author: Fellows, J.

text:
    PAPERNO v. MICHIGAN RAILWAY ENGINEERING CO.
    1. Executors and Administrators — Collateral Attack — Domicile.
    The question of decedent’s residence in a certain county, raised in a collateral attack upon the validity of plaintiff’s appointment, may not be retried in an action by the administrator for the negligent death of plaintiff’s decedent.
    2. Same — Treaty Rights — Construction—Foreign Consuls.
    The treaty of 1832 between the United States and the Emperor of Russia (8 U. S. Stat. 444, 448), giving to that country all the privileges and powers enjoyed by the most favored nations, and the treaty of 1853 with the Argentine Republic (10 U. S. Stat. 1005), giving to the consuls of that country “the right to intervene in the possession, administration, and judicial.liquidation of the estate of a deceased subject of that country,” as construed by the United States Supreme Court (Rocca v. Thompson, 223 U. S. 317), do not give the right to Russian consuls to administer the estates of Russian subjects dying in this country.

      See notes in 45 L. R. A. 496; 37 L. R. A. (N. S.) 549.

      3. Same — International Law — Comity of States.
    But under the law of nations and the doctrine of comity, a consul of the Russian government, perforce of both his duty to conserve the estate of a deceased subject of his government, and as representative of the next of kin, who were also subjects of his government, had the right to institute proceedings for the appointment of an administrator.
    4. Same — Foreign Consuls — Notice—Probate Proceedings.
    The' State of Michigan recognizes the right of consuls to notice of probate proceedings where there are subjects of foreign countries interested (section 13837; 3 Comp. Laws 1915).
    5. Master and Servant — Negligence—Safe Place — Electricity —Street Railways.
    In- an action against a railroad construction company, not operating under the workmen’s compensation law, for the death of an employee by coming in contact with the third rail while engaged in construction work, evidence as to .defendant’s negligence in failing to cover the third rail on the occasion of decedent’s death, although on other occasions it had been covered, held, to present a question for the jury.
    6. Same — Damages—Death Act — Dependents.
    There being competent evidence that decedent on several occasions had sent money to his mother in Russia, the court below was not in error in submitting to the jury the question of the amount of damages recoverable under the death act in case they found that death was instantaneous, where the court carefully limited the recovery to the amount that would fairly compensate the mother for her pecuniary loss.
    7. Same — Death Act — Instantaneous Death — Evidence.
    Evidence held, to present a question for the jury as to whether death was instantaneous.

      8. Same — Weight oe Evidence.
    There being sufficient testimony to take the ease to the jury, held, that the verdict for plaintiff was not against the clear weight of the evidence.
    Error to Kalamazoo; Weimer, J.
    Submitted February 1, 1918.
    (Docket No. 182.)
    Decided July 18, 1918.
    Case by Solomon G. Paperno, administrator of the estate of Alexander Bichek, deceased, against the Michigan Railway Engineering Company for the negligent killing of plaintiffs intestate. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Alfred J. Mills, for appellant.

      Asher L. Cornelius, for appellee.
   Fellows, J.

Plaintiff’s decedent, a Russian subject, was killed on May 15, 1915, while in the employ of the defendant. The parties were not operating under the workmen’s compensation act. Defendant was constructing an electric-line from Kalamazoo to Grand Rapids. The line had not been put in operation for the public, but it was sufficiently complete so that cars were* being run over it. It was operated by the “third rail” system, carrying 2,400 voltage. The third rail was from 30 to 32 inches from the track rail. The gang with which decedent was working was engaged in aligning the track. Decedent and others were between the third rail and the track rail with iron bars preparing'to heave the track over on receiving the signal so to do. In some way deceased fell, his foot coming in contact with'the third rail; there is also some testimony that the iron bar which he held in his hand came in contact with both the third rail and the track rail. It is claimed that defendant was negligent in not providing a safe place and safe tools with which, to work; that it should have covered the third rail to protect the employees working near it when it was so heavily charged with electricity, and should have provided insulated tools with which to work. The accident occurred in Allegan county, where the gang was then staying, and plaintiff was appointed administrator by the probate court of that county on the 14th day of January, 1916, on the petition of Antoine Wolff, imperial Russian consul for the consular district within which this State is included. We shall have occasion to detail the facts more fully as we proceed.

Defendant insists that the plaintiff may not maintain this action for the reason that he had not been validly appointed administrator of the estate of decedent. It is pointed out that the proof shows decedent to have been a resident of Kalamazoo and but temporarily in Allegan county when he met his death ; it is also insisted that the Russian consul for this consular district had not sufficient authority to confer jurisdiction by his petition on the probate court for Allegan county to make^the appointment. It must be borne in mind that we are not here dealing with an appointment of a special administrator, or the issuance of ancillary letters of administration; which are ex parte, and both without notice of hearing, nor with a direct proceeding to review the judgment of the probate court. The question here raised is by collateral attack upon a decree of the probate court. Upon such attack the court may not retry the question of residence. Carney v. Carney, 199 Mich. 663. If, however, the probate court acquired no jurisdiction under the petition filed another question is presented. We do not understand it to be claimed that the proceedings of the probate court of Allegan county do not comply with the statute, nor that decedent had any near relatives within this jurisdiction.

Plaintiff insists that by treaty with Russia, the right to administer the estates of Russian subjects dying in this country is given to the Russian consul. By the treaty of 1832, between this country and His Majesty the Emperor of all the Russias (8 U. S. Stat. 444, 448), it was provided by Art. 8:

“The two contracting parties shall have the liberty of having, in their respective ports, consuls, vice-consuls, agents and commissaries of their own appointment, who shall enjoy the same privileges and powers, as those of the most favored nations; * * *”

By this provision the Russian consuls were given the privileges and powers of the consuls of the most favored nations, thus provisions in the treaties between this and other countries granting powers to consuls gave to Russian consuls the powers of consuls of the most favored nations. The treaty concluded between this country and the Argentine Confederation, July 27, 1853 (10 U. S. Stat. 1005), gives broad powers to the consuls of that republic. Such powers as are given by the Argentine treaty inure to the benefit of Russian consuls under the “most favored nations” clause. By Art. 9 of the last named treaty, it is provided :

“If any citizen of either of the two contracting parties shall die without will or testament, in any of the territories of the other, the consul-general or consul of the nation to which the deceased belonged, or the representative of such consul-general or consul, in his absence, shall have the right to intervene in the possession, administration, and judicial liquidation of the estate of the deceased, conformably with the laws of the country, for the benefit of the creditors and legal heirs.”

The question of the power and privileges of consuls under the most favored nations clause has not been before the courts with any degree of frequency. In some cases the right of the consul perforce of his office to be appointed administrator of the estates of the subjects of his sovereign has arisen. In McEvoy v. Wyman, 191 Mass. 276, and in Carpigiani v. Hall, 172 Ala. 287, such right was upheld. In the Massachusetts case the question arose • between the consul and the public administrator provided for by the laws of the State. In Re Fattosini’s Estate, 67 N. Y. Supp. 1119, and in Re Lobrasciano’s Estate, 77 N. Y. Supp. 1040, the surrogate’s court for Westchester county, New York, upheld such right, while in Re Logiorato’s Estate, 69 N. Y. Supp. 507, the right of the consul as a right was denied, but the consul was appointed. We shall have occasion to refer to this case later. In Lanfear v. Ritchie, 9 La. Ann. 96, the right was denied. The supreme court of California, in Estate of Ohio, 157 Cal. 552, denied the right of the consul to be appointed administrator. As this case was reviewed in the United States Supreme Court and is the case in which that court construed the clause of the Argentine treaty, above quoted, the case is of prime importance. The State of California has a public administrator. By its statutes he shall act as administrator in the absence of next of kin entitled to inherit. The deceased was a subject of Italy, the consuls of which nation by its treaty with this country, were entitled to the benefit of the most favored nations clause. Both the Italian consul and the public administrator petitioned for appointment as administrator. The court thus clearly stated the issue:

“Our law declares that in the absence of next of kin entitled to inherit, the public administrator shall take charge of and administer the estate for the benefit of the creditors and heirs. The right claimed under the treaty is that, in such a case, the consul of the country of which the deceased was a citizen shall take charge and administer; a right directly in conflict with our law.”

The court sustained the right of the public administrator to the appointment; but it is worthy of note that in the concluding portion of the opinion, in discussing the duty and rights of the consul, the court said:

“He has, in áddition a duty pertaining to his office imposed upon him by his own government, that of seeing to the safe keeping and proper disposition of the effects of citizens of his country who may die while traveling, or while temporarily present in the country to which he is accredited, or even while residing therein, and for that purpose, in the absence of any other representative of the deceased having a better right, he may ‘intervene in the possession’ of' the estate, conformably with the laws of the country. The custom of nations would permit this and it may be that, if the public administrator refuses or fails to apply, the consul may petition for and receive letters to himself as the official agent for the persons interested.”

The case went to the Supreme Court of the United States, where it was affirmed. Rocca v. Thompson, 223 U. S. 317. The case deals extensively with the subject and the construction of the word “intervene” found in the treaty with the Argentine Republic. The language of that treaty was construed not to give to the consul the right to administer the estate, and the law of California, with reference to administration by the public administrator, was held to control. We must, therefore, assume that the law is settled that the consul of the Russian Government, perforce of the treaty with this country, was not entitled to administer this estáte.

