author: Hooker, C. J. Per Curiam.

text:
    BOARD OF WATER COMMISSIONERS OF DETROIT v. DETROIT CITIZENS’ STREET-RAILWAY CO.
    Municipal Corporations — Detroit Water Board — Street Sprinkling — Compensation.
    The duty to erect fire hydrants, devolving upon the board of water commissioners of the city of Detroit, carries with it the duty to supply them with water; and hence, in the absence of statutory provision, the board is not entitled to compensation for water taken from such hydrants for a general public purpose, — e. g., the sprinkling of the city streets.
    Error to "Wayne; Bohnert, J.
    Submitted April 22, 1902.
    (Docket No. 1.)
    Decided June 3, 1902.
    Rehearing denied June 27, 1902.

      Assumpsit by the board of water commissioners of the city of Detroit against the Detroit Citizens’ Street-Bail-way Company to recover compensation for water furnished for street sprinkling. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Brennan, Donnelly & Van De Mark, for appellant.

      Gray & Gray, for appellee.
   Hooker, C. J.

The controlling question in this case rests upon a construction of the statute providing for supplying water to the city of Detroit for the public and private uses of its inhabitants. See Act No. 90, Laws 1853, §§ 5, 7. It is whether, under the law, the board must furnish water, from the hydrants or jets established by it, for street sprinkling gratuitously, or is entitled to compensation from tbe city funds therefor.

We have had occasion to consider this law in connection with somewhat similar claims of the city on two occasions, — first in the case of City of Detroit v. Board of Water Com’rs, 108 Mich. 496 (66 N. W. 377, 31 L. R. A. 463), where it was sought by the city to save to itself the expense of supplying its house of correction with water, by compelling the water board to furnish it free; second, in the case of Board of Water Com’rs of Detroit v. Commissioners of Parks and Boulevards, 126 Mich. 459 (85 N. W. 1132), which grew out of an attempt by the latter board to shift upon the water board the cost of maintaining (i. e., supplying with water) all of the fountains that the park board might see fit to establish in the parks of the city. In each case the liability of the water board to such inroads upon its funds was denied. In the first of the cases cited, the court was unanimous in holding that there was no obligation upon the water board tp furnish water for the institution mentioned, although it cannot be denied that it was a public purpose. That case established the rule that the law does not require the water board to furnish water free for all public purposes, and it went no further; expressly saving the question as it relates to general public purposes. In the second case mentioned, the court was not unanimous, three opinions being written. Two of the members thought the obligation to furnish free water for park fountains rested upon the board; three were of the opinion that it did not; and while two of these rested their decision on the broad ground that the general public must pay for all water furnished for all public purposes, and that the legislature alone possesses the power to exempt the city from the obligation, and that it has not exercised such power, three did not concur in so broad a doctrine, and the decision went no further than to decide that the water board need not furnish water for park fountains free. In this case we must determine whether the purpose of sprinkling streets is one for which the board must provide the water without compensation. While this sprinkling was done by a private corporation, it was required by the common council, and the case should be treated as though the sprinkling was done by the city employés.

It has been shown that the object of the act was to furnish water for the public and private uses of the inhabitants of the city; and there is no express provision for payment for watGr used for the general and ordinary public purposes, such as fire and street uses. On the other hand, there is an evident intention to keep the reasonable control of the use of water for these purposes in the board, so far as it is practicable, and not to give to the council or any other board unlimited control and power to make requisitions upon the water board, although the use of the hydrants, etc., is confided to the proper departments. Section 7 makes it the duty of the water board to equip itself with the necessary or desirable machinery and fixtures to furnish a full water supply for public and private use in the city. To that end it is given power to erect such fixtures as “reservoirs, jets, and fire hydrants,” lay pipes, etc., in and upon the public grounds. The section is as follows:

“Said commissioners shall have power, and it is hereby made their duty, as soon as may be after the necessary funds have been procured as herein provided, to purchase such land and materials, and to construct such reservoirs, buildings, machinery, and fixtures, as shall be deemed necessary or desirable to furnish a full supply of water for public and private use in said city.
“Sec. 8. Said commissioners shall have power to construct reservoirs, jets, and fire hydrants at such localities in said city as they may deem expedient and necessary, and to lay pipes in and through all the alleys and streets of said city; and also to construct in such localities as they may deem expedient, not exceeding one to each block, hydrants for public use, and to keep the same in repair; and also, with the consent of the common council of said city, to construct fountains in the public squares, or such other public grounds of said city as they shall deem expedient.”

From the reading of section 8, we may reasonably understand that the water board, and not the council, is charged with the duty of locating fire hydrants and jets for public purposes. The council cannot control this. The same may be said of the hydrants for public use. These are evidently intended for the use of the individual, as contra-distinguished from the jets or fire hydrants, which are for the corporate use for general public purposes, such as fire, flushing sewers, street washing, and sprinkling. A limitation is put upon the power of the water board as to hydrants for public use, and the board is not given power to erect fountains, except with the consent of the council. It would seem that the responsibility for the erection and maintenance of all of these things is wholly upon the board, except as limited by the requirement as to fountains. It is discretionary with them when and where these things shall be, and when they shall be discontinued or removed; but, while continued, the expense falls upon the boardr The discretion alluded to is not an arbitrary one, but one which is to be exercised reasonably in the furtherance of the general design of the law. This construction recognizes the propriety of a return to the public for the aid furnished by it in erecting the plant, provided for by section 4 of the original act, and by the act of 1873 (Act No. 302, Laws 1873), which provided for a loan of $1,000,000, and an annual tax of $75,000, without jeopardizing the scheme by turning it over to the control of the council, or subjecting it to the insatiate demands of the various other boards, departments, and public institutions of the city. We are of the opinion that the defendant is not liable to the plaintiff for the water used.

The judgment is reversed, and judgment will be entered here for the defendant, with costs of both courts.

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

Long, J., did not sit.

on motion for rehearing.

Per Curiam.

Upon motion for a rehearing, counsel, for the first time, cite an amendment to the statute cited in the opinion heretofore- filed, and assert that it is inconsistent with the construction given to the law. It is Act No. 359, and is found in 3 Laws 1873, p. 125.

We think this act does not indicate an intention to curtail the uses of water for public purposes mentioned in our former opinion. On the contrary, it requires the water board to provide fire hydrants when required by the council or board of fire commissioners. Our former opinion does not indicate that fire hydrants may be used only for fire purposes, or that jets only may be used for other public purposes. Possibly it has been found that fire hydrants are sufficient for all of those purposes, and the jets may have been omitted from the amended section for that reason. The fire hydrant was used in this instance, and it was so understood when the opinion was written.

A rehearing is denied.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    CHIDSEY v. WAYNE CIRCUIT JUDGE.

    1. Partition — Parties—Right of Redemption.
    A co-tenant whose interest has been foreclosed, but who still has a right to redeem by reason of an extension of time, is a proper party to a partition proceeding.
    2. Same — Notice—Defense.
    A party to a partition proceeding is chargeable with notice of the contents of the bill, and, if any of the allegations therein affect his rights adversely, he should appear and defend at the proper time.
    3. Same — Default—Motion to Set Aside —Delay —Want of Joint Ownership.
    A bill to partition two parcels of land set up the foreclosure • of a mortgage on the interest of a defendant in one parcel, but alleged that the foreclosure sale was still open to redemption, because of an agreement extending the time; and the answer of the mortgagee was silent as to such allegation. The bill was taken as confessed against the mortgagor, after due service of process. Three years later, after partition had been made at considerable expense, she moved to set aside the default, and have the proceedings declared void, on the ground that she in fact had no interest in the mortgaged parcel at the time the bill was filed. Held, that the motion was properly denied.

      Mandamus by Mary P. Chidsey to compel Joseph W. Donovan, circuit judge of Wayne county, to set aside a default in a partition proceeding.
    Submitted April 22, 1902.
    (Calendar No. 19,317.)
    Writ denied June 3, 1902.

      George W. Radford, for relator.

      Gray & Gray, for respondent.

       Rehearing denied October 18, 1902.

   Grant, J.

On December 22, 1898, one Mrs. Frances P. Edwards filed a bill for partition, making the relator and others parties thereto. The property belonged to Philo Parsons in his lifetime. He left seven children, of whom the relator and Mrs. Edwards were two. The lands were situated in the city of Detroit, fronting upon Woodward avenue and Watson street; extending from Woodward avenue back to John R. street. A strip 74 feet wide next to Watson street was the property of Mrs. Parsons. The 43 feet adjoining that belonged to Mr. Parsons. Relator had mortgaged her interest in the land belonging to her mother to one Jennie M. Collier. That mortgage was foreclosed, a foreclosure deed executed and recorded, and the time of redemption, if no extension of time had been given, had expired 12 days before this bill was filed. The bill of complaint alleged the foreclosure proceedings, the execution and recording of the deed thereunder, and then alleged that ‘ ‘ said foreclosure sale is still open to redemption, under an agreenient extending the time therefor.” The bill was taken as confessed against relator after due process was served upon her. Mrs. Collier answered, but did not deny the above allegation; her answer being entirely silent in regard to it. Further proceedings were had, resulting in the appointment of commissioners and partition, and on March 24, 1902, the final report of the commissioners was confirmed. Eelator’s husband appeared for her when the report came up for confirmation, and made the sole objection that there was an error in the southerly line of the property. Adjournments were had at the request of Mr. Chidsey, and the final adjournment was granted upon the statement of relator’s representatives in court that, if an agreement in regard to the land could not be had, no further objection to the confirmation of the report would be made. On March 24, 1902, relator applied to the court for an order setting aside her default, declaring all the proceedings void, and giving her permission to appear and defend. The motion was denied, and she now asks the writ of mandamus to compel the court to grant her motion.

