruit which he had accepted and paid for, 'defendant waived the provisions of any new or other agreement and by his conduct indicated and led plaintiff to believe that the parties were dealing with reference to the earlier arrangement. The court was requested to charge that, by putting in this claim, defendant waived any new or other arrangement. The court properly refused to so charge the jury. It cannot be said, as matter of law, that the parties were dealing under one rather than another arrangement. It can be said that the agreement of June 12, 1901, is conclusively established, and that, as late as July, 1903, the conduct of plaintiff and of defendant was in conformity therewith; that, under the circumstances, it was to be considered as in force for the entire period, and in August, 1903, unless defendant made the contrary to appear.

Nor, if the subject shall again be considered, can it be said, as matter of law, there was no testimony tending to prove that the fruit delivered to defendant was not “cargo run.” The fact that the bananas sent to the other dealer weighed more than those sent to defendant would not, standing alone, warrant submitting the question to the jury. But this considerable difference in the weight of the fruit is significant when considered with other of the testimony. If defendant and his witnesses are to be believed, the fruit sent defendant was in every way inferior to that sent to the other dealer. If it was not fruit properly classed as “ reject nines,” the difference is accounted for, and the matter disposed of. If both cars were properly graded as “ rejects,” the testimony, some of it, if believed, supports the inference that the other car was filled with selected fruit.

Other errors assigned are not likely to arise upon a néw trial. The judgment is reversed, and a new trial ordered.

The bill of exceptions appears to be, substantially, a copy of the stenographer’s minutes of the trial, and the printed record contains 394 pages. Counsel for defendant consented to its settlement, and the trial judge certified that, where the testimony is set out by questions and answers, such course was necessary to a full understanding of the questions of law. The questions of law could have been properly presented with a record of 100 pages, and the costs of appellant will be taxed upon the basis of such a record.

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


text:
    CARLISLE v. SPAIN. CITY OF MT. CLEMENS v. CARLISLE.
    1. Appeal and Error — Right to Appeal — Appealable Interest.
    The mayor and clerk of a city, who have filed a cross-bill in the nature of a bill of interpleader, have an appealable interest in a suit between the assignee of a public contractor and his laborers and materialmen to determine'priority of their claims against the unpaid portion of the fund due the contractor from the city, it appearing that there are claims in excess of the fund and that no bond to secure laborers and materialmen was given by the contractor, so that if the decree appealed from, adjudging that no priority exists, is allowed to stand, the mayor and clerk will be personally liable to the laborers and materialmen for the deficit.
    2. Municipal Corporations — Paying*Contracts—Assignees of Contractor — Rights as Against Materialmen.
    Where a city paving contract provides that an assignment or order by the contractor shall hold good only as against the net sum reported by the city engineer as due the contractor after the final adjustment of all claims by the council on the city or other accounts as authorized by the contract, an assignee is postponed to a materialman, though the money received from the assignee wasc applied in payment of labor 1 and materials.
    3. Estoppel — City Council — Paving Contract.
    A city is not estopped to contest the priority of the claim of the assignee of a public contractor over that of the materialmen, nor does it waive its right under the contract to postpone the assignee to the materialmen, by the action of the city council in passing a resolution authorizing the mayor and clerk to pay the assignee, where the resolution was rescinded before the assignee took any action or in any way changed his situation in reliance thereon.
    4. Assignments — Right to Assign — Restrictions in Contract.
    Where a city paving contract provides that an assignment or order by the contractor shall hold good only as against the net sum reported by the city engineer as due the contractor after the final adjustment of all claims by the council on the city or other accounts as authorized by the contract, including claims for labor and materials, a claim that such provisions of the contract were inserted solely for the benefit of the city, and do not affect the rights of assignees as between themselves and the original contractor, is untenable.
    5. Contracts — Public Policy — Excluding Jurisdiction of , Courts.
    A provision in a city paving contract authorizing the common ^ council to determine the claims of materialmen is not contrary to public policy, where it does not wholly exclude the jurisdiction of the courts.
    Appeal from St. Clair; Tappan, J.
    Submitted November 16, 1906.
    (Docket No. 34.)
    Decided February 5, 1907.
    Bill by William N. Carlisle against William J. Spain and Henry Gilroy for the dissolution of a partnership and for an accounting. The city of Mt. Clemens, John H. Westendorf, mayor, and William F. Kracht, city clerk, filed a cross-bill in the nature of a bill of interpleader against Margaret M. Carlisle and others to determine the disposal of certain moneys, and for other relief. From the decree rendered, complainants in the cross-bill appeal.
    Modified.

