text:
    AGNEW v. KELSEY WHEEL CO.
    1. Contracts — Patents—License—Interpretation.
    Where defendant had been granted an exclusive license to operate under a patent of certain electrical welding machines used in welding rims, its provisions granting to defendant the right to terminate the agreement but not granting such right to the plaintiff, the latter was not entitled to execute a further contract of license to other parties prior to such termination by the defendant.
    2. Same — Waiver—Question oe Pact — Intent.
    Plaintiff, who claimed that the defendant had waived his right to rescind or terminate the contract, was entitled to have the question presented to the jury by a charge of the court as to defendant’s failure to complain and as to evidence that upon failure to pay royalties plaintiff made a demand and defendant’s secretary stated they had not been verified and that it at no time claimed that the contract was terminated; the question of waiver is usually a mixed issue of fact and law where there is any evidence tending to show an intent of the party to waive a right.
    3. Same — Patents—Royalty Agreement — Breach of Contract— Assignment.
    Nor was defendant entitled to a peremptory instruction as against the plaintiff upon the ground that the plaintiff had failed to inform him that his application for a patent had been rejected, it appearing a patent had been granted in Canada and that proceedings were pending in the United States patent office for the perfection of such claim to a patent as plaintiff claimed he was entitled to; defendant not having elected to put an end to the agreement.
    4. Same — Breach—Assignment—Lease.
    Nor was the contract breached by the assignment by the plaintiff of his rights subject to the defendant’s license, which contained no prohibition or restriction against the transfer of the interest retained by plaintiff and where the rights of defendant company were sufficiently protected.

      Error to Wayne; Mandell, J.
    Submitted November 20, 1914.
    (Docket No. 98.)
    Decided April 6, 1915.
    Rehearing denied October 29, 1915.
    Assumpsit by Ray F. Agnew against the Kelsey Wheel Company on a royalty contract. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Dwight C. Rexford, for appellant.

      Campbell, Bulkley & Ledyard (Charles H. L’Hommedieu, of counsel), for appellee.
   Moore, J.

This is an action brought September 7, 1911, to recover four installments of $375 each, for royalties claimed to be due under a contract dated June 3, 1909. From a judgment in favor of the plaintiff the case is brought here by writ of error.

The parts of the contract material to the questions raised are:

“Whereas the party of the first part is the inventor and designer, and sole owner, of certain new and useful improvements in electrical welding apparatus, the same being described in his application for U. S. letters patent serial No. 481,172, filed March 5, 1909, and other inventions which, the said party now has and which he may hereafter make, relating to the same subject; and whereas the party of the second part is desirous of obtaining an exclusive license under said inventions and any patents that may be issued therefor in the United States or the Dominion of Canada, for use in the welding of channels, wheel rims or wheel tires. * * *
“Third. The party of the first part further agrees to manufacture, sell and deliver to the second party two 50 kw. welding machines, suitable for the welding of channels or wheel rims, such as used in carriage or automobile wheels, at the rate of four hundred per day, of ten hours each; such machines to be of good workmanship and material, and design. * * *
“Eighth. In consideration of the license granted and the agreements herein contained on behalf of the first party the second party hereto agrees to accept said two welding machines and to install them for use in its factory at Detroit, Michigan, upon receipt of same, and to employ the same for welding channels or wheel rims.
“Ninth. The party of the second part further agrees that it will pay to the party of the first part one thousand dollars each for such first two machines, one-half the purchase price to be paid to the first party as required during the building of the machines, and the balance as soon as the machines are set up and are in working order.
“Tenth. The party of the second part further agrees that it will pay to the party of the first part upon all wheel rims or channels which it shall use upon wheels which the second party shall manufacture or have manufactured for it and sell, a royalty of one and one-quarter cent per rim; and upon all rims or channels which the second party shall weld to be sold to other people separate from the wheels, a royalty of three cents per rim.
“Eleventh. The party of the second part agrees to account to the party of the first part, its successors or assigns, upon the first day of December, March, June and September, of each year, for all wheel rims or channels which it shall have welded upon said machines, and to accompany such report and statement with a remittance covering the royalties due at the rate specified; and the said second party agrees that the said royalty shall amount to at least three hundred and seventy-five dollars for each quarterly payment, up to September 1st, 1913.
“Twelfth. It is mutually agreed between the parties hereto that the second party may cancel this contract any time after September 1st, 1913; or prior to that date, in the event that the machines furnished shall fail to perform their work or in the event that the use of said machines is stopped because of patent litigation, or in the event that a patent is refused to the first party upon the said application serial No. 481,172 herein referred to.”

Some controversy arose between the parties as to the breakdowns of the machines interfering with the quantity of the work they could do, when the following paper was made:

“Detroit, Mich. U. S. A. Jan. 3, 1910.
“K. H. Wheel Company,
“Detroit, Mich.
“Gentlemen:
“I beg to advise that I have made some improvements on the mechanical parts for welding machines for welding rims and I am willing to furnish you with two improved machines and take back the two machines you now have without any expense to you, providing that I may draw against royalties due between now and March 1st.
“I will guarantee these machines to be of good workmanship and design and will replace free of charge any part in said machines that proves defective. Will use transformer now in machines and guarantee capacity as per agreement.
“Yours very truly,
“R. F. Agnew.
“Accepted.
“Ford Lawrence.
“Wm. H. Ducharme.”

It is the claim of the plaintiff that he made certain changes in the machines, supplying new parts, which met the requirements mentioned in the paper of January 3, 1910, and that thereafter he never heard any complaint about the. manner in which the machines did their work. He was paid royalties up to June, 1909, according to the terms of the contract. It is plaintiff’s claim that when he interviewed the secretary of the company, who had charge of the office work, as to why the royalties were not paid after June, 1910, he was told, in substance, that the royalties due had not been checked up, and that he would proceed to check them up and ascertain the amount due, and that he was again told this at the office, and again over the telephone as late as in September. It is plaintiff’s claim nothing was said indicating that defendant claimed the contract was ended, and that no effort has ever been made to terminate the contract in the manner provided therein. The royalties were not paid, and this litigation followed, with the result before stated.

The court charged the jury at great length. Part of the charge is as follows:

“Gentlemen of the jury, the contract is plain in its terms, and it means exactly what it says, and whether the plaintiff understood it or misunderstood it, or whether the defendant correctly understood it or misunderstood it, that contract provided for the furnishing, among other things, of two new machines, and if there had been litigation then, at that time, over its terms, there would have been no case, but the plaintiff would have been bound, under the terms of the contract, to furnish two new machines, containing all the new improvements; but they went along and finally they reached the 1st day of March.
“This contract provided for the payment of royalties up to the 1st day of March, and they were paid, and apparently paid promptly, and, needing the machines and needing the work, the defendant went on using the old machines. The old machines belonged to the defendant all the time, and the plaintiff had no property rights in them whatsoever; the defendant had bought them and paid for them, but the defendant had no right to use them, except by reason of the provisions contained in the original contract, known as Exhibit 1. There the parties separated in their belief, so they say. Whether there was a real, or just an apparent, misunderstanding would be, in a measure, for you to say. The plaintiff claims that he believed and assumed that he had performed his contract when he repaired the machine by putting on a new head, or doing something else, to the other machine, and his theory is now that, as those machines were used, they must have been used understandingly and knowingly by the defendant under the terms of Exhibit 1, and that they were used from the 1st of March to the 1st of June, and royalties were paid, and it is too late for the defendant to claim that there was any other understanding of the terms of the contract than the one alleged now by the plaintiff. The defendant’s claim in that regard is this, that all the time it was waiting, thinking that they had been putting in these repairs to tide them over the time until the new machines would appear, and that they continued using the old machines with that understanding, relying upon the new contract to furnish two new machines, and their claim is that those two new machines were not forthcoming, and were not given to the defendant by the 1st day of June, and that it discontinued the payment of royalties and stopped using the machines and put them in storage, and that they have not used them since, and are under no obligations to pay for the use of them by reason of the failure of the plaintiff to perform his part of the contract of the 3d day of January. * * *
“Now the old contract, which is still in existence and which is a contract entire, stands by itself, except as modified by the undertaking of the plaintiff in the writing of January 3d, provided for a method in which this contract could be terminated. It could have been terminated at any time by the defendant upon notice to the plaintiff that the machines were not doing their duty properly, or were not up to the specifications, promises, assurances, and warranties of the plaintiff himself. The claim of the plaintiff is that at no time has it received any notice from the defendant of its desire to terminate the contract, and that therefore the plaintiff had his property tied up in a way that he could not sell or dispose of the right to use similar machines to any one else, and that is his claim, and his claim is that he had a right to assume that, as he never received notice from the defendant of the termination of the contract for reasons that would be good reasons under the contract for its termination, and that therefore he had a legal right to assume that the contract was in full force and legal effect. The defendant, on the other hand, claims this with regard to the plaintiff’s claim, that, at the interview either on the 3d day of January or the date preceding it, notice was given by the defendant’s president to the plaintiff that they had quit, or used words of similar import, which the defendant claims meant that the contract was terminated, and terminated for reasons which would be sufficient under the terms of the contract, and that the new contract entered into the following day or the same day, after an interview, was a new contract on the part of the plaintiff, and that, the plaintiff having failed to provide the new machines, the defendant is released. I cannot say, as a matter of law, that either one of those claims, is sustained by the proofs because the question of waiver in a large degree is one for the jury where there is any testimony tending to show or support a claim of waiver, and the jury must determine what the intent of the parties was. * * * If there was a waiver, then I charge and instruct you, as matter of law, that the plaintiff is entitled to recover, because there is no showing that subsequent to the time of entering into this contract there was ever notice served directly on the plaintiff of the termination of the contract, and the only evidence that is urged as to notice is the question of the stoppage of the payment of the royalties, and that, gentlemen of the jury, may be considered as evidence, but not as conclusive evidence of it, because sometimes persons under obligations to pay royalties are unable, by reason of certain financial things that happen to them, are unable to pay, or they may be unable to pay for certain, other reasons, but nonpayment in and by itself is not to be taken as conclusive evidence that the termination of the contract is sought by the parties bound by it.
_ “On the other hand, if you find that the defendant did not, either by declaration or by words, indicate to the plaintiff that it waived the right to have two new machines given to it as provided for by the contract of January 3d, then the plaintiff is not entitled to recover because he has not, in such an event, fulfilled his part of the contract, and the defendant would no longer be bound by the terms of either that contract or the general contract known here as Exhibit 1; so your verdict will be determined by your finding as to whether or not there was a waiver such as I have spoken of that would relieve the plaintiff of the obligation to furnish the two new machines that he was bound to furnish under that contract.
“If you find that there was such a waiver, then, gentlemen of the jury, the plaintiff is entitled to recover for such sums as are provided for as royalties in the contract up to the time of the commencement of this suit, but no further. I charge you that distinctly, so that it may be of record that recovery is permitted only up to the time of the commencement of this suit. The plaintiff alleges that the sum totals now $1,746, including interest, $1,500 being the amount of the principal that plaintiff claims, and interest, at the rate of 5 per cent, from the time the payments were due up to date, $247. The form of your verdict will be that you find for the plaintiff in the sum mentioned, or that you find for the defendant no cause for action.
“I have not had opportunity to read the various requests to charge, as they were handed up so late. I charge you that the plaintiff did not perform his agreement of January 3, 1910. That is conceded by all the parties, and the burden of proof is upon the plaintiff to show that the defendant waived his performance of that agreement. The evidence of the waiver by the defendant of plaintiff’s performance of his agreement of January 3, 1910, ought to be full and distinct before it should be received as satisfactory to you, because the agreement which is in writing ought not to be treated as waived by the defendant, unless there is full and proper proof of such waiver.”