Eelator does not claim any misrepresentation on the part of the complainant in the bill for partition, or any one else connected therewith. She rests ‘ ‘ on the assumption that the proceeding was a formal one, and that her rights would be protected by the court.” The bill positively asserted that the time of redemption from the foreclosure proceedings had been extended. If so, she still had an interest in the property, and was a proper party to the suit. She is chargeable with notice of the contents of the bill. If, as she now asserts, she had parted with her title to lot 4, the bill could not have been maintained, because she had no interest therein. If, on the contrary, the time of redemption had been extended, she still had an interest, and was properly made a party. The answer of Mrs. Collier is a virtual admission of the truth of the allegation. No one thought it worth while to deny this allegation or to contest it until the close of the proceedings, which lasted three years, and which have subjected the parties to great expense. We think it was the duty of relator to know what was in the bill of complaint, and, if there were any allegations there affecting her rights adversely, it was her duty to appear and defend. Then was her time to speak. We do not think that she is now in position to have these proceedings all set aside, and further expense incurred.

The writ is denied.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.


author: Hooker, C. J.

text:
    LINDLEY v. CITY OF DETROIT.

    1. Municipal Corporations — Claims—Notice—Waiver.
    The action of a common council in referring a claim to its committee for investigation upon the merits, and the investigation of the claim by the committee, is a waiver of the right to have notice served on the city attorney.
    2. Same — Defective Sidewalks — Evidence—Condition of Walk.
    In an action against a city for injuries caused by á defective sidewalk, testimony as to the condition of the walk on the next morning after the accident is admissible, since it is so near in point of time that it will be inferred that the condition of theuvalk had remained unchanged.
    3. Personal Injuries — Evidence—Conclusions.
    In an action for personal injuries, plaintiff testified: “I attribute my headaches to the injury in my back. It runs right up my back and up the back of my head.” Held, that the conclusion of the witness that the pain in the head was caused by the injury in the back was not prejudicial, in connection with the description of the pain.
    4. Municipal Corporations — Defective Sidewalks — Opinion of Witness.
    The opinion of a witness that a sidewalk was in a dangerous condition is incompetent.
    5. Trial — Motion to Strike out Testimony.
    The overruling of a motion to strike out incompetent testimony is not reversible error where no grounds were assigned for the motion.

      Error to Wayne; Hosmer, J.
    Submitted April 23, 1902.
    (Docket No. 118.)
    Decided June 3, 1902.
    Case by Hester A. Lindley against the city of Detroit for personal injuries. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.
    P. J. M. Hally and A. B. Hall (Timothy JE. Tarsney, of counsel), for appellant.

      Moore & Moore (Samuel W. Burroughs, of counsel), for appellee.

       Rehearing denied June 27, 1902.

   Hooker, C. J.

Plaintiff was injured on a sidewalk June 3d. Notice was served on the common council on June 5th. The claim was referred by the council to its committee on claims, which proceeded to investigate the matter, calling to its assistance Mr. Hally, an attaché of the city counselor’s office. On August 7th the committee took testimony concerning the claim, and there was testimony upon the trial that notice of the claim was on that day served upon Hally. This was contradicted, and raised a question for the jury, if the question was controlling. On August 15th the committee examined the plaintiff, and on November 13th reported against allowing the claim. This action was then brought, and a judgment was rendered for the plaintiff, and defendant has appealed.

The important question is that of waiver. It is based on the fact that the council and city attorney, through his subordinate, acted upon the claim as presented to the council, and gave the plaintiff the right to suppose that they were willing to treat the notice as sufficient. We have often decided that the common council may waive the formalities of a notice. Germaine v. City of Muskegon, 105 Mich. 213 (63 N. W. 78); Canfield v. City of Jackson, 112 Mich. 120 (70 N. W. 444); Griswold v. City of Ludington, 116 Mich. 401 (74 N. W. 663); Wright v. Village of Portland, 118 Mich. 23 (76 N. W. 141); Kriseler v. Le Valley, 122 Mich. 576 (81 N. W. 580). Without intending to hold that the city attorney may waive notice upon him, and thereby bind the city, we have no hesitation in saying that the council may do so. Whether it has done so or not is usually a question of fact to be submitted to a jury; but the facts are undisputed in this case, and we think it was proper for the circuit judge to instruct the jury that by referring the claim to its committee to investigate upon its merits, and through the action of its committee in doing so, it waived a right of further notice.

It is manifestly improper to allow proof of the condition of the sidewalk on a subsequent occasion, without proof that the condition has remained unchanged from the time of the accident, unless it is so near in point of time as to lead to a fair inference that the condition has remained unchanged. We think that the next morning was not so remote as to render the testimony inadmissible. The defendant does not appear to have claimed that there had been any change.

The plaintiff testified:

“ I have suffered a great many severe headaches since I was injured.
“ <9- To what do you attribute that? What do you think is the cause of it? (Objected to as incompetent and immaterial.)
‘ ‘ Q. Did you have headaches ?
“A. No, sir; I was perfectly well before.
The Court: Answer the question. Note an exception.
“A. I attribute the headaches to the injury in my back. It runs right up my back and up the back of my head.”

Ordinarily, the testimony of experts is required to determine the cause of physical ailments. The question first asked called for doubtful testimony, but the answer as given was admissible. It was' competent for the witness to describe the pain in the back of her head, and that it ran up her back from the place of the injury, and the fact that she gave her conclusion as to the connection between the injury and the pain in the head cannot be said to have been injurious, in the light of the remainder of the answer.

A witness — Mr. Soop — had testified to a break in the sidewalk, and that the sidewalk would teeter back and forth when stepped on. He was then asked:

“ How was the sidewalk on the south side of Hudson, between Twenty-third and Tillman, generally, as to being in good condition or in a dangerous condition ?
“A. It was in a dangerous condition.
Mr. Hally: I ask that that answer be stricken out.
The Court: Let it stand. Note an’exception.”

This testimony was clearly incompetent. It is not the province of a witness to determine the issue in the case; it is for him to describe conditions, and allow the jury to draw the inference that the sidewalk is or is not dangerous. Harris v. Township of Clinton, 64 Mich. 457 (31 N. W. 425, 8 Am. St. Rep. 842); Atherton v. Village of Bancroft, 114 Mich. 241 (72 N. W. 208); People v. Plank-Road Co., 125 Mich. 367 (84 N. W. 290). It is said that no ground was assigned for the motion, and we find none, and the court may have supposed it to have been based upon the fact that the inquiry was not confined to the exact point and particular defect where the injury occurred.

The judgment is affirmed.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.


author: Moore, J.

text:
    THAYER LUMBER CO. v. TOWNSHIP OF SPRINGFIELD.
    1. Highway Taxes — Authority of Commissioner — Neglect of Electors.
    The authority of a highway commissioner to levy a labor tax under 2 Comp. Laws, § 4075, is dependent bn the neglect or refusal of the electors to vote the same at the annual township meeting; which condition cannot be said to exist where the matter was not submitted to the electors, and they took no action in relation thereto. '

      2. Same — Necessity for Levy — Finding of Court.
    It cannot be said that there was no evidence to support the finding of the trial judge that there was a necessity of raising money for highway purposes, where it appears that there were 30 miles of highways in the district, a number of high embankments, difficult to keep in place, and eight bridges, one of which had to be replaced, and the highway commissioner testified that, in his judgment, it was necessary to raise the fund, although it also appears that there was a very considerable highway fund in the treasury.
    Error to Kalkaska; Chittenden, J.
    Submitted April 23, 1902.
    (Docket No. 131.)
    Decided June 3, 1902.

      Assumpsit by the Thayer Lumber Company against the township of Springfield to recover taxes paid under protest. From a judgment for defendant, plaintiff brings error.
    Reversed.

      F. O. Gaffney, for appellant.

      William D. Totten and J. L. Boyd, for appellee.
   Moore, J.

This is an action in assumpsit, brought to recover the sum of $331.96, highway labor tax, and $39.61, special highway tax, assessed upon plaintiff’s land, situated in highway district No. 4 of defendant township. The case was tried without a j ury, and a judgment of no cause of action was rendered.