But our problem in the instant case is but partially solved when we have reached this conclusion. There still remains the question for solution as to whether the consul, perforce of his official position, may initiate probate proceedings by petitioning for administration of the estate of a deceased subject of his sovereign, and where, as here, the next of kin are subjects of the country from which, he is accredited. This involves his powers and privileges under the laws of nations and the doctrine of comity:

“A consular officer is, by the law of nations and by statute, the provisional conservator of the property within his district belonging to* his countrymen deceased therein.” 2 Cyc. p. 271.
“A foreign consul, without specific authority, has the general right to protect the rights and property of persons of his nation within the jurisdiction of his consulate, and he may bring suits for such purpose without any special authority from the parties in interest.” 2 C. J. p. 1307.
“One of the most important duties pertaining to the office of a consul and imposed upon him by his own government is that of seeing to the safekeeping and proper disposition of the effects of citizens of his country who may die while traveling or while temporarily present in the country to which he is accredited or even while residing therein. In the absence of any other representative of the deceased having a better right, a consul is authorized to intervene in the possession of the estate conformably to the laws of the country. There can be no possible doubt concerning the general propriety of such a practice. The duty, and by comity the authority, of a consul to receive and care for the personal estate of a citizen of his own country who may die within his consulate, and to protect the estate from spoliation, is prescribed and recognized by all civilized nations.” 9 R. C. L. p. 158.

Secretary of State Marcy, in a letter to Mr. Aspinwall on August 21, 1855, after requesting consuls of our government to act as administrators of the estates of deceased citizens of this country who die in foreign countries, said:

“Indeed, this is one of the most sacred and responsible trusts imposed by their office, and in this respect they directly represent their government in protecting the rights and interests of the representatives of deceased citizens.” 1 Wharton International Law Dig. p. 782.

Recurring again to In re Logiorato’s Estate, supra, we find that while the court there construed the treaty with the Argentine Republic as later did the United States Supreme Court,- and, therefore, held that, perforce of his official position, the consul was not entitled to the appointment as administrator, an examination of the case discloses that the petition for the administration of the estate was made by the consul and the consul was appointed administrator; the real question in the case was whether the consul, if appointed, should be required to give a bond. The cases quite unanimously agree that where a foreign consul is appointed he should be required to give the usual administrator’s bond, as are other administrators, and we think such is the established practice.

While the supreme court of Louisiana held in Lanfear v. Ritchie, supra, that the consul was not entitled to the appointment as administrator, in the later case of Succession of Rabasse, 47 La. Ann. 1452, the same court had before it the right of the French consul, under the treaty between this country and France, to appear for French heirs in a proceeding in which they were interested. The court sustained such right, and held that the consul had the same right to represent them, by force of the treaty and his office, that he would have had by force of express authority from them; the court saying:

“In our view the stipulation in this treaty puts the delegate in the position of an agent of the French heirs, with the same effect as if he held their mandate to represent them as heirs.”

The Supreme Court of the United States in 1821 fixed the status of foreign consuls in the case of The Bello Corrunes, 6 Wheat. (U. S.) 152. The court there said:

“On the first point made by the attorney general, this court feels no difficulty in deciding, that a vice-consul duly 'recognized by our government, is a competent party to assert or defend the rights of property of the individuals of his nation, in any court having jurisdiction of causes affected by the application of international law. To watch over the rights and interests of their subjects, wherever the_ pursuits of commerce may draw them, or the vicissitudes of human affairs may force them, is the great object for which consuls are deputed by their sovereigns; and in a country where laws govern, and justice is sought for in courts only, it would be a mockery to preclude them from the only avenue through which their course lies to the end of their mission. The long and universal usage of the courts of the United States, has sanctioned the exercise of this right, and it is impossible that any evil or inconvenience can flow from it.”

But the court, having fixed the right of the consul to institute proceedings in court, further said:

“Whether the powers of the vice-consul shall in any instance extend to the right to receive in his national character, the proceeds or property libelled and transferred into the registry of a court, is a question resting on other principles. In the absence of specific powers given him by competent authority, such a right would certainly not be recognized.”

This State recognizes the right of consuls to notice of probate proceedings where there are subjects of foreign countries interested. 3 Comp. Laws 1915, § 13837.

We conclude, therefore, from our examination of this question that this consul of the Russian government, perforce of both his duty to conserve the estate of a deceased subject of his government, and as representative of the next of kin who were also subjects of his government, had the right to institute proceedings for the appointment of an administrator.

Defendant insists that there was no evidence of negligence. This was one of the reasons assigned in the motion and requests for a directed verdict and for judgment non obstante under the Empson act (Act No. 217, Pub. Acts 1915, 3 Comp. Laws 1915, § 14568 et seq.). We cannot agree with this contention. There was testimony pro and con by men experienced in railroading on this subject, most of it directed to the question of covering the third rail so as to prevent contact with it while employees were working in close proximity to it. The third rail was protected on both sides and defendant had provided a plank or board to cover over the top of the rail to prevent injury to employees by contact with it when they were performing certain kinds of labor. It was not so protected on- this occasion. Defendant insists that in aligning the track they moved from place to place so frequently as to render this covering of the track impractical. We do not think the testimony makes out a case where we can say, as matter of law, that defendant’s claim, that under all the testimony its negligence is not proven, is undisputed. It is not made to appear that on these occasions when the track was covered the dangers were so much greater than on the occasion in question, as to prompt a covering of the third rail on one occasion and not on another. One of the witnesses testified:

“When the bosses were coming, the road master or some other high official, they were told to cover up the third rail but when there wasn’t anybody there they didn’t have to cover up.”

While an employee of defendant and who, from his testimony, appears to have been its engineer or in charge of construction, among other things, testified:

“Working around this rail is a hazardous occupation, so dangerous that when we call our men to shovel anywhere around it we make a practice of. guarding the rail with a board on top of it. * * *
“We kept all our men away from the third rail, and the work was done more from the center of the track than the ordinary third rail road would be. On the ordinary third rail road with a low voltage they don’t pay very much, attention to the third rail, itself, but in our case we had to — we did our work very much different, to keep them in the center between the rails. One of the differences in doing the work was, in aligning the track we kept our men in the center of the track more than would be customary with the ordinary railroad. Another difference was, if a man, if a man had to, in an ordinary third rail road, he would simply work around the third rail and step back and forth over it and pay no attention particularly to it,_ but in our case, if a man had any business on the third rail or around it, we covered the rail so he could not come in contact with it.”

We canhot say upon this record that no negligence of the defendant was proven; this third rail carrying a high voltage was exceedingly dangerous; contact with it meant almost certain death. Defendant was put to work in the space between it and the running rail from 30 to 32 inches wide. It had been raining and the ground was slippery.

“The handling of electrical currents of high voltage is a business extremely hazardous, and those engaged in that business are charged with the duty of exercising a very high degree of care for the protection of life.” Huber v. Electric Co., 168 Mich. 531.

The case was submitted to the jury on the theory that if death was instantaneous the death act applied and the measure of damages recoverable under that act was stated to the jury. The case was also submitted to the jury upon the theory that if they did not find the death to be instantaneous then the recovery, if one was had, must be under the survival act, and the measure of damages under that act was stated to the jury.

Defendant insists: That there can be no recovery under the death act, because there is no competent evidence that deceased left dependents toward whose support he contributed; nor may there be a recovery under the survival act, because the evidence shows conclusively that death was instantaneous, and that therefore no recovery may be had under either act. The evidence discloses that decedent left surviving him a mother, aged 63 years, a resident of Russia. There was testimony by a witness who knew and lived near decedent and his mother in the old country, that she worked a small farm and received money from deceased. There is testimony that on three occasions deceased sent his mother money; on one occasion 50 roubles, on another occasion 120 roubles, and on another occasion 150 roubles. It was competent for the plaintiff to show these transactions by witnesses who accompanied deceased when he went to the bank on these different occasions; it was competent to show that he sent Russian roubles to his mother by mail, and it was permissible to show by the witness that he knew the money was being sent to her because he saw her name. The books of the bank might be more convincing, but, under the circumstances, they were not of a higher grade of evidence so as to exclude the offered proof upon the ground that it was not the best evidence obtainable. There was evidence that the bank he went to on some of these occasions was in another State and at the time of the trial was out of existence. But defendant insists that even if the testimony was admissible the case is controlled by Ormsbee v. Railway Co., 197 Mich. 576. The instant case is clearly distinguishable from that case. There the father (decedent), as a matter of parental good will, made some slight gifts, purely voluntary donations, to his adult children, all of whom were comfortably married and living apart from him, and none of whom were legally entitled to support from him. Here the deceased, who was legally obligated to support his mother, sent her cash from his earnings to discharge such obligation. The case on this question is not unlike Kalcic v. Newport Mining Co., 197 Mich. 364. The trial court very carefully limited the recovery, if death was instantaneous, to the amount that would fairly compensate the mother for her pecuniary loss. There was testimony justifying the submission of this question to the jury, and there was no error in the manner of its submission.

There was a sharp’ conflict in the testimony as to whether the direct cause of the death continued to Operate directly upon the injured person until life was extinct. The jury would have been justified in finding from some of the testimony that decedent had expired when he was removed from the third rail and contact with the current ceased, and that such evidences of life as continued were but spasmodic muscular movements. On the other hand, there was testimony that decedent continued to breathe for some seventeen or eighteen minutes after he had been removed from the third rail and the direct cause of death had ceased to operate directly upon him; that on three occasions during this time, and a few minutes apart, he used a Russian expression equivalent to our expression of' pain, “Oh!” the first two of these quite strong and the third in a whisper; and that at the expiration of the time above stated he looked around at his companions, several of whom were Russians, sighed and ceased to breathe. We are impressed that there was sufficient testimony to take this question to the jury. Olivier v. Railway Co., 134 Mich. 367; Ely v. Railway, 162 Mich. 287; Lobenstein v. Iron Works, 192 Mich. 118.

We are satisfied that there was testimony taking the case to the jury and that the verdict was not against the clear weight of the evidence. Wé have examined all the errors assigned and find no reversible error.