The counsel for appellant discusses the important questions under the following heads:

“The court erred in not directing a verdict for the defendant:
“(1) Because there was no evidence for the jury tending to show that defendant waived performance, by plaintiff, of the contract.
“(2) Because it appeared by undisputed evidence that plaintiff had breached the warranties contained in his second agreement.
“(3) Because plaintiff breached his contract by not informing defendant of the rejection of his application for a United States patent.
“(4) Because plaintiff breached his contract by assigning to the Agnew, now Michigan, Electric Welding Company, his invention and application for a patent, subject to the contract with defendant, whereby he lost control of the application.”

Each of these propositions is discussed at great length. The first and second of them may be considered together. In doing so it should not be forgotten that defendant had been given the exclusive license to put out rims under plaintiff’s invention. The contract also in terms provided how defendant might terminate it. It did not provide that Mr. Agnew might terminate it. It follows that until defendant terminated it, Mr. Agnew could not license some one else to make the rims.

We have also stated the claim of plaintiff as to the conduct of the parties after the second contract was made, and there is testimony tending to sustain this claim. The court has said:

“A waiver is a mixed question of law and fact, and each case must necessarily depend much upon its own peculiar circumstances and surroundings. It is a question for the court to determine whether there is any evidence tending to show a waiver; but, when there is any evidence, the jury must determine what the intent of the party was, as the question of waiver is usually one of intent, as indicated by the acts and declarations of the party.” Griswold v. City of Ludington, 116 Mich. 401 (74 N. W. 663).

The record does not show an attempt to terminate the contract in the manner therein provided. See Skinner v. Machine Co., 140 N. Y. 217 (35 N. E. 491, 37 Am. St. Rep. 540); Hurd v. Gere, 27 App. Div. 625, 50 N. Y. Supp. 235. We think there was an abundance of testimony to justify the court in refusing to direct a verdict.

3. It is said the plaintiff breached his contract by not informing defendant of the rejection of his application for a United States patent. It is one answer to this to say that Canadian patents have been granted, and that patent proceedings were pending in the United States at the time of the trial, and defendant had not elected to terminate the contract as provided by its terms.

4. It is said plaintiff breached his contract by assigning the invention and application. The assignment was made to a company in which Mr. Agnew was a stockholder, and by its terms the rights of the defendant company were carefully protected.

Judgment is affirmed.

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


source: Caselaw Access Project

author: Steere, J. Ostrander, J.

license: Public Domain

text:
    CITY OF OWOSSO v. UNION TELEPHONE COMPANY.
    1. Telegraphs and Telephones — Carreers — Michigan Railroad Commission — Statutes — Rates—Regulation—Municipal Corporations — Cities.
    Under Act No. 206, Pub. Acts 1913, declaring that telephone companies and telephone lines are common carriers and subjecting them to the control of the Michigan railroad commission, the regulation and supervision of such corporations is committed to the exclusive charge of the commission, and the act limits in a large degree the resort to the courts in the first instance and affects the statutory and common-law remedies, reserving to the courts the right of final review by appeal from orders of the commission.
    Per Brooke, C. J., and Stone, Moore, and Steere, JJ.
    2. Same — Contracts—Constitutional Law — Franchises.
    In the absence of clear and express delegated power from the State, contracts in the nature of a franchise from a city to a telephone or power company, fixing the rates and placing restrictions upon the business, are permissive only and not such agreements as are contemplated by constitutional limitations.
    Per Brooke, C. J., and Stone, Moore, and Steere, JJ.
    3. Same.
    In 1898, when defendant’s franchise was enacted by complainant in the form of an ordinance, the defendant was authorized to use the public streets, etc., in the conduct of its business, without permission from the municipality (2 Comp. Laws, § 6691, 3 How. Stat. [2d Ed.] §7214), and the authority of the city under the statutes of this State was limited to the police power in enforcing reasonable rules and regulations as to the erection of poles and equipment and in preserving the* streets in safe condition for public travel and other uses.
    Per Brooke, C. J., and Stone, Moore, and Steere, JJ.
    4. Same — Pleading—Equity—Demurrer.
    On demurrer to complainant’s bill averring that defendant telephone corporation had accepted and was operating under an ordinance or franchise authorizing it to construct and maintain a telephone system and lines in the city of Owosso at rates specified in the ordinance, that defendant attempted to raise its rates by imposing upon delinquent subscribers an extra charge of 50 cents per quarter, by sending notice to patrons that after a date named the rates would be increased by the' said amount, and a rebate to the old rates granted to those not in default, the bill of complaint, which contained no averment that any one had become delinquent or that any attempt had been made to enforce the advanced rate, did not state a case for equitable relief, and is dismissed on appeal because no threatened irreparable injury was disclosed and no damage or primary injury set forth.
    Appeal from Shiawassee; Miner, J.
    Submitted November 23, 1914.
    (Docket No. 143.)
    Decided April 6, 1915.
    Bill by the city of Owosso against the Union Telephone Company for an injunction and other relief. From an order overruling its demurrer defendant appeals.
    Reversed.

      Leon F. Miner, for complainant.

      William A. Bahlke, Thomas G. Long, and Stevenson, Carpenter, Butzel & Backus (Edwin H. Lyon, of counsel), for defendant.
   Steere, J.

This case comes here on appeal from an order overruling defendant’s demurrer to complainant’s bill filed in the circuit court for the county of Shiawassee to restrain defendant from charging its subscribers in the city of Owosso any sum for the rental of its telephones in excess of the rate fixed by an ordinance of said city.

In outline, said bill states: That on the 21st of September, 1898, an ordinance was passed and accepted granting defendant’s predecessor, the Owosso Telephone Company, assignor of defendant, a “franchise and ordinance” authorizing it to construct, operate, and maintain a telephone line in said city and to charge a telephone rental not exceeding $20 per year for business places and $18 per year for residences within the city limits for 5-year contracts; after five years, not to exceed $24 for business places and $18 for residences per year; also, providing there should be free service between the city of Owosso and Corunna, and a charge not exceeding $18 per year for any telephones furnished for the use of the city of Owosso. That defendant operates under and by virtue of said franchise and ordinance and has obeyed its provisions until shortly before commencement of this suit, when it sent statements of account to various subscribers in the city of Owosso having residence telephones showing them to be indebted to the telephone company in the sum of $5 for the three months following October 1, 1913, until January 1, 1914, and to subscribers having telephones in business places showing that they were indebted to said company for rental of telephones for said period in the sum of $6.50, appended to the statements being the following note: “Quarterly rental charge subject to rebate of 50 cents if paid by the 15th of first month of each current quarter” — claiming the right to charge 50 cents additional for three months’ rental of a telephone, as a penalty, if said rental is not paid on or before the 15th day of each quarter. And that said company also insists that the city of Owosso pay, in like case, a penalty of 50 cents per quarter, the same as charged other subscribers; said bill of complaint therefore being filed by the city of Owosso in its own behalf, as a subscriber to said company, and also in favor of various residents of the city who are subscribers. That, though requested by the city attorney to refrain from the practice of charging such additional 50 cents in such cases, defendant refused, and is continuing so to do. Wherefore an injunction is asked restraining defendant therefrom.