Upon the 25th day of May, 1899, the highway commissioner took action to have a highway labor tax of one-half per cent, assessed upon the taxable property of the township, which was done. The township board also caused to be assessed a money tax. The amount assessed against the land was labor tax, $331.90, money tax, $39.61, which was paid under protest. The plaintiff bases its right to recover on two grounds: First, inasmuch as the question of how much highway tax should be assessed was not submitted to the electors of said township at the annual meeting for the year 1899, and no action was taken by them, the commissioner had no authority to assess the money tax; and, second, because there was enough money on hand, available for use in building new highways and making all improvements necessary and contemplated by the authorities of said township for the year 1899.

Section 4073, 2 Comp. Laws, provides that the commissioner in each township shall render to the board, at the annual meeting thereof in each year, an account stating, among other things, the condition of the roads and bridges, an estimate of the amount of highway labor which, in his judgment, should be assessed for the next ensuing year, the improvements necessary to be made in the highways and bridges during the year, and the amount of money tax that should be levied for that purpose beyond what such estimated highway labor will accomplish. Section 4074 provides that such statement shall be submitted to the electors at the next annual township meeting, and such meeting may determine, by a majority of the electors present and voting: (1) The amount of highway labor to be assessed; (2) the amount of money tax to be assessed, — within the limitations provided in section 4073. Section 4075 provides, in case the 'electors shall neglect or refuse to vote any rate of labor tax, the commissioner may assess not exceeding one-half of 1 per cent., and the board may order to be levied such money tax as such board may deem necessary within the limit provided, if the electors refuse or neglect to do so.

In this case the commissioner submitted no report or estimate to the annual township meeting, and no opportunity was given the township electors to determine how much highway tax they desired assessed for the year 1899. Upon the 25th day of May the commissioner assessed a labor tax of one-half of 1 per cent., basing his action upon the neglect of the electors to do so at the annual meeting, and the township board also voted a money tax.

Upon the trial the counsel for plaintiff stated to the court:

“ I want, to say now that I believe I was mistaken as far as the special highway tax is concerned. I believe the proper proceedings were taken at the annual township meeting in voting that $200 of which this $39 that we paid is a part. As a matter of law, I believe that the electors had a right to vote that tax, provided that, as a matter of fact, it was necessary to perform the labor in that township. If the court finds as a matter of fact that it was necessary to make the improvements and repairs in building the highways contemplated for the ensuing year, then, of course, the electors had a right to vote this special highway tax.”

The trial judge, m order to reach the judgment he gave, must have found it was necessary to raise this fund. It is now urged there is no testimony upon which to base this finding, and, as to the $39.61, the plaintiff should have been allowed to recover. It is true there was a very considerable highway fund already in the treasury when this sum was voted, but the record discloses there were upwards of 30 miles of highways in the road district; that there were a number of high embankments, difficult to keep in place; that there were eight bridges, one of which had to be replaced. The highway commissioner testified that, in his judgment, it was necessary to raise this fund. In view of this situation, we do not think it can be said there was no testimony upon which to base the conclusion of the circuit judge.

Was the remaining portion of the tax valid ? We have already seen the commissioner of highways did not submit an account in writing, as required by section 4073. The record does not disclose that any action was taken by the electors at the annual township meeting, or that their attention was called to this matter, as provided in section 4074. These two sections and section 4075 and sections containing like provisions have been construed by this court in Harding v. Bader, 75 Mich. 316 (42 N. W. 942); Newaygo County Manfg. Co. v. Echtinaw, 81 Mich. 416 (45 N. W. 1010); Auditor General v. Railway Co., 116 Mich. 122 (74 N. W. 505); Weston Lumber Co. v. Township of Munising, 123 Mich. 138 (82 N. W. 267),— where it is held the question of raising the tax must be submitted to the electors at the township meeting, and they must have neglected and refused to act, before the commissioner is authorized to act.

Judgment is reversed, and new trial ordered.

Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.


author: Grant, J. Montgomery, J.

text:
    O’BOYLE v. CITY OF DETROIT.
    1. Municipal Corporations — Employés—Compensation—Overtime.
    Where the board of park commissioners of a city has by resolution constituted a certain number of hours a day’s work for its employés, a person hired by the board, with no express agreement as to the number of hours he should work, is entitled to reasonable compensation for working overtime. Grant, J., dissenting.
    3. Same — Evidence—Waiver.
    Where an empl'oyé of a city has for several'months accepted weekly his daily wages without making any claim for overtime, testimony that the superintendent over him, who had no authority to fix wages, knew that he expected to receive pay for overtime, and told him that he would be paid for it, is admissible for the purpose of negativing any waiver by the employé. Grant, J., dissenting.

      Error to Wayne; Hosmer, J.
    Submitted April 23, 1902.
    (Docket No. 117.)
    Decided June 3, 1902.

      Assumpsit by Terrence O’Boyle against the city of Detroit for work and labor. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff was employed by the board of park and boulevard commissioners of the city of Detroit on May 15,1897, as driver of one of the park phaetons. He remained in that service until September 27, 1897, when he was dismissed. He was employed again a short time in the month of October. He was paid weekly. He and other drivers were paid by the day, regardless of the amount of work done. The number of hours worked depended upon the condition of the weather. If they worked only a few hours or half a day, they were paid for a day’s work. The park board that year adopted a resolution constituting nine hours a day’s work for all its employés. The pay was $1.50 a day. The treasurer of the park board paid plaintiff and the other employés weekly at that rate. Plaintiff made no claim to either of the commissioners for overtime. He testified that he was told by Mr. Bolger, the superintendent of the park, that he would get pay for his overtime, and that Mr. Bolger told him to keep an account of it. Mr. Bolger absolutely denies this. After his service was ended, plaintiff claimed to have worked 31 Of hours overtime, and brought this suit to recover. He obtained verdict and judgment.
    P. J. M. Hally (Timothy E. Tarsney, of counsel), for appellant.

      James McNamara and Frank C. Cook, for- appellee.
   Grant, J.

(after stating the facts). Mr. Bolger, the superintendent, had no authority to fix the wages to be paid plaintiff. That was, by the charter, intrusted solely to the board of park commissioners. No express contract as to wages appears to have been made, but his receiving pay at $1.50 a day fixed the contract price. It was the duty of the plaintiff to make his contract with the proper city authorities, and, if he desired to claim overtime, he should have made arrangements with the commissioners. I think the case is clearly ruled by Bartlett v. Railway Co., 82 Mich. 658 (46 N. W. 1034), and Davis v. Boat Works, 121 Mich. 261 (80 N. W. 38). See, also, Timmonds v. U. S., 28 C. C. A. 570, 84 Fed. 933. In Bartlett v. Railway Co., plaintiff sought to recover for overtime because the statute fixed the number of hours for a day’s labor. In this case plaintiff seeks to recover because the board of park commissioners had fixed the number of hours for their employes. The two cases are the same in principle. Plaintiff’s contract plainly was, as shown by the conduct and acts of the parties, to act as a phaeton driver at the sum of $1.50 per day. He could not recover for working more than nine hours a day, unless he had a contract with the board of park commissioners to that effect, which he did not have.

I think the judgment should be reversed.

Montgomery, J.

I think the judgment in this case should be affirmed. Under the instructions of the learned circuit judge the jury must have found that there was an employment of the plaintiff by the park board, and that there was no agreement in fact that the plaintiff should work more than nine hours a day for the compensation paid him. The circuit judge charged the jury as follows:

“Now, you have listened to this testimony in that regard, and his testimony was that he understood that there was a rule of nine hours when he entered into the employment of the board. I say a rule of nine hours; I mean that nine hours constituted a day’s work, and that additional work after the nine hours had elapsed he was to receive further compensation for. If that was in the mind of both parties as the measure of his wages, then that must govern, and he would be entitled to receive a reasonable sum for any additional labor that he performed over and above the nine hours of each day. If, however, on the other hand, with reference to the drivers, they were compensated a dollar and a half a day, and some days were long and some were short, then, under those circumstances, of course, he would not be entitled to receive that amount.”

The testimony of the plaintiff that the park superintendent had knowledge that he expected to receive pay for overtime, and that he in fact advised him to keep the time, and assured him that he would be paid, while not competent to make a contract,- — -as it does not appear that Mr. Bolger had the authority to make a contract which would bind the city, — is of force as negativing any waiver by the plaintiff of his right to receive compensation for overtime, and also as negativing any assent in the first instance to a contract for a longer day than nine hours. The plaintiff’s contention in this respect is also supported by the testimony that other employes in the same line of work, employed by the city in the park, were paid for overtime. As the case presents itself, then, the park board had authority to employ drivers of phaetons, and plaintiff was so employed. Shall it be said that, if there was no distinct agreement as to what his compensation was to be, he is not to be paid at all ? The case is unlike Bartlett v. Railway Co., 82 Mich. 658 (46 N. W. 1034), and Davis v. Boat Works, 121 Mich. 261 (80 N. W. 38), in that there was never any settlement or adjustment between the parties; and, according to the plaintiff’s version, so far from the defendant’s officers having the right to infer from his conduct that he was not making claim for overtime, the exact reverse is true as to the superintendent, and it cannot be said that the plaintiff waived his right to full compensation.

