author: Steere, C. J.

text:
    BRYAN v. HOUSEMAN-SPITZLEY CORPORATION.
    1. Fraud — Representations Not Merged in the Written Contract — Evidence—Admissibility.
    In an action to recover damages for alleged fraud and deceit by which, plaintiff was induced to enter into a written contract for the purchase of a house and lot, evidence of such misrepresentations not merged in the contract was admissible for the purpose of establishing the charged fraud.
    2. Same — Right to Sue Without Rescission.
    Under his claim of fraudulent representations, it was plaintiff’s right to sue either with or without rescission.

      3. Same — Trial—Conduct of Court.
    That plaintiff chose to retain the property he had bought for a home, continue in possession and sue for damages because of false representations as to its condition, was not a proper subject of criticism by the court.
    4. Same — Damages—Measure of Damages.
    Where plaintiff retains the property purchased and sues for damages because of false representations as to its condition, the general rule of damages in such case is the difference between the value of the property as it actually was at the time of the purchase and what its value would have been had quality and condition been as represented.
    5. Same — Trial—Conduct of Court — Reversible Error.
    Comments of the trial judge, containing inapplicable assertions of legal import and statements of fact outside the evidence, belittling plaintiff’s claim, made in the presence of the jury after counsel had requested that they be excused while the legal questions were discussed, and which were reflected in the verdict, held, reversible error.
    6. Trial — Instructions—Issues Presented.
    Where plaintiff offered testimony to prove his claim that the boiler and radiators were insufficient, and that it was improperly installed to adequately heat the house, the trial judge was in error in confining his instructions to the jury to the boiler and ignoring the issues of proper
    ' installation and sufficient radiation.
    7. Appeal and Error — Insufficient Verdict — New Trial.
    Where the verdict for plaintiff was illogical in amount, under the evidence, if defendant was liable at all, evidencing that the errors are reflected in the verdict, the judgment will be set aside and a new trial granted.
    Error to Wayne; Mandell (Henry A.), J.
    Submitted January 4, 1921.
    (Docket No. 10.)
    Decided March 30, 1921.
    Case in justice’s court by F. Irwin Bryan against the Houseman-Spitzley Corporation for fraud and deceit in the sale of a house. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff for an inadequate amount. He brings error.
    Reversed.

      Harry J. Lippman, for appellant.

      Goodenough, Voorhies & Long, for appellee.
   Steere, C. J.

This action was brought to recover

damages for fraud, deceit and false representations in the sale by defendant to plaintiff of a house and lot in the city of Detroit under a contract providing for payments of $300 down and the balance in monthly instalments of $35 each, the purchase price being $4,500.

In the year 1917 defendant owned a number of lots located on Carson, Longworth and Falcon avenues in the city of Detroit upon which it engaged in quantity production for market of standardized duplex houses and bungalows. During that season it built 38 duplex houses and 42 bungalows on said lots. The bungalows were constructed from one set of plans of uniform size and identical as to interior arrangement and equipment, but with some exterior variations in dormers and porch design to alter outside appearances. Each of the bungalows had five rooms and a basement, with customary equipment for modem conveniences installed, including boiler and radiators for heating. These, like the other modern improvements in the buildings,, were of the same make, design and size. The lots thus improved were put upon the market by defendant through agents it employed and sold under contract or otherwise as purchasers were secured.

Defendant issued for sale purposes an attractive circular or folder illustrating and describing its duplex houses and bungalows. It contained a cut of a bungalow like that plaintiff purchased. Copies were supplied to defendant’s sales agents for use in their work with prospective purchasers and one of them was given to plaintiff during negotiations for his purchase. It described in laudatory terms defendant’s ‘West Side Homes. Sold on easy terms — Reasonable prices.’’ The various features of the buildings, emphasizing the modern conveniences, were described under separate headings, amongst which were “Steam Heat — Adequate sized boiler and surplus radiation. This system of heating is economical on coal consumption, free from dust, requires little attention.” As more direetly applicable to plaintiff’s purchase, in another portion of the folder — apparently on the same page as the bungalow picture — appeared “Steam Neat — Complete, efficient, economical steam heating plant connected with boiler, also gas heater.”

The land contract under which plaintiff held this property is of standard form. It describes the premises contracted for as “lot three hundred and nine (309) of the John P. Clark Estate subdivision of lot 8, Shipyard tract, village of Woodmere (now city of Detroit), more particularly known as 137 Falcon avenue.” It contains customary provisions as to possession, time of payment, conveyance of good title on payment in full, etc., with tax and insurance clauses, requiring same to be paid by the purchaser. The only reference to any buildings appears in the insurance clause, which requires plaintiff to “keep the buildings and improvements upon and to be placed upon said premises” in good repair and insured for the benefit of the vendor until the purchase money is fully paid. It is dated October 4, 1917.

Plaintiff made his payment of $300 down and took possession of the premises soon after he entered into the contract. When weather conditions made it desirable he proceeded to use the heating plant in his bungalow, but as winter came on found it sadly inadequate to heat the house, as he claimed. He early consulted an expert upon heating, who pronounced both boiler capacity and radiation insufficient, then notified defendant of the claimed inadequacy of the plant it had installed and of the increased capacity he claimed was required. This, as he testified, was during December, 1917.

On January 3, 1918, he again evidently made demand for prompt action with intimation his payments would be withheld in the meantime, as on January 7, 1918, defendant wrote him partly as follows:

“We received further notice, dated January 3d, signed by you, relative to any further payments on your land contract. * * * If you persist in the deferring of your monthly payments until this matter is straightened out, we can only inform you that we will act according to law in this matter and you will find that if we do so, we can either force you to make these payments promptly when due or foreclose on your equity.”

The letter also gives assurances of defendant’s responsibility “and purpose, if the heating plant is inefficient, to correct this defect.” Nothing, however, was done by defendant at plaintiffs place until February 22, 1918, when it delivered another boiler there and proposed to install it.

In the meantime defendant had negotiated with the United States Heater Corporation from which the boilers already installed in the bungalows had been purchased and contracted for their exchange, at an additional cost of $24 each, for others of somewhat larger capacity, recommended as better adapted for available fuel. Several of the new boilers had already been installed and tried in other bungalows like plaintiff’s before February 22d. He claimed they had neither been satisfactory nor proved adequate because of insufficient capacity to heat those homes, and were so pronounced by the expert he had consulted. Urging such reasons he refused to allow" the boiler which defendant had delivered at his place to be installed and demanded one of the capacity he had been assured was sufficient, offering in that connection, as he testifies, to pay the difference between the boiler which he desired and had learned was adequate and the one they proposed to put in. This, he stated, defendant agreed to, but “did not live up to that agreement,” which was denied by Mr. Spitzley, the member of defendant to whom plaintiff said he made the proposal, who in direct contradiction said, “Mr. Bryan did not agree to pay the difference, personally, between the boiler we wanted to put in his house and the kind of boiler that he wanted put in.” Their testimony is in marked contradiction as to what passed between them. So far as material, that issue and others raised by their conflicting testimony were for the jury.

Plaintiff himself took no steps to remedy the defects until the following spring and during the winter kept the original boiler iri his home and used it. He tells a harrowing tale of his unsuccessful efforts to keep the house and family warm, and testifies to futile stoking of the furnace to the exhaustion of himself and his coal bin, which he replenished at great expense from time to time with soft coal, hard coal and coke.

Plaintiff’s declaration alleges in part that defendant—

“wrongfully, deceitfully, fraudulently and falsely made unto the said plaintiff false and fraudulent statements concerning said premises as aforesaid, viz.: that said premises were in good and proper repair, properly tenantable and fit for a home; that said heating plant, radiation and equipment so installed in said premises were sufficient to adequately and properly heat, keep warm and comfortable said premises; this plaintiff having wholly relied thereupon and being induced thereby to enter into said contract as aforesaid with said defendant for the purchase of said premises aforesaid, he being deceived thereby.”

The particulars in which he claimed to have sustained damages for which he sought to recover include being “forced to live for a period of six months thereof” in his kitchen, to receive his guests there, subjecting him to “great hardships, sufferings and to indignity, humiliation, disgrace and great injury to his feelings,” also for excessive expenditure in purchase of fuel in his futile efforts to keep the house warm during the winter, for injury to walls and decoration by moisture and frost while operating that plant, and for the cost of installing an adequate one.