The judgment will be affirmed.

Bird, Moore, Steere, Brooke, and Stone, JJ., concurred. Ostrander, C. J., and Kuhn, J., did not sit.


source: Caselaw Access Project

author: Bird, J. Ostrander, C. J.

license: Public Domain

text:
    HOLTON v. MONARCH MOTOR CAR CO.
    1. Contracts— Breach — Fraudulent Cancellation — Question for Jury.
    In an action for- damages for the wrongful and fraudulent cancellation of a contract of agency for the sale of automobiles, where the company reserved “the right at its election” to cancel the agreement if plaintiffs’ financial condition became such that in the opinion of the company they would be unable to perform, evidence as to defendant’s bad faith or fraud, held, to present an issue for the jury.
    2. Same — Damages—Prospective Profits.
    The fact that the actual damages suffered by plaintiffs were somewhat difficult of ascertainment does not furnish a reason for denying all recovery for prospective profits.
    3. Same — Cancellation—Good Faith — Evidence—Admissibility.
    In view of the fact that one of the grounds given for canceling the contract was defendant’s belief that plaintiffs were not strong enough financially to push the sales of cars as they should be, and as bearing upon the state of mind of defendant with respect to plaintiffs’ .financial ability to do what they promised, testimony of the father of one of the plaintiffs that he was present when the contract was made and assured defendant’s president that he would bach plaintiffs to the extent of $50,000 in the project, and that he was then able to do so, and that there had been no change in his financial condition in the ■ meantime, was admissible.
    4. Same — Evidence—Written Orders.
    Written contracts for the sale of automobiles made by plaintiffs with motor car dealers were admissible for the purpose of showing what plaintiffs had done toward a compliance with their contract.
    5. Same — Damages—Evidence.
    It not clearly appearing, however, that the vendees in said contracts were obligated to take the number of cars indicated therein, the court below was in error in refusing defendant’s request for a construction of them in this respect.
    Per Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ.

      6. Same — Cancellation of Contract — Fraud.
    Testimony that plaintiffs were as strong financially wnen the contract was canceled as they were when it was made, less the sums spent in advertising, in the absence of contradictory testimony, held, to furnish some ground for a conclusion that the reason given for canceling was not a good faith one.
    7. Same — Evidence.
    The fact that a draft drawn against plaintiffs was not promptly met would be a circumstance to be considered by the jury and to be explained.
    8. Same — Damages—Measure of Damages.
    If it be assumed that plaintiffs were entitled to recover,, under the finding of the jury, it is plain that they cannot recover, as their measure of damages, the sum laid out by them in advertising.
    9. Same.
    It being plain that the orders for cars received by plaintiffs were not binding obligations, they furnish no evidence that plaintiffs would have completed sales of so many cars; but the number of cars sold by defendant during the contract period, and the commissions thereon, less the expense of advertising and selling, held, to furnish a basis for arriving at the recoverable damages.
    Per Ostrander, C. J., and Moore, Brooke, Stone, and Kuhn, JJ.
    Error to Wayne; Mayne, J., presiding.
    Submitted January 23, 1918.
    (Docket No. 10.)
    Decided July 18, 1918.
    Assumpsit by Hoover Holton and another against the Monarch Motor Car Company for breach of a contract of agency. Judgment for plaintiffs. Defendant brings error.
    Reversed.

      Stevenson, Carpenter, Butzel & Backus (Thomas G. Long and Rockwell T. Gust, of counsel), for appellant.

      Louis H. Wolfe (Robert M. Brownson, of counsel), for appellees.
   Bird, J.

Plaintiffs entered into a written contract with defendant in June, 1914, which gave them the right to sell defendant’s motor cars in United States and Canada, for a period commencing on July 1, 1914, and ending on June 30, 1915. Plaintiffs entered at once upon the work of selling cars, establishing agencies and obtaining contracts from dealers, and at the same time expended in various forms of advertising the sum of $5,037.06. On September 16, 1914, defendant wrote plaintiffs the following letter, canceling the contract:

“In consideration of the fact that the present 4-cyl-inder model is moving so slowly that we are unable to go ahead on our new models, and it is necessary for us to move cars in order to have income for our business, and inasmuch as we feel you are not financially strong enough to push the sale of the cars as they should be pushed, we have decided to resume the selling of the cars direct.
“We, therefore, formally cancel the contract entered into between us on June 22, 1914.”

In justification of its course in this respect defendant relies on the following provision of the contract:

“Should general sales managers violate any of the covenants of this agreement, or their financial condition becomes such that in the opinion of the company they would be unable to perform the terms of this contract, the company hereby reserves the right, at its election and without making itself liable in any wise to any claim, or action of damages, or waiving or affecting any of its then existing rights against the general sales.managers, to cancel and terminate this agreement on giving the general sales managers written notice by mail of its election, in which case the rights of the general sales managers, under or in any way arising out of this agreement, shall be terminated or canceled.”

Plaintiffs then brought this suit to recover damages for a wrongful and fraudulent cancellation of the contract, and obtained a judgment in the sum of $5,-073.50. Defendant assigns several errors which it claims should reverse the judgment.

Counsel appear to agree that the contract in question comes within the class of contracts where the fancy, taste, sensibility or judgment of the promisor are involved, and that when-the right of decision is once exercised by the promisor it cannot be questioned except on the ground of bad faith or fraud. It seems also to be conceded that the only question open upon this phase of the case is whether defendant actually entertained the opinion that plaintiffs were not strong enough financially to carry out the terms of the contract. These concessions of counsel are in accord with the conclusions reached in the following cases: Wood Mowing Machine Co. v. Smith, 50 Mich. 565; Isbell v. Anderson Carriage Co., 170 Mich. 304; Schmand v. Jandorf, 175 Mich. 88; Hutton v. Sherrard, 183 Mich. 356; Garlock v. Motz Tire & Rubber Co., 192 Mich. 665.

But defendant at this point insists that there was no proof of any fraud or bad faith on its part, and, therefore, the trial court should have directed a verdict in its behalf as requested. Considerable testimony was taken bearing upon this issue. It was shown that in the opinion of Mr. Hupp, who had the management of defendant’s business, that cars were not moving on to the market as' fast- as they should; that plaintiffs were lacking in effort to find buyers, and were not spending sufficient money in advertising to make the sales a success, and that on one occasion, a draft made against a car shipped to Canada remained for several days unhonored by plaintiffs. On the other hand, plaintiffs insist that they spent upwards of $5,000 in advertising; that they established agencies and secured contracts with established agencies and succeeded in making contracts for 1,257 cars, which were approved by the defendant. That at no time did defendant express any dissatisfaction until the letter of cancellation but on several occasions Mr. Hupp expressed his •''satisfaction as to the progress of affairs. It was further shown that the father of the plaintiff Morris assured Mr. Hupp when the contract was made that he would back plaintiffs to the amount of $50,000, and it appeared that he was still willing to do so when the . contract was canceled. Upon the question of fraud and bad faith the facts of this case are not unlike those in the case of Hutton v. Sherrard, supra. We there held the facts presented an issue for the jury and we think a like holding should be made on this testimony.

Defendant’s comment on the measure of damages given to the jury is that— '

“the trial court turned the jury loose in a realm of speculation and that there was no evidence in the record to form a basis for an intelligent determination of the jury as to the measure of damages under the rule laid down by the court.”

As is frequently the case the actual damages suffered by plaintiffs were somewhat difficult of ascertainment, but this fact does not furnish a reason for denying all recovery for prospective profits, if there can be found in the testimony a reasonably certain basis for computing them. The period for which the contract should be in force was limited and definite. The number of cars which the plaintiffs agreed to purchase was definite. The profit of plaintiffs upon each class of car was definite. The amount of business done by them in- the two and one-half months which they had operated under the contract was definite and ascertainable. The number of cars sold by defendant during the balance of the contract year was shown. The number of agencies éstablished was shown. The number of cars contracted for and with whom contracted were shown. It was fuither shown that the general demand for gasoline motor cars in the country in 1914 outran the supply up to July-T. With this and other like data before the jury it was"\ proper to submit to them the question as to what, if anything, plaintiffs had lost by being deprived of the fight to complete their contract. Wakeman v. Manufacturing Co., 101 N. Y. 205. See Mueller v. Mineral Spring Co., 88 Mich. 390; Oliver v. Perkins, 92 Mich. 304; Hitchcock v. Knights of Maccabees, 100 Mich. 40.

-The difficulty of ascertaining with reasonable certainty plaintiffs’ damages under this testimony would be no greater than it frequently is in determining future damages in personal injury cases or how much an employee had been damaged by reason of being wrongfully discharged.

George Morris, father of plaintiff Morris, was permitted to testify over defendant’s objection that he was present when the contract was made and that he assured Mr. Hupp that he would back the plaintiffs to the extent of $50,000 in the project; that he was then able to do so, and that there had been no change in his financial circumstances in the meantime. This was objected to on the ground that the witness was not a party to the contract and was not legally obligated to make good any default of plaintiffs. Keeping in mind that the issue was whether defendant, as a matter of fact, entertained the opinion that plaintiffs were unable to carry out the terms of the contract, we think the testimony was competent as bearing upon the state of mind of defendant with respect to plaintiffs’ financial ability to do what they promised.