Hooker, C. J., and Moore, J., concurred with Montgomery, J. Long, J., did not sit.


author: Montgomery, J.

text:
    VILLAGE OF DEARBORN v. DETROIT, YPSILANTI, ANN ARBOR & JACKSON RAILWAY.
    Street Railways — Ordinances—Street Crossings.
    Section 4 of a street-railway ordinance provided that the grantee should construct and maintain public and private crossings by planking the space between the rails, and placing two planks outside each rail, eight inches wide and four inches thick. Section 8 provided that the grantee should maintain plank crossings at all cross roads and private crossings. Held, that, as section 4 did not' specify the particular crossings to be planked, the provisions of section 8 were added for that purpose, and not to require the railway company to build street crossings to the sidewalk lines.

      Certiorari to Wayne; Brooke, J.
    Submitted April 24, 1902.
    (Docket No. 133.)
    Decided June 3, 1902.

      Mandamus by the village of Dearborn to compel the Detroit, Ypsilanti, Ann Arbor & Jackson Railway to construct and maintain certain street crossings. From an order granting the writ, respondent brings certiorari.

    Reversed.

      Alfred Bice (J. Emmet Sullivan, of counsel), for relator.

      Thomas T. Leete, Jr., for respondent.
   Montgomery, J.

This is certiorari to review the decision of the circuit judge granting a mandamus. The question involved is whether the ordinance under which respondent occupies Michigan avenue, in the village of Dearborn, requires the respondent to construct street crossings from sidewalk line 'to sidewalk line, or whether it is satisfied by the construction of a crossing of respondent’s tracks. Two provisions of the ordinance bear upon the question. Section 4, after providing that from Military avenue easterly to the village limits the track should be laid in the center of Michigan avenue, and that the space between the rails should be planked, and that two planks should be placed outside the rail, eight inches wide and four inches' thick, further provides:

“It is also further provided, between the points of Military avenue and the westerly limits of said village, that the said grantee, its successors and assigns, shall at all times construct and maintain public and private crossings, constructed in the same manner as is herein provided for planking laid on the said grantee’s railway track between the points at the corner of Military avenue and Michigan avenue and the easterly limits of the said village of Dearborn.”

Section 8 provides:

“The said grantee, its successors and assigns, shall have the right to construct and maintain all necessary bridges and culverts along the line of said railway, or use, where feasible, the bridges and culverts now existing, and shall maintain pine plank crossings at all cross and intersecting roads and highways, and shall also build and maintain private pine plank crossings where such crossings now exist, or may be in the future reasonable or necessary.”

It is altogether clear that, if the provisions of section 4 measure the respondent’s duty in the premises, a cross-walk from sidewalk line to sidewalk line was not contemplated, and cannot be required. The circuit judge was of the opinion, however, that the obligation of the company was enlarged by section 8, and that the provisions of that section, so far as they relate to crossings, are meaningless, unless some further requirement than that named in section 4 was intended. We do not find this difficulty. A reference to section 4 shows that the particular crossings required are not specified. The provisions of section 8 were apparently intended to make more certain the requirements imposed by section 4, namely, by requiring crossings at all cross roads, and private crossings where they now exist, or may in the future become reasonably necessary. We are all agreed that the character of the crossing required is fixed by section 4.

It follows that the order of the circuit judge must be reversed, and the application denied, with costs of both courts.

Hooker, C. J., Moore and Grant, JJ.; concurred. Long, J., did not sit.


text:
    GARTNER v. CITY OF DETROIT.
    1. Municipal Corporations — Sewer Contract — Representations.
    A contract with a city for a sewer provided that no tunneling should be done without written permission, unless stated on the plan to be a tunneled sewer; and that all loss arising out of the nature of the work, or from unforeseen obstructions or difficulties, should be borne by the contractor. The plan bore on its face the words, “N. B. May be tunneled;” and both of the contracting parties expected that the work would be tunneled. On an attempt to tunnel, quicksand was encountered, necessitating the excavation of a trench; and the contractor sued the city for the additional cost, on the theory that it had represented that the ground was such as to admit of tunneling. Held, that there was no such representation.
    S. Same — Extra Work.
    Nor was the city liable under a clause in the contract entitling the contractor to compensation for extra work in making changes in the sewer at the direction of the city; it not having assumed to dictate the method of construction.
    Error to Wayne; Brooke, J.
    Submitted April 24, 1902.
    (Docket No. 38.)
    Decided June 3, 1902.

      Assumpsit by Ered R. Gartner against the city of Detroit upon a sewer contract. Erom a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Edward A. Strieker {Fred A. Baker and George Gartner, of counsel), for appellant.

      John W. McGrath, for appellee.
   Hooker, C. J.

The plaintiff made a contract with the city of Detroit whereby he undertook to construct a short extension of an existing sewer. The contract was in writing. The specifications referred to in the advertisement for proposals were made a part of the contract. They contained the following provisions: “No tunneling or drilling will be permitted unless by written consent of the board of public works, or unless stated on the plan or diagram to be a tunneled sewer;” also, “All loss or damage arising out of the nature of the work, or from any unforeseen obstructions or difficulties which may be encountered in the prosecution of the same, or from the action of the elements, to be sustained by the contractor. ” A diagram of the proposed extension was also made a part of the contract, and upon its face the words, “ N. B. May be tunneled,” were printed. Plaintiff and the city officers appear to have acted upon a common understanding that ft would be tunneled; but on making the attempt to sink a shaft, as preliminary to tunneling, quicksand was struck, and that plan was abandoned. Plaintiff proceeded to excavate a trench, and finished his job, but at a cost considerably exceeding the contract price, which was paid him. He has brought this action to recover the actual post, $2,024.36, less $500, the contract price. A verdict was directed for the defendant, and the plaintiff has appealed.

It is urged upon the part of the plaintiff:

1. That the city has represented that this ground was such as to admit of tunneling, and that, it having turned out otherwise, the law will imply an obligation to pay the increased cost.

2. That the contract provides that the' contractor shall submit to changes and alterations in the sewer at the direction of the city, and shall be paid for extra work occasioned thereby. He says that a change became necessary in the method of doing the work, whereby he is entitled to compensation for his additional labor and expense, under this stipulation.

To us the case seems a simple one. We think that it cannot be said that the fact that the job was let with an expectation that it would be tunneled indicates an intention to represent that it could be tunneled. On the contrary, the language of the contract is a permission to tunnel, and the indication that this was so understood is emphasized by the express provision of the contract quoted, imposing risks of obstructions upon the contractor. The job was advertised and let upon such terms, and, while we appreciate the hardship of having to perform a contract at a loss, we cannot relieve the contractor from the obligation of his contract. See McBrian v. City of Grand Rapids, 56 Mich. 99 (22 N. W. 206).

Eegarding the second point, it is sufficient to say that, in our opinion, counsel ask for a strained construction of the language. The city has asked for no addition to, nor change in, its sewer. Nor has it attempted to dictate as to a method of construction.

The judgment is affirmed.

Moore, Grant, and Montgomery, JJ., concurred.' Long, J., did not sit.


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    WM. BARIE DRY-GOODS CO. v. CASLER.
    Fraudulent Debtors — Arrest—Sufficiency of Affidavit.
    An affidavit under the fraudulent debtors’ act, alleging, in substance, that defendant sold to his brother-in-law a stock of goods for less than its value, taking in payment notes running for five years, and that, after the issuance of execution on plaintiff’s judgment, defendant was requested to apply the notes on the debt, but refused to do so, though they were then in the hands of his attorney, is prima facie sufficient to authorize a warrant of arrest.

      Certiorari to Eaton; Smith, J.
    Submitted April 24, 1902.
    (Docket No 138.)
    Decided June 3, 1902.
    Proceedings by the Wm. Barie Dry-Goods Company against Spurgeon D. Casler under the fraudulent debtors’ act. From an order quashing the proceedings, plaintiff brings certiorari.

    Reversed.

      Smedley & Corwin, for appellant.

