author: Long, J. Per Curiam.

text:
    SMALLEY v. GEARING.
    1. Mechanics’ Liens — Constitutional Law — Freedom op Contract.
    The mechanic’s lien law of 1891, as amended, is not unconstitutional, as an unwarranted abridgment of the freedom of contract, in that it authorizes the owner to withhold from the contractor the amounts shown by the latter’s sworn statement to be owing to subcontractors, laborers, and material men, and subjects him to liability to such persons in case payments are made in disregard of or without requiring such statement.

    2. Same — Payments to Contractor by Owner.
    By the terms of the act, the owner is not liable to lien claimants in any greater amount than he contracted to pay the original contractor; is entitled to recoup any damages sustained by reason of a breach of the contract; and may protect himself in making payments by requiring such sworn statement, or seeing that the payments are distributed among those who might acquire liens. In these respects the act differs from that of 1887, which was held unconstitutional in John Spry Lumber Co. v. Sault Savings Bank, Loan & Trust Co., 77 Mich. 199.
    3. Same — Construction op Contract — Right to Lien.
    A clause in a contract for the erection of a building, that it shall be delivered up free of all mechanics’ liens or other claims chargeable to the contractor, does not prevent subcontractors, laborers, or material men from obtaining a lien under the statute.
    4. Same — Distribution op Payments.
    The provision of the act relieving the owner from liability to the extent that payments made by him have been distributed among subcontractors, material men, or laborers is effective, although the money paid to them was not the identical money received by the contractor from the owner.
    6. Same — Contractor as Material Man.
    Where the contractor himself furnishes materials, the value thereof is to be included in determining the amount distributed.
    6. Same — Pro Bata Distribution.
    A pro rata distribution among all the claimants is contemplated, however, and the owner not entitled to credit for an amount received by any claimant in excess of his proportionate share.
    7. Same — Time for Filing Lien — Delivery of Material.
    Under the provision requiring a material man to file his statement of lien within 60 days from the date on which the last of the material was furnished, the 60 days begins to run from the date when the material was furnished to the owner, or ■ delivered at the building, and not when it was previously delivered to the contractor at his own place of business.
    fi. Same — Separate Deliveries.
    And where the claimant was to furnish all material of a specified class that should be required for the building, and the same was delivered from time to time, as needed in the progress of the work, the deliveries are to be treated as made under a single contract, and the time is to be computed from the date of the last delivery.
    9. Same — Unused Material.
    Materials sold to a contractor for use in a building which he is erecting, but not actually used therein, cannot furnish the basis for a lien against the building.
    10. Same — Acceptance of Contractor’s Note — Estoppel.
    A material man is not estopped to assert a lien merely because he accepted the contractor’s note for the price of the materials furnished.
    11. Same — Amount of Claim — Interest.
    Claimants under the act are entitled to interest upon their several demands from the time they became due.

      Cross-appeals from Wayne; Donovan, J.
    Submitted November 17, 1898.
    Decided September 12, 1899.
    Modified as to costs November 7, 1899.
    Bill by William Smalley and others against Joseph L. Gearing and others to enforce a mechanic’s lien. From the decree rendered, all of the parties except defendant Gearing appeal.
    Modified and affirmed.

      Charles H. Hatch, for complainants.

      Walker & Spalding (C. A. Kent, of counsel), for defendants Schmidt and Scherer.

      A. G. Pitts, for defendant Ashland Brown Stone Co.

      T. E. Tarsney and W. G. Fitzpatrick, for defendant Stanstead Granite Co.

      Warner, Codd & Warner, for defendant Northwestern Terra-CottafCo.

      William F. McCorkle, for defendants Wetmore & Brady.

      Edwin F. Conely and Orla B. Taylor,' for defendant Hall & Wolf Co.

      Bowen, Douglas & Whiting, for defendants Strelinger & Ha,rt.

       The effect of payment to contractors or subcontractors upon the liens of subordinate claimants is considered in a note to French v. Bauer, (N. Y.) 20 L. R. A. 560.

   Long, J.