Plaintiffs offered in evidence the contracts which they had made with motor car dealers. These contracts in form are, in part, as follows:

“1. In consideration of an order for two Monarch, cars, placed by the dealer with the company at net prices or discounts hereinafter specified, or any additional specifications made and accepted hereunder, the company grants to the dealer the right to sell Monarch cars, as hereinafter provided, in the following territory, viz.: * * *
“2. The above mentioned cars, in models specified shall be delivered as nearly as possible to table, contingent on delays growing out of strikes, fires, accidents, or other causes beyond control, of company and as prior orders of other dealers and the business of the company will permit.
List Price. Models. Number SCHEDULE, of Cars. June July Aug. Sept. Oct. Nov. Dec
$1400.00 Sixes 35 1 3 3 1 1
$1000.00 Fours 50 2 3 3 2 2
$675.00 Light Monarch 100 12 6 6
List Price. Models. Number of Cars. SCHEDULE. Jan. Feb. Mar. Apr. May June
$1400.00 Sixes 35 1 1 6 6 6 6
$1000.00 Fours 50 2 2 9 9 8 8
$675.00 Light Monarch 100 3 20 20 20 10
“ (Specifications and instructions for the shipment of each monthly allotment of cars must be given company by dealer thirty days in advance. If such specifications and instructions are not in the hands of company thirty days prior to the above monthly delivery table, such failure on the part of the dealer acts as a cancellation of this entire agreement at the election of the company.)”

It not clearly appearing that the vendees in these contracts were obligated to take the number of cars indicated in the schedule defendant’s counsel undertook to show, upon cross-examination of the plaintiffs, the construction placed upon the contracts by the parties. Failing in this effort by reason of the objection of counsel, they then requested the court to construe the contracts in that respect. This the court declined to do saying that the contracts were received for the purpose of showing what plaintiffs had done toward a compliance with their own contract. They were clearly admissible for this purpose but once admitted a construction should have been placed upon them as to whether they constituted binding sales. Whether 1,257 cars had been sold on contracts which would amount to binding sales was important, not only upon the main question, but upon the question of damages. It was argued to the jury that plaintiffs had sold 1,257 cars upon contracts which had been approved by the defendant, whereas, it is insisted, the contracts upon their face do not appear, to be binding contracts to take the number of cars specified in the schedule, but simply the right to purchase a certain number of cars at certain stipulated prices. If the contracts were to be used by plaintiffs upon which to base the argument that 1,257 cars had been sold by plaintiffs, a construction of them in this respect should have been given, as requested by defendant. For the failure of the trial court in this regard the case must be reversed, and a new trial ordered, with costs to the defendant.

Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred with Bird, J.

Ostrander, C. J.

There was some testimony tending to prove that when the contract in question was made plaintiffs’ financial condition and the source from which they might and did expect assistance if any was required were disclosed to defendant’s officers. The contract provision for cancellation is, upon this subject,—

“or their financial condition become such that in the opinion of the company they would be unable to perform the terms of this contract.”

The letter of cancellation gives inore than one reason for cancellation. One is that the four-cylinder model was moving slowly, and another,

“Inasmuch as we feel that you are not financially strong enough to push the sale of the cars as they should be pushed.”

If, as the testimony tends to prove, the plaintiffs were as strong financially when this letter was written as they were when the contract was made, less, perhaps, the sums they had expended in advertising, it would seem, in the absence of contradictory testimony, that there was some ground for a conclusion that the reason given for canceling was not a good faith reason. The fact that a draft drawn against plaintiffs was not promptly met would be a circumstance, of course, to be considered by the jury and to be explained. I cannot say there was not testimony affecting the good faith of the defendant in assigning the reasons for canceling the contract. Assuming that the plaintiffs carried the burden upon this point to the satisfaction of the jury, the question of the damages sustained by plaintiffs is a difficult one. It is .plain, I think, that they cannot recover the sum laid out by them in advertising. It is equally plain that neither the order for cars given by plaintiffs and stated in the contract nor the orders secured by them were, or were considered to be, binding obligations. The form for the orders was supplied by defendant, the orders themselves approved by defendant. But they furnish.no evidence that plaintiffs would have completed sales of so many cars. The number of cars which defendant sold during the contract period would be better evidence of what plaintiffs would have done if the contract had not been canceled. Assuming that the contract was wrongfully canceled, I think defendant cannot urge, at least not without testimony to support the contention, that plaintiffs would not have sold as many cars as defendant did sell in the described territory, the prices being maintained, and there being ■ no considerable change in method of selling. Plainly, plaintiffs cannot urge that without advertising, without expense to themselves, they could have sold as many cars as defendant did sell. And if it appears that the expense of selling equalled the commissions engaged to be paid, there would be no profit to them.

I concur in reversing the judgment, but am of opinion that the recoverable damages, if there were any, must be worked out upon the lines I have indicated.

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


author: Bird, J.

text:
    BROWN v. MICHIGAN RAILWAY CO.
    1. Negugence — Highways and Streets — Impued Invitation.
    Where defendant railway company, while engaged in constructing a crossing under a highway, closed the highway and leased ground to the north to provide a passageway for travelers around the intersection, a traveler was there by implied invitation, and if defendant failed to use ordinary care to keep the way reasonably safe for travel, it must respond in damages to one injured by reason thereof without fault upon his part.
    2. Same — Cpntributory Negugence — Question eor Jury.
    Evidence as to defendant’s negligence and plaintiff’s contributory negligence, held, to present questions for the jury.
    3. Same — Licensee—Invitee—Question oe Law.
    There being no conflict in the testimony, it was a question of law for the determination of the court whether plaintiff was a licensee or an invitee.
    Error to Kent; Perkins, J.
    Submitted January 31, 1918.
    (Docket No. 112.)
    Decided July 18, 1918.

      Case by Edward Brown against the Michigan Railway Company and another for personal injuries. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Reversed.

      Nichols & Shaw (James K. Nichols, of counsel), for appellant.

      Bernard J. Onen (Charles E. Ward, of counsel), for appellees.
   Bird, J.

In the year 1913, plaintiff was a farmer and resided on his farm in Gaines township, Kent county. He was also the owner of another farm in Byron township, which he operated. He traveled from one to the other with his teams and tools over an east and west highway extending through said townships. Early in the spring of 1913 defendants reached this highway in the construction of their interurban railway. The plan of crossing the highway was at right angles and a separation of grades, the highway passing over the railway. Soon after commencing the work the highway became impassable to travelers and as a consequence they veered to the south and went around the construction work. The owner of the land on the south side put an end to this by putting up his fences. Then travelers began to pass around to the north, and later defendants leased ten acres lying immediately north of the intersection to provide a passageway for them around the intersection. On the evening of August 21st plaintiff was returning from the Byron farm to his home with two teams and a lumber wagon. While driving around the construction work and over the leased land in the traveled track the wagon was driven into a deep hole from 18 to 24 inches deep, situate in or near the traveled way. The jolt occasioned thereby threw plaintiff off the wagon and severely injured him.

At the conclusion of plaintiff’s proofs defendants requested a directed verdict alleging several grounds therefor. This request was granted and placed upon the ground that plaintiff was a licensee and, therefore, took the temporary road as he found it. Plaintiff complains of this instruction and insists that he was an invitee and not a licensee, and by reason thereof it was the duty of defendants to see- that the temporary way over which he was invited to pass was in a reasonably safe condition for public travel.

There appears to be no disagreement between counsel as to the measure of liability of defendants in case plaintiff should be adjudged either a licensee or invitee, but their disagreement arises over the question whether the evidence made him a licensee or invitee, while using the temporary way. It is perhaps true that no express invitation was given plaintiff to use the temporary way, but we think the facts of the case show that an implied invitation was extended to him. The obstruction of the highway at the intersection, coupled with a temporary way around it, would suggest to the average traveler an invitation to use it. Add to this the fact that defendants leased the land for this very purpose, and that it was to their advantage for travelers to use it rather than to insist on their right to proceed on the highway, it shows an implied invitation to use the temporary way. In other words, it is a fair inference from the testimony that defendants desired to obstruct the highway at the intersection for their own convenience; they leased land adjoining the obstruction and furnished the public a temporary way around it in consideration of the public waiving its right to travel upon the highway while the work was progressing. Under these circumstances plaintiff was on their premises by implied invitation and if they failed to use ordinary care to keep the way reasonably safe for travel, and by reason thereof plaintiff was injured, without fault upon his part, they must respond in damages for such default. Stewart v. Railway Co., 89 Mich. 815. In this case it is said:

“It is true, as contended, that the owner of premises is under no legal duty to keep them in good repair for the accommodation of persons who go upon them for their own convenience merely. Where a person has .a license to go upon the grounds or the inclosure of another, he takes the premises as he finds them, and accepts whatever perils he incurs in the use of such license. ' But when the owner or occupant, by enticement, allurement, or inducement, whether express or implied, causes another to come upon* his lands, he then assumes the obligation of providing for the safety and protection of the person so- coming, and for any breach of duty in that respect such owner or occupant becomes liable for any injury which may result to the person so caused to come onto his lands. The enticement, allurement, or inducement, as the case may be, must be the equivalent of an express or implied invitation. Mere acquiescence in the use of one’s lands by another is not sufficient. Such an implied invitation may be inferred from some act or line of conduct or from some designation or dedication.”

But it is argued that defendants were under no legal duty to provide a temporary way, that it was a mere gratuity and, therefore, they are not liable. Conceding, for the sake of argument, that defendants were under no legal obligation to furnish a temporary way, the fact remains that they did furnish one and impliedly invited the public to use it and in so doing they assumed the duty to use ordinary care to keep it reasonably safe for public travel. Stewart v. Railway Co., supra; Retan v. Railway Co., 94 Mich. 146.

Another ground advanced by defendants for a directed verdict was that the testimony showed that plaintiff was guilty of contributory negligence. This argument is based largely upon the fact that plaintiff was familiar with the surroundings, having been back and forth between his farms frequently while the work was in progress. It appears from his testimony that he did not see the hole before driving into it, that he had never seen it, and it does not appear that it was so obvious that his failure to see it was negligence. As the record stood at the close of plaintiff’s proofs this question was one for the jury, as well as the question of the defendants’ negligence. The trial court was right in determining as a matter of law the question whether plaintiff was a licensee or an invitee, as the testimony concerning it was not in dispute.