      William, T. Kelly and Robert F. Fldredge, for complainants in cross-bill.

      Avery & Walsh, for defendant Carlisle.
   Montgomery, J.

The original bill of complaint was filed for a dissolution of a copartnership composed of the complainant and the defendants Spain and Gilroy. The defendant the city of Mt. Clemens was named in the bill, and an injunction prayed, with the purpose of preserving the property of the copartnership, which it would appear consists of a claim against the city for work done by the copartnership in constructing a pavement. The cross-bill is filed by the city of Mt. Clemens and John H. Westendorf, its mayor, and William F. Kracht, its clerk. The cross-bill is in the nature of a bill of interpleader, but it also prays other relief.

The real issues tried in. the court below related to the priority of rights as between assignees of the money due on the contract with the city and the materialmen and workmen on the paving job. It is contended that this appeal should be dismissed for the reason that the city has no interest in this question of priority between claimants. If this be conceded, the mayor and clerk are as individuals interested, as it appears that no bond has been given by the contractors for the protection of the labor and materialmen. It would follow that if the fund was in whole or in part applied to the payment of orders negotiated by W. J. Spain & Co., leaving a deficit so that the material-men cannot be paid in full, these two officers would be liable to an action. In their own protection, then, if the right and equity be so, they are deeply interested in seeing to it that the labor claims and materialmen are first paid. The appeal was as to them properly taken.

In the specifications, made a part of the contract between W. J. Spain & Co. and the city, were the following two provisions:

Protection for labor and material furnished. The contractor for himself or for any subcontractor under him shall well and truly pay or cause to be paid as the same may become due all indebtedness which may become due any person, firm or corporation, on account of any labor or material furnished in connection with this contract of which these specifications form a part; and in case of his failure so to do, and upon the sworn statement of any unpaid claim for labor or material as above being filed with the common council a sum of money sufficient to cover such claim or claims shall be retained from any moneys due or to become due said contractor on this contract, and if any claim or claims be fully substantiated to the satisfaction of the council, said council shall pay such claim or claims from the money so retained, any residue to be paid to said contractor on the completion of the work; and the contractor hereby further agrees that he will pay to the city of Mt. Clemens, through its common council, the sum of five dollars per hour for all the time spent by said council in settling disputes or claims filed under this clause of these specifications, which are in all respects a portion of the contract.
Assignment of contract or moneys. The first party shall not assign or transfer this contract or sublet any portion of the" work in it without the consent in writing of the council being first obtained. Nor shall he give .an order upon the city for the payment of money on this contract without first giving notice in writing of such intention to the common council at least twenty-four hours in advance thereof, nor shall any such assignment or orders of money hold good except as against the net sum reported by the city engineer as due the contractor after the final adjustment of all claims by the council on the city or other accounts as authorized by this contract. Nor shall the council accept any such order or assignment without due notice to them and first hearing any of the objections from the city engineer.”

An assignment of $1,250 of the moneys to grow due was made to M. M. Carlisle, and one of $300 to the Ullrich Savings Bank. There was also assigned to W. J. Clancy & Co., materialmen, for the purpose of paying for brick furnished, the sum of $2,372.27. There was due to other materialmen $2,237.75. There remains in the hands of the city the sum of $5,347.82; so that, if the materialmen are paid in full, there would remain for the payment to M. M. Carlisle and the Ullrich Savings Bank only $737.80. If the assignments are given precedence, the material-men will not be paid in full, and must resort to an action to recover of the mayor and clerk. The circuit judge stated his conclusions as follows:

“ It is my conclusion that by virtue of the conditions of the contract between Spain & Co. and the city of Mt. Clemens, the city was legally entitled to be informed whether or not its money was to be expended for the payment of bills for labor and materials for this pavement. Every person who dealt with the company or who took an assignment of the contract or any portion of it had notice of this right of the city. It is also my conclusion that the proofs do not indicate that the city has waived this right. While the clause pertaining to the retention of the money by the city and the determination by the council as to the validity of the claims and the proofs to support the same is probably void as applied to a case where it is sought to thus enforce the exclusion of the court’s action upon the claims presented, yet it is valid to secure to the city a right to reliable information from all claimants as to the nature of their claims and a showing as to what they are for. In the present case it is not sought to exclude the court from a consideration of the claims, but, instead, the court’s aid is sought by the city.
“If the information of facts presented with the claim lead to a well-founded conclusion that the moneys sought to be assigned to third parties are to be used for purposes unconnected with the pavement, and that conditions indicate that there is likely to be a deficiency if the assigned claim is paid, there can be no doubt of the right of the city to hold such assignment in abeyance until labor and material claimants are paid in full, in case these comply with the requirements for the notice.
“It is also my conclusion that the conditions of the contract make it incumbent upon claimants, whether assignees or materialmen, to furnish this information, that their claims were for material or labor or money expended for these. The proofs show that none of the claims have met this burden prior to the commencement of this action, except the firm of Carland & Clancy.
‘ ‘ In the case of Carland & Clancy I find that the contract and assignment between that company and W. J. Spain & Co. specify that claimants and assignees were to furnish the .brick that went into the pavements and provided for in the contract of W. J. Spain & Co. with them.
“That after the filing of this assignment and contract the city authorities appointed an inspector, and in the usual course of business this inspector culled and approved of the brick used. By means of such an assignment and the course pursued by Carland & Clancy they have met the. requirements of the contractors’ contract to furnish the city with correct information as to the nature of their assigned claim.
“In the case of the assignment of M. M. Carlisle and the Ullrich Savings Bank it is my conclusion that they stand upon equal footing with each other, and also with the remainder of the claimants for compensation for materials and labor.
“Proofs show that the moneys furnished by these claimants were all paid out for labor and materials that went into the pavements. They stand as the equitable assignees of the claims for materials and labor that might otherwise now be presented herein.
“ I further find that, inasmuch as all of these claimants failed to make a proper showing as to the character and validity of their respective claims prior to the hearing herein, none of them are entitled to priority.
“ Inasmuch as the city has submitted these questions for adjudication, and all parties are before the court and have now furnished the information as to the character of their claims as required by a reasonable interpretation of the contract in relation to the city’s rights therein as guaranteed by the contract, I know of no reason why the entire controversy may not be determined and the fund distributed by an order made herein.”

As none of the defendants have appealed, the only question which we need consider is whether the two- assignments to Carlisle and the Ullrich Savings Bank should be postponed to the materialmen.' If the contract is available to Westendorf and Kracht, it is clear that the fund is to be reserved for the materialmen as against the rights of a mere assignee. The language of the specifications is-unambiguous that an assignment or order shall hold good only as against the net sum reported by the city engineer as due the contractor after the final adjustment of all claims by the council on the city or other accounts as authorized by the contract.

It is contended on behalf of the assignees Carlisle and the Ullrich Savings Bank that the city is estopped from asserting that the assignees should be postponed to the materialmen — that the right to withhold payment to the assignees was waived. The council did on the 22d of November, 1904, pass a resolution authorizing the mayor and city clerk to pay to W. J. Spain & Co. or assignees the balance unpaid on the contract, but this resolution was rescinded on the 8th of December, after the original bill was filed. The elements of estoppel are wanting. The assignees took no action based upon the first resolution. Their situation was in no way changed.

It is contended that the provisions of the contract above quoted were inserted solely for the benefit of the city, and cases are cited in which it is held that provisions contained in similar contracts prohibiting assignments are held not to affect the rights of assignees as between themselves and the original contractors. If restrictive provisions of this contract were limited to a restriction of the right of assignment, these cases would be quite in point; but the circuit judge rightly held that the present contract goes further, and provides that assignments shall hold good only for the net amount after provision for materialmen was made.

The contention is made that the provision of the contract authorizing the common council to determine the claims of materialmen is against public policy. We do notread this provision as excluding wholly the jurisdiction of the courts, and see no valid objection to the provision which authorizes the city to. withhold so much of the contract price as shall protect the materialmen.

We are not able to assent to the conclusion of the circuit judge that the- assignees Carlisle and the Ullrich Savings Bank are entitled to stand on an equality with the materialmen. It is clear that they are not in terms protected by the contract. On the contrary, they are entitled to share only in the net sum afterpayment of the material-men.

The decree should be so modified as to provide for the payment of all the materialmen first, including W. J. Clancy & Co. The balance will be applied pro rata to the payment of M. M. Carlisle and the Ullrich Savings Bank after payment of the costs of this appeal out of the fund.

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