Traugott Schmidt, now deceased, in April, 1895, was the owner of a certain lot in the city of Detroit. On April 9 th of that year, he entered into a written contract with Joseph L. Gearing for the construction of a building thereon, for the sum of $52,812.08. Afterwards, Schmidt, with the consent of Gearing, let the contract for the plastering for $6,850; thus leaving the contract to stand at $45,962.08. Gearing went on with the work under the contract, paying most of the labor bills, and in great part for the materials, when, on October 12, 1895, he failed, leaving the building uncompleted. The contract for completion was then let to J. L. Hudson for $22,040.40. He completed it, and was paid for the same. This bill is filed by complainants to enforce a mechanic’s lien, under Act No. 179,. Pub. Acts 1891, as amended by Act No. 199, Pub. Acts 1893. The defendants are the owners of the property (the heirs of Traugott Schmidt, deceased), the contractor, and certain lien claimants. The court below found and decreed that there were due to the complainants and defendant lienors the following sums: To complainants, $3,992.89; to the Hall & Wolf Company, $2,608.47; to Stanstead Granite Company, $1,046.46; to Wetmore & Brady, $644.14; to Ashland Brown Stone Company, $2,479.77; to Northwestern Terra-Cotta Company, $1,-238.21; to Strelinger & Hart, $658.30. The court also found by the decree that the amount paid by Schmidt to Gearing under the contract, in excess of the amount distributed among the laborers and material men, was $4,937.48, and that the amount of the contract price remaining unpaid after the payment to Hudson for the completion of the building was $271.68. The'court computed interest on these amounts at 6 per cent, from January, 1896, to date of decree, making a total, of principal and interest, of $5,836.39, and made this amount a lien on the land, with interest at 6 per cent, from date of decree. After deducting $15 for entry and stenographer’s fees, etc., in favor of complainants, from this sum, the court decreed that the balance should be distributed to the complainants and other lienors ratably and in proportion to the amount due each from Gearing. From this decree all the parties appeal except Gearing.

It is contended by the property owners that the act of 1891, as amended by the act of 1893, is unconstitutional, because it is an unwarrantable abridgment of the freedom of contract, and because it undertakes to give special and unreasonable privileges to one class of citizens at the expense of another. The amendatory act of 1893 amends sections 1, 6, and 9 of the act of 1891. Section 1, as amended, provides substantially:

“ Every person who shall, as subcontractor, laborer, or material man, perform any labor or furnish materials- to such original or principal contractor, or any subcontractor, in carrying forward or completing any such contract, shall have a lien therefor upon such house * * * to the extent of the right, title, and interest of such owner. * * * Provided, that any person * * * furnishing material or performing labor of any kind entering into the construction of such building * * * shall, within ten days after furnishing the first of such material, or performing the first of such labor to any contractor or subcontractor, serve on the owner * * * a notice, which notice shall be such as will inform the owner * * * of the nature of the materials furnished or to be furnished or labor performed or to be performed, and a description of the premises where furnished. * * * Such notices, however, shall be sufficient if served at any time subsequent to said ten days* but before the original contractor shall make out and give to the owner * * * a statement under oath of the number and names of every subcontractor or laborer in his employ, and of every person * * * furnishing materials, giving the amount, if anything, which is due or to become due to them, or any of them, for work done or materials furnished, as required by section four of this act. The owner * * * shall not be liable to the subcontractor, material men, or laborers for any greater amount than he contracted to pay the original contractor; * * * but the risk of all payments made to the original contractor after he shall have received the notice above mentioned, or before the contractor shall have furnished him with a statement as hereinbefore provided, shall be upon the owner * * * until the expiration of sixty days within which claims for lien may be filed, as hereinafter provided, and no payment made to any contractor before the expiration of said sixty days shall defeat any lien of any subcontractor, material man, or laborer, unless such payment has been distributed among the subcontractors, material men, or laborers, or, if distributed in part only, then to the extent of such distributions.”