      J. B. Sendee and Carry C. Fox, for appellee.
   Hooker, C. J.

A warrant was issued under the fraudulent debtors’ act by the circuit judge. Upon its return the same officer quashed the proceedings, upon motion, on the ground that the warrant was void for want of a proper showing upon oath. There were two affidavits filed at the time the warrant was applied for, and they are as follows:

“ State of Michigan, County of Saginaw. [ ss
“ Charles H. Smith, being duly sworn, .says that be is the agent and credit man of the Wm. Barie Dry-Goods Company, a corporation organized and existing under and by virtue of the laws of the State of Michigan, and doing business in Michigan, with its principal office at Saginaw, Michigan; that he makes this affidavit for said corporation, and is authorized so to do.
“Deponent further says that Spurgeon D. Casler, formerly of Farnsworth, Wexford county, Michigan, but now residing in Eaton county, Michigan, was justly indebted to the said Wm. Barie Dry-Goods Company, upon contract, in the sum of three hundred seventeen and 29-100 dollars ($317.29), as near as may be,’ over and above all legal set-offs, which indebtedness, afterwards merged into a judgment, is now due to the said Wm. Barie Dry-Goods Company from said Spurgeon D. Casler, and which is for dry goods sold and delivered by said Wm. Barie Dry-Goods Company to said Spurgeon D. Casler.
“Deponent further says that, for the recovery of said indebtedness, said Wiji. Barie Dry-Goods Company, on the 27th day of September, 1901, commenced an action of assumpsit against said Spui'geon D. Casler in the circuit court for the county of Wexford, Michigan, by summons, and that on the 6th day of November, 1901, after due proceedings in said action, judgment was duly rendered therein upon said indebtedness in favor of the said Wm. Barie Dry-Goods Company and against said Spurgeon D. Casler for the sum of three hundred twenty-three and 5-100 dollars ($323.05) and costs, which were afterwards duly taxed at the sum of twenty-three and 30-100 dollars ($23.30), making a total judgment of three hundred fifty-six and 35-100 dollars ($356.35), which judgment remains wholly unsatisfied.
“ Deponent further says that the debt due to said Wm. Barie IK y-Goods Company from said Spurgeon D. Casler, as above set forth, is one for which the said Spurgeon D. Casler cannot, by reason of the provisions of sections 1 and 2 of chapter 141 of the Revised Statutes of 1846 (be-' ing sections 9553 and 9554 of the Compiled Laws of 1897), be arrested or imprisoned.
“Deponent further says that said Spurgeon D. Casler used to be the proprietor of a general store at Farnsworth, Wexford county, Michigan, and that in the spring and summer of 1901 he, the said Spurgeon D. Casler, bought dry goods on credit from said Wm. Barie Dry-Goods Company, which constituted the original indebtedness hereinbefore mentioned; that on or about the 15th day of July, 1901, while the said bills of dry goods were still unpaid, and without the knowledge of this deponent or of said Wm. Barie Dry-Goods Company, said Spurgeon D. Casler sold out his entire stock of goods, wares, merchandise, and fixtures, of large value, to wit, of the value of one thousand dollars and upwards; that the purchaser of said stock of goods, wares, merchandise, and fixtures is L. G. Yan Yolkenberg, a brother-in-law of said Spurgeon D. Casler; that deponent, as soon as he heard of said sale, went to Farnsworth, Michigan, and said Yan Yolkenberg told said deponent that he had given his notes for six hundred dollars to said Spurgeon D. Casler for said stock of goods and fixtures, that said notes were not secured, and that none of said notes would come due for five years; that deponent asked said Yan Yolkenberg if he knew at the time he bought said goods how much said Casler was owing, and said Yan Yolkenberg said, ‘Yes/ and went to an invoice book, and showed deponent a list of said Caster’s debts, amounting to more than $1,528.64, and said Yan Yolkenberg also told deponent that said Casler had gone to his father’s farm, near Eaton Rapids, Michigan; that deponent went to Eaton county, and interviewed the said Spurgeon D.. Casler, and asked him to pay for said dry goods, which said Spurgeon D. Casler refused to do; that deponent then asked said Casler if it was true that he (said Casler) had sold out to said Van Volkenberg for $600, and had taken his (Van Volkenberg’s) notes for said amount, unsecured, all due in five years, and the said Casler replied, ‘Yes.’ '
“Deponent further says that he is informed that execution has been issued on the judgment aforesaid, and has been placed in the hands of the sheriff of Eaton county, and demand has been made upon said Spurgeon D. Casler by said sheriff, and that he unjustly refuses to pay said judgment, or to apply said notes to the payment of said judgment.
“Deponent further says that he is informed that, at the time said Spurgeon D. Casler sold out his stock of merchandise at Farnsworth, he was indebted to different wholesale houses for merchandise in the sum of over $1,528.64, and that none of said indebtedness has been paid, nor has he turned out said notes to pay any of said debts.
“Deponent further says that, from the facts and circumstances herein set forth, that said Spurgeon D. Casler has disposed of his property with intent to defraud his creditors.
“Deponent further says that, from the facts and circumstances herein set forth, that the said Spurgeon D. Casler has evidences of debt which he unjustly refuses to apply to the payment of the judgment which was rendered against him as aforesaid, belonging to the said Wm. Barie Dry-Goods Company.
‘ ‘ Deponent further says that he makes this affidavit as a basis for the issuing of a warrant against said Spurgeon D. Casler pursuant to the provisions of said chapter; and deponent further says that he has personal knowledge of all the facts and circumstances hereinbefore set forth, except as otherwise stated above.
“Charles H. Smith. ,
“Subscribed and sworn to before me this 15th day of January, 1902.
“Hugo G. Wesener, Notary Public,
“Saginaw County, Michigan.”
“ State of Michigan, ) County of Eaton. ) ss.
“Charles O. Smedley, being duly sworn, says that he is a member of the law firm of Smedley & Corwin, and resides in the city of Grand Rapids, Michigan; that said Smedley & Corwin are attorneys of record for the Wm. Barie Dry-Goods Company, a ■ corporation, who commenced a suit by summons in the circuit court for the county of Wexford, Michigan, against Spurgeon D. Casler; that deponent was present at the time of the commencement of said suit, on the 27th day . of September, 1901, and had charge of the same, which suit was commenced by the issuing of a summons in an action of assumpsit; and that deponent was afterwards present in said circuit court on the 6th day of November, 1901, at the time judgment was rendered by Judge Clyde C. Chittenden in favor of the Wm. Barie Dry-Goods Company, plaintiff, and against Spurgeon D. Casler, defendant, for the sum of $323.05 and costs of suit, taxed at 23.30.
“ Deponent further says that execution was issued out of the said circuit court, and placed in the hands of the sheriff of Wexford county, which execution was returned on the 14th day of January, 1902, nulla bona.
“Deponent further says that on the 21st day of December, 1901, he caused an execution to be issued out of the circuit court for the county of Wexford, directed to the sheriff of the county of Eaton, and that said deponent took said execution and placed it in the hands of the sheriff of said county of Eaton, and went with said sheriff to interview the said Spurgeon D. Casler, who was residing with his father on a farm, not far from Eaton Rapids, in said county of Eaton. Deponent further says that he asked said Spurgeon D. Casler to pay the amount of the debt called for by said execution, and said Spurgeon D. Casler refused to pay the same; that deponent then told said Spurgeon D. Casler that he had received notes to the amount of six hundred dollars or more from his brother-in-law, one Van Volkenberg, to whom he sold the stock of goods at Farnsworth, Wexford county, Michigan, and deponent asked said Spurgeon D. Casler to turn out said notes to apply on said execution, and said Spurgeon D. Casler refused and neglected so to do; that the sheriff then showed said Spurgeon D. Casler the execution, with the seal of the court impressed thereon, and asked him to pay the same, and said Spurgeon D. Casler told the sheriff that he had no money to pay said execution; that the said sheriff then made a demand upon said Spurgeon D. Casler for property with which to satisfy said execution, and said Spurgeon D. Casler replied that he had no property to turn out to said sheriff to satisfy said execution; that a copy of said execution, together with a copy of the sheriff’s return indorsed thereon, is hereto annexed to this affidavit, and made a part thereof. Deponent then asked said Spurgeon D. Casler where the notes were that he had obtained from said Van Volkenberg, and he said that said- notes were in the hands of his lawyer, Mr. J. B. Hendee, of Eaton Rapids.
“Deponent further says that, after said Spurgeon D. Casler sold out his store at Farnsworth, there has come .into the hands of Smedley & Corwin various bills from wholesale houses for goods bought by said Spurgeon D. Casler while at Farnsworth, and which he neglected to pay; that he called said Spurgeon D. Casler’s attention to these amounts, a list of which is hereto annexed to this affidavit and marked ‘Exhibit A; ’ that said Spurgeon D. Casler admitted that he owed said different wholesale houses, and some other small bills, but that he was unable to pay for the same, and that all he had received for said stock of goods were the said notes for six hundred dollars from said Van Volkenberg. Deponent then asked said Spurgeon D. Casler why he had sold out for such a small sum and got no cash whatever, and had taken nothing but promissory notes on long time, none of the said notes coming due for five years, and that said Spurgeon D. Casler would give only evasive and unsatisfactory replies. Deponent further says that said Spurgeon D. Casler is owing other amounts to some wholesale houses, but the amounts and names this deponent has now forgotten, as they were not represented by said Smedley & Corwin.
‘ ‘ Deponent further says that he has good reason to believe and does believe that said Spurgeon D. Casler and his brother-in-law, Van Volkenberg, whose first name is unknown to this deponent, have connived to cheat and defraud the creditors of said Spurgeon D. Casler. Deponent is informed and believes that the stock of goods turned over by said Spurgeon D. Casler to said Van Volkenberg was worth a sum far in excess of six hundred dollars; that said Spurgeon D. Casler has not paid out any money nor turned over any of said notes of said Van Volkenberg to any of his creditors since he sold out said stock of merchandise at Farnsworth. Deponent further says that the judgment aforesaid owned by said Wm. Barie Dry-Goods Company against said Spurgeon D. Casler is wholly unsatisfied.
“Deponent further says that the debt due to said Wm. Barie Dry-Goods Company from said Spurgeon D. Casler was one for which the said Spurgeon D. Casler could not, by reason of the provisions of sections 9553 and 9554 of the Compiled Laws of 1897, be arrested or imprisoned.
“Deponent further says that, from the facts and circumstances herein set forth, that said Spurgeon D. Casler has disposed of his property with intent to defraud his' creditors. Deponent further says that said Spurgeon D. Casler has rights of action and money and evidences of debt which he unjustly refuses to apply to the payment of said judgment which was rendered against him as aforesaid, and that he makes this affidavit for the issuing of a warrant against said Spurgeon D. Casler pursuant to the provisions of chapter 141 of the Revised Statutes of 1846, and that this deponent has personal knowledge of all the facts and circumstances as hereinbefore set forth, except as otherwise stated above.
“ Charles O. Smedley.
“Subscribed and sworn to before me this 20th day of January, 1902.
“Louis J. Dann, Notary Public,
“Eaton County, Michigan.”