The case was commenced in a justice’s court of Wayne county where plaintiff obtained a judgment for $350, from which it was appealed to the circuit court and there exhaustively re-tried before a jury resulting in a verdict and judgment in plaintiff’s favor for $34.80. Plaintiff then moved for a new trial on many grounds, among others, that the judgment was wholly inadequate, largely owing to expressions of opinion on the disputed facts by the court and rulings upon questions of law. The motion being denied without filing reasons as requested, he removed the case to this court by writ of error with a record containing 215 printed pages in which, under the doubtful theory that in a multitude of assignments of error there is wisdom, he assigns for review 76 particulars in which it is claimed the court committed error during the progress of the trial. The majority of these assignments are directed to a series of somewhat querulous and argumentative comments by the court which manifestly served no useful purpose in the case and might better have been omitted, but for the most part are not of such serious import as to demand detailed consideration. The record does, however, contain conflicting rulings upon the law and comments by the court in presence of the jury, particularly upon the question of damages, which we are constrained to conclude were confusing to the jury and prejudicially reflected in the verdict.

Plaintiff’s action was planted on fraudulent misrepresentations as to facts, of which he was ignorant and upon which he relied, not merged in the written contract and by which he was induced to purchase the property. The rule is elementary that if misrepresentations of material facts are made to induce the contract and they so result, evidence of such misrepresentations may be given for the purpose of establishing the charged fraud.

At commencement of the trial, after describing the property and testifying he had purchased it of defendant, plaintiff stated his negotiations were with a man named Schwartz, concededly one of defendant’s sales agents. He was then asked as to what talk he had with Schwartz relative to purchase of the property. To this defendant’s counsel objected on the ground “the negotiations were all merged in the written agreement.” After some discussion the court said, “I think for the present that this ought to be excluded until we find out just exactly what was done and whether a purchase was made and so forth.” His counsel then further interrogated him as to the contract of purchase, when he moved into the house, description of the house, etc., after which the inquiry was resumed as to previous conversations with Schwartz “in reference to the tenantability of the house.” To this defendant’s counsel interposed, saying, “That has already been objected to.” The court sustained this objection, suggesting, in addition to the ground counsel had urged, that Schwartz’ authority must be shown. Schwartz and defendant’s sales manager of the so-called “Ferndale branch,” under whose directions he operated, were then called by plaintiff for examination upon the subject. Defendant’s counsel was prolific in interposing objections to this inquiry, to many of which the court unduly yielded, and neither plaintiff or Schwartz was permitted to tell what was said between them, even in relation to the contents of the folder quoted from which was shown without dispute to have been issued by defendant, supplied to its salesmen and used by Schwartz in negotiating the sale to plaintiff, within the scope of which plaintiff claimed the right to show Schwartz had falsely told him the furnace was “adequate to properly heat the house in the coldest kind of weather” and “would not burn any more coal than a baseburner.”

It was also shown that 25 purchasers of these bungalows, including plaintiff, had, soon after cold weather came, discovered the inadequacy of the furnaces to heat their homes and served upon defendant notice of the fact in writing with an appeal to it for relief. Defendant acknowledged receipt of that notice, upon which it later acted, but when offered in evidence defendant’s counsel objected and the court refused to admit the same, or any, part of it.

Much controversy arose during the progress of the trial as to the measure and elements of damage. After this had continued for some time plaintiff’s counsel asked permission to argue the question of damages and that the jury be excused during the discussion. The court refused to excuse the jury, but permitted counsel to be heard. Plaintiff’s counsel then proceeded to cite authorities and argue the question of his right to recover under the three elements of damage already mentioned which the court instead of directly ruling upon argued and severely criticized in a lengthy series of belittling comments in. the presence of the jury. Plaintiff claimed as an applicable measure of damages for fraudulent representations the difference between what the property was worth at the time be bought it and what it would have been worth as represented. Of this the court said:

“I am not going into the question of what that property was worth, or what it was worth before and what it was worth afterwards. The other side might get a verdict on the ground that they gave you something for less than its value. * * * With regard to those things, I shall charge the jury when two men deal with a thing that is subject to inspection, that a man enters into a bargain with his eyes wide open, and he is responsible for what he buys. It is the old, old rule, that you find when you are learning, which was given to you, that the buyer must beware. It. is a question of selling what you have, and buying what you get where you can inspect it, and this inspection discloses what you are getting. That .is not so, perhaps, with regard to the heater,-because we are not all advised as to the valu-s of heaters. I don’t know today how much radiation this room would require. If I came in here to buy this building, I could not tell whether these radiators would be sufficient or not. If you sell me this building and say that there is ample radiation^ and it turns out there is not, I am defrauded or cheated by what you say, and I have a right to sue, and to have such radiation as to make it proper. If I do,-; you must respond in damages. Now, that is the situation. But where a man sells a fellow a horse, •2nd there is an opportunity for an inspection, and in-is had, or, if inspection is waived and the purchase is made, that is the end of the bargain.”

Of plaintiff’s claim for damages for injury to walls and decorations by reason of moisture and freezing because it was impossible to dry and warm the house with the furnace, the court commented:

“Did they tell you that the walls would sweat? Of course they sweat, every new house, it is presumed, I would assume, and experience and general knowledge shows every house to be subject to something of the kind. They do not put kalsomine on these walls for two or three years, because they expect them to crack. You never saw a new house in your life that didn’t have certain little things come up as time went on. Therefore, you do not decorate for a couple of years.”

When counsel sought to urge his claim that damages were recoverable because the house knowingly sold for ,a home was claimed to be well equipped for heating and tenantable but was not, resulting in discomfort and physical suffering to the family on the sudden advent of extremely cold weather, the court said:

“1 am not going into that. Every man, every one of these jurors knows about that. * * * Everybody knows- what that winter was. If we went into that-there would be no question about it, because they would bring in a thousand other witnesses; they could goout on the street and pick up any man, woman or child, and he would come in and tell you that was a wonderfully cold winter. * * * Why -didn’t you go out and get some other house?
“Mr. L. — They didn’t have to go out, that was one of their remedies they could have gotten.
“The Court — Gone to the Statler arid got a suite of rooms and entertain their friends there?
“Mr. L. — They could have proceeded in any one of their remedies, but they chose to stay in the premises, that is the house that they bargained for.
“The Court — You think you stumbled on a gold mine here. * * * Were they forced? Who forced them,to live in that house? I can’t follow you there.”’

While these comments were not a part of the charge, they contained inapplicable assertions of legal import and statements of fact outside the evidénce, made in the presence of the jury after counsel requested they be excused while the legal questions were discussed. In Jankowski v. Skupny, 209 Mich. 227, similar reflections on plaintiff’s claim for damages, including the “gold mine” comment, were noticed with disapproval but treated as harmless error because the record disclosed “that the jury did not reach or consider the question of damages,” while in this case the record discloses to the contrary.

Under his claim of fraudulent representations it was plaintiff’s right to sue either with or without rescission. Wegner v. Herkimer, 167 Mich. 587; Merlan v. Kalamazoo Circuit Judge, 180 Mich. 393. Even a tenant who remains in possession and thereby waives the right to rescind his lease does not waive his right to a claim for damages resulting from fraudulent representations that the house could be properly heated by the furnace then in it, upon which he relies and is thereby induced to enter into the lease. Morton v. Hanes, 162 Mich. 366. That plaintiff chose to retain the property he had bought for a home, continue in possession and sue for damages because of false representations as to its condition was not a proper subject of criticism by the court. The general rule of damages in such case is the difference between the value of the property as it actually was at the time of the purchase and what its value would have been had quality and condition been as represented. Page v. Wells, 37 Mich. 415; Smith v. Construction Co., 175 Mich. 600.

Plaintiff testified that previous to his purchase of the property he had no experience with or knowledge of boilers or heating plants, made the purchase believing, induced by, and relying entirely upon representations as to quality and capacity of the plant, as set out in .defendant’s folder furnished him by Schwartz and the latter’s statements in that connection (which he was not permitted to tell), and that after both the old plant and new one defendant installed in houses identical with his had proved totally inadequate he had consulted an experienced engineer and installed a larger boiler of approved capacity and additional radiation in his house at a cost to him of $189.92. He called this heating engineer, who had examined the plant and manner in which it was installed, as an expert witness. He testified to the quality of the building for heatifig, openings, floor space, radiation required, etc., that he found but 162 feet of radiation in the house, insufficient boiler capacity, and exposed piping not properly covered carried in unheated space under the house outside the basement, where the inclosing walls were but boards which were not tight, etc. The court criticized and halted plaintiff’s attempt to further develop the subject of cold floors and exposed pipes by the following comment:

“Well, now, carrying out your argument to its logical conclusion, if this house had not sides at all, if it was all open, it would have cost perhaps $4,500 for a boiler to heat it around there, to make it fairly comfortable. You would expect then that the owner would give you the house and lot, and possibly pay you something for taking it. That is carrying out your argument.”

Plaintiff also introduced the testimony of various witnesses who had lived in neighboring bungalows identical with his, who testified that both the first and second boilers installed by defendant in their houses were unsatisfactory and wholly inadequate. Defendant also called witnesses who had lived in like bungalows who testified that after the second boiler was put in they found the heating plants satisfactorily .warmed their houses. A heating engineer from the corporation which furnished the boilers testified as an expert to the capacity of the second boilers to heat the houses when properly run with the right kind of fuel.