Section 4 of the act of 1891, which was not amended by the act of 1893, provides:

“The owner * * * may at any time retain from any moneys due or to become due to the original contractor an amount sufficient to pay all demands owing ox-unpaid to any subcontractor, material man, or laborer who has filed and served the notice in manner and form as provided in section one of this act. The original contractor shall, whenever any payment of money shall become due from the owner, * *' * or whenever he desires to draw any money from the owner, * * * make out and give to the owner * * * a statement under oath of the number and names of every subcontractor or laborer in his employ, and of every person furnishing materials, giving the amount, if anything, which is due or to become due to them, or any of them, for work done or materials furnished; and the^ owner * * * may retain out of any money then due or to become due to the contractor an amount sufficient to pay all demands that are due dr to become due to such subcontractors, laborers, and material men, as shown by the contractor’s statement, and pay the same to them, according to their respective rights; and all payments so made shall, as between such owner * * * and such contractor, be considered the same as if paid to such original contractor. Until the statement provided for in this section is made, in manner and form as herein provided, the contractor shall have no right of action or lien against the owner * * * on account of such contract; and any payments made by the owner * * * before such statement is made, or without fetaining sufficient money, if that amount be due or is to become due, to pay the subcontractors, laborers, or material men as shown by the statement, shall be considered illegal, and made in violation of the rights of the persons intended to be benefited by this act, and the rights of such subcontractors, laborers, and material men to a lien shall not be affected thereby.”

The argument against the constitutionality of the act is that, by the amendment of 1893, the owner is prohibited from paying according to the terms of his contract, and the contractor is prevented from obtaining his pay, whenever it appears from the sworn statement that there are. bills outstanding in favor of subcontractors, laborers, or material men; and this, although no person to whom a bill is owing has notified the owner that he proposes to claim a hen. It is insisted that this provision of the law, if enforced, will utterly destroy the system, of credit as applied to the building business; that every contractor must pay cash or go out of business; that, no matter how good his credit, or how willing those who supply him may be to trust him, he cannot take advantage of it, because the law forbids; that that flexibility of contract, varying according to circumstances, which is the life of commerce, will be destroyed, and no contract can be safely carried out which does not follow the narrow, rigid lines prescribed by the statute. Counsel cite the case of John Spry Lumber Co. v. Sault Savings Bank, Loan & Trust Co., 77 Mich. 199 (6 L. R. A. 204, 18 Am. St.. Rep. 396), as sustaining their contention.

Act No. 270, Pub. Acts 1887 (3 How. Stat. § 8398a et seq.), was there under consideration. Section 2 of that act provided:

“Such lien shall not be defeated by any contract, agreement, or understanding between the owner, part owner, or lessee of the real estate upon which such improvements are made, or for which such materials are furnished, and the original or any sub contractor, or by any payment made by such owner, part owner, or lessee to such contractor or subcontractor for the contract price of such labor or material [materials], or any part thereof, in case the person performing such labor, or furnishing such material, shall comply with the provisions of this act.”

It was said:

“This law makes the mere fact that a building contract exists, or has existed, a sufficient reason for binding the land for any act or omission of the building contractor or his subcontractor, whether within the range of the contract or not, or whether or not in harmony with its terms. * * * It strikes at the foundations of all property in land. * * * The original contract plays no part in the matter, except as a fact which binds no one, and has no significance. Such a gross perversion of all the essential rights of property is so plain that no explanation can make it plainer.”

That statute was very unlike the present. The present act provides, -by section 1 (Act No. 199, Pub. Acts 1893), as well as by the same section amended in 1897 (Act No. 143, Pub. Acts 1897), that:

“The owner * * * shall not be liable to the subcontractor, material men, or laborers for any greater amount than he contracted to pay the original contractor, and shall be entitled to recoup any damages which he may sustain by reason of any failure or omission in the performance of such contract.”

In this respect the act differs from the act of 188?. By this provision the owner is fully protected upon any breach of the contract. As to the matter of payments, that section provides:

“The risk of all payments made to the original contractor after he shall have received the notice above mentioned¿ or before the contractor shall have furnished him with a statement as hereinbefore provided, shall be upon the owner * * * until the expiration of sixty days within which claims for lien may be filed, as hereinafter provided, and no payment made to any contractor before the expiration of said sixty days shall defeat any lien of any subcontractor, material man, or laborer, unless such payment has been distributed among the subcontractors, material men, or laborers, or, if distributed in part only, then to the extent of such distributions.”