On the filing of this bill a temporary injunction was allowed by the court restraining defendant from making such additional charges for delinquency in payment.

To this bill defendant filed a general demurrer assigning nine grounds therefor, in substance as follows:

(1) The bill is devoid of equity.

(2) Does not aver that the subject-matter exceeds $100.

(3) Complainant has a full, complete, and adequate remedy at law.

(4) _ The circuit court in chancery has no original jurisdiction to adjudicate upon the subject-matter of said bill.

(5) “That the whole subject-matter as set forth in such bill of complaint is exclusively within the jurisdiction of the railroad commission in and for the State of Michigan under and by virtue of Act No. 206 of the Session Laws of Michigan for the year 1913.”

(6) That the city has no authority under its charter or the ordinance set forth in the bill to regulate and control defendant in charging or collecting 50 cents per quarter against delinquent subscribers there referred to.

(7) That defendant has a right under the law to collect said extra charge from delinquents as a reasonable regulation in the conduct of its business, and said rule does not in law violate the maximum rentals allowed by said ordinance.

(8) That section 7 of said ordinance is void, in that it unlawfully discriminates between other subscribers of defendant and said city and in attempting to regulate telephone rates beyond the jurisdiction of said city, and “that therefore there is no affirmative showing made by said bill that the complainant is paying, or has paid, the maximum rate allowed by said ordinance to be charged for said telephone service.”

(9) “That the complainant city has no right, power, or authority under said ordinance, its charter, or the laws of this State, to file a bill of complaint in the interest of and for the benefit of subscribers' of the Union Telephone Company.”

Of these nine reasons, counsel for defendant confine their argument and refer in their briefs to Nos. 1, 6, 4, 5, 9, which overlap to a degree and are more or less contingent on each other. Aside from a denial of equity in the bill and failure from any viewpoint to state a case in the bill entitling complainant to equitable relief, defendant’s chief contention is that the city had no power to regulate rates; and, in any event, the extra charge to delinquent subscribers, as complained of, is but a reasonable rule in the conduct of its business and a matter exclusively within the jurisdiction of the State railroad commission of the State of Michigan under said act of 1913 (Act No. 206), entitled:

“An act to declare telephone lines and telephone companies within the State of Michigan to be common carriers, to regulate the business of the same, provide for the consolidation thereof and prescribe a penalty for the violation of this act.”

Sections 2 and 3 of said act provide, in part, as follows:

“The Michigan railroad commission, hereinafter styled ‘the commission,’ shall have the general control of all telephones, telephone lines and telephone companies within the State, and shall investigate any alleged neglect or violation of the laws of the State by any person, copartnership or corporation doing a telephone business within the State, or by the officers, agents or employees thereof. * * *
“All charges made for any service rendered, furnished or performed, or to be rendered, furnished or performed within the State by any telephone company shall be reasonable and just, and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful; and the commission shall have power to make, alter, amend or abolish any rate or charge for any service, and may regulate by rules or orders any service or facility.”

Under these and following provisions of said act it is contended that all original jurisdiction in questions involving alleged unjust and unreasonable charges is vested in the railroad commission, to whom aggrieved parties must first appeal, and therefore the court of chancery has no jurisdiction over the subject-matter of this bill except on appeal from rulings of the commission, for which full and detailed provision is made in the act.

On the part of complainant, it is contended that the act nowhere gives to the railroad commission exclusive jurisdiction and control over telephone companies ; that in the instant case the franchise granted by the city, accepted and acted under by the telephone company, before said act was passed, is a valid and binding contract, establishing contractual relations and rights between the respective parties in regard to rates, binding upon both, and neither the legislature nor the court has, under the Constitution, any right to enact a law or make an order impairing the obligation of such a contract — citing the familiar provision of our Constitution that no “law impairing the obligation of contracts shall be passed,” etc. It is further urged that the telephone company, having voluntarily entered into a contract with the city, has recognized its right to fix the maximum rate to be charged subscribers and is now foreclosed by the doctrine of estoppel from denying the same; therefore, admitting that defendant is, as a general proposition, authorized to enforce reasonable rules and regulations in the conduct of its business, it is urged that rules and regulations imposing a charge in violation of contract relations cannot be held reasonable.

It seems clear, unless in exceptional cases, that, under said Act No. 206, governmental supervision, control, and regulation of telephone companies doing a public business is committed to the Michigan railroad commission, and that as a rule said commission has authority to pass upon and determine all questions of rates. The broad power delegated by statute to that commission impliedly abrogates or limits in a large degree first instance resort to the court by both statutory and common-law remedies previously available, while the act carefully preserves the right of appeal to the courts for final review.

Complainant is a municipal, and defendant a public utility, corporation, each holden for its existence and entity to a franchise granted by the State — a right conferred upon an association of natural persons in the name and under protection of an artificial personality to organize and engage in certain activities. Their rights and powers are limited by the laws under which they are organized. With the question of contractual rights, raised by counsel for complainant, is involved the question of corporate power in the city to enter into a contract with defendant, a public utility corporation, fixing its rates beyond State control. In the absence of clear and express delegated power from the State, it has been held that contracts of the nature claimed here are permissive only and not such as are contemplated by constitutional limitations. Louisville, etc., R. Co. v. Mottley, 219 U. S. 467 (31 Sup. Ct. 265, 34 L. R. A. [N. S.] 671).

At the time this ordinance was passed in 1898, defendant had the right to use public places, streets, and highways in the conduct of its business without any franchise granting permission (section 6691, 2 Comp. Laws; 3 How. Stat. [2d Ed.] § 7214), and the authority of the city under section 3186, 1 Comp. Laws (2 How. Stat. [2d Ed.] § 5708), was limited to the police power of imposing and enforcing reasonable rules and regulations controlling the erection and maintenance of poles, wires, etc., to preserve its streets reasonably safe and convenient for public travel and other proper use. Michigan Telephone Co. v. City of Benton Harbor, 121 Mich. 512 (80 N. W. 386, 47 L. R. A. 104); Village of Jonesville v. Telephone Co., 155 Mich. 86 (118 N. W. 736, 130 Am. St. Rep. 562, 16 Am. & Eng. Ann. Cas. 439); Union Telephone Co. v. Ingersoll, 178 Mich. 187 (144 N. W. 560, 52 L. R. A. [N. S.] 713).

In this case, however, it appears that an ordinance was enacted by the city fixing rates, and accepted. If this ordinance granted to defendant any valuable right “clearly outside any rights which it could claim under the authority of the general law,” when accepted it would be a contract binding on defendant, under the ruling in Mahan v. Telephone Co., 132 Mich. 242 (93 N. W. 629).

Inasmuch as defendant demurred to complainant’s bill, of which the ordinance in question is made a part, thus admitting all facts therein stated as true, no testimony was taken, and we are relegated to the bill for information as to the situation. An examination of the ordinance shows that the only right or privilege granted defendant’s assignor is'“permission and authority to construct, operate and maintain lines of telephone and electric wires with the necessary posts, poles, equipments and appurtenances, and to make business, house and building connections, and from time to time repair, replace, enlarge and extend the same upon, along and in the streets, alleys and public places in the city of Owosso, to carry on the business of telephoning and of renting electric telephones and of operating the telephones in the city of Owosso.” The remainder of the ordinance is devoted to duties, obligations, and restrictions imposed on the company, including the limit of rates heretofore stated, with a closing paragraph fixing the life of the ordinance at 30 years, “provided that said company or its assigns shall continuously operate its said telephone line in said city of Owosso and shall observe the conditions hereinbefore mentioned.”

Although the bill states that defendant “during its entire existence and down until a short time previous” to commencement of this suit had followed and obeyed the “provisions of said franchise,” it gives no information as to when defendant- was incorporated or how long it had existed, but simply states that, as assignee of the company named in the ordinance, it “is operated under and by virtue of the terms of said franchise and ordinance.” The bill contains no allegation that there is or ever was or ever will be any delinquent subscriber who has been or could be injured in purse or person by this objectionable form of account promulgated by defendant on or about October 1, 1913. Until complainant or some of those in whose behalf it alleges this bill is filed become delinquent subscribers and an attempt is made to exact the extra 50 cents from them, it is difficult to discover what injury has been or can be done by that of which this bill complains.

It is true that complainant’s bill charges defendant sent statements of account to its subscribers which, as made out, imposed a rate plainly in excess of that fixed by ordinance and previously charged, which, but for the explanatory note appended, would raise a more serious question. Read, however, with the explanation appended, they became innocuous and the extra charge disappeared as to all except delinquents, and we are not advised that there were any such. Defendant’s counsel assert that the extra charge of 50 cents was intended for and amounted to notice of a rule imposing a penalty on those in default, and was no intimation of a purpose to depart, otherwise, from the regular rates previously charged. Clearly such is the meaning of the communication taken as a whole. Just why defendant, in giving notice of the rule, resorted to this roundabout and apparently irritating form of notice which declared an extra charge against all on the indicated assumption that all would be delinquent, with an implied generous proposal to rebate to the regular price if by chance they paid their bills when due, may possibly be accounted for on the theory of psychological myopia, -but is unimportant here, for injury to feelings cannot be recognized as a ground of equitable relief by injunction.