The court left those issues to the jury with instructions in part:

“The measure of damages in each case would be the difference between what he bargained for and what he got. In determining that, you will ascertain what would be the real, actual difference in dollars and cents between the boiler that he did receive and the boiler that he was entitled to receive under this representation, if you find the representation was relied upon. * * *
“If there was any duty that devolved upon the defendant by reason of the circumstances, it would be to make good, if there was any defect. I think the defendant claims there was none, except for the intervention of those two things I have already referred to, the lack of ability to get the proper coal for the first furnace, and, secondly, the extraordinary cold winter that we experienced. If you find there was a defect, that something was lacking, then if there was any duty devolving upon the defendant it was to make good that lack. If the defendant offered in any way to make good, and the plaintiff refused to accept it, then the defendant should be acquitted of any further responsibility.”

The first instruction quoted confines the difference between what plaintiff bargained for and what he got to the boilers, ignoring the issues of proper installation and sufficient radiation.

Assuming the second to be a correct instruction, the jury did not find “defendant offered in any way to make good” nor acquit it of any further responsibility, but rendered a verdict for plaintiff, illogical in amount under the evidence, and convincing that the errors referred to are reflected in it.

The judgment is reversed, with costs to plaintiff, and a new trial granted.

Moore, Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    LYLE v. MUNSON.
    1. Specific Performance — Oral Agreement for Sale of Land —Admissibility of Void Written Contract — Evidence — Leases — Sunday Contract.
    In a suit for the specific performance of a contract for the sale of land, where plaintiff relied both in his pleadings and proofs upon a written agreement signed by the parties and also upon a parol agreement of like tenor preceding it, alleged to be validated by taking possession of the premises and other acts, said written agreement was proper to be considered for the purpose of throwing light upon the oral agreement, although void because executed on Sunday.
    2. Same — Leases—Vendor and Purchaser — Option of Purchase.
    Plaintiff’s claim that the oral agreement was for a lease for two years with the option of purchase “on or before” the expiration of the lease, the written contract containing the same provision, held, sustained by the record, notwithstanding defendant’s testimony that it only gave the right of purchase at the end of the two years.
    3. Frauds, Statute of — Oral Lease Valid for One Year Only.
    An oral agreement for the lease of land for two years with the option of purchase was a valid lease for one year only.
    4. Same — Oral Agreement for Sale of Land — Part Performance.
    The right of purchase which ran with said oral lease was relieved of the statute of frauds by possession and part performance.
    5. Same — Oral Agreements Relative to Land — Part Performance.
    Section 11979, 3 Comp. Laws 1915, recognizes and preserves the power of chancery courts to compel specific performance of oral agreements relative to real estate in case of part performance.
    6. Specific Performance — Oral Contract for Sale of Land— Fraud — Part Performance — Sunday Contract.
    Where defendant orally agreed with plaintiff to enter into a written lease of land for two years with the option of purchase on or before the expiration of same, in reliance upon which plaintiff went into possession and partly performed, and defendant, though mistakenly as he claims, executed said lease on Sunday, which rendered it void, said act was, nevertheless, a fraud upon plaintiff, and he is entitled to specific performance of said oral agreement, upon tender of the agreed price, in a court of chancery.
    7. Same — Equity — Past Performance — Fraud — Estoppel —Frauds, Statute of.
    Part performance, while an essential in the test, does not in itself comprehend the whole doctrine of • equitable relief in this class of cases; misleading, fraudulent conduct by act or acquiescence is the underlying thought which moves the chancery court, under the principle of equitable estoppel to deny resort to the statute of frauds as an in-, strument of fraud.
    Appeal from Saginaw; Snow (Ernest A.), J.
    Submitted January 6, 1921.
    (Docket No. 48.)
    Decided March 30, 1921.
    Bill by William Lyle against William C. Munson for the specific performance of a land contract. From a decree dismissing the bill, plaintiff appeals;
    Beversed, and decree entered for plaintiff.

      Cook & Cook, for plaintiff.

      Bird J. Vincent, for defendant.
   Steere, C. J.

Plaintiff filed this bill for specific performance of an agreement relating to a tract of land of between 16 and 17 acres in the township of Buena Vista, Saginaw county, located near the city of Saginaw. Early in 1919 plaintiff learned from a sister of defendant that he owned the property and it was for sale. He thereafter interviewed defendant upon the subject who replied he owned the property and it was for sale at $3,500. Stating that he was not then just ready to buy plaintiff proposed to lease the place for a term of years with, the privilege of purchase on or before the expiration of the lease. Negotiations were had between the parties along that line resulting in an oral agreement by which defendant leased the property to plaintiff for two years at an annual rental of $300 with a privilege of purchasing the same for $3,500, before or at the expiration of his lease, promising to have the contract put in writing by his son-in-law, named McDonald, who was a justice of the peace, and in the meantime gave plaintiff possession of the property which was then vacant.

The oral agreement between the parties was reached the latter part of February and on March 12th plaintiff took possession of the property, fixed up the old house upon it and established his home there, remaining in possession and claiming the property as his own up to the time of the hearing in this case. He several times asked for his written contract, but there was delay in drawing up the papers, as to which the latter renewed his promise and excused the delay on the ground that his son-in-law, McDonald, had been otherwise busy and not yet able to attend to it. Plaintiff also asked McDonald about defendant having him draw up the papers, and the latter made suggestion as to some change in the terms of their agreement which plaintiff objected to. He then informed defendant of McDonald’s proposal and told him that unless the agreement was to be carried out exactly as they made it he would have nothing more to do with the matter. To this defendant replied, as he himself testified, “I told him it would be just as it was stated in the first place.”

The matter dragged along until the fore part of April when plaintiff went to McDonald’s home, where defendant was staying, and McDonald then drew up the lease in duplicate while both parties were present, read it to them and both signed it, he signing as a witness. It bears date April 7, 19X3. McDonald used a printed short form of lease with the customary provisions of such an instrument, filling in with a pen the appropriate blank spaces giving description of the property, date, names of the parties, annual rental of $300, and two years’ duration of the lease. There was no printed clause in the blank form relative to privilege of purchase. This provision McDonald formulated-and wrote out as a separate paragraph in a blank space following the clause covering time, rate of rent, etc., as follows:

“Provided further, that said party of the second part shall on or before the expiration of this lease have the privilege of buying said above described property for the sum of three thousand five hundred dollars ($3,500).”

After taking possession of the property plaintiff proceeded to clean up the premises in and around the house — painting, cutting brush, removing rubbish, etc. He took steps to construct a barn and hog-pen, obtained and had upon the place sufficient material ready for their construction, consisting of lumber, scantling and timbers, and had set posts in the ground preparatory to building the hog-pen.

During the early summer of 1919 a real estate operator who had procured some suburban land in that vicinity with a view to platting it, talked with plaintiff, defendant and defendant’s son-in-law, McDonald, about buying this property. He testified plaintiff said he was willing to sell the rear acreage of 12% acres for $3,000, retaining four acres off the front. Defendant claimed a “gentleman’s agreement” was there made, in which plaintiff participated, to sell him the property at a price “considered satisfactory to them” and testified that after plaintiff had tendered him “the money for the place” people representing this real estate operator offered defendant $5,500 for the property. *

In June plaintiff notified defendant of his election to purchase the property under the terms of his lease, asking for deed and abstract. This was not complied with and he made a formal tender of a deed for execution with the purchase price ($3,500) about the last of July, “on the 28th or 29th,” as defendant fixes the time tender was made him, which he refused, giving “good and sufficient reasons,” as he alleges in his answer. Soon after his refusal to accept the tender and execute a deed this bill was filed asking for specific performance.

Plaintiff in his pleadings and proofs based his right to relief on both the written agreement signed by the parties and the parol agreement of like tenor preceding it, alleged to be validated against the statute of frauds by taking possession of the premises with other acts of performance and tender of the agreed purchase price. Defendant denied the validity of the oral agreement under the statute of frauds, except as a lease of the premises for not exceeding one year, and of the written agreement admittedly signed by him because executed on Sunday, concisely stating the substance of his defense in his answer as follows:

“Defendant avers that he did not, on the execution of said lease, nor any time since said date, and does not now consider himself legally bound to perform any of the terms and agreements by him made, as set forth in said lease, and does hereby repudiate all such agreements.”