They show, in substance, that the debtor had a. stock of goods in' Wexford county, and sold them to his brother-in-law for $600, taking his promissory notes, running for five years, in payment; that, after plaintiff’s execution was issued, he was asked to apply this property upon the debt, but refused to do so, although it was then in the hands of his lawyer. The only question is whether an inference of actual fraud in the sale, or of an unjust refusal to apply the notes upon the judgment, may lawfully be drawn from the facts stated in the affidavits. We are of the opinion that such an inference might be drawn, and that, in the absence of evidence to the contrary, a prima facie case was made.

The order quashing the proceedings is reversed, with costs.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.


text:
    PEOPLE, ex rel. ESPER, v. DETROIT & SALINE PLANK-ROAD CO.
    1.. Plank-Road Companies — Quo Warranto — Evidence—Condition of Road.
    In a proceeding by quo warranto to forfeit the charter of a plank-road company for its failure to maintain its road in a reasonable condition, specific instances of trouble experienced by travelers are admissible as tending to show the bad condition of the road.
    2. Same — Requests to Charge — Instructions.
    A request to charge that if any two consecutive miles of road was fairly good road, sixteen feet wide, graveled to the depth • required by statute, and nine feet wide, and so constructed that vehicles could conveniently pass each other, then the verdict must be for respondent, is sufficiently covered by an instruction that plaintiff cannot recover unless the jury find that nowhere was there two consecutive miles as required by the charter, and that the road was dangerous and unsafe, and not so constructed as to permit carriages easily to pass each other thereon for any two consecutive miles.
    3. Same.
    It being the duty of the company, under its charter, to keep its road in a reasonable condition for public travel in all seasons of the year, a request to charge that the jury cannot render a verdict against the company unless they find that the road was dangerous at all seasons is properly denied.
    4 Same — Pleadings—Surplusage.
    In such proceeding, relator is bound only to prove that the road did not comply with the requirements of the charter, and extravagant averments in the replication may be treated as surplusage.
    5. Same — Instructions—Witnesses—Prejudice.
    The use by the court, in his charge to the jury, of the term “farmers,” to indicate the witnesses for relator, and “plank-road men,” the witnesses for respondent, was unfortunate, as tending to prejudice the jury, but, upon an examination of the whole record, is not considered such damaging error as to justify a reversal.

      6. Same.
    A statement by the court in his instructions, "with reference to the condition of the road, that “It has been urged that frost might heave the earth; * * * but frost would not heave it to match the statements of the farmers; it was more than frost,” — was unjustifiable, but in view of the entire charge, and the testimony as to the condition of the road at times when frost could not have affected it, does not constitute reversible error.
    Error to Wayne; Donovan, J.
    Submitted April 24, 1902.
    (Docket No. 134.)
    Decided June 3, 1902.

      Quo warranto by the people of the State of Michigan, on the relation of Frank H. Esper, against the Detroit & Saline Plank-Road Company, to forfeit respondent’s charter. From a judgment for relator, respondent brings error.
    Affirmed.

      Corliss, Andrus & Leete (IT. H. Hatch, of counsel), for appellant.

      James H. Pound and Thomas Mulvihill, for appellee.
   Grant, J.

The issues in this case are sufficiently stated in 125 Mich. 366 (84 N. W. 290), where the case was reversed, and new trial ordered. A new trial has been had, resulting in a verdict for the relator. Several grounds are. alleged for -which reversal is again asked.

1. Error is alleged in that the court permitted specific instances of trouble experienced by travelers upon the road. The following is an instance: The witness Bird was, asked:

Q. Tell the jury what, if anything, you have know,n in the way of difficulties in traveling that road. Did you ever observe anybody being stuck, or anything of that kind, on it F ”

The objection was that it called for specific instances of trouble; that it led to side issues, and involved an inquiry into the care of the driver of the team, and his load. The answer was as follows:

“A. Four years ago I had quite a lot of hay to draw to the city, and during the month of March I knew that the road was so bad I did not try it. I commenced'to draw hay in April, after the country road got all right; and I found then holes in the gravel road were so bad that I did not get stuck myself, but two men in succession. I drew their men out who were stuck; could not draw their loads.”

He further testified:

“ I remember coming to Detroit in a horse and buggy in 1890, in April, a„nd the horse could scarcely get through in places with the buggy, my wife, and I. * * * I have seen other people in holes clear up to the hub west of Inkster in 1890, many times. I saw a man stalled there with a load of lumber not quite a mile and a half west of Inkster. ”

We think testimony of this character was competent. It involved the condition of the road, and the testimony given in response to such questions tended directly to show its bad condition.

2. Error is alleged in the refusal of the court to give the following requests:

“That if any two consecutive miles of the defendant’s road was on or about October 1, 1898, a fairly good road, sixteen feet wide, having thereon gravel to the depth required by statute applicable to this defendant, and nine feet wide, so constructed that vehicles could conveniently pass each other, that then the verdict must be in favor of the defendant. * * *
“That the jury cannot render a verdict in’favor of the plaintiff and against the defendant unless they find that the road was worthless, worn out, dangerous, and highly inconvenient at all seasons of the year, from one end to the other.”

The court instructed the jury as follows:

‘ ‘ Under the issue of this case, the plaintiff cannot recover unless the jury find from the evidence that nowhere along this road were there two consecutive miles of said road as was required by the charter. * * * By the terms of this contract, if the defendant has not complied with the provisions, it is incumbent upon the plaintiff to show, by a preponderance of evidence, that the matters and.things complained of in the original pleadings, viz., that the 1st day of January, 1890, from that down to the commencement of the action, the defendant’s toll road was broken, worn.out, and destroyed, and the planks displaced, rotten, and warped, and the roadbed full of holes, gullies, ruts, excavations, through, over, and upon the entire length; that the defendant’s road was dangerous, and continued to be dangerous, inconvenient, and unsafe; and that it was not so constructed as to permit carriages and vehicles conveniently and easily to pass each other thereon for any two consecutive miles.”

The contract referred to in‘this instruction was the contract involved in the plea puis darrein continuance. We think these instructions sufficiently cover the first above request.

The second request was faulty, in that it required the jury to find that the road was dangerous, etc., at all seasons of the year. It would not be sufficient to justify a verdict for the respondent if the jury had found that it was passable for a small portion of the year, but unfit for travel for the rest.of th e year.' The charter of the defendant required it to keep its road in a reasonable condition for public travel during all seasons of the year, taking into account the elements and the weather. The question was, Had the respondent complied with its charter, in keeping its road in the proper condition P This was the issue raised by the pleadings. The replication may have contained certain statements in regard to its condition which relator could not sustain, but, if relator proved that its condition during the time covered by the replication did not comply with the requirements of the charter, the extravagant averments in the plea may be treated as surplusage. The replication directly put in issue the condition of the road. If he proved that that condition was such as was described in the instruction given, it was a sufficient basis for the verdict.

3. It is also urged that the judge committed error in the use of the following language to the jury:

“How are you convinced on the question of the condition of the road? First, as to whether they repaired it, and lived up to their contract; and, if they did, that ends it; and, if not, how have they kept this road from 1890 to 1897? Esper described the condition. I am not going to give you his testimony. The road’s witnesses described the condition of the road the other way, — what they had put on. The farmers, in large numbers, described the condition, — the sand, ruts, and the wagon running to the hubs; and others the floating planks and the electric road, and the condition; and then some showed large holes, or plank out, or places where they were taken out, and then the condition of the road after they are put back again. * * * You are to say to yourselves: How am I convinced on this matter ? Is it as the road claims, or is it as the farmers claim ? If as the road claims, they are not guilty; if as the farmers claim, they are guilty. * * *”

And again:

“The plank men have described the condition, and, of their men, Mr. Griffin, the builder of the culverts, and Knapp on the quality of the gravel, and Merrill on the work done; and it has been urged that frost might heave the earth, and it does; but frost would not heave it to match the statements of the farmers. It was more than frost. It was longer than frost, to match the statement of the farmer witnesses.”