This bill discloses no primary injury, no threatened irreparable injury, and no person of the class who might be affected by the proposed extra charge. Courts of equity may not lend aid by injunction in the abstract, and unconnected with any injury or damage to the person or persons asking relief.

On the face of this bill the questions raised are in their nature academic, and, irrespective of other reasons urged, we are constrained to sustain defendant’s contention that the bill should be dismissed for want of disclosed equities.

The order overruling defendant’s demurrer is therefore reversed, with costs.

Brooke, C. J., and Stone and Moore, JJ., concurred with Steere, J.

Ostrander, J.

I concur in the result on the last ground discussed.

McAlvay, Kuhn, and Bird, JJ., concurred with Ostrander, J„


author: Bird, J. Ostrander, J.

text:
    OAKMAN v. BOARD OF SUPERVISORS OF WAYNE COUNTY.
    1. Constitutional Law — Counties — Municipal Corporations — Cities — Annexation oe Territory — Legislative Districts.
    Under the provisions of Act No. 279, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 5442 et seq.), it is required in voting upon the question of annexing territory to a city that a majority of the electors residing in the district to be annexed and in the city to be affected should consent to the proposed change, and although the act fails to grant to the board of supervisors any discretion to refuse to enter an order to submit to the voters the question of annexation, but requires the petition to be submitted to a vote, the act is not invalid and means provided are not in violation of the State Constitution.

      2. Same — Delegation of Power — Referendum.
    There is no valid ground of objection to- delegating to a board of supervisors the authority to submit such question to the voters, and under the Constitution the method of referendum being recognized as proper and valid, the act was not void for that reason.
    3. Same — Representative Districts.
    Considering the powers conferred by the statute in the light of constitutional provisions in relation to representative districts and apportionment (Art. V, §§ 3, 4, of the Constitution), the statute should be held to require that, in submitting the question to the electorate, the integrity of the representative district be maintained by-including in the order submitting the question to a vote, a proviso that the territory may be annexed for all purposes except electing representatives to the State legislature.
    4. Same.
    Having conferred upon the board of supervisors the authority to annex territory subject to a referendum, the statute carries with it the implied authority to mate such incidental order as may become necessary to effect the purpose of the legislation.
    McAlvax and Ostrander, JJ., dissenting.
    Certiorari to Wayne; Hosmer, J.
    Submitted January 5, 1915.
    (Calendar No. 26,562.)
    Decided April 6, 1915.
    Mandamus by Robert Oakman against the board of supervisors of the county of Wayne to require the respondent to submit to a vote of the electorate the question of annexation of certain territory to the city of Detroit. An order denying the writ is reviewed by relator on certiorari.
    Reversed.

      L. C. Stanley and George G. Scott, for appellant.

      Allan H. Frazer, Prosecuting Attorney, and Paul W. Voorhies, Assistant Prosecuting Attorney, for respondent.
   Bird, J.

The relator filed his petition with the board of supervisors of Wayne county under Act No. 279, Pub. Acts 1909, as amended (Act No. 203, Pub. Acts 1911, 2 How. Stat. [2d Ed.] § 5442 et seq.), to have certain territory in Greenfield township annexed to the city of Detroit. After due consideration thereof, and after being advised by his counsel, relator’s application was denied on the ground that Act No. 279 did not afford adequate legal means to accomplish that end. The relator thereupon petitioned the circuit court for a writ of mandamus to compel respondent to act upon his petition. After a hearing thereon, the circuit court refused to compel action. A writ of certiorari then issued from this court to bring up the proceedings for review.

Two reasons are advanced by the respondent in support of the action of the circuit court:

(1) “That said act does not provide a constitutional means, whereby territory can be annexed to an existing city, or the boundaries of an existing city changed for the reason that nowhere is there provided any discretion in the board of supervisors in passing upon said petition.”
(2) “That such annexation of said territory to the city of Detroit could not be effected under the petition as filed with the board of supervisors, for the reason that there is no constitutional provision for the changing of boundaries of cities by the annexing of territory thereto, at any other time than at such time as provided for the rearrangement of senatorial districts and the apportionment of representatives among the counties and districts, as provided for by section 4, art. 5, of the State Constitution.”

1. Act No. 279 confers jurisdiction upon the board of supervisors, when a showing is made by petition in conformity with the several provisions of the statute. When this showing is made, and is truthful, it appears to be mandatory upon the board to enter an order submitting the question of annexation to the electorate of the territory to be affected by such change. The argument is made that because the act fails to vest the board of supervisors or some other public board with discretion to determine the question, but leaves it to the electorate to decide, the act is void, and this argument is based upon the holding in Shumway v. Bennett, 29 Mich. 451 (18 Am. Rep. 107). That was a case in which the general village incorporation act of 1873 was held unconstitutional, principally upon the ground that it made it possible for a few petitioners, by the aid of the court, to bring about incorporation of certain territory, where the inhabitants of such territory were opposed to it. We think this case ought not to control the one under consideration. In Act No. 279 it will be noted that provision is made for an election in not only the municipality from which the territory is proposed to be detached but also in the municipality to which the annexation is proposed to be made. If the act stopped there, counsel’s argument would have much force, but it goes further and provides that the votes of those residing in the particular territory to be annexed shall be kept separate, and that, if a majority of those residing therein shall consent thereto, the annexation shall be made. In other words, the act not only requires a majority vote of all those residing in both municipalities, but requires a majority vote of those residing in the particular territory. This provision meets the principal ground upon which the act was. declared void in Shumway v. Bennett, supra.

The changing of the boundaries of political divisions is a legislative question, and the power to annex territory to municipalities has often been delegated to boards of supervisors or other public bodies. In view of this, we see no valid objection to the power being delegated to boards of supervisors with a referendum attached, especially since the Constitution has recognized the principle of referendum. We think this objection is without merit.

It is said that Act No. 279 is inadequate in that no provision is made for maintaining the integrity of the representative district of which the territory proposed to be annexed is now a part. This claim is based upon article 5, §§ 3 and 4, of the Constitution, which provides in part that:

“Sec. 3. Representatives shall be chosen for two years and by single districts, which shall contain as nearly as may be an equal number of inhabitants and shall consist of convenient and contiguous territory; but no township or city shall be divided in the formation of a representative district.”
“Sec. 4. Each apportionment so made, and the division of any county into representative districts by its board of supervisors, made thereunder, shall not be altered until the tenth year thereafter.”

The powers conferred by Act No. 279 should be read in the light of these constitutional provisions; and, when so read, it will result in this: That, when favorable action of the board of supervisors upon a petition for annexation is followed by a consenting vote of the electorate, territory can be annexed for city purposes, but not so as to affect the integrity of the representative district. This may be accomplished by .including in the order of submission a provision for annexation of the particular territory for all purposes, save for the one purpose of electing representatives to the State legislature. The annexed territory would then become a part of the city for all voting purposes, save those in which a representative was voted for. This construction would make effective the act, and at the same time would satisfy the constitutional provisions. Smith v. City of Saginaw, 81 Mich. 123 (45 N. W. 964). See, also, Attorney General v. Springwells, 143 Mich. 523 (107 N. W. 87); Attorney General v. Bradley, 36 Mich. 447.

In Smith v. City of Saginaw, supra, a like question arose, but the legislature in a special act, authorizing the annexation, provided that no change should be made in the boundaries of the representative districts of the county, and it was there said that:

“Saginaw city and two townships comprised one district, and the city of East Saginaw the other. The voting precincts in the territory which comprised the old cities of Saginaw and East Saginaw are preserved intact in the new municipality. It is thus apparent that not only are the representative districts retained and preserved entire, but that no possible difficulty, doubt, or confusion can arise among the electors either as to time, place, manner, or right to vote, and no elector is or can be disfranchised.”

The difference between that situation and the one under consideration lies in the fact that in the Saginaw Case an express provision was made in the local act preserving the integrity of the representative district, while in the act under consideration no such express provision exists. While no express provision exists, we think the power to provide in the order of submission a provision to preserve the integrity of the representative district can be implied from the general powers granted.

When the power to annex is conferred upon the board of supervisors and the electorate, we think it carries with it the implied power to make such incidental orders as become necessary to make the power conferred effective. City of Port Huron v. McCall, 46 Mich. 565 (10 N. W. 23). But it is said the case of People v. Holihan, 29 Mich. 116, is an authority establishing the inadequacy of this legislation. An examination of the holding in that case will disclose that the annexation was declared void on the ground that no provision was made to preserve the integrity of the representative district. In Smith v. City of Saginaw, supra, an express provision was made. In the act under consideration, we think there is an implied power to make an order of submission that will accomplish that end, and, when that object is accomplished, it satifies the objection made in People v. Holihan, supra. While it might have been wiser for the legislature to have granted this express power to the board of supervisors, we think the act should not be declared inadequate for the want of it.

The order of the trial court is reversed, with direction to issue the writ as prayed.

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

Ostrander, J.