The case was heard on pleadings and proofs taken in open court resulting in dismissal of plaintiff’s bill. April 7, 1919, the date the written instrument bears, fell on Monday. On its face it is a valid, enforceable contract. Its preparation by defendant’s agent, execution and delivery were in belated performance of defendant’s promise to give plaintiff a written lease containing the exact terms of their oral agreement made in February under which he gave plaintiff possession of the premises. In repudiation and denial of its validity defendant testified that it was executed on Sunday, April 6th, in the forenoon. McDonald, his wife and son, a boy 16 years of age, also testified that the transaction took place on Sunday, April 6th, in the forenoon. They, with defendant and plaintiff, were the only parties at McDonald’s home when the transaction took place. Plaintiff testified it was drawn up and executed on the date it bears, Monday, April 7th, in the evening before supper, he stopping at McDonald’s house for that purpose on his way home after finishing his day’s work. His wife testified that on the day before, Sunday, April 6th, plaintiff was at home all the forenoon and until after dinner. The trial court held the instrument void because executed on Sunday, saying in part:

“The great weight of the testimony shows that the contract or the lease was executed on that day. The court has confidence in the testimony of witnesses who have testified to its execution on Sunday — witnesses who are personally known to the court, and in whom the court has confidence with respect to their veracity.”

To one not having personal acquaintance with and favored by extra-judicial information as to the veracity of defendant and his witnesses there is much in the record to raise a doubt as to whether the presumption of accuracy imputable to a solemnly executed instrument in writing has been conclusively overcome.

But accepting the decision of the court that the instrument is void as an agreement in writing because executed on Sunday and passing to the question of their previous oral agreement, this writing deliberately signed by the parties under the belief that it was a binding contract between them is in the case, in evidence and under the circumstances proper to be considered in so far as such notations upon the subject, signed by them, throw light on the oral agreement they had previously made and acted upon.

As to the actual terms of their oral agreement there is but one point of possible conflict. It is undisputed that plaintiff on hearing the property was for sale went to defendant with that in mind to ascertain his price and terms. He first asked him if it was for sale and the price. Then stating he was not just ready to buy he asked if it could be leased with privilege of buying, which defendant answered favorably. Their negotiations resulted in a contract of lease for two years with privilege of purchase “on or before” the expiration of the lease as plaintiff testified, and is stated in the claimed void written agreement defendant subsequently had prepared and gave plaintiff. But defendant in his testimony limited that privilege to “the end of two years.” Upon that point he testified on cross-examination in part as follows:

“When Mr. Lyle came to me I offered the property to him — offered to sell it to him.
“Q. And the result of your negotiations with Mr. Lyle were that you finally agreed to lease it to him for two years at a rental of $300 a year?
“A. Yes, sir.
“Q. With an option in it to purchase at $3,500 at any time during the two years that he might—
“A. No, sir. * * *
“Q. Wasn’t your agreement with him to the effect that he could buy this property at a certain figure?
“A. He could buy it at the end of two years.
“Q. At the end of two years?
“A. Yes.
“Q. That was your agreement with him?
“A. Yes.
“Q. And that agreement was made prior to the time you put the contract in writing?
“A., Yes.
“Q. And when Mr. Lyle met you on the street one day and said Mr. McDonald had been objecting to the making of the contract you told him to go on, you would go through with your bargain that you made with him in reference to it, is that right?
“A. Yes.
“Q. And that was prior to April 6th?
“A. Prior to April 6th. At this time I also promised I would give him a written contract with reference to it, and that as soon as Justice McDonald had time to draw the contract it would be drawn and signed.”

The writing defendant had promised and gave plaintiff was prepared under his immediate direction by McDonald, the scrivener he selected, a relative, school teacher and justice of the peace, who had “tried a good many cases on various points,” was equipped with experience and proper blanks, and testified he had not before then ever talked over with plaintiff the terms of the contract he drafted. McDonald’s wife, who was “in and out” of the room while he was preparing the papers, testified that “he was asking as he went along, so he would understand what they wished put in, to have it as near right as they wished.” When prepared it was read to the parties, approved and signed by them. This writing was in effect defendant’s own act, signed by him but a little over a month after their parol agreement, in keeping with his promise to put that agreement in writing, “just as was stated in the first place.” Its purpose was not a new agreement, but to put the terms of the one previously made into writing. The clause giving plaintiff the privilege of purchase on or before expiration of the lease was a special and prominent feature of the instrument, distinctively written by McDonald with a pen as a separate paragraph. It clearly expressed the thought in plain and unmistakable words. The record as a whole is convincing that the terms of the oral agreement were as plaintiff testifies and this writing shows, and defendant’s testimony that it only gave right of purchase at “the end of two years” was but a clumsy afterthought.

The one agreement combined a right of tenancy and right of purchase. Though oral the right of tenancy was good for a year, and the right of purchase which ran with it was relieved of the statute of frauds by possession and part performance. Plaintiff was at no time in default. Put in possession of the premises by defendant under their oral agreement, he established his home there, continued in possession, made improvements, accumulated material and prepared to erect buildings, declared his election to purchase, seasonably notified defendant of his readiness to perform, and when defendant declined to perform on his part tendered the agreed purchase price with deed for execution, followed on refusal by this bill for specific performance and payment into court of the rent then falling due, and has kept the tender good.

Having found the written contract void because executed on Sunday, the trial court said of the preceding verbal contract under which defendant delivered possession to plaintiff: “There was not such part performance of said oral agreement, and not such meeting of the minds of the parties in the terms of such oral agreement that will justify a court of equity in enforcing performance.”

The clearly proven terms of that agreement are plain, simple and readily understandable to a person of ordinary intelligence. There is no claim that defendant was misled or deceived by anything plaintiff said or did in the negotiations leading up to the agreement. He had lived upon this property and presumably knew more about it than plaintiff. Both men lived in Saginaw and were men of mature years, no disparity is shown in their station in life,' ability or business experience. Defendant was a machinist, working for the Pere Marquette railroad, and plaintiff worked at sidewalk construction.

Told by a relative of defendant that the property was for sale and he owned it, plaintiff interviewed defendant on the subject, first asking him if such was the fact and his price. Defendant’s wife had died not long before, he wanted to dispose of the property, had offered it for sale and not yet found a purchaser. There is no evidence that the price he asked for it was less than its then fair market value. From a prospective purchaser, not then ready to buy, plaintiff's proposal to lease with the privilege of buying at defendant’s price was not an unnatural offer for him to make, or for defendant to accept upon the basis of a fair rate of interest on the price he asked for the property in the meantime. It was not a hasty deal. The subject was discussed in more than one interview. After its terms were fully agreed to, as a precaution before acting upon it and taking possession, plaintiff again interviewed defendant and went over the subject with him, refusing to take any steps or to have anything to do with the place unless he should have it “just as the bargain was made.” Defendant then reassured him with instructions to get the key and move in, promising “to give him a written contract with reference to it.” We think the evidence clearly establishes that the minds of the parties met on the agreement, and the mutual expectation that plaintiff would buy the property, as was agreed he might, was a prominent factor in the minds of both parties at the time.

This contract is complete, certain and definite in all its essential particulars. Section 11979, 3 Comp. Laws 1915, in the chapter on fraudulent conveyances and contracts, distinctly recognizes and preserves the power of our chancery court to compel specific performance of oral agreements relative to real estate in case of part performance. Many cases are cited in the annotation of that section, discussing circumstances and essentials of part performance which fall within the purview of equitable consideration. The essentials of part performance are shown here, encouraged and performed in the main after execution and delivery of a promised written contract containing the terms of their oral agreement under which possession was delivered and taken. This instrument is fair on its face and valid as it reads but, as defendant maintained, falsely dated and void because executed on a dies non. Accepting as true the claim of defendant and his scrivener that they then did not know a contract executed on Sunday was void, if an honest mistake it nevertheless operated as a fraud upon plaintiff, misleading him to his harm. Part performance, while an essential in the test, does not in itself comprehend the whole doctrine of equitable relief in this class of cases. Misleading, fraudulent conduct by act or acquiescence is the underlying thought which moves the chancery court under the principle of equitable estoppel to deny resort to the statute of frauds as an instrument of fraud. The question is not alone one of part performance, but as said in Meach v. Perry, 1 Chip. (Vt.) 182:

“Does the part performance, with the attending circumstances, make a case of fraud, against which a' court of equity ought to relieve?”

We think this case falls within that rule. The decree of the court below will be vacated, with costs to plaintiff, and a decree entered for specific performance as prayed for; also containing in substance the provision in the former decree directing the clerk of the circuit court to pay defendant the amount of rent due August 1, 1919, deposited with the court by plaintiff.