The judgment is reversed and a new trial ordered with costs of both courts to plaintiff.

Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred. Ostrander, C. J., and Kuhn, J., did not sit.


text:
    Lau v. McKechnie.
    Specific Performance — Options—Condition Precedent — Tender.
    Where an option to purchase property at a specified price during the term of a lease was included in the lease, a tender or payment of the purchase price during the life of the lease is a condition precedent to the right to maintain a suit for specific performance.
    Appeal from Wayne; Hart, J., presiding.
    Submitted January 22, 1918.
    (Docket No. 156.)
    Decided July 18, 1918.
    Bill by Oliver H. Lau against Mary P. McKechnie for the specific performance of a land contract. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Harry M. Lau and George W. Eyster, for plaintiff.

      James R. Neill, for defendant.
   Bird, J.

Defendant being the owner of No. 50 Melbourne avenue, in the city of Detroit, leased the same on September 30,1915, to plaintiff for one year at $60 a month. In the lease the following option to purchase the premises was inserted:

“The second party is given the option to at any time purchase, during the term of this lease, the herein described premises for the sum of eight thousand ($8,000) dollars.”

On September 25, 1916, nearly a year afterward, plaintiff had some talk with defendant at her apartment concerning the purchase of the premises, in which he offered to pay her $100 a month on the purchase price. She declined this suggestion as well as his later suggestion that she accept in payment certain bonds which he owned. He went away and on the same day wrote her the following letter, but did not mail it until September 27th:

“Under the terms of the lease under date of September 30, 1915, between yourself and myself for the premises known as No. 50 Melbourne avenue, Detroit, Michigan, I am given the option to purchase said premises on or before September 30, 1916. Exercising my option, this is to advise you that I am ready to purchase the property, according to the terms of said lease. Kindly have the necessary papers ready for delivery at your earliest convenience and advise me.”

To this letter defendant made no reply. On September 30th plaintiff wrote her another letter, which reads:

“I am herewith enclosing check ($100) to apply on the purchase price of the house and lot known as 50 Melbourne avenue, Detroit, Michigan, along the lines talked early in the week.”

On' October 2d the defendant, through her attorney, returned the check to plaintiff, at the same time advising him that the defendant did not care to sell the property. Defendant soon thereafter commenced proceedings to eject plaintiff, whereupon he filed the bill in this cause praying for a specific performance of his contract.

When the proofs were all before the chancellor he was not persuaded that plaintiff was entitled to a specific performance of the contract and accordingly denied him relief.

Among the grounds, assigned by him for his conclusion was the following:

‘T find equity would demand .a tender of the money, by plaintiff, and demand of a deed, before bringing this action, or at least an assurance that the money was deposited or arranged for, before defendant would have to proceed.”

Whether it was necessary for plaintiff to purchase or tender the purchase price within the life of the option in order to entitle him to the relief of specific performance is the important question in the case. There is much law on the question and one upon which' an apparent disagreement exists among the courts. A close analysis of the great variety of circumstances under which the cases have arisen might and doubtless would dispel much of the apparent discrepancy. This much is certain, however, if time was of the essence of the contract and the tender of the purchase price within the life of the option was a condition precedent to entitle plaintiff to maintain a suit for specific performance, the chancellor’s conclusion is the correct one. In Breen v. Mayne, 141 Iowa, 399, 403, in considering a rule to be applied to such cases, suggests the following:

“The only fixed rule regarding the manner of the exercise of an option under a contract granting it, is to discover from the language of the instrument, construed in the light of competent parol testimony, the intent of the parties with reference thereto. It may •be that under the terms of a given option the only proper and binding method of election or acceptance is by the payment or a ténder of the purchase price. On the other hand, there are many cases where the option may be exercised in parol or by any other method indicating an election to take the land — the payment of the purchase price and the making of the deed being subsequent matters in performance of a binding contract. In the one case, there is an election to sell, upon payment of the purchase price, which is a condition precedent to the foundation of the contract ; and in the other there is an election to take the land upon the terms proposed, payment of the purchase price being a condition subsequent, or rather the performance of an' executory contract theretofore entered into.”

In Stembridge v. Stembridge, 87 Ky. 91, a case much like the present one on the facts, where a wife agreed with the husband to convey to him a certain interest in a tract of land covered by a mortgage, if the latter would pay a certain amount on the mortgage' ' debt when due, the court said:

“In cases of executory sales of land, that is, where the purchaser by terms of the contract receives a present interest in the land, courts of equity will not ordinarily regard time as of the essence of the contract ; they will not divest the party of his title on the mere ground that he has not kept his contract to the day; but where, as in this case, the contract invests the one party with no title whatever, imposes no obligation upon him, leaves it optional with him to do a certain thing at a specified time, in such a case, time, in the broadest sense of the rule, is of the essence of the contract, and the failure of such party to comply ‘with its terms deprives him of the right to demand the enforcement of the contract.”

The ease of Kerr v. Purdy, 51 N. Y. 629, an option was included in a lease as here, the option being in substance: That George W. Purdy leased to George A. Kerr certain premises for a term of five years, the lease containing a clause giving the lessee the privilege of purchasing at any time within the first three years by paying all arrears of rent and $10,000. It appeared upon the trial that plaintiff was in arrears for rent, and did not make a tender, but did make arrangements to procure the money and before the expiration of the three years notified defendants that he intended to purchase their respective shares and requested deeds of the same. Specific performance of this contract was denied, it being held:

“That the right to purchase was dependent upon the action of Kerr within the three years; that the lapse of that time without a compliance with the condition terminated the privilege.”

The eases in which options have been included in leases have generally held that where, by terms of the option, the purchase price or part thereof was to be paid within a certain time, a tender or payment thereof is a condition precedent to the right to maintain a suit for specific performance. Some of the cases are Heine v. Treadwell, 72 Cal. 217; Herman v. Winter, 20 S. D. 196; Steele v. Bond, 32 Minn. 14; Codding v. Wamsley, 4 Thomp. & C. 49; Lord Ranelagh v. Melton, 2 Drew. & S. 278; Weston v. Collins, 34 L. J. Ch. (N. S.) 353. See, also, Lockman v. Anderson, 116 Iowa, 236; Rude v. Levy, 43 Colo. 482; Weaver v. Burr, 31 W. Va. 736, and valuable note, 24 L. R. A. (N. S.) 91.

By the terms of the option plaintiff was given the privilege of purchasing the premises for a stated sum within a stated time. The language of the option contemplates a cash payment within the life of the lease. The mere announcement by plaintiff within the time that he was ready to purchase the property is not enough. He was not given the privilege of purchasing the property if he signified his acceptance of the offer before the expiration of the lease but was given the privilege of purchasing it. He must be something more than ready to purchase, he must actually purchase it before the lease expires, by paying or tendering the consideration. For his failure to do so he must be denied relief. We think the case is ruled by those which hold that time is of the essence of the option and that payment or tender of payment is a condition precedent to maintaining suit for specific performance.

The decree is affirmed, with costs to the defendant.

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


text:
    KERT v. ENDELMAN.
    1. Replevin — Principal and Agent — Title to Personalty — Directed Verdict.
    In an action of replevin for hay, -where the testimony showed conclusively that it was purchased hy defendant as agent of plaintiff, the court below properly directed a verdict in favor of plaintiff.
    2. Same — Identity—Advancements.
    Even if certain of the hay was purchased by defendant with his own money, there was no basis for the jury to determine what particular hay belonged to him, where it appeared from his own testimony that it had been so intermingled that it could not be identified.

      3. Same — Liens—Claim of Ownership — Advancements — Inconsistent Claims.
    A claim of ownership of the hay by defendant was inconsistent with a claimed lien for money advancements.
    4. Same — Waiver.
    A lien which could only be claimed on the particular hay which defendant advanced the money to purchase, was waived by its delivery to plaintiff by defendant.
    Error to Chippewa; Fead, J.
    Submitted January 24, 1918.
    (Docket No. 8.)
    Decided July 18, 1918.
    Replevin by Charles Kert against Harry H. Endelman for the posséssion of certain hay. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      Larmonth & Goetz, for appellant.

      Warner & Sullivan, for appellee.
   Bird, J.

In 1915 plaintiff was a hay buyer in Ottawa, Canada. Defendant resided in Montreal and bought raw furs in and around Sault Ste. Marie. Having had a previous acquaintance of several years the parties met in Ottawa in 1915 and made the following written agreement:

“The party of the first part agrees to pay to the party of the second part the sum of fifty (50) cents per ton on all hay bought by the party of the first part in Chippewa county, Michigan, through the party of the second part. The party of'the fiyst part also agrees to pay to the party of the second part one ($1.00) dollar per ton on all hay bought at seventeen ($17) dollars per ton F. O. B. Montreal, according to the party of the first part’s inspection.”

After its execution both parties came to the Soo to investigate the condition of the hay market. Plaintiff remained a few days and then returned to Ottawa, and defendant, assisted by one Crawford, began buying hay for plaintiff under the agreement. Plaintiff furnished defendant with a formal contract, naming himself as purchaser, to be used in making contracts with the farmers. These were soon abandoned as the farmers objected to making written contracts, and thereafter defendant purchased the hay in his own name. From the commencement of operations to May 5, 1916, plaintiff advanced defendant $25,557 on account of hay. Up to this date defendant claims he had furnished plaintiff hay to the amount, including storage and commission charges, of $26,474, leaving a balance due him of nearly $1,000. About this time some friction arose between them with reference to the claimed balance. Defendant claims that he urged plaintiff to pay the advancements made by him and also to pay the balance due the farmers for hay purchased but not paid for. Plaintiff denied the correctness of these balances. He therefore came to the “Soo” and undertook to ship out 175 tons which were in storage and defendant declined to permit him. This suit in replevin followed and the hay was taken under the writ. Defendant then claimed in his pleadings and in his testimony that the hay, or some part of it, belonged to him. Upon the proofs being closed, plaintiff requested a directed verdict. This request was granted, the court directing a verdict for the hay seized under the writ and six cents damages.