(dissenting). The provisions of Act No. 279, Pub. Acts 1909, as amended, must be limited, in application, to cases where the change by annexation does not result in dividing a city or township into two representative districts. The case is unlike Smith v. City of Saginaw in two important particulars. In the first place, the legislature has not made the proposed division, and in making it expressly provided that the change shall not affect the manner of electing representatives in the districts; in the second place, the legislature has not expressly or by necessary implication empowered boards of supervisors to preserve the manner of electing representatives in the districts. In Smith v. City of Saginaw, the fact was that the election precincts existing before the consolidation of the two cities were, by the consolidation, left unchanged. But by what authority will the board of supervisors preserve, unchanged, the voting precinct of citizens of the annexed territory? Shall the representative be voted for in the city or in the township? Shall voters in the annexed territory be registered in two places? Must those who move into that part of the district annexed to the city register both in the city and in the township ? The reasoning of Mr. Justice Bird would have permitted the court to decide People v. Holihan, 29 Mich. 116, differently. Evidently the reasoning was considered. See page 119.

The court was right in refusing the writ, and its judgment should be affirmed.

McAlvay, J., concurred with Ostrander, J.


author: Moore, J.

text:
    WILLEBRANDT v. SISTERS OF MERCY.
    1. Frauds, Statute of — Work and Labor — Materials—Contracts —Validity—Existence of Subject-Matter.
    An order for the purchase of sterilizers to he used in connection with certain plumbing, which did not show upon the face of the writing that the goods were to be manufactured, and which further indicated that a portion of the order was already manufactured, was not within the exception to the statute of fraucls recognized in the case of materials to be manufactured before delivery pursuant to the contract.

    2. Same — Mutuality—Written Contract.
    Unless the contract to purchase goods of the value of $50 and upwards, which are in existence at the time the agreement is entered into, is in writing and signed by both parties, it is not mutual and binding and is void under the statute of frauds.
    Error to Kent; Perkins, J.
    Submitted January 5, 1915.
    (Docket No. 9.)
    Decided April 6, 1915.
    Assumpsit by Emil Willebrandt and another against the Sisters of Mercy, a corporation, for goods sold and delivered. Judgment for defendant upon directed verdict. Plaintiffs bring error.
    Affirmed.

      Smedley & Linsey, for appellants.

      Charles A. Watt (Joseph Renihan, of counsel), for appellee.

       On the question of the distinction between sales and contracts for wort and labor, see notes in 14 L. R. A. 230; 30 L. R. A. (N. S.) 319, and 43 L. R. A. (N. S.) 97.

   Moore, J.

Plaintiffs are manufacturers of sanitary furniture in St. Louis, Mo. Emil Willebrandt was their traveling man in Michigan, and had talked with a Sister in Grand Rapids in regard to the equipment of the new St. Mary’s Hospital. January 25, 1911, he obtained the following paper:

“Art Aseptible Furniture Company.
“St. Louis, Mo., Date 1-25-11.
“Sold to St. Mary’s Hospital.
“Address: Grand Rapids, Mich.
“Ship by C. & A. R. R.
“Terms: $100 per month.
1 No. 1111 sterilizer, 16 in. x 24 in. size...... $320 00
1 No. 1159 water sterilizer, 2 tanks, 16 in. x 36 in., with filters......................... 400 00
1 No. 1061 utensil sterilizer, 20 in. x 24 in. x 22 in..................................... 125 00
1 No. 1051 Fust sterilizer................... 60 00
Basement.
1 No. 1061 utensil sterilizer ................. 125 00
1 No. 1051 Fust sterilizer................... 60 00
$1,090 00
Less 20 per cent.......................... 218 00
$872 00
1 secondhand water sterilizer, 14 in. x 30 in., net ....................................... 128 00
$1,000 00
“All to be steam heated.
“We have examined above and terms and prices are as agreed upon.
“Goods to be shipped as soon as possible, but date of delivery not agreed upon.
“Transportation charges paid by consignee.
“This order is not subject to cancellation.
“Title of above goods remains with Art Aseptible Furniture Company until last payment is made.
“There are no agreements or representations except those set forth above.
[Signed] “Sisters op Mercy,
“Grand Rapids, Michigan.”
Later the following letter was sent:
“Under the Management of Sisters of Mercy St.
Mary’s Hospital.
“Grand Rapids, Mich., March 15, 1911. “Art Aseptible Furniture Co.,
“St. Louis, Missouri.
“Dear Sirs:
“We will have to cancel the order for the sterilizers ordered of Mr. Willebrandt on Jan. 25. So please do not send them as we do not think they will be what we want, and can not have them put in. Hoping this will settle the matter we are,
“Yours respectfully,
“Sisters op Mercy,
“Grand Rapids, Mich.”

The parties being unable to agree, this litigation ensued. The case was tried before the judge without a jury. From a judgment in favor of the defendants, the case is brought here by writ of error.

The trial judge was of the opinon that, as the plaintiffs had not accepted the contract in writing, it could not be enforced.

The plaintiffs offered testimony over objection tending to show the Sister who gave the order knew the goods were to be manufactured; that after the order was received the manufacturing was entered upon, and was in progress when the letter countermanding the order was received; that the work was then discontinued and has not been resumed.

It is claimed plaintiffs should have been allowed to recover their damages. The argument is that the contract was one for work, labor, and materials furnished, and was not one for a sale of goods, wares, and merchandise, and was not within the statute of frauds.

Counsel rely for this proposition and also for the proposition that oral testimony was competent, upon the case of In re Gies’ Estate, 160 Mich. 502 (125 N. W. 420, 30 L. R. A. (N. S.) 318, 19 Am. & Eng. Ann. Cas. 1288), and the cases cited therein. An examination of the case will show that the order therein involved showed upon its face there was work to be done upon the goods in controversy, before they could be delivered; that the goods were in fact completed, and an attempt made to deliver them before the order was countermanded. In the instant case there is nothing in the order to indicate the goods were not in existence when the order was given. Indeed, one of the items in the order was, “1 secondhand water sterilizer, * * * net $128,” .indicating clearly that some of the goods were in existence. See Atwater v. Hough, 29 Conn. 508 (79 Am. Dec. 229). Again, the order states:

“There are no agreements or representations except those set forth above.”

The order was not accepted in writing by the plaintiffs.

In Wilkinson v. Heavenrich, 58 Mich. 574 (26 N. W. 139, 55 Am. Rep. 708), Justice Champlin, speaking for the court, said:

“The conflict of authority upon questions of the kind raised upon this record is truly bewildering, and the cases are incapable of being reconciled with each other; a large and respectable class holding that a contract, which the statute of frauds declares shall not be valid unless in writing and signed by the party to be charged therewith, need only be signed by the party defendant in the suit, and that it is no objection to maintaining such suit and recovering upon such contract that the other party did not also sign and was not bound by its terms. 2 Kent’s Com. 510; 2 Stark. Ev. 614; Smith’s Appeal, 69 Penn. St. 480; Tripp v. Bishop, 56 Penn. St. 428; Perkins v. Hadsell, 50 Ill. 217; Old Colony Railroad Corporation v. Evans, 6 Gray [Mass.] 31 [66 Am. Dec. 394]; Williams v. Robinson, 73 Me. 186 [40 Am. Rep. 352]. Another and equally respectable class of jurists hold that, unless the party bringing the action is bound by the contract, neither is bound because of the want of mutuality. Lees v. Whitcomb, 3 C. & P. 289; Sykes v. Dixon, 36 E. C. L. 366, 9 Ad. & El. 693; Krohn v. Bantz, 68 Ind. 277; Stiles v. McClellan, 6 Colo. 89. And see, also, as bearing upon the question, Hall v. Soule, 11 Mich. 496; Scott v. Bush, 26 Mich. 418 [12 Am. Rep. 311]; Liddle v. Needham, 39 Mich. 147 [33 Am. Rep. 359]; McDonald v. Bewick, 51 Mich. 79 [16 N. W. 240]. The cases above cited are not intended to be exhaustive on either side of the proposition.
“I shall not attempt a reconciliation where reconciliation is impossible; but, as the question is new in this State, the court is left to adopt such view as appears to rest upon principle. It is a general principle in the law of contracts, but not without exception, that an agreement entered into between parties competent to contract, in order to be binding, must be mutual; and this is especially so when the consideration consists of mutual promises. In such cases, if it appears that the one party never was bound on his part to do the act which forms the consideration for the promise of the other, the agreement is void for want of mutuality. Hopkins v. Logan, 5 M. & W. 241; Dorsey v. Packwood, 12 How. 126; Ewins v. Gordon, 49 N. H. 444; Hoddesdon Gas Co. v. Haselwood, 6 C. B. (N. S.) 239; Souch v. Strawbridge, 2 M., C. & S. 808; Callis v. Bothamly, 7 Wkly. R. 87; Sykes v. Dixon, 9 Ad. & El. 693; Addison on Contracts, § 18; Parsons on Contracts, 449; Utica, etc., R. Co. v. Brinckerhoff, 21 Wend. [N. Y.] 139 [34 Am. Dec. 220]; Lester v. Jewett, 12 Barb. [N. Y.] 502.”

See, also, Davis v. Insurance Co., 127 Mich. 559 (86 N. W. 1021); Co-operative Telephone Co. v. Katus, 140 Mich. 367 (103 N. W. 814, 112 Am. St. Rep. 414); McIlroy v. Richards, 148 Mich. 694 (112 N. W. 489); Adams v. Hotel Co., 154 Mich. 198 (117 N. W. 551, 19 L. R. A. [N. S.] 919). We think these cases are controlling.