Moore, Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    VAN SICKLE v. GRAND RAPIDS, GRAND HAVEN & MUSKEGON RAILWAY CO.
    1. Carriers — Street Railways — Negligence — Speed op Car— Evidence — Admissibility.
    In an action against an interurban electric railway company for the alleged negligent killing of plaintiff’s decedent, who was struck by one of defendant’s freight cars which ran by without stopping at a highway crossing where deceased was waiting to take a passenger car into the city to go to his work, it was competent for plaintiff to prove the speed of the ear at the time of the accident.
    2. Same — Trial- — Evidence — Appeal and Error- — Harmless Error.
    Where witness testified that he noticed how fast the passing car went by, the question, “Will you tell the jury what your judgment is as to the speed of the car,” was improperly excluded, but where he subsequently testified that, as compared with the speed of passenger cars which did not -stop that he had seen go by, this car which caused the accident was running a little slower, the ruling did not amount to prejudicial error.
    3. Same — Rules and Regulations — Evidence—Admissibility— Presumption — Notice.
    Testimony as to defendant’s promulgated rules, printed and posted in its railway waiting rooms to advise and warn the public, was competent not only for the purpose of showing that defendant operated its car on the occasion of the accident as was customary and in strict compliance therewith, but also! as tending to show that deceased, who had traveled almost daily over defendant’s line for two years presumptively had knowledge thereof brought home to him.
    4. Same — Contributory Negligence — Duty to Look.
    Under the conditions shown and necessarily known to deceased, it was incumbent upon him, in the exercise of reasonable care, before attempting to cross the track from the waiting room to where he expected to hoard the car, to look and see that the approaching car was not in dangerous proximity.
    5. Same.
    Even if deceased was a passenger, that fact would give him no right to step upon the track in close proximity to a rapidly approaching car.
    6. Same — Relation of Carrier and Passenger — Intended Passenger.
    Where the car which deceased expected to board was a freight car and not a passenger ear as he erroneously supposed, and, when signaled to stop, answered with two whistles, signifying it would not stop, he was not an invited, accepted or prospective passenger, since an answering notice of intention to stop when signaled is generally held as necessary to establish the relation of carrier and passenger under such conditions.
    7. Same — Negligence—Contributory Negligence — Directed Verdict.
    Under the undisputed facts the trial court properly held, as matter of law, that plaintiff had failed to make out a prima facie case of actionable negligence on the part of defendant, and that plaintiff’s decedent was guilty of contributory negligence, precluding recovery.
    Error to Muskegon; Vanderwerp (John), J.
    Submitted January 6, 1921.
    (Docket No. 68.)
    Decided March 30, 1921.
    Case by Valda Van Sickle, administrator of the estate of Philander Van Sickle, deceased, against the Grand Rapids, Grand Haven & Muskegon Railway Company for the alleged negligent killing of plaintiff’s decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Colin P. Campbell (Christian A. Broek, of counsel), for appellant.

      Carroll, Kirwin & Hallway, for appellee.
   Steere, C. J.

Plaintiff brought this action as administrator to recover damages for the death of his intestate, Philander Van Sickle, who was instantly killed by one of defendant’s northbound interurban cars at a highway crossing known as Soderin, located on defendant’s line between Fruitport- and Muskegon Heights. At conclusion of plaintiff’s testimony the court granted defendant’s motion for a directed verdict of no cause of action on the ground that no actionable negligence on defendant’s part was shown and, under the undisputed facts, deceased was guilty of contributory negligence precluding recovery. Plaintiff assigns error as follows:

“The court erred in sustaining defendant’s objections to the cause (question): ‘Now, will you tell the jury what your judgment is as-to the speed of the car.’
■“The court erred in receiving in evidence the printed notice which was posted up in the station at Soderin crossing.
“The court erred in permitting the witness, Valda Van Sickle, to testify as to his knowledge as to what was meant by two blasts of the whistle after signaling the car to stop.
“The court erred in directing the jury to render a verdict without leaving their seats in favor of the defendant.”

The undisputed testimony showed that deceased was a man about 64 years of age who had lived with his family for many years on a farm which he owned, located about three-quarters of a mile east of Soderin on an east and west highway which crossed defendant’s substantially north and south track at the named crossing. For two years prior to his death he had been employed in a factory at Muskegon Heights, going daily to and from his work on defendant’s line, taking and leaving the cars at this crossing. He was familiar with the location and knew there were both mail and freight cars running over defendant’s line during the morning hours.

Soderin is a point on defendant’s line south of Muskegon Heights at which only its passenger cars stopped, when signaled, to receive passengers and to discharge those desiring to get off there. It is a country crossing in a sparsely settled neighborhood with no houses in its immediate vicinity, and a small building to shelter waiting passengers had been constructed there by contributions from defendant and farmers living in that locality. This stood on the north side of the highway, within its limits, on the west side of defendant’s track' within about four feet of the west rail with its door to the east. It was solely for temporary shelter. No station agent was kept there, no tickets were sold there and no heat or light provided.

Plaintiff, a son of deceased, was the only witness who testified to the circumstances of the accident. On December 20, 1916, he with deceased and a neighbor named Zimmerman went to this crossing a little after 5 o’clock in the morning, as was their custom, to take a 5:30 passenger car to Muskegon Heights for their day’s work, all being there employed in the same factory. When they arrived there deceased and the two young men went into this building to wait and watch for the expected 5:30 northbound passenger car, which they knew must be flagged before it would stop by signaling with the arm in daylight and with a light when it was dark. They all carried flashlights for that purpose. At that time of the year it was yet dark when the 5:30 car passed Soderin. After they had been waiting for a time plaintiff saw the light of a car coming from the south. Assuming it was the passenger car, they all stepped out of the shelter house for the. purpose of stopping it by signaling and getting on board. Plaintiff and Zimmerman were ahead and one or both of them signaled the car with his flashlight, crossing the track to the east which was the right side of the car to board it. Plaintiff testified that he crossed to the right side first, then signaled, also that he did not remember whether he or Zimmerman signaled, and that after he had crossed and stood about 21/2 feet east of the track Zimmerman signaled when standing about the middle of the track, and then stepped over to the right. The oncoming car answered with two short blasts of its whistle signifying it would not stop, the answer for stopping being a single blast, and the two young men seeing it was a freight car and not going to stop shouted a warning to deceased, who was following close behind them, to “Go back.” Plaintiff testified that the car was about 8 rods away when he saw it was a freight car and hollered to his father to go back, and about a second later he Was struck. He also testified that his father was not going fast, but—

“was walking and when Mr. Zimmerman flagged the car in the center of the track my father was in the doorway or had taken one step from the doorway. We hollered, ‘Go back/ I couldn’t tell what Mr. Zimmerman hollered. I wasn’t in there, I couldn’t tell you. I was about five or six feet from Mr. Zimmerman. He said it was a freight car and to go back. Mr. Zimmerman said that. He hollered that to my father. At that time my father was on the track. The car was pretty near there then. That was after he hollered to him. Right after Mr. Zimmerman hollered to him we both hollered so there was a warning given to him twice. * * * The occasion of calling my father first by Mr. Zimmerman and then by both of us was that we realized that the car wasn’t going to stop. * * *
“Q. As Mr. Zimmerman stepped back on the east side of the track, was it then he called to your father the first time?
“A. Yes, sir.
“Q. And what was it he said, ‘Stay there,’ didn’t he?
“A. ‘Stay there/
“Q. And then in a second after, a short period, you both called to your father to stay there, or words to that effect, did you not?
“A. Yes, sir.”

Witness testified that printed directions, or notices, were posted up at stations or waiting rooms of defendant and identified a copy produced as one of such notices, like that posted at Soderin. It was entitled, “Notice to the Public” — beginning and advising in part as follows:

“Safety first, last and always. When you flag an interurban car that does not stop for passengers at the place flagged, it will answer by two short blasts of the whistle. If it does intend to stop on your signal it will give one short blast of the whistle. * * * Freight cars will not stop for passengers. Always stand well back as the car approaches. Before crossing the track, look in both directions, to see that a car is not in close proximity. You may stumble and fall in front of it.” * * *

It also appeared that it was customary for the northbound passenger cars when signaled to stop on the north side of the highway, with the rear platform in it, and passengers were required to board the cars on the right, or east, side.

Deceased’s wife testified that he was an able-bodied man who worked every day in the factory at Muskegon Heights, beginning in 1914, “was in the habit of going back and forth to work on the car and had been' doing so for two years.” Plaintiff testified that he with his father had been taking the car every week day for several months, and his father longer, that—

“on other mornings when we signaled the car the motorman answered with one blast of the whistle, but this morning he answered with two blasts. From my experience in taking cars, I know what one blast meant.”

Zimmerman, the only other living witness to the accident, was not called to testify, although he was working at the factory in Muskegon Heights on the day of the trial and plaintiff had talked with him the night before, after seeing his counsel.

Of plaintiff’s first assignment of error, directed to exclusion of the question, “Will you tell the jury what your judgment is as to the speed of the car,” the ruling considered in the abstract seems questionable, as the witness testified that he, noticed how fast the passing car went by and' it was competent to prove its speed at the time of the accident; but he also stated in that connection that he had never driven an automobile nor in his trips over the line ever “observed the speed cars were 'traveling or estimated the rate they were going.” After the objection was sustained he testified that on previous occasions he had been at this crossing when passenger cars were due there and did not stop, and as compared with the speed of those cars which ran through without stopping this freight car which struck his father was “running a little slower.” With that fact established we cannot find under the circumstances of this case that the ruling was prejudicial error.