Counsel insists that this action upon the part of the trial court was error because the question whether defendant owned the hay was a question for the jury. Some claim also appears to be made that the question whether defendant had a lien on the hay was one for the jury.

The trial court refused to submit the question of defendant’s ownership of the hay because the testimony showed conclusively that defendant purchased the hay in question the same as he did all the other hay. It was the view of the trial court that defendant was the agent of plaintiff, authorized to purchase hay* and that by reason of that relation he could not pur-< chase and get title to hay which he was under obliga-i tion to purchase for his principal. Citing 2 C. J. p. 705; Pikes Peak Co. v. Pfuntner, 158 Mich. 416.

It was further the view of the court that if defend-, ant were the owner of certain of the hay by reason, of being purchased in his own name and with his own money, there was no basis for the jury to determine what particular hay belonged to him because from his own testimony it appeared that'it had been so intermingled with plaintiff’s hay that it could not be identified. These reasons appear to answer conclusively defendant’s assignment of error in regard to the ownership of the hay.

We are unable to find anything in the record showing the defendant claimed a lien on the hay for money advancements. He gave notice under the general issue that he would claim that he was the owner of the hay and he made this claim upon the trial. It is quite likely that if his version were true he might have claimed a lien for advancements, but this claim is inconsistent with his other claim of ownership. Another difficulty which presents itself is that if the facts were such that he could have claimed a lien he could have done so on no other hay than the particular hay which he advanced the money to purchase. Much of this had already been delivered to plaintiff by the defendant himself and as to this part the lien would have been waived. DeWitt v. Prescott, 51 Mich. 304. Had the court instructed the jury that defendant was entitled to a lien on hay which he advanced money to pay for they would have been without data to determine what hay he was entitled to the possession of because defendant himself was unable to point to any particular bale of hay and say he purchased that bale with his own money. Some discussion was had in the briefs as to the state of the accounts between the parties. We think that is a matter to be disposed of in some other appropriate proceeding. The trial court was right in holding there was no question of fact for the jury.

The judgment is affirmed.

Ostrander, C. J., and Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred. Kuhn, J., did not sit.


text:
    HANLEY v. GOWAN.
    1. Intoxicating Liquors — Illegal Transfer of License — Bills and Notes — Evidence—Non Obstante Veredicto.
    In an action on a promissory note given as part of the purchase price of a hotel lease and furnishings, where the claim that the contract was illegal because it undertook to transfer a liquor license from plaintiff to defendants in violation of statute was not apparent on the face of the contract and was not established by the testimony, and was the sole ground of complaint in the appellate court, the action of the court below in directing a verdict for plaintiff non obstante will be affirmed.
    2. Same.
    The Supreme Court will not assume that defendants were guilty of a misdemeanor in' conducting a saloon without a license, notwithstanding their claim of an illegal contract to transfer a liquor license to them, where their claim was not established on the trial.
    3. Pleading — Contracts—Illegality—Special Defenses — Intoxicating Liquors.
    Where defendants failed to plead specially the illegality of the contract sued upon, that defense was not available, under Circuit Court Rule No. 23, subds. 2, 3.

      Error to Chippewa; Fead, J.
    Submitted January 15, 1918.
    (Docket No. 78.)
    Decided July 18, 1918.
    Assumpsit in justice’s court by William J. Hanley against William E. Gowan and another on a promissory note. There was judgment for plaintiff, and defendants appealed to the circuit court. Judgment for plaintiff non obstante veredicto. Defendants bring error.
    Affirmed.

      McDonald & Kaltz, for appellants.

      Warner & Sullivan, for appellee.
   Bird, J.

Plaintiff brought suit against defendants to recover on a promissory nóte of $100. The note appears to have been one of several notes given by defendants to plaintiff in compliance with the following written, agreement executed by them:

“This agreement, made and entered into this 17th day of May, A. D. 1915, by and between William J. Hanley of Sault Ste. Marie, Michigan, party of the first part, and Louis Packalona and William Gowan, of the same place, parties of the second part;
“Witnesseth: The party of the first part being the owner of a lease of the premises in said city known as the Sherman House, a hotel, and for and in consideration of the sum of $4,000 hereby agrees to sell, and does hereby sell, assign, transfer and set over to the parties of the second part all his right, title and interest therein under said lease, and such personal property and furnishings therein belonging to said first party and used in the conduct of said hotel building, excepting as hereinafter stated.
“First: For such interest in such hotel as aforementioned the parties of the second part agree to pay the party of the first part as follows: $2,000.00 upon .the execution of this agreement; $1,000.00 in thirty days from date, secured by good bankable paper, the balance in payments of $100.00 each on the 30th of each and every month from and after May 30, 1915, according to the terms of good and sufficient promissory notes in like installments.
“Second-: The party of the first part, being the owner of the retail liquor license and bar in said hotel and the wines, liquors, beers and cigars therein, hereby agrees to hire said second parties to run and manage for him said bar and conduct the same for and in his behalf, and to allow said second parties to retain and keep such portion of the profits thereof as they may hereafter agree upon, settlement to be made on or before May 1, 1916.
“Third: The parties of the second part shall pay from the receipts of the bar all bills for merchandise purchased from and after this date, but all liquors, wines, beers and cigars and other goods and necessaries for said bar shall be purchased by said second parties for said first party and in his name.
“Fourth: The party of the first part shall not interfere with the management of said bar or retail liquor business by said second parties so long as said second parties shall run the same according to law and m accordance with the terms of this agreement.
“Fifth: The parties of.the second part shall pay the rental called for by the lease of said premises between the said William J. Hanley, lessee, and J. Fennessy, lessor, to the said party of the first part, and shall also perform the terms and conditions of said lease relative to the care of the personal property now in said hotel belonging to J. Fennessy, it being understood and agreed that the terms and conditions of the Hanley lease as to payment of rent and care of property shall be binding upon the parties to this agreement.
“Sixth: This agreement shall cease and be of no further effect from and after May 1, 1916.
“W. J. Hanley,
“Louis Packalona,
“W. E. Gowan.”

Defendants pleaded the general issue and gave notice that the consideration of said note failed because they were not permitted to continue as managers of the saloon after November 8, 1915. On the trial defendants made the further claim that the contract was illegal because it undertook to transfer the liquor license from plaintiff to defendants in violation of the statute. This is the sole ground of complaint in this court. The trial court submitted the case to the jury, leaving to them the one question, whether it was the intention of the parties to include in the contract a sale of the liquor license. The jury found for the defendants. Subsequently, upon motion, the trial court set aside the verdict of the jury and rendered a judgment for plaintiff for the amount of the note, on the ground that neither the contract upon its face nor the proofs showed the contract to be an illegal one.

We think the court was right in holding that the contract on its face was not an illegal contract and we find nothing in the testimony which establishes its illegality. The contract does not attempt to convey the license and no one connected with the matter testifies that it was intended to be included. Both defendants were sworn but neither one so testified. Defendant Packalona’s testimony tends to refute this claim. The part referred to is as follows:

“Q. You and Mr. Gowan were partners in this transaction, were you not?
“A. No, sir; we were just managers for Mr. Hanley.
“Q. I am not talking about the relation between Mr. Hanley and yourself, I am talking about the relation between you and Mr. Gowan. You and Mr. Gowan went into the deal to share and share alike in the profits, if there were any?
“A. As managers for Mr. Hanley, yes, sir.
“Q. So, as between you, you were partners?
“A. No, sir.
“Q. What were you?
“A. We were just managers for Mr. Hanley.”

While counsel are inclined to concede the contract is a lawful one upon its face, they argue that the value of the lease and personal property is so out of proportion to the consideration named that the license must necessarily have been included. In this contention counsel may be right but if they are they have not established the fact. The terms of the contract do not show it.. The testimony fails to show it, and defendant Packalona, who should know what the fact is, says, that he and Mr. Gowan were just managers of the saloon for plaintiff. To hold, in the face of this showing, that a sale was made of the license would be doing violence not only to the language of the contract but to the testimony of defendant Packalona, and in addition we would be obliged to assume that defendants were guilty of a misdemeanor in conducting a place on their own account where intoxicating liquors were sold without a license. This should not be done on the showing made.

Another reason appears why the judgment should be affirmed. Objection was made by plaintiff’s counsel to defendants’ attempt to show the illegality of the contract for the reason that no notice was given of its illegality under the general issue. Notice was given of a failure of consideration because plaintiff breached the contract, but no hint was given in the notice that a claim of illegality would be made upon the trial. This defense could not be made without notice. Circuit Court Rule No. 7, subds. b and c. (Present Rule No. 23.) Walbridge v. Tuller, 125 Mich. 218; Bryant v. Kenyon, 123 Mich. 151; Crowley Bros. v. Railway Co., 185 Mich. 482; Board of Sup’rs of Chippewa Co. v. Bennett, 185 Mich. 544.

If it can be said that the testimony tended to show a sale of the license and therefore an illegal agreement it was not admissible for this purpose as the pleadings then stood.

We think the case was rightly disposed of by the trial court and the judgment will be affirmed, with costs to the plaintiff.