Judgment is affirmed.

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


author: Brooke, C. J.

text:
    REMER v. GOUL.
    1. Trial — Election of Counts- — Contracts—Pleading.
    Upon the trial of an action brought for the recovery of a shortage in a car of grain plaintiff should have been required to elect between two inconsistent theories set forth in the declaration, one of which was that he had bought the subject-matter of the transaction, the other that he had sold the grain as agent for the defendants and was compelled to make good the shortage; the theories were so inconsistent that plaintiff should not he permitted to go to the jury upon the distinct issues raised by the counts.
    2. Principal and Agent — Existence of Relation — Distinction from Sale.
    Where all the testimony as to the existence of an alleged agency was uncontradicted and tended to show that plaintiff, who owned and operated a grain elevator, agreed to take from defendants a car of rye which should he partly filled by the defendants and sent to plaintiff’s elevator, where the car would he filled with his grain, and that plaintiff should collect payment and deposit a portion to the credit of defendants and on the arrival of the car a shortage- was disclosed which the plaintiff made good to the purchaser, he should have been held as matter of law to have acted as agent for the defendants.
    3. Evidence — Books and Records — Hearsay—Weight.
    Where evidence tending to show the weight of a car of grain given by an employee of the carrier over whose line it had been shipped was offered from a card upon which the weight had been originally written and was excluded upon the ground that the witness did not know the facts and that the testimony was hearsay, the court erred to the prejudice of the defendants: it should have been admitted and the question left for the jury to determine whether the weight was correct and where the leak, if any, had occurred so as to cause an alleged shortage.
    Error to Kent; Brown, J.
    Submitted January 8, 1915.
    (Docket No. 27.)
    Decided April 6, 1915.
    Assumpsit by Ernest A. Remer against John E. Goul and another for a shortage in weight of grain received by plaintiff from defendants. Judgment for plaintiff. Defendants bring error.
    Reversed.

      Louis T. Herman, for appellants.

      Hall & Gillard, for appellee.
    Plaintiff owned and operated a grain elevator at Cedar Springs; defendants one at Sand Lake. Both were located on the Grand Rapids & Indiana Railroad ; defendants’ elevator being about five miles farther from Grand Rapids than plaintiff’s. Both parties purchased rye from the farmers in their respective neighborhoods during the season of 1911. At the end of the season it was found that each had on hand part of a car load. They had some negotiations, and it was finally agreed between them that defendants should order a car placed at their elevator at Sand Lake, should load into it such rye as they had on hand, then send it down the line to plaintiffs elevator at Cedar Springs, where plaintiff would place in the car his rye, and that plaintiff should sell the whole car on shipping directions to be given by one Wellman. It was further agreed that the plaintiff should secure pay for the entire car load, and should deposit the proportionate amount to the credit of defendants, retaining the balance for himself. Following this arrangement, the defendants ordered a car and loaded into it such rye as they had on hand. At the time of loading this rye it was not weighed. Defendants claimed to have kept account, however, of the rye as it was purchased from farmers and elevated to the bin from which it was drawn at the time of loading, as well as an account of certain small amounts withdrawn from said bin from time to time and sold for se'ed. Deducting the total of the latter quantities from the former left, according to their figures, 858 bushels. Making allowance for possible small errors, they billed it out to the plaintiff at 845 bushels, and wrote plaintiff the following letter:
    “E. A. Remer,
    “Cedar Springs, Mich.

      “Dear Sir:

    “I inclose b. of 1. of car rye. My books show 858 bushels, but we have sold so much out of bin I billed at 845 bushels, and if it falls short I will make it up, and if it overruns some I will perhaps be the recipient.
    “Yours,
    “Goul & Son.”
    When defendants’ rye was placed in the car, two grain doors were made, but no partition was placed in the car. The rye was shoveled to one end of the car, but slanted down past the door toward the other end. Upon arrival of the car at Cedar Springs, the plaintiff, without putting a partition in the car so as to keep the defendants’ rye separate from his own, loaded into the car 722 bushels of rye. This car was then by the plaintiff shipped to a consignee in Buffalo under directions given him by Wellman, and the plaintiff drew upon Wellman for the purchase price of 1,567 bushels at 99 cents per bushel, which was the price agreed upon between plaintiff and Wellman. This price had been communicated to defendants and was satisfactory to them. The draft was paid by Wellman, and the proportion of the proceeds thereof due defendants for the 845 bushels claimed to have been placed in the car by them was deposited to their credit, and the balance thereof was retained by the plaintiff.
    The car was shipped from Cedar Springs on November 11, 1911. It arrived in the city of Grand Rapids on or before November 13, 1911, and on that date was weighed. The gross weight of the car at that point, on that day, was 132,000 pounds, tare 44,200 pounds, leaving a net weight of 87,800 pounds. The railroad weight, therefore, made within two days after loading, showed the car to contain 48 pounds more rye than both parties claimed to have put in the car. The car was then sent east, and arrived at the M. C. yards, Victoria, Canada, November 19, 1911. It was inspected at the Victoria yards by Mr. Stratten, official inspector of the Buffalo Corn Exchange, on November 20, 1911. On December 8, 1911, it was unloaded at the Evans elevator at Buffalo. It was there examined by Mr. Riley, a deputy grain inspector of the Buffalo Corn Exchange. He weighed the contents of the car during the unloading, and found but 1,320 bushels and 20 pounds in all — a shrinkage of about 247 bushels. An official weight certificate was made by the official weighmaster of the Corn Exchange showing the above weights, and was sent to Mr. Wellman. Mr. Wellman sent it to Mr. Remer, the plaintiff, and Mr. Remer sent it to the defendants on December 21, 1911, together with a claim for shortage and a request for them to look it up. On January 12, January 19, January 30, February 7, and February 16, 1912, plaintiff wrote defendants letters touching the shortage in question, and again on March 4, 1913. In the meantime, and on December 20, 1911, Wellman paid the shortage, and wrote a letter to the plaintiff demanding $244 to make up the shortage. After plaintiff received the demand from Wellman, and on June 22, 1912, he reimbursed Wellman for the alleged shortage without making any investigation in Buffalo, without the assent, and against the protest, of defendants. A claim was made against the railroad for shortage by plaintiff, which was finally rejected on January 11, 1913.
    On July 17, 1913, plaintiff commenced this suit against defendants. The declaration contains two counts; the first of which sets out a sale by the defendants to the plaintiff of 845 bushels of rye and a shortage in the amount delivered of 246 bushels and 20 pounds, of the value of $244, for which demand is made. The second count sets out the agreement as it was, in fact, made; avers, in effect, that the plaintiff acted as agent for the defendants in making the sale in question; the failure of defendants to place in the car the agreed amount of rye; and makes demand for the sum of $244 alleged to have been paid by plaintiff on account of the default of defendants.
    Early in the case defendants made a motion that the plaintiff be compelled to elect under which count in the declaration he claimed the right to recover; it being the claim of defendants that certain testimony was admissible under one count which would be inadmissible under the other. This motion was denied. All testimony as to the facts was admitted, and the court submitted the case to the jury practically upon the theory that, in disposing of the entire car load to Wellman, the plaintiff acted as agent for defendants as to the portion of the car that belonged to them. The sole question submitted to the jury for their determination was whether or not there was a shortage in the car when it arrived at Buffalo, and, if so, whether that shortage was due to the fact that defendants had placed in the car 246 bushels of rye less than claimed by them. At the close of the plaintiff’s case the defendants made a motion for a directed verdict upon the following grounds:
    “The testimony shows a bailment for mutual benefit, and, such being the case, it was incumbent upon the plaintiff, the bailee, not to confuse his rye with the rye of the bailor, as was done in this case, and therefore the bailee, by his own negligence, must bear the entire loss, if any loss there is.
    “The testimony shows that the plaintiff voluntarily paid the claim of $244 to Mr. Wellman without the consent and against the wish of defendants, and without defending any lawsuit, or even without any proof of a threat of a lawsuit, and therefore plaintiff cannot recover.
    “For the reason that under the testimony in this case plaintiff by his own acts gave defendants no opportunity to defend themselves as having furnished 845 bushels of rye, and made it impossible for defendants to defend themselves at all because of the confusion of the goods by plaintiff, and therefore the plaintiff must bear the loss.
    “Because under the testimony in the case and the theory of the plaintiff either plaintiff or the defendants must bear the entire loss, and that under the theory of the plaintiff and the testimony in the case, for the plaintiff to recover would shift the burden of proof contrary to law.”
    The motion was denied, and the defendants thereupon offered, the testimony of one Fred R. Pickard, who gave evidence as follows:
    “I am assistant yardmaster for the Grand Rapids & Indiana. As such yardmaster, I weigh the freight cars as they come in. I know that the Pennsylvania cars change the weights on the outside every two or three years. I have the record of P. L. car 533075. It was weighed in Grand Rapids. This card (showing witness card) is the only record I have of the weights of the cars. It is the weight card of car P. L. 533075. The records were left in my files. I have charge of them. I have had charge of this particular card. I have charge of it ever since November 13, 1911, and that is the only record that is in our office. I t,hink the man who weighed the car is not in our employ. I think he is in British Columbia, but I do not know where.

      “Mr. Herman: I now ask that this card, Exhibit A for identification, referring to the card above, under the facts as they exist as shown, by the evidence, be introduced in evidence as the best evidence.