Of the second and third assignments of error it is urged that the testimony as to rules being posted up and what was meant by the whistle, or what plaintiff knew it meant, was inadmissible because knowledge of the posted rules or meaning of the answering whistle was not brought home to deceased.

It was not only competent for defendant to show in cross-examination of plaintiff that it operated its ear and answered signals on that occasion as was customary in strict compliance with its promulgated rules printed and posted in its railway rooms to advise and warn the traveling public; but also as tending to show that deceased, after two years’ almost daily familiarity with that crossing where such notice was posted, and his experience in travel on defendant’s cars as a passenger, presumptively had that knowledge brought home to him.

No question of discovered negligence or application of the doctrine of last clear chance is involved here, for plaintiff’s own testimony shows that so short a time intervened between deceased stepping from the door of the shelter house, but four feet away, and upon the track immediately in front of the car that it was impossible in the interval for the motorman to check his speed to an effectual extent before the car struck deceased.

Plaintiff’s claim of negligence on defendant’s part is predicated on the assumption that deceased was an invited or accepted passenger to whom it owed the duty of especial care prescribed when such relations exist. The specific charge of negligence stated in the declaration is as follows:

“Yet the said defendant, not regarding its duty in that behalf, did not use due and proper care that the said plaintiff’s intestate should be safely and securely carried and should be kept safe from injury by the said defendant while at the said station, but wholly neglected to do so and suffered and permitted one of its trains or cars to run through the said station of Soderin at a high, reckless, negligent and dangerous rate of speed and without any fault or negligence on the part of the said intestate, defendant carelessly and negligently, with great force and violence, ran a train and cars through the said station at a high, reckless, negligent and dangerous speed and ran said train and cars over and upon plaintiff’s intestate,” etc.

Soderin crossing was not a regular stopping place for any of the cars on defendant’s line. The only attributes of a station imputable to the place were that it was a country highway crossing on defendant’s line at which its passenger cars stopped for waiting passengers when signaled, or to discharge those bound for that point. Defendant’s single track was. on its private right of way except as it crossed the highway, substantially at right angles. The ground was level there, and the usual sign for railway crossings in the country, including a warning to “look out for the cars,” was conspicuously displayed in large letters at a proper elevation. As the usual stopping place for northbound passenger cars when signaled was on the north side of the crossing with the rear platform in the highway practically opposite the door of the little waiting room, also within the highway on its north side, it required but a few steps, and seconds of time, to go from the door of the waiting room past the rear of the car to the steps of its right rear platform to get on board. At the door of the waiting room, close to the track on which an approaching car would either pass or stop, there was a clear view in either direction along the track.

Under the conditions shown here and necessarily known to deceased it was incumbent upon him in the exercise of reasonable care to look before attempting to cross the track and- see that the approaching car was not in dangerous proximity. There were no diverting hazards to look out for. In a place with which he was familiar the only danger for him to avoid was a single approaching car, necessarily coming on the single track in front of him. It is unquestioned that if he looked he must have seen the car. In Gardner v. Railroad Co., 97 Mich. 240, where it was claimed the operation of a near-by switch engine on another track distracted plaintiff as he was about to cross a track on which a train was approaching, it was said:

“No one disputes that, if he had but looked, he certainly would have seen the train. It is evident, therefore, that he did not look, or, if he did, he saw the train, and carelessly attempted to cross in front of it; and in either case he was guilty of such negligence as to preclude a recovery. (Citing cases.) * * * He was bound to exercise that degree of care that the situation and surroundings demanded of a prudent and careful person. If the switch engine was making a noise by the bell'and by letting off steam, it, at least, was not an obstruction to his view to the east, and it is not so claimed. If he had looked eastward, he would have seen the train before he stepped upon the track. The ringing of the bell and the blowing off of steam from the switch engine did not relieve him from the duty of looking in the other direction. One look eastward, and one less step taken, and he would not have been upon the track.”

Vide, also, Manos v. Railway, 168 Mich. 155.

That general rule as to the duty of one about to cross a railway track is well settled and has been repeatedly affirmed by this court. In avoidance of it plaintiff urges that the rule does not apply because deceased was there as a prospective passenger to whom defendant owed the duty of special care to guard him from injury. The fact that he was a passenger would give him no right to step upon the track in close proximity to a rapidly approaching car. Derring’s Adm’r v. Power Co., 122 Va. 517 (95 S. E. 405). But he was not an invited, accepted or prospective passenger of defendant for this freight car, which was “running a little slower” than the passenger cars did when they ran through without stopping, and when signaled the motorman promptly answered with two blasts of the whistle that the car would not stop, giving notice that it was not a passenger car which would stop for those who signaled and, in effect, refused them transportation. Under such circumstances at such a crossing, there was no implied contract of carriage, for all defendant’s cars passed this crossing without stopping except passenger cars which had a passenger to discharge there, or had been signaled and in response gavé notice of intention to stop by one short blast of the whistle. It is generally, but not universally, held that an answering notice of intention to stop when signaled is an acceptance which establishes the relation of carrier and passenger, being evidence of an intent or proposal on the one part to become a passenger and on the other part his acceptance as such by the carrier, thus by implication creating that contract relation. Such were the distinguishing facts in Karr v. Traction Co., 132 Wis. 662 (113 N. W. 62), cited by plaintiff. Here the contrary appears. That distinction is pointed out in Rice v. Railway Co., 208 Mich. 123, where plaintiff’s testimony showed he signaled an approaching car at a crossing where it was conceded the car should have stopped when signaled, and was answered in the usual way to notify him that his signal had been observed and the car would stop. Thus assured, and misled into expecting that it would stop, he stood near the edge of the platform close to the track and was injured by the car which did not even slacken its speed and went by the crossing at a rate of 50 or 60 miles an hour. Holding that if the car was signaled and answered as claimed plaintiff was thereafter entitled to the degree of care on defendant’s part owed to a passenger, the court said in discussing the question:

“The cases cited by defendant’s counsel (Georgia, etc., R. Co. v. Tapley, 144 Ga. 453 [87 S. E. 473, L. R. A. 1916C, 1020]), are easily distinguishable. In these cases there was no acceptance, express or implied, of plaintiff as a passenger. To complete the relation, there must be an intent on the part of the passenger to take passage; a communication of such intent to the carrier, and an express or implied acceptance by the latter. Brott v. Railroad Co., 220 N. Y. 92 (115 N. E. 273).”

The trial court rightly held, as an unavoidable conclusion of law under the undisputed facts, that plaintiff failed to make out a prima facie case of actionable negligence on the part of defendant and the unfortunate accident was primarily imputable to the negligence of plaintiffs intestate.

The judgment is affirmed.

Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.

The late Justice Brooke took no part in this decision.


author: Bird, J.

text:
    MARGENOVITCH v. NEWPORT MINING CO.
    1. Master and Servant — Workmen’s Compensation Act — Total Disability — Evidence—Sufficiency.
    On certiorari to review an award by tbe industrial accident board for total disability under tbe workmen’s compensation act, testimony by plaintiff as to tbe nature of his injuries and his inability to work at his former occupation as a miner, held, sufficient to sustain the finding of the board.
    2. Same — Ability to Follow Other Occupation Immaterial.
    The fact that plaintiff is able to earn good wages at another occupation, although not equal to those earned as a miner, held, immaterial.
    3. Same — Mistake of Board — Evidence to Sustain Finding Sufficient.
    Even if the conclusion of the board that plaintiff’s inability to work as a miner was occasioned by injuries to his eye and ear was a mistake, its award would not be disturbed by the Supreme Court if the testimony as to other injuries received at that time tended to support it.
    On compensation recoverable by incapacitated employee under workmen’s compensation act, see notes in L. R. A. (N. S.) 136, 254; L. R. A. 1917D, 167.

      4. Same — Claim;—Amended Claim'.
    Where plaintiff filed two claims, the second one supplementing the first, the two should he taken together and treated as an amended claim, and defendant’s contention that plaintiff should he limited to recovery for the injury counted upon in the first claim cannot he sustained.
    6. Same — Appeal—Poweks of Board on Appeal.
    On appeal from the arbitration committee to the industrial accident board, the statute (2 Comp. Laws 1915, § 5464) contemplates a de nova hearing before the board with power to make decision therein without regard as to whether such decision affirms, reverses, increases, or decreases the award made by the arbitrators, and without regard as to which party appealed.
    Certiorari to Industrial Accident Board.
    Submitted October 15, 1920.
    (Docket No. 1.)
    Decided December 21, 1920.
    Rehearing denied March 31, 1921.
    Nick Margenovitch presented his claim for compensation against the Newport Mining Company for injuries received in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Affirmed.