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


author: Kuhn, J. Stone, J.

text:
    HARMON v. MICHIGAN UNITED TRACTION CO.
    1. Carriers — Negligence — Delivery — Reasonable Time — Okal Testimony — Yariance.
    In an action against a railroad company for failure to transport an electric score board from Kalamazoo to Detroit with reasonable dispatch, where -the bill of lading was silent as to the time of delivery, a conversation between the shipper and defendant’s agent, in which the latter agreed to deliver the board the following morning was admissible as bearing on defendant’s understanding of what was a reasonable time; and was not objectionable as varying the terms of the bill of lading.

    2. Pleading — Variance—Contracts—Performance.
    It is not bad pleading to aver a time for performance where none is named in the contract.
    Kuhn and Brooke, JJ., dissenting.
    Error to Kalamazoo, Weimer, J.
    Submitted April 24, 1918.
    (Docket No. 108.)
    Decided July 18, 1918.
    Case by Anna Harmon and another against the Michigan United Traction Company for failure to deliver certain freight. Judgment- for defendant non obstante veredicto. Plaintiffs bring error.
    Reversed.

      Jackson & Fitzgerald, for appellants.

      Sanford W. Ladd (Warren, Cady, Ladd & Hill, of counsel), for appellee.

      See notes in 14 L. R. A. 216; 10 L. R. A. (N. S.) 432; 34 L. R. A. (N. S.) 637.

   Kuhn, J.

(dissenting). This is an action instituted by the plaintiffs as copartners doing business as Harmon & Brennan, but upon the trial of the case, on motion of plaintiffs’ attorneys, the allegation as to their being copartners was stricken from the declaration, so that the action proceeded with the plaintiffs as individuals against the defendant company.

George P. Harmon, acting as agent for the plaintiffs, went to the city of Kalamazoo on the 17th of September, 1915, and purchased an electric score board, to be used for the purpose of reproducing a game of ball which might be played at some distant city, play by play, showing every move made on the ball ground by having the same reproduced on this score board. It was a second-hand board, and after having purchased the same, Harmon took it to the defendant company’s freight office in the city of Kalamazoo and arranged to have it shipped to the city of Detroit. It is his claim that he talked with the defendant’s agent and was assured that the board, if shipped on that day, would be delivered in Detroit the next morning at 7 o’clock or thereabouts, and that he informed the agent at that time that he had leased a building in Detroit and wire service and also that he had heavily advertised the exhibition which he was to give, and that it was very important that the board should reach there on the morning of the 18th, and that if he could not be assured that the board would reach there at that time, he would ship it in some other manner. That' upon receiving assurance that the shipment would arrive in Detroit at the promised time, he left the board with the defendant, consigned to Harmon & Brennan in Detroit, and received the usual bill of lading, which he signed, and which was also signed by the representative of the defendant. That a triplicate thereof was executed and delivered to him, representing the shippers, at the time of the shipment. It further appears that after the score board was received by the defendant, defendant’s employees attempted to put it into the trailer car, which car usually went through to Detroit over the lines of the defendant company to Jackson and from there over the lines of the Detroit United Railway to its destination. It was found, however, that the score board was too large in size to put into the trailer car and it was put into the motor car, which did not go through to Detroit, but stopped at Jackson. Upon the arrival of this car at Jackson, the board was taken from the car and there was turned over to the Detroit United Railway, but on account of its size it was found impossible to place it in any car that the Detroit United Railway had in Jackson. It remained in Jackson all night, and on the following morning, upon instructions being received from the Detroit office of the Detroit United Railway, the score board was shipped from Jackson to Detroit by the American Express Company, leaving Jackson at about 10 o’clock in the morning of the 18th and due to arrive in Detroit about noon of that day. Mr. George Harmon, who had taken a train into Detroit the evening before, called at the office of the Detroit United Railway on the morning of the 18th, but the board not being there, he was informed by the agent of the Detroit United Railway that the board was at Jackson and would be sent at once by the American Express Company. Through some misunderstanding, however, he did not receive the board in time for the exhibition and in consequence claims to have suffered damages, for which this action was brought. The case was submitted to the jury and resulted in a verdict for the plaintiff in the sum of $1,677. After the trial, counsel for defendant renewed a motion which they had made for direction of a verdict, the final decision of which the court had held in abeyance, and at the same time also argued a motion for a new trial, the motion for new trial being made conditional in case the court did not grant the motion to enter a verdict for the defendant. The court set aside the verdict and entered a judgment for the defendant. Whether the court erred in doing this is the principal question now before us for consideration.

The declaration upon which this action is brought alleges the following:

“And being so desirous they entered into a specific contract with the said Michigan United Traction Company, defendant herein, through its agents and representatives, to receive the said score board, supplies and appurtenances aforesaid properly crated and boxed, in the city of Kalamazoo, Michigan, on, to wit, the 17th day of September, 1915, and to deliver the same to the order of the plaintiffs herein in the city of Detroit not later than the morning of the said 18th day of September, for a consideration to be paid to said defendant. * * *
“And relying upon the said promises and agreements of the said defendant to so transport the same to the said city of Detroit and have the same there on the morning of the said 18th day of September. * * *
“Plaintiffs further allege that relying upon its contract with the said defendant, * * *”

The trial judge, in the opinion filed in deciding the motion to direct a verdict, said:

“It appears that the bill of lading was signed by the witness, George Harmon, on behalf of the plaintiffs and the proper agents of the defendant company in its behalf. * * *
“He was allowed to testify over the objection of the defendant to an alleged conversation with the agents of the defendant prior to, and coincident with the delivery of the board for shipment and the signing of the bill of lading by defendant’s agent and himself as the agent of the plaintiffs, to the effect that the defendant’s agent absolutely guaranteed delivery of the board at Detroit at seven o’clock a. m. September 18th. * * *
“It is very apparent that the declaration was framed upon the theory of a specific, oral contract and that the bill of lading was then considered merely a receipt for the property. It is equally apparent that that position was untenable under the proofs which showed conclusively that the bill of lading constituted the contract between the parties.”

It. is the contention of counsel for plaintiffs and appellants that the case was tried and submitted to the jury upon the theory that the score board was not delivered in Detroit by the defendant within a reasonable time under the provisions of the bill of lading. Section 3 of the provisions printed on the back of the bill of lading provided in part as follows:

“No carrier is bound to transport said property by any particular train or vessel, or in time for any particular market or otherwise than with reasonable dispatch, unless by specific agreement indorsed hereon.”

The trial judge did submit to the jury the question of whether or not the carrier had transported the property in question with reasonable dispatch, in accordance with the terms of the bill of lading. It is contended that the conversation had between Harmon and the agent of the defendant company was admissible as bearing upon the question of what constituted reasonable dispatch under all the circumstances surrounding the transaction. In denying the motion for a new trial, the trial judge was of the opinion that the admission of this testimony was error and prejudicial, and with this we agree. It is clearly apparent from a reading of the declaration that the theory upon which this case was started is, as was indicated by the trial judge in his opinion passing on the question of directing a verdict, that a specific oral contract was entered into between the parties upon the 17th of September, providing that the goods should be delivered at destination on the 18th following, and it was not until the case came to trial that a different theory was insisted upon. The rule is well settled that parol evidence is not admissible to vary the terms of a bill of lading, and the conversation testified to by Harmon, if admitted, would be clearly an effort to establish a special agreement as to delivery of the property in addition to the agreement contained in the bill of lading. The rule is stated in 4 Ruling Case Law, p. 22, as follows:

“Where no time of performance is expressed in a bill of lading, the instrument is not on that account to be regarded as incomplete, so as to admit proof of a distinct and separate agreement as to time. In such case the parties are presumed to have intended that the carriers’ obligation as to the time of performance. shall not extend beyond that imposed on it in law in all undertakings for the transportation and delivery of goods, which requires no more than that the same be done without unreasonable delay. This implied agreement is as much a part of a bill of lading silent as to the time of performance, as if expressed in it in so many words; and the rule which forbids the introduction of parol proof to vary the terms of a written instrument excludes evidence of a prior or contemporaneous parol agreement that. the goods shall be delivered within a definite and specific time.”

See Central Railroad Co. v. Hasselkus, 91 Ga. 382; McElveen v. Railway Co., 109 Ga. 249. This rule has been approved in this State in Sloman v. National Express Co., 134 Mich. 16, which case is cited with approval in Sturges v. Railway Co., 166 Mich. 231. In a case properly brought the question of whether or not under the terms of the bill of lading the property had been transported with reasonable dispatch would unquestionably be a question of fact for the jury under all the circumstances of the case. See 10 Corpus Juris, p. 286. In the instant case, however, we agree with the trial judge, because under the declaration as filed and the proofs as submitted, plaintiffs sought to enforce a special contract of carriage outside of the bill of lading, which, under the authorities, we are of' the opinion cannot be done. Having accepted the bill of lading, the plaintiffs are bound by the terms thereof and cannot seek to vary its terms as to carriage unless the special agreement is indorsed thereon in accordance with the specific terms of the contract. Upon the case before us we think that the judge was clearly right in directing a judgment to be entered in favor of the defendant non obstante veredicto.

The judgment should therefore be affirmed.

Brooke, J., concurred with Kuhn, J.

Stone, J.

The conversation complained of was competent as bearing on defendant’s understanding of what was a reasonable time; and was not objectionable as varying the terms of the bill of lading. There was no variance between pleadings and proofs, it not being bad pleading to aver a time for performance where none is named in contract. The judgment should be reversed, and a new trial granted, with costs to appellants.