      “Mr. Hall: I object to it as incompetent, irrelevant and immaterial. We will be denied a chance of cross-examining the man who did the weighing of this car, and it would be incompetent for that reason. There are a great many things that might be taken into consideration as to the correctness or incorrectness of the weight.

      “The Court: Well, it won’t be received as absolutely final on the question, but it appears to be the only record made in the office of the transaction, and it may be received for what it is worth, and you can cross-examine the witness and show what he knows, or get as far as you can, but I will allow it to be received for what it is worth.
    “Card then introduced in evidence showing gross weight of P. L. 533075 to be 132,000 pounds, tare 44,200 pounds, leaving net weight of 87,800 pounds.”
    Cross-examination:
    “The Grand Rapids & Indiana have only one scale in Grand Rapids. A railroad scale is made just like any other ordinary scale with an arm or beam. The beam is in a house inclosed. The only outside part is the platform. The person who made this weight was a conductor. The conductor would have a switch card. The waybill never leaves the office. The conductor has no waybills. He merely has a switch card,

      “Q. Suppose this car had been billed at .70,000 pounds. These figures are even figures just for the purpose of illustration, and the actual weight of the car showed that it was 55,000 pounds. What weight would you put on your card?

      “A. Put on the weight that the scale weighed. I have put on the scale weight a weight that was 15,000 pounds less than the waybill weight of the car. I presume I have done it 50 times or 100. I have worked for the Grand Rapids & Indiana 28 years. I have been assistant yardmaster about 9 years. The stenciled weight of the car is the tare weight. That is stenciled on the car itself.

      “Q. Now, are there any circumstances which make the car itself weigh different than the stenciled weight of the car?

      “A. Well, no; in the old wooden cars they would be after they had been out of the shop several years, but now they don’t vary over 200 or 300 pounds, I should think, in the weight. I do not know what the condition of the weather was on November 12th and 18th, but, if there is snow in the car, there would be a notation on the weight card allowing 200 or 500 pounds for snow. There is nothing on this card. I do not know whether this car had ever been repaired. I do not know whether it had ever been in a wreck or any new trucks put under it. I don’t know whether this car was cut off from the other cars when it was weighed. The supposition is that it was. I don’t know whether this car was free at both ends from the other cars when it was weighed. The general custom is to cut—

      “Q. Now, never mind, Mr. Pickard; you just answer my question ‘Yes’ or ‘No.’ Do you know whether it was detached at one end and detached at the other?

      “A. It has to be detached at one end.

      “Q. Do you know whether it was?

      “A. Couldn’t weigh it otherwise; they have got to cut one end.
    “Q. Well, won’t you answer my question?

      “Mr. Herman: I submit he has. He says it is common—

      “The Court: He has already said he don’t know what the condition of the train was, and the last is another answer.

      “A. I know of my own knowledge that it was cut at one end. I was not there. I know the car was standing still when it was weighed. I was not there, but can’t weigh a car unless it is standing still.”
    In charging the jury upon this point the learned trial judge said:
    “I charge you that the testimony of Mr. Pickard as to the alleged weight of the car at Grand Rapids is not, under the circumstances of the case, any evidence as to the amount of rye that was in the car. He did not weigh the car himself, and was not there; he did not make the record, and did not know the conditions or any of the surroundings under which it was weighed, and his statement and the statement on the card that was offered and received in evidence that there was 87,800 pounds in that car is not any evidence of that fact. I might say, under the circumstances, that in view of the fact that the testimony was solely limited to the car, and not verified by any witness able to verify it, that the testimony in regard to the card should be stricken out, and I substantially charge you to that effect that the card offered in evidence as showing the weight in the Grand Rapids & Indiana yard, no witness being here to show under what circumstances the weights were made, whether the car was detached from the train or what conditions were surrounding the car, the weights as given being even thousand pound weights, so far as tending to establish with any degree of accuracy the weight of the car, the card does not do it, and there is no evidence to corroborate the weight as given by this card, and therefore it would be no evidence of the fact as to how much rye there was in the car, as to the number of thousand pounds of rye, and the railroad car altogether weighed, as I say the figures are given in even thousand pounds, as I remember them, or even hundred anyway, and that might have some tendency, if that point were material. But this point is how much rye was in and what the tare weight was, what the condition of the car was, what conditions were under which it was weighed, whether it stood next to a low car or was coupled down to it, which would tend to pull it down, whether it stood next to a high car and connected to a drawbar which would hold it up, if it were connected, those facts are not known, but would give some light as to the weight. Undoubtedly there was something in the car, but in regard to bushels and pounds it would not help us in this case.”
    The jury rendered a verdict in favor of plaintiff and against defendants in the sum of $244, and interest — a total of $263.30.
   Brooke, C. J.

(after stating the facts). We are of opinion that the learned trial judge was in error in declining to compel plaintiff to elect upon which count of his declaration he would go to the jury. The theories of the two counts were not consistent with each other, and it is obvious that, if the plaintiff acted in the transaction entirely as agent for the defendants in the disposal of their rye, his duties to them and their obligations to him would be measured by the rules of law covering the relationship of principal and agent. It is true that the real question for the determination of the jury was whether or not the defendants actually placed in the car 845 bushels of rye, as they claimed, but, assuming that they, either through mistake or fraud, did not ship the claimed amount to plaintiff, their rights as principals and the plaintiff’s duty as agent are fixed under legal principles entirely different from those which would have been applicable had the defendants been simply vendors and the plaintiff vendee of a stipulated number of bushels of rye. We think that the record fairly discloses the fact that the plaintiff did undertake and, in fact, did sell for the account of the defendants 845 bushels of rye, as their agent. This being the relation between the parties, it may be questioned whether, as such agent, the plaintiff had a legal right to adjust the claimed shortage with Wellman without the consent and against the protest of the defendants, and then look to them for payment. The court should have instructed the jury as to the rights and obligations of the parties upon the theory, that plaintiff acted throughout the entire transaction as agent for the defendants.

In excluding the record evidence of the weight of the contents of the car at Grand Rapids, we think the learned trial judge was plainly in error. See Meyer v. Brown, 130 Mich. 449 (90 N. W. 285), where a car weight record was held to have been properly admitted in evidence, although the testimony was received from the yardmaster, who testified from a book in which was copied the weights from the original card, which had theretofore been destroyed, and the entries in the book not having been made by the witness. The case is practically identical with the one at bar, except that Pickard testified from the original card, instead of a copy thereof. If this testimony had been admitted, and if the jury had been satisfied that the car was correctly weighed in Grand Rapids, it is clear that the 246 bushels either leaked out on the way to Buffalo, was stolen in the yards at Buffalo, or that the weights at destination were inaccurate.

We are of opinion that the defendants clearly had the right to this testimony, and to argue, as a legitimate inference from its truthfulness, that they, at any rate, were not responsible for the shortage in the car.

We have not overlooked the fact that plaintiff offered evidence tending to show that upon inspection in Buffalo the car showed no evidence of leakage, and that the inspector at that point found the seals unbroken. It is, however, we believe, true that the ingenuity of the dishonest has heretofore devised means of abstracting the contents of cars without disturbing the seals.

The evidence adverted to was not conclusive upon defendants, but should receive' consideration from the jury, together with all the other testimony upon the disputed question: “How much rye did defendants actually place in the car at Sand Lake?”

For the errors pointed out, the judgment is reversed, and a new trial granted.

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


text:
    GELLATLY v. GELLATLY.
    Divorce — Extreme Cruelty — Nonsupport.
    Evidence that defendant husband was in good health and of sufficient ability to earn a living for himself and wife, that during the early part of their married life he had lost or squandered a fortune of $100,000 and for two years prior to the filing of the bill had paid nothing toward the support of his wife, and that the wife was without means of support and was compelled to work as a telephone operator, was sufficient to require the court to enter, on appeal, a decree of divorce, reversing the action of the circuit judge in denying the relief prayed for in complainant’s bill. 3 Comp. Laws, § 8622; 4 How. Stat. (2d Ed.) § 11459.
    Appeal from Oceana; Sullivan, J.
    Submitted January 11, 1915.
    (Docket No. 66.)
    Decided April 6, 1915.
    Bill by Mabel M. Gellatly against Roy K. Gellatly for divorce. From a decree for defendant, complainant appeals.
    Reversed.

      A. S. Hinds, for complainant.

       The question of the failure to support wife as cruelty is discussed in a note in 43 L. R. A. (N. S.) 260.

   Brooke, C. J.

Complainant seeks a divorce from the defendant on the grounds of nonsupport and extreme cruelty. She was married to the defendant on July 14, 1910, at which time both she and defendant were just under 21 years of age. Defendant became of age on October 12, 1910, and at that time received from the estate of his foster mother in Chicago a fortune of about $100,000. He immediately embarked on an extravagant scale of living. He purchased a dry goods business in the town of Shelby, and for a short time seems to have made a pretense of doing business there. He bought some lots in Shelby and proceeded to erect an elaborate residence thereon. He seems to have spent money freely in every direction, with the result that before he was 22 years of age he had dissipated practically his entire fortune. A receiver had been appointed when his financial difficulties became oppressive, and after his debts were paid there remained about $4,000. This sum was divided by the receiver between the complainant and defendant. Complainant loaned her $2,000 to the telephone company at 6 per cent, interest, taking a secured note therefor.