      Cummins & Nichols, for appellant.

      James A. O’Neill, for appellee.
   Bird, J.

Plaintiff was injured on the 16th day of June, 1918, while employed by defendant as a miner. He was injured by a blast which struck him on the right side of his head and body. On October 9, 1918, he returned to his work, but remained only 10 days. His claim is that he was unable to do his former work. Following this, he did some work for defendant as a pipeman, but at a less wage than he received as a miner. The parties being unable to agree upon compensation, plaintiff requested an arbitration. He filed two claims, the first one described the nature of his injuries as follows:

“As. a result of a blast set off by another employee, I was injured all over my body, from my knees up, greatly injuring my eyes and my right ear.”

The second one filed a few days thereafter stated the nature of his injuries to be:

“Blasted in front part of body, face and head, resulting in deafness of right ear and loss of sight of right eye and permanent disfiguration of face.”

Testimony was taken by the arbitration board and plaintiff was awarded $10 a week for 100 weeks for the loss of his right eye. An appeal by defendant followed and a hearing was had before the full board. The full board reversed the findings and conclusions of the arbitration board, holding that plaintiff had not lost an eye within the meaning of the compensation law. They, however, granted him an award on the ground of total disability, occasioned by the injuries to his eye and ear. The award was at the rate of $10 a week covering the period of total disability, and thereafter at the proper rate during partial disability should he become entitled thereto. The defendant, being aggrieved by this order, is now here on certiorari, making the following complaints:

(1) That there is no evidence to support the board’s finding that claimant is totally disabled to engage in the work of a miner.

(2) That if there is any evidence tending to show said disability, there is no evidence tending to show that the disability arose from the injuries to his eye and ear.

(3) That the claim having been expressly limited to the loss of an eye to the claimant himself in his written application for an adjustment of the claim, it is not competent to make an award based upon the theory of disability.

(4) That it is not competent upon appeal by the defendant only (the claimant not having appealed) to increase the amount of the award on hearing by the full board.

Plaintiff’s testimony shows that he was unable to do the work in his regular occupation as a miner, and gave the reasons therefor, namely, that he could not use the drilling machine because the noise affected his head and made him dizzy, and further that he could not handle the timbers which a miner was required to handle. The testimony shows that his hearing and eyesight are impaired and that foreign matter was blown by the blast through his clothing and embedded into his flesh, some of which is still there. The following excerpts from plaintiff’s testimony will indicate his inability to follow his regular employment as a miner: __

“Q. Have you worked as a miner since you got hurt?
“A. I tried to work ten days, but I couldn’t stand it, because if I took a machine and drilled my head like to bust and it makes me crazy like.
“Q. Why?
“A. The noise of the machine makes me dizzy. • I can’t stand it and I got hit in the right leg with chunks. If I lifted anything heavy, over 50 pounds, it is just the same as if you stuck a knife in it.
“Q. Are your ears affected?
“A. My right ear is deaf. It was leaking for two months straight.
“Q. Can you hear anything in the right ear?
“A. Nothing.
“Q. How is your left ear?
“A. The left ear is all right.' * * *
“Q. Why are you not working now as a miner?
“A. I can’t.
“Q. For what reason?
“A. If I drive with machine I get headache and get kind of dizzy and besides that I couldn’t hear in the right ear, and if I pull timber I hurt my right leg. I got hurt in this leg (indicating right) from here (indicating knee) up and if I pull anything, timber or anything, I hurt my leg.
“Q. That is from the knee up?
“A. Yes, sir.
“Q. Were you injured in your right leg?
“A. Yes, sir.
“Q. Did you have any ore from the blast strike you there?
“A. Iron ore from the blast. * * *
“Q. In doing mining work you have got to use a drill?
“A. Yes, sir.
“Q. And you have got to handle your own timber?
“A. Yes, sir.
“Q. Every miner is required to do that?
“A. Yes, sir.
“Q. And if you can’t handle a drill or can’t handle the timber you are not a miner?
“A. No,.sir.
“Q. They wouldn’t keep you there if you couldn’t do that?
“A. No, sir.”

This testimony unquestionably brings plaintiff’s capacity to engage in his former employment within the domain of fact.

Another contention in this connection, which should be noticed, is that inasmuch as plaintiff has been able to earn good wages as a pipeman (although not equal to those he earned as a miner), it ought not to be held that he is totally incapacitated to work in his regular employment as a miner. This contention has so recently received the attention of this court in the following cases that a repetition of what was there said will be unnecessary: Foley v. Railway, 190 Mich. 507; Jameson v. Walter S. Newhall Co., 200 Mich. 514; and Miller v. Fair & Sons, 206 Mich. 360. The conclusions reached in these cases are adverse to counsel’s contention. The present case may be one of the hard cases referred to by Mr. Justice Steers in Foley v. Railway, but if it is the remedy lies with the legislature and not with us.

The claims as filed show that plaintiff was injured in the head, face, body and legs. The testimony tends to support these claims. In view of this it is not very important whether his incapacity arises from injuries to the eye and ear or to the body, if the incapacity arises from some of the injuries which he received on that occasion. The board concluded that his inability to work was occasioned by the injury to the eye and ear. Even though it appeared they were mistaken in this their award would not be disturbed by this court, if the testimony as to other injuries received at that time tended to support the award. The testimony as to the extent of the injuries to the eye and ear was very conflicting. The board has considered it and reached a conclusion thereon, which finds support in the testimony, and the parties must be content therewith.

The point is made that plaintiff’s claim having been expressly limited to the loss of an eye, it is not competent for the board to make an award upon the theory of disability. Counsel are in error in assuming that the claim was expressly limited to the loss of an eye. A reference to the claims will disclose that the injury to the eye and ear is counted upon in both claims and injury to the body in the first claim. The second claim was presumably filed to make the first one more specific and the two taken together should be treated as an amended claim.

It is argued that because defendant appealed, and the plaintiff did not, the industrial accident board had no power to increase the amount of the award. If either party files an appeal, the industrial accident board is given the power by the statute to review the decisions of the committee on arbitration. 2 Comp. Laws 1915, § 5464. This section evidently contemplates a de novo hearing before the industrial accident board on appeal with the power to make decision therein, without regard as to whether such decision affirms, reverses, increases or decreases the award made by the arbitrators, and without regard to the question as to whose appeal it may have been. We think if the legislature had intended any such restrictions upon the right of the board in making its decision, as is argued by counsel, it would have given some indication of it in the act.

We are of the opinion that the award of the industrial accident board should be affirmed, with costs to the plaintiff.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Sharpe, JJ., concurred.


author: Steers, C. J.

text:
    HAKES v. KENT CIRCUIT JUDGE.
    Default — Court Rules — Setting Aside Default — Limitation.
    Under Circuit Court Rule No. 32, § 4, where more than six months had elapsed after- defendant’s default in a suit for divorce had been regularly entered, and decree granted to plaintiff, the court was without jurisdiction, on defendant’s petition, to set aside said default; the provisions of said rule being mandatory.
    Mandamus by Frank Hakes to compel William B. Brown, circuit judge of Kent county, to vacate an order setting aside a default.
    Submitted January 18, 1921.
    (Calendar No. 28,954.)
    Writ granted March 30, 1921.

      John J. McKenna and R. M. Shivel, for plaintiff.

      Jewell & Smith, for defendant.
   Steers, C. J.

Plaintiff seeks by mandamus to compel vacation of an order setting aside a default of the defendant and a decree for plaintiff' in a divorce case entitled Frank Hakes v. Letha Hakes, granted and recorded in the Kent county circuit court, in chancery, on December 12, 1917. It appears that the parties to said suit were married April 6, 1906. Two children were born of the marriage, a son on February 3, 1907, and a daughter on May 12, 1909. The parties disagreed and ceased living together as husband and wife prior to September 6, 1917, . and on that date a written agreement was entered into between them settling their property rights, including alimony, and custody of children. The terms of this agreement were discussed, settled upon and reduced to writing in the office of plaintiff’s counsel. At that time a brother-in-law of defendant and an attorney whom he had procured in her behalf were present to look after her interests. Before the parties signed the agreement it was read over to defendant and her brother-in-law and pronounced by them satisfactory, her brother-in-law signing it as one of the subscribing witnesses.