The relator introduced 41 witnesses as to the condition of the road, the most of whom were farmers who used the road. Some of the jurors were farmers. The respondent introduced 10 witnesses, some of whom were farmers, and others those who had made the repairs upon the road. It is urged that this language naturally prejudiced the jury against the respondent corporation, and raised an issue of the “farmers” against the “plank-road men.” The language was unfortunate, and it was probably thoughtlessly used, at the close of a long and troublesome trial. Considering the entire record, we do not think the use of these terms as descriptive of the witnesses was of such damaging error as to justify a reversal of the case. The language in regard to the frost was such as the court should not have used. It is true that the witnesses for the relator described the condition of the road at times when the frost conld not have been responsible for the condition detailed by them, and probably this is all the language meant. While its use is unjustifiable, we are of the opinion that it was not such that we can say, in view of the entire instruction of the court and of the evidence in the case, it constitutes reversible error.

The judgment of ouster is affirmed.

Hooker, C. J., Moore and Montgomery; JJ., concurred. Long, J., did not sit.


text:
    BRONSON v. MARSH.
    Liquor Bond — Contribution—Instructions.
    In an action for contribution by a surety on a liquor bond, where defendant claimed that he signed under an agreement that plaintiff would save him harmless, an instruction that “defendant, having voluntarily signed the bond, and held himself out to the world as a co-surety, is estopped from denying such fact as a defense to this action,” followed by a statement that plaintiff could not recover if he agreed to save defendant harmless, is not error.
    Error to Calhoun; Smith, J.
    Submitted April 24, 1902.
    (Docket No. 34.)
    Decided June 3, 1902.

      Assumpsit by Ira N. Bronson against George H. Marsh for contribution as co-surety on a liquor bond. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff and defendant were co-sureties upon the liquor bond of William L. Bronson, a son of plaintiff, who in 1894 kept a saloon at Homer. One Mrs. Camburn brought suit upon the bond for the sales of liquor to her husband, on account of which she was injured. She recovered a verdict and judgment of $500. Plaintiff brought this suit to recover from his co-surety one-half the amount of said judgment and costs. The defenses set up are found in the concluding paragraphs of the court’s instructions, as follows:
    ‘ ‘ If you find that at the time Marsh signed the liquor bond, in 1894, there was an express or implied understanding or agreement existing between him and the plaintiff, Ira N. Bronson, to the effect that he (Ira N. Bronson) would save the said Marsh harmless on account of signing said bond, and said Marsh signed said bond in reliance thereon, then I instruct you that plaintiff cannot recover in this suit. * * *
    ‘ ‘ If you find that before the Camburn suit was begun, or while it was pending, the defendant, Marsh, wanted to settle said suit, and so informed the plaintiff, and the plaintiff opposed the settlement of said suit, and told said Marsh, in substance, that he need pay no attention to said Camburn suit'; that he (said' Ira N. Bronson), or he and his son, the other defendant in said Camburn suit, would pay all damages and costs Mrs. Camburn might recover in said suit, and the said Marsh would not have to pay a cent on account of said suit, or words to that effect; and that said Marsh, because of and in reliance on such promise and representations on the part of said plaintiff, desisted from settling with the plaintiff in said Camburn suit so far as any claim against him was concerned, and from thereafter looking after his interests in said Camburn suit, then I instruct you that the plaintiff cannot recover in this suit; or if you find that the defendant, Marsh, before he signed the second liquor bond, in May,. 1895, told the plaintiff, Ira N. Bronson, that he would not sign the second bond until the Camburn case was settled, and he relieved from all liability on account thereof, and that said plaintiff, in order to induce said Marsh to sign said second bond as surety, did thereupon settle and pay the Camburn claim, and represent to said Marsh that he was relieved from all liability on account of said Camburn case, and that said Marsh, in reliance thereon, was induced to, and did, sign and become surety on said second liquor bond, then I instruct you that the plaintiff cannot recover in this case.”

      Plaintiff had verdict and judgment.

      M. H. Nichols and John JE. Foley, for appellant.

      L. B. Tompkins, for appellee.
   Grant, J.

(after stating the facts). There are 37-assignments of error, most of which relate’ to the rulings of the court in admitting and rejecting testimony. We find no prejudicial error in the rulings. They are all too unimportant to justify discussion.

We also find no error in the instructions. The closing paragraphs of the instructions, above given, placed the issues very concisely and clearly before the jury. Defendant’s counsel complain that the judge, in the forepart of his instructions, said: • .

“Defendant having voluntarily signed this bond, and held out to the world the fact that Ira N. Bronson was a co-surety with him upon said bond, and the saloon having been operated under such understanding, defendant is estopped from denying such fact as a defense to this action.”

This was only part of the sentence, and the court immediately stated the defenses set up by the defendant. Aside from this, the passage quoted clearly meant that the defendant could not set up as a defense that he was not a co-surety, or that the saloon was not operated upon that understanding, — a perfectly correct statement. After making this statement the court proceeded to define the issues between the parties and to give the jury the law applicable thereto.

It is not surprising that the jury found against the defendant, in view of the fact that William L. Bronson paid him $200 to sign his bond, upon which he claimed absolute immunity from liability as between him and his co-surety.

The judgment is affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.


author: Grant, J. Hooker, C. J.

text:
    POKREFKY v. DETROIT FIREMEN’S FUND ASS’N.
    1. Benefit Societies — Change of By-Laws — Modification of Benefits — Assent of Member — Consideration.
    The assent of a member of a beneficiary association to a change in its by-laws, whereby certain benefits are increased and others diminished, is not without consideration, and hence need not be in writing, nor by any express agreement.
    3. Same — Question for Jury.
    The trustees of a beneficiary association, after decedent became a member thereof, adopted an amendment to the by-laws, increasing the sick benefits, decreasing the death benefits, and increasing the membership dues. Decedent paid his assessments and increased dues without protest. He also stated to a member that he was satisfied with the changes made. Held, that the question whether he had assented to the change, so as to be bound thereby, was properly submitted to the jury.
    Error to Wayne; Carpenter, J.
    Submitted April 25, 1902
    (docket No. 141);
    opinion filed June 3, 1902.
    Rehearing granted January 5, 1903;
    resubmitted October 6, 1903
    (docket No. 1);
    former opinion affirmed November 3, 1903.

      Assumpsit by Annie Pokrefky, individually and as guardian of Charles Pokrefky, a minor, against the Detroit Firemen’s Fund Association, to recover for death benefits. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      James D. May (Robert T. Speed, of counsel), for appellant.

      Edwin Henderson, for appellee.
   Grant, J.

For a statement of the case we refer to 121 Mich. 456 (80 N. W. 240). The case was then reversed, and new trial ordered. That trial has been had, resulting in a verdict in favor of the defendant. The sole question litigated upon the second trial was whether Mr. Pokrefky had assented to or waived the change in the by-laws so as to be bound by such change. The question was left to the jury, who found such assent or waiver. The court instructed the jury that they must find “that there was on his part a clear and explicit understanding as to his rights in the matter, and that he intended to waive those rights; and that the burden of proof was upon the defendant to establish such waiver.” The sole question is, Was there any testimony reasonably tending to show such waiver ?

Upon the last trial defendant contended that Pokrefky had not signed any protest against this amendment to the by-laws. The jury by their verdict have established the fact that he did not. The matter was evidently very generally discussed by the members of the association, and the most of them took sides for or against the amendment. Mr. Dupont, one of the officers of the fire department, testified that Mr. Pokrefky told him that “he [Pokrefky] was well satisfied with $1,500, and $5 a week for injuries with pay, and $10 for sickness without pay.” By the bylaws the dues were increased from $1 quarterly to $1 monthly. Mr. Pokrefky before his death paid these dues without protest, and each assessment that had been levied under the amendment since it was adopted. Counsel for plaintiff contend that he was in the position of a debtor, charged with no obligation to speak; citing Chippewa Lumber Co. v. Phenix Ins. Co., 80 Mich. 116 (44 N. W. 1055). The facts in the two cases are dissimilar. While not perhaps controlling, it is significant that Mr. Pokrefky paid the increased dues, making no protest. If the association could not change the amount to be paid upon his death, for the same reason it could not charge him more for his dues than were provided when he joined. He could have retired from the association instead of paying the increased fees and receiving certain benefits from the change. He should have, at least, protested, and tendered the fees required by the original by-laws, unless he desired to waive them.

We think there was evidence for the jury, and the judgment is affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.

ON REHEARING.

Hooker, C. J.

The plaintiff brought an action, as guardian for her minor child and in her own right, against the defendant, to recover a benefit on the life of her deceased husband. At the time he joined the defendant association, viz., July 9, 1890, sections 3 and 4 of article 8 of the by-laws provided:

“Sec. 3. Upon the death of /my active or retired member of this association, there shall be collected from each surviving active or retired member thereof the sum of five dollars, said amount to be paid on or before the second pay-day of the fire department after the death of said member; and, in default of said payment, the secretary shall strike the name of the defaulting member from the rolls of the association: Provided, however, that the board of trustees of this association may extend the time for such payment.
“Sec. 4. Upon the death of any active or retired member of this association, there shall be paid within ninety days, to the person or persons (to be designated by said member) named in the instrument on file in the office of the secretary, the entire amount collected under section 3, article 8.”