The defendant with his last $2,000 went on a trip to Florida and there became interested in a land scheme, in which he lost all the money he had. While in Florida he sent to Tiffany & Co., of New York, for three diamond rings valued at about $1,800. The rings were sent on consignment, the understanding being that he should select one, pay for it, and return the other two. As a matter of fact, he kept all three and paid for none. One of these rings he presented to a young lady in Florida, to whom he was very attentive during the winter of 1912-1913, and to whom, although he was married, he was said to be engaged. Another one of the diamond rings he seems to have exchanged for a motor boat in Florida. What became of the other the record does not disclose. Later, in Chicago, he was threatened with criminal prosecution for passing worthless checks. Information of his situation coming to the ears of his wife, she • borrowed $500 with the aid of her father, and went to Chicago and settled his difficulties. Later still the Tiffany claim was sent on to an attorney for collection, or for the institution of criminal proceedings for embezzlement, against defendant. Whereupon complainant took the note representing her $2,000, ■disposed of it, repaid the $500 which she had borrowed to use in Chicago for defendant’s purposes, and with the balance paid the Tiffany claim. Only $80 remained after these matters were adjusted.

Prior to her marriage to defendant, complainant had a position as a telephone operator. After her marriage, although she resigned her position in the telephone office, she, with her husband, continued to live in the home of her father, Mr. Morningstar. Never since her marriage to defendant has she had a home apart from her father, and during all the time since her marriage her husband has not only failed to pay her father for her board or the board of himself, for he likewise lived with her father with complainant whenever he was in Shelby, but he likewise borrowed small sums of money from his father-in-law totaling about $50 or $75. Early in 1913 complainant again secured a position as telephone operator. She testifies that at that time the defendant had furnished her absolutely nothing by way of support for upwards of a year. He continued, however, from time to time to reside in Shelby until October, 1913, when without notice he disappeared. The bill in this case was filed on January 6, 1914. It is the testimony of the complainant that for more than two years she had received no support of any character from the defendant. She testified to the fact that he had lost or squandered his fortune, but further said that he was a young man of fair education, of good health, and amply able, if willing, to furnish her with an adequate support. Complainant’s testimony as to defendant’s failure to work or support her was corroborated by that of her- father, who testified that he had boarded his daughter from the time of the marriage on.

The defendant was personally served with process in the case, but failed to appear. The learned trial judge who heard the case declined to grant a decree ■to complainant, being of the opinion that the testimony was insufficient to support the charge of gross, wanton, and cruel refusal to support within the meaning of the statute. Although the record does not clearly disclose his reasons, because no written opinion was filed, he seems to have been somewhat influenced by the fact that the fortune of the defendant had been squandered by him, during the first year of his married life, and that complainant might have participated in spending the money as readily as her husband. The record does not clearly show this to have been the fact, but even if it did, we are of opinion that the duty of a fairly educated healthy young man to support his wife is not abrogated by reason of the fact that he and his wife together had theretofore foolishly joined in squandering his patrimony.

The record shows that some time during their married life defendant caused to be conveyed to complainant 160 acres of wild land in Minnesota. The value of this land is not shown, although it appears affirmatively that it is located a long distance from any railroad and is absolutely unsalable, and at the present time it would seem to be a liability rather than an asset to the complainant, as she testified that the taxes which she was obliged to pay amounted to about $30 per annum.

In addition to the charge of nonsupport, the bill contains a charge of extreme cruelty, based upon the averment that the defendant improperly associated with women other than his wife. Whether the testimony in support of this charge is sufficient to warrant relief we find it unnecessary to determine, for the reason that the record clearly establishes the following undisputed facts:

(1) The husband is of good health and sufficient ability to earn a living for the wife.

(2) The wife is without means of support, except such as she earns for herself as a telephone operator.

Under this evidence we think it clear that the defendant’s refusal to support is gross, wanton, and cruel within the meaning of the statute. 3 Comp. Laws, § 8622 (4 How. Stat. [2d Ed.] § 11459); Brown v. Brown, 22 Mich. 242; Cary v. Cary, 106 Mich. 646 (64 N. W. 510); and Whitacre v. Whitacre, 64 Mich. 232 (31 N. W. 327).

The decree of the court below is reversed, and a decree will be entered in this court in accordance with the prayer of complainant’s bill of complaint.

McAlvay, Stone, Ostrander, and Moore, JJ.; concurred with Brooke, C. J. Kuhn, Bird, and Steere, JJ., concurred in the result.


author: Kuhn, J.

text:
    WILSON v. WILSON.
    Divorce — Evidence—Extreme Cruelty — Marriage—Support.
    Evidence that defendant husband owned between $3,500 and $4,000 in property and that before marriage he had been thrifty, that the complainant wife was receiving a widow’s pension of $12 a month, and that the husband insisted upon using her money instead of supplying her with what she wanted after they were married, that complainant knew before she married defendant that he was frugal and knew his habits of living; held, to be insufficient to make out a case of extreme cruelty or such gross, wanton or cruel neglect to support as to justify a decree of divorce.
    Appeal from Oakland; Smith, J.
    Submitted January 11, 1915.
    (Docket No. 57.)
    Decided April 6, 1915.
    Bill by Flavia A. Wilson against George W. Wilson for divorce. From a decree for complainant, defendant appeals.
    Reversed.

      Andrew L. Moore, for complainant.

      Pelton & McGee (James P. Devereaux and Bird J. Vincent, of counsel), for defendant.
   Kuhn, J.

The bill of complaint in this case is filed by the complainant to obtain a divorce on two grounds, nonsupport and extreme cruelty. It appears that a previous bill, containing similar allegations, had been presented to the same court, but after a hearing thereon had been dismissed without prejudice. Upon a hearing in the instant case a decree was granted to-complainant, and defendant has appealed.

The complainant, who is 56 years of age, had been married twice before, her first and second husbands having died previous to her third marriage. At the time of her third marriage she was drawing a soldier’s widow’s pension of $12 a month, and was living upon a parcel of land containing about 27 acres, in which she had a life estate. The defendant is a man of 66 years of age, and was possessed of certain property which amounted to between $3,500 and $4,000. The complainant and defendant had known each other about 25 years previous to their marriage. It is the claim of the complainant that when the defendant broached the subject of marriage to her she called his attention to the fact that her marriage would cancel her widow’s pension; that thereupon the defendant told her she need not bother about that, as he was amply able to support her, and that he represented that he had a large amount of property and was well-to-do. The claims upon which she relies to obtain this divorce are, in substance, that his statements as to the extent of his property were not true, and that he has refused to provide for her; that notwithstanding the fact that she has suffered from rheumatism and some of the time from ill health, the defendant insisted upon her taking care of the stock and feeding them, and doing other chores about the farm, while he sat beside the fire and read; that he has refused to give her money to spend, and told her that she could spend her own money, and that if he wanted his money spent he could spend it himself; that during the time she lived with him he never gave her any money to spend for herself or her home, or for any other purpose. It is also insisted that he is guilty of extreme cruelty, in that he proposed to the complainant to clothe her with some of the clothing of his deceased first wife. It is not necessary, nor would it profit any one, to attempt to review the testimony with reference to the differences between the parties.

It is true that our statutes do not confine the cruelty which would justify a decree of divorce to mere physical violence. But, as was said in Cooper v. Cooper, 17 Mich. 205 (97 Am. Dec. 182), “a grievance of whatever kind must be of the most aggravated nature to justify a divorce.”

After a careful examination of the testimony in this record, we are of the opinion that matters had not proceeded to the extremity that would justify a decree. It is true that there was considerable wrangling between these parties, which seems to have arisen largely out of their money matters, but there is no escape from the conclusion that the complainant, at no time during the period of their cohabitation, was not being supported, although without question the support that she received was largely from the income derived from the sale of the proceeds of her own farm, upon which they were living, and to the income from which the defendant’s work contributed, at least in part. It can. be claimed that the record discloses that the defendant was frugal, and perhaps penurious, but this the complainant knew before her marriage to him, as she knew his habits and manner of living. And, as was said in Runkle v. Runkle, 96 Mich. 493 (56 N. W. 2):

“The court cannot declare the failure to change habits of frugality to habits of liberality gross, wanton, or cruel.”

The defendant’s disinclination to do the chores and his preferring to read newspapers might subject him to some criticism, still we are not prepared to say that such conduct makes out a case of extreme cruelty. The proofs are satisfying that the complainant was well and comfortably dressed; that she had money in the bank; and, on the whole, we do not think the record makes out a case of extreme cruelty, or such gross, wanton, or cruel failure to support as to justify a decree of divorce. We therefore conclude that the marriage tie between these parties should not be severed. Cooper v. Cooper, supra; Beller v. Beller, 50 Mich. 49 (14 N. W. 696); Rose v. Rose, 50 Mich. 92 (14 N. W. 711); Morrison v. Morrison, 64 Mich. 53 (30 N. W. 903); Downey v. Downey, 135 Mich. 265 (97 N. W. 699); Root v. Root, 164 Mich. 638 (130 N. W. 194, 32 L. R. A. [N. S.] 837; Am. & Eng. Ann. Cas. 1912B, 740).

The decree of the court below is reversed, and a decree will be entered in this court dismissing the complainant’s bill without costs to either party.

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