The contract, after proper introductory recitals, provides that the father, Frank Hakes, shall have the maintenance, custody, care and education of their two minor children until they respectively arrive at the age of 18 years, reserving to the mother, Letha Hakes, the right to visit them at any time and place wherever they may be during reasonable hours; that each party may have said children half the time during school vacations; gives defendant possession and title to all furniture located in their home, but provides that when the daughter is of sufficient age and wishes to take music lessons the family piano shall be at her service for that purpose; requires plaintiff to give defendant $500 in cash, specifying times of payment, releases him from further property claims which she might otherwise have as his wife, etc., concluding as follows:

“It is further agreed between said parties that in case a bill of divorce is filed by either of the parties hereto and a decree for divorce shall be granted to either of them, then this agreement may be treated as reasonable and equitable settlement of their party rights and the custody of their children and that the substance of the same may be embodied in the said decree for divorce and become a part thereof.”

On September 6, 1917, after this agreement was executed, plaintiff filed a bill for divorce in the Kent county circuit court, in chancery, against said Letha Hakes, charging extreme and repeated cruelty to himself and their children at various times, covering a period from shortly after their marriage until their separation. Chancery process was duly issued in said suit, personal service had and proof thereof filed on September 27,1917. Defendant, though living near by, did not appear. Affidavit of her nonappearance and of regularity were duly filed and her default by order pro confesso and of reference was duly entered.

On November 12, 1917, more than 60 days after filing the bill of complaint, the case was brought on for hearing. Testimony was taken in behalf of plaintiff in open court, given by himself and the wife of defendant’s brother. On December 12, 1917, a decree for absolute divorce was granted to plaintiff Frank Hakes against said defendant Letha Hakes. The provisions of their property agreement were set out in substance in the decree, which plaintiff thereafter fully and faithfully observed and performed all its conditions and requirements on his part, both as to the property and children. No question is raised but that defendant received the money and property awarded to her. The children were kept and properly cared for in a religious school at plaintiff’s expense, and the provisions relative to the mother seeing and having them with her were observed.

On December 2, 1918, said Letha Hakes filed a petition in the circuit court of Kent county, in chancery, praying that the decree be modified with reference to custody of the minor children. Plaintiff appeared by counsel and answered. The matter, though at one time set for hearing on August 11,1919, does not seem to have been pressed. It is- not shown to have ever been submitted or any disposition made of it.

On July 30, 1919, over a year and a half after the decree, said Letha Hakes by the same counsel filed a sworn petition in said suit asking that her default for nonappearance be set aside, the decree for divorce vacated and she be permitted to file an answer in the nature of a cross-bill to the bill of complaint filed therein. Plaintiff answered this petition on August 11, 1919. This matter was brought on to be heard before the judge who had granted the decree, both parties being present and represented by counsel. Voluminous affidavits and counter affidavits were filed and the court permitted both parties to amend their pleadings. The files and records of the probate court of Kent county relating to commitment of said Letha Hakes to the Kalamazoo State hospital for treatment were admitted in evidence, and also the records, of the probate court relative to her restoration to sound mind. The matter was thereafter argued and on August 13, 1919, the court made the order complained of, setting aside the default of said Letha Hakes in the divorce case and vacating the decree.

The grounds stated in the order are:

“fraud practiced on said court in the concealment of the material facts and circumstances by the witnesses in behalf of said plaintiff and by the bill of complaint of said plaintiff and that the nonappearance and default of said defendant and the order pro confesso were entered and obtained by reason of the fraud practiced on said defendant”—

The return to the order to show cause is an elaboration and argument of those reasons accompanied by 66 exhibits, consisting of copies of pleadings and other records of court proceedings, some papers with lists of subscribers, as to a petition, entitled “statements of citizens,” of Lowell where the parties formerly lived, certifying respectively to the good standing and high moral character of each, and 44 affidavits bearing, or claimed to bear, on the contentions of the respective parties.

Plaintiff’s counsel contend that the order setting aside the default and vacating the decree is without authority of law and void for the following reasons:

“(1) The application to set aside was not made within six months after the default of said Letha Hakes was regularly entered as provided by section 4 of Circuit Court Rule No. 32, and that she was guilty of such laches and delay as precluded her from obtaining this relief.
“ (2) No fraud was alleged or proven and there was no evidence of fraud to sustain and warrant the order of the circuit judge in setting aside the default and the decree and his findings of fraud in this order and in. his answer and return are without foundation and his action amounts to an abuse of discretion on his part.”

Petitioner’s claimed charges of fraud consist chiefly of denial of the misconduct alleged and prima facie proven by plaintiff as ground for his divorce, of counter charges of misconduct against him, of ignorance at that time as to her own rights, and of false representations, threats and intimidation by him impelling her to enter into the contract of settlement and refrain from contesting his divorce case. All this was answered by full denial under oath, supported by counter affidavits fully covering every question raised, which necessitated for a favorable determination of her contention a finding that plaintiffs counter showing was false in fact and she had sustained the burden of proof under the well-settled rule that all presumptions are against fraud, which must be proven clearly and conclusively to prevail, an issue which we do not find it necessary to fry out on affidavits at this stage of the proceeding.

We gather from the return that the found fraud upon the court is largely based on the view that at the hearing on default plaintiff concealed from the court the odor of collusion in the contract of settlement with his wife indicating a divorce was imminent. Of such a contract based upon “prior negotiations” the court pointedly said that:

“Such an agreement would be' an assurance of non-contest, which is illegál and a decree secured as a result of an agreement, even though ‘made voluntarily’ is a fraud on the court and void.”

Upon that hearing the court was advised both in plaintiff’s testimony and by statement of his counsel that there was an agreement in writing as to the children and property. The record of the hearing does not disclose that it was offered in evidence, or before the court, beyond the inference arising from the fact that 7 of the 10 paragraphs of the decree then granted and signed by the court follow the contract in substance with detailed provisions as to various matters of which there was no other evidence beforg the court.

It is shown plaintiff’s wife was committed by the probate court to Kalamazoo hospital for the insane on December 30, 1914, where she remained about two months, and was on June 30, 1918, adjudged by the same court fully restored, sane, and mentally sound. That, plaintiff did not on the hearing of his divorce case disclose that his wife had been adjudged insane and the facts relative to her mental condition is also mentioned in the return as fraud upon the court. There is no proof or claim by or for her that she was of unsound mind when she made the alleged collusive contract with her husband, nor for a couple of years before, or since. Her claim is ignorance of her rights, deception and intimidation of her by her husband. Before December 2, 1918, she had engaged counsel through whom she had available knowledge of the nature of the divorce proceedings, the decree against her and presumably was advised of her rights. She then filed a petition recognizing the decree and praying that it be modified only as to the care and custody of the minor children, a feature of the case in which the court held continuing jurisdiction and power to act on proper showing. Some eight months later this petition was filed continuing her charged laches that much longer after full knowledge.

If abuse of discretion which plaintiff’s counsel so strenuously urged was the only test, we might hesitate to interfere under the broad discretionary control given equity courts over their decrees before enrollment ; but the mandatory limitations of time in which they may act after a defendant personally served has ignored the summons and been defaulted is squarely stated in section 4 of Circuit Court Rule No. 32 as follows:

“In all cases where personal service shall have been made upon a defendant, and proceedings taken after default on the strength thereof, his default shall not be set aside unless the application shall be made within six months after such default is regularly filed.”

This court has construed said rule, as well as former Rule No. 12 of like import, many times and held that where personal service was had with all proceedings regular up to the time of a default regularly entered and proceedings were taken after default on the strength thereof, such default could not be set aside unless the application was made within six months after the default was filed and entered. Petley v. Wayne Circuit Judge, 124 Mich. 14; Carpenter v. Judge of Superior Court, 126 Mich. 8; Biensteadt v. Clinton Circuit Judge, 148 Mich. 633; Caille Bros. Co. v. Saginaw Circuit Judge, 155 Mich. 480; St. Louis Hoop & Stave Co. v. Wayne Circuit Judge, 155 Mich. 311; Steele v. Bliss, 170 Mich. 175; Burgard v. Burgard, 175 Mich. 565; Emery v. Airth, 180 Mich. 433; Hekkema v. Kalamazoo Circuit Judge, 184 Mich. 646; Cook v. Wayne Circuit Judge, 197 Mich. 19; Detroit Taxicab & Transfer Co. v. Wayne Circuit Judge, 203 Mich. 105; Kentucky Wagon Manfg. Co. v. Kalamazoo Circuit Judge, 208 Mich. 267.

The provisions of the rule are mandatory, applying alike to law and equity proceedings. The substance of repeated rulings of this court upon that limitation is well condensed in Cook v. Wayne Circuit Judge, supra, a chancery suit in which default after personal service had been entered and decree granted more than six months before application to set the same aside, as follows:

‘‘The object of this rule was to fix the time within which a default might be set aside and it has been repeatedly held that an order setting aside a default after the expiration of six months from its entry was void, and mandamus has issued to compel the vacation of such orders.” Citing cases.

The trial court was without jurisdiction to make the order complained of.

Writ will issue requiring vacation of the same as prayed, with costs to plaintiff.

Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. The late Justice Brooke did not sit.