Plaintiff’s husband died on November 18,1896, at which time there were 346 members in the association, and she claims that she was entitled to receive the sum of $1,730. The association paid $1,500, and refused to pay more, basing such claim upon the ground that, prior to Pokrefky’s death, section 4 of article 8 had been amended to read as follows:

“Upon the death of any active or retired member of this association, there shall be paid within ninety days, to the person or persons (to be designated by said member) named in the instrument on file in the office of the secretary, the sum of fifteen hundred dollars, under section 3,. article 8.”

This action was brought for the remainder.

The defendant is a charitable association incorporated in 1867, under Act No. 20, Laws 1855, being section 8264 et seq., 3 Comp. Laws 1897. The articles of association provided that the society “may provide for the widows and orphans of deceased members, and the payment of such sum as may be prescribed by the by-laws of such association.” Persons joining the association subscribed to the by-laws- as follows:

“We, the undersigned, members of the paid fire department of the city of Detroit, faithfully promise and agree to support the foregoing constitution and by-laws, and to act in accordance with the requirements contained therein, so long as they shall continue in force, and while we retain our membership in the association.”

The cause was before this court on a former occasion (see 121 Mich. 456 [80 N. W. 240]), a verdict having been directed for the defendant. It was then held that the amendment could not have the effect of changing the pre-existing contract. Upon a second trial the defendant claimed that the deceased assented to the change in the by-laws, and therefore to a corresponding change in his contract of insurance. The question was left to the jury, and a verdict was found in its favor, and a judgment upon the verdict was affirmed. See supra. The case is now before us upon rehearing, and the only question is whether the trial court erred in submitting the cause to the jury, and upon the question of assent.

The following are the amendments in full:

‘ •' Art. 4. There shall be paid monthly, in advance, by each member of the association (not an honorary member), to the secretary thereof, the sum of one dollar ($1.00), and, in default thereof, the secretary shall strike the name of each member from the roll of the association.”
“Sec. 1, Art. 8. Any member of this association who shall receive any injury, or who may become sick, so as to incapacitate him from attending to his duties, shall, by 'applying to the sick and visiting committee, and upon the recommendation of said committee, receive relief as follows: For accident, five dollars ($5.00) per week; for sickness, ten dollars ($10.00) per week; and no relief shall be granted for a period of less than one week.”
“Sec. 3, Art. 8. Upon the death of any active or retired member of this association, there shall be collected from each surviving active or retired member thereof the sum of five dollars ($5.00), said amount to be paid on or before the second pay-day of the fire department after the death of said member; and, in default of such payment, the secretary shall strike the name of the defaulting member from the rolls of the association: Provided, however, that the board of trustees of this association may extend the time for such payment. All moneys received by this association must' be placed in the one general fund. All moneys received at a death assessment in excess of fifteen hundred dollars must be placed in the general fund. When the general fund equals or exceeds the sum of twenty-five hundred dollars ($2,500.00), there shall be no assessment made upon the members of this association upon the death of one of its members, but the beneficiary of such member shall be paid from the general fund: Provided, however, that no two death assessments shall be paid in succession from the general fund, except by the unanimous vote of the trustees and the approval of the president of the association.
“ Sec. 4, Art. 8. Upon the death of any active or retired member of this association, there shall be paid within ninety days, to the person or persons (to be designated by said member) named in the instrument on file in the office of the secretary, the sum of fifteen hundred dollars ($1,500.00), under section 3, article 8.”

It is said that these amendments were made under amended articles of association, which were adopted after Pokrefky became a member of the association; but we do not see that this fact has any especial significance. The defendant claims the following as sufficient evidence of assent to carry the question to the jury, when considered in the light of the by-laws, which trebled the dues, increased the sick and accident benefits, and fixed the amount due upon death of a member at $1,500, whereas before it might have been more or less than that sum, as it depended on the number of members at death:

1. Testimony that the deceased paid monthly dues regularly for five months at the increased rate.

2. That he paid two assessments after the amendment.

3. The fact that he must have known of the change in the by-laws.

4. His failure to sign a protest against the amended bylaws.

5. Testimony of a witness that Pokrefky had told him that he was well satisfied with the amendments and the provision for a death benefit of $1,500.

The first two propositions are not disputed, and we do not discover that the third is. It would be inconsistent for plaintiff’s counsel to dispute it, for the reason that they claim, and sought to prove, that deceased signed a protest a few days after the adoption of the amendment. Such a protest was offered in evidence by the plaintiff’s counsel. It is as follows:

“Detroit, Mich., July 3rd, 1896.
“To the Board oe Trustees oe the Firemen’s Fund Association.
Gentlemen: We, the undersigned members of the Firemen’s Fund Association, protest against the changes made in the articles of said association, at a meeting held June 8th, ’96. We would respectfully suggest that in the amendment to section 1, article 8, all after‘For sickness, $10.00 per week’ be stricken out, and pro rata for any portion of a week. We also object to the accumulation of a general fund, as suggested by amendment 1, section 3, paragraph 3. We prefer that all moneys collected at each assessment be paid to the legal representative of the deceased member.”

It appears to have been signed by a large number of the members, and deceased’s signature was written, with others, upon a sheet of paper that was pinned to the petition, which was a long paper, made by attaching two or more sheets together. The defendant claimed that it was not shown that the deceased’s signature was intended to be attached to the petition. It seems to be conceded that the jury found that he did not sign this protest, though we do not find the fact stated in the record, further than it may be inferable from this verdict.

It being beyond the power of the board of trustees to change the contract rights of the parties by changes in the by-laws, it is urged that an intent to do so should not be assumed, and that it is only when the language admits of no other reasonable construction that such a design will be imputed, and that it is consistent with the language to interpret these amendments as applicable to new contracts only. Had this amendment provided merely for a change of the death benefit to a fixed sum less than the contracts theretofore made provided for, such a construction might be given; but these amendments contemplated other changes, which would have been inconsistent with such' idea, except at great inconvenience to the society. Under the original articles, only $4 per year was collectible for dues, while death benefits absorbed the assessments made for them. Under the new by-laws, dues, and at least a portion of the assessments, were to go into one fund, and any surplus might be applied to the payment of sick benefits. "We cannot see how the new scheme could be carried out without establishing two classes, with different dues, different benefits, and different bookkeeping. It seems highly improbable that an intent to discriminate between old and new members existed, and all of the evidence in the case indicates th'e contrary, — even the protest which counsel for plaintiff offered in evidence.

There is evidence that the deceased knew of this change, for he not only paid increased dues repeatedly, but there was testimony that he discussed it with another member. If defendant’s theory is correct, he was then in the attitude of a member who, knowing that his associates were submitting to new obligations and changed relations, not only acquiesced without objection, but, on the contrary, expressed his approval of the change, whereby he became entitled to increased sick benefits, in common with others. Plaintiff’s counsel says in his brief that:

“It seems to have been understood that some change would have to be made to meet the increasing number of sick and accident cases.”

This was done by not only increasing the dues, from which such claims had theretofore been paid, but also by making a rule which might, and probably would, and did, divert a portion of the assessments to the same purpose. Did he not then owe a duty to his associates of refusing the benefits of such amendment or giving his assent? Could he consistently pay the added dues with the knowledge of doubled indemnity in the matter of sick benefits, and pay assessments with the knowledge that other beneficiaries were receiving reduced death benefits, all the while entertaining the secret design to assert the invalidity of the by-law as to his own policy ? The argument that the amendments are divisible, and that he might assent to the increased dues and sick benefits, while he did not assent to the change in death benefits, is untenable. We have seen that the changes were parts of one scheme, where possibly diminished death benefits and increased dues were compensated by increased sick and accident benefits.

There was a consideration for an assent to such a change of contract. The case of Borgards v. Insurance Co., 79 Mich. 440 (44 N. W. 856), is in point upon this question. There a policy providing compensation for loss by fire was changed so as to take away liability when the loss was caused by fire from steam-power used on the premises. The plaintiff, with knowledge of this change, made no objection, but continued his membership, and attended a meeting where this and other by-laws were read. It was held that by this he assented to the change in his policy caused by the change in the by-law, and that “this is not in conflict with the principle established in Becker v. Insurance Co., 48 Mich. 610 (12 N. W. 874),” upon which counsel for plaintiff in this cause relies. All cases recognize the rule that a policy may be changed by a by-law, if assented to by the owner. Where there is a consideration, as in this case, such assent need not be in writing, nor by an express promise. Had the deceased voted upon the adoption of this by-law, he would have assented to the change in his policy; and we think that he is equally bound by any acts which clearly indicate his assent, and whereby his associates have a right to understand that he does assent. We might not agree with the jury were this case here upon the facts, though, if it is true that he paid dues and assessments, with full knowledge that he was doing so under the new by-law, without protest, and expressed his satisfaction with the change, the finding of an assent is not so unreasonable as to justify a new trial. All of the members of the society were interested in its success. All were equally affected by the dangers which confronted it, and interested in averting disaster. It was no great hardship to ask the deceased to bear his share of the burden, and not seek to impose it upon his associates, if he gave them a right to believe that he consented to do otherwise.

The judgment is affirmed.

Moore and Montgomery, JJ., concurred. Carpenter and Grant, JJ., did not sit.