Ostrander, C. J., and Moore, Steere, and Fellows, JJ., concurred with Stone, J. Bird, J., did not sit.


author: Kuhn, J.

text:
    CASCARELLI v. NEW YORK CENTRAL RAILROAD CO.
    Appeal and Erbob— Amendments — Exceptions — Findinqs of Fact and Law — Couet Rotes.
    Where no request was made for amendments to the findings of the trial judge, and no exceptions were made, taken, or filed to the findings and the judgment filed by the court, in compliance with Circuit Court Rule No. 26, defendant and appellant is not properly before the appellate court, and the judgment of the court below is affirmed.
    Error to Hillsdale; Chester, J.
    Submitted April 19, 1918.
    (Docket No. 96.)
    Decided July 18, 1918.

      Case by Peter Cascarelli against the New York Central Railroad Company for damages to bananas in transit. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Herbert R. Clark, for appellant.

      Paul W. Chase and Merton Fitzpatrick, for appellee.
   Kuhn, J.

In this case plaintiff seeks recovery for damages to a shipment of bananas, which it is claimed resulted from the failure of the defendant carrier to promptly notify the plaintiff, the consignee, that the car of bananas had arrived and had been placed on the team track for unloading, so that the plaintiff might have unloaded the car on the night of its arrival instead of the following morning. The case was tried by the circuit judge without a jury and resulted in a judgment being rendered in plaintiff’s favor for $384.68. It is now brought here by writ of error issued prior to the taking effect of Act No. 172 of the Public Acts of 1917.

The findings of the trial judge were filed on February 21, 1917, and judgment was thereon rendered. No requests for amendments to these findings were apparently made or filed by either party, and no exceptions were made, taken or filed to the findings and the judgment filed by the court. On March 7, 1917, the defendant filed a motion for a new trial on the ground that the verdict was not supported by the evidence, was against the weight of the evidence, and was excessive. An order was. entered denying this motion, the concluding paragraph of which stated: “Defendant is herein given exceptions to this ruling, and also to findings of fact.” The record then states:

“Defendant in due time filed exceptions in writing to the order of the court overruling its motion for a new trial and to its reasons therefor.”

The defendant’s counsel urges 13 assignments of error, which relate to claimed errors in the findings of the court, the admission of testimony, the amount of the judgment, and to the refusal to grant the motion for a new trial. No attempt was made to comply with the provisions of Rule No. 45 of the circuit court rules, sections 2, 3 and 4 of which provide as follows:

“Sec. 2. If either party considers the finding not sufficiently full or definite on facts or law, or both, he shall, within ten days after judgment (or such other time as may be granted by the court), propose such amendments to the finding as he may see fit, and serve copies thereof on the adverse party; and such finding shall be settled by the judge who tried the cause, at such time as may be fixed by him for that purpose. The same practice shall prevail in case any party is aggrieved by the refusal or omission to perfect such finding as prevails in cases of exceptions.
“Sec. 3. Within four days after the filing of such completed finding (or such other times as may be allowed by the court), any party aggrieved may briefly, in writing, allege exceptions to the matters of law embodied in such finding, and such exceptions shall be thereafter put in form and settled in the same bill, which may contain the exceptions taken during the trial, and in the same manner with bills of exceptions in other cases.
“Sec. 4. Subject to the statutes, the finding of the facts by the court shall be treated in all respects as a special verdict, and error may be alleged that the same does not support the judgment, as on a special verdict; but no ruling of law embodied in such finding can be reviewed except on exceptions, or on a case made as provided by statute.”

The failure to comply with these provisions of the rule (being then known as Circuit Court Rule No. 26) had the consideration of this court in Walker v. Village of Brooklyn, 184 Mich. 520, and it was there held,—

“The assignments of error based upon exceptions taken, to the denial of a motion for a new trial cannot be considered where, as in the case at bar, there has been an absolute failure to comply with the rules of the court.”

See, also, Federal Audit Co. v. Sawyer, 196 Mich. 566.

Such is the situation here, and the defendant not being properly before the court, the judgment must be, and is, hereby affirmed.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred.


author: Ostrander, C. J.

text:
    LASHBROOK v. FERGUSON.
    Cancellation oe Instruments — Mortgages—Consideration—Accounting.
    On a bill for the cancellation of a mortgage alleged to have been executed by plaintiff without consideration and merely for the protection of members of his family, and to be held in trust by defendant, but which the latter alleged was given for the purpose of securing an indebtedness previously owing to him, both contentions being supported by evidence, in order that the differences may be settled in this proceeding, the record will be remanded with permission to either party within 60 days by amendment to ask for an accounting, otherwise the decree for plaintiff to be affirmed.
    Appeal from St. Clair; Law, J.
    Submitted April 11, 1918.
    (Docket No. 66.)
    Decided July 18, 1918.
    Bill by William I. Lashbrook and others against Charles R. Ferguson for the discharge of a mortgage. From a decree for plaintiffs, defendant appeals.
    Reversed, and remanded for an accounting.

      John B. McIlwain, for plaintiffs.

      Theo. D. Halpin, for defendant.
   Ostrander, C. J.

The plaintiffs William I. Lash-brook and Elsie M. Lashbrook are husband and wife, the other plaintiff their son. Their bill was filed August 2, 1916. Substantially, the following story is told in the bill: William I. Lashbrook owned some land in Wales township, St. Clair county, Michigan. In September, 1901, the land was subject to a mortgage, upon which there was then unpaid some $4,000. He desired to make a division of his real estate between his sons (he had other children), giving to each of his sons Jesse and Harmon 80 acres, and he desired also “to protect himself and the other children against loss in case said division was made.” He consulted the defendant, a banker of Almont, Michigan, with whom he had done business for many years, and in whom he had confidence, and to whom he was not in any manner indebted. Following the conference, and under an arrangement made at the conference, and agreeably with his own wishes, he executed a mortgage upon the land, which was dated September 2, 1901, joined in by his wife, to the defendant to secure the payment of $3,200 and interest at 6 per cent, per annum, according to a promissory note. This instrument was acknowledged on the 5th of September, 1901. He also executed, dated September 3, 1901, a warranty deed to his son Jesse of a portion of the said land, subject to two mortgages, one of them already referred to and the other the one to defendant. He also executed a warranty deed to his son Harmon of a portion of the land, subject to the said two mortgages, both of these deeds being acknowledged September 5, 1901. All three of these instruments were duly recorded. Although her name appears to be signed to the mortgage to defendant, Mrs. Lashbrook never in fact signed it nor authorized anybody to sign it for her and did not know that any such mortgage was in existence for some time. The mortgage to defendant was executed—

“merely for the purpose of protecting the several members of his family and not as an evidence of any indebtedness to Charles R. Ferguson and was so understood and so received by him to be held in trust until such time as your orator, William I. Lashbrook, should desire to have the same discharged when the said Ferguson agrees to discharge the same.
“That although said mortgage and note purports to draw six per cent, interest, no interest has ever been paid or demanded by the said Ferguson of your orators.”

For two years before the filing of the bill, William I. Lashbrook had been applying to defendant to have him discharge the mortgage, and, while the defendant had not absolutely refused to do so, he had advised the plaintiff not to discharge the same from record, and plaintiff has been unable to obtain a discharge of the mortgage. It is prayed that a decree may be entered discharging the mortgage of record and canceling the note. The note is not described in the bill.

Defendant answered, and, admitting the execution of the instruments referred to, asserts that, when the mortgage in question was given, William I. Lashbrook owed him $3,200, evidenced by a note dated August 28, 1900, secured by a chattel mortgage, and that the real estate mortgage referred to in the bill was given for the purpose of securing the indebtedness evidenced by said note, was not to be held in trust, but was a bona, fide mortgage. The defendant also denies that no interest upon the debt has ever been paid or demanded by defendant, but avers the truth to be that he has frequently demanded interest and that on the 16th of March, 1905, $150 was applied on said note and mortgage. He denies that he advised plaintiff not to discharge the same from record, and he says that on the 26th of August, 1916, he commenced foreclosure proceedings by advertisement, which were pending when the answer was filedj sale of the premises being advertised to take place November 25, 1916. Defendant asks for no affirmative relief, but only that the bill of complaint be dismissed. The answer was filed October 27, 1916, and on December 9, 1916, a supplemental bill was filed by plaintiff which takes up the subject of the foreclosure procéedings and charges that on the 25th of November, 1916, under the power of sale contained in said mortgage the under sheriff, acting for the defendant, sold the premises to the said defendant for $6,039.27, and executed a deed of them to the said.defendant. There was an answer to the supplemental bill, which raises no issues not already made manifest, and the cause went to hearing in open court, with the result that a decree was entered in accordance with the prayer of the plaintiff’s bill, the trial court being of opinion that the mortgage was without consideration.

The issue which was tried was án issue of fact purely, and there was testimony which supports the conclusion of the learned trial judge. On the other hand, there is testimony tending to prove that when the real estate mortgage in question was given William I. Lashbrook was indebted to defendant as the result of prior business transactions between them, and that, whether or not Lashbrook owed the defendant $3,200, he did owe him something, payment of which was secured or was additionally secured by the real estate mortgage.

Whether or not there was an existing indebtedness when the real estate mortgage was given can be certainly determined only by an accounting, which neither party has asked for. It is to be observed also that upon defendant’s own showing his _ mortgage should not have been foreclosed by advertisement, but in a court of equity. Upon proper amendment of the pleadings, it may be foreclosed in this suit if any sum is found to be secured by it. The differences between these parties, that is to say, between the plaintiff William I. Lashbrook and the defendant, ought to be settled in this proceeding, and for that purpose the record remanded, with permission to either party, by amendment of the bill or by amendment of the answer, to ask for an accounting, the decree for this purpose being reversed and set aside, without costs to either party.

If, however, neither party has within 60 days after the filing of this opinion signified in writing, filed with the clerk of this court, with proof of service of notice thereof upon the opposite party or parties, a desire to so proceed, the decree of the court below will stand affirmed, with costs to appellees.

Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred. Fellows, J., did not sit.