This provision points out the way in which the owner may safely make payments; that is, he need incur no risk — First, if he refuses payment until he is provided with a sworn statement of the contractor, and complies with it; second, if the money paid is distributed, in accordance with the statute, among those who might acquire liens, even though he makes payments without the sworn statement. The owner is not required to make payments be.yond the amount called for in the contract. It will be seen, therefore, that he is fully protected if he follows the requirements of the statute. It is true that the original contractor may not be able at all times to get the moneys into his own hands from the owner as rapidly as the contract calls for, — that is, his sworn statement may show that there is an indebtedness to subcontractors, material men, and laborers, and these moneys the owner may withhold, and pay directly to those persons. But the contract must be presumed to have been made in view of these provisions of the statute. Warren v. Sohn, 112 Ind. 213; Provident Inst. for Savings v. Mayor, etc., of Jersey City, 113 U. S. 506; Reynolds v. Black, 91 Iowa, 1. The statute was intended to protect subcontractors, material men, and laborers, and its benefits should not be frittered away by construction, unless clearly unconstitutional. It does not impair the obligations of contracts, but provides a method for securing payment to those whose labor or material goes into the building, and at the same time protects the owner and contractor, if the provisions of the- act are complied with. The doctrine upon which such liens are founded is the consideration of natural justice that the party who has enhanced the value of property by incorporating therein his labor or materials shall have a preferred claim, in a certain sense, on such property, for the value of his labor or materials.

The specifications of the contract between Schmidt and Gearing contain this provision:

“The building or works must be delivered up free of all mechanics’ liens or other claims chargeable to the contractor.”

It is the contention of the owners of the property that this provision prevents any of the lien claimants in this cause from obtaining a lien. This contention cannot be sustained. The contract was made in reference to the lien statute, which expressly confers upon material men and laborers the right to assert liens. In Whittier v. Wilbur, 48 Cal. 175, a like question was presented under a somewhat similar contract. It was said :

‘ ‘ The contractor and owner cannot deprive the material man of his lien by introducing a stipulation into the building contract by which the contractor agrees to indemnify the owner against any lien by persons furnishing materials to be used in the construction of the building.”

See, also, Boisot, Mech. Liens, §§ 225-227.

It is further contended by the owners that the extent of their liability must be measured by the extent to which payments made by Schmidt to Gearing improperly have not been disbursed to laborers, material men, etc., as contemplated by the statute; that to.this amount should be added the balance of the contract price remaining in his hands over the cost of finishing. This is computed as follows :

Paid to laborers and material men--------------$18,712 82
Materials furnished by himself----------------- 595 00
Cement, etc., furnished------------------------ 152 85
Mistake in statement of account on account of stone furnished. _ I_________ 450 00
Total__________________________________ $19,909 87

That deducting this from the amount paid to Gearing and the balance due on the contract price, of $23,921.68, leaves a balance of $4,011.81. Defendants Schmidt also claim damages, for failure to complete the building in time, of 12 days, at $25 per day, or $300; which being also deducted would leave due from the owners only $3,711.81.

It appears that the contract price for the building was $45,962.08. Gearing failed to complete the building, and the owner let the contract to finish it to Hudson for $22,-040.40. It is conceded by the complainants that this should be deducted from the contract price. Complainants, however, deny the right to make the other deductions, on several grounds:

(a) Because it does not appear that the money so paid by Gearing to the laborers and material men was the identical money received by Gearing from Schmidt, but that a large part of it was received from J. L. 'Hudson. We think this contention of complainants cannot be sustained. The money was paid out by Gearing. The purpose of the act was to insure that an amount equal to the amount which the contractor received should go, if so much were necessary, to the payment of those who contributed to the construction of the building. It could not matter out of what funds the contractor paid, so long as he paid an amount equal to the amount received from the owner.

(b) Because Gearing was not a material man, within the meaning of the act, and therefore he could not use material he had on hand, and credit payments made for such material. The language of the act is:

“But the risk of all payments made to the original contractor after he shall have received the notice above mentioned, or before the contractor shall have furnished him with a statement as hereinbefore provided, shall be upon the owner * * * until the expiration of sixty days within which claims for lien may be filed, as hereinafter provided, and no payment made to any contractor before the expiration of said sixty days shall defeat any lien of any subcontractor, material man, or laborer, unless such payment has been distributed among the subcontractors, material men, or laborers, or, if distributed in part only, then to the extent of such distributions.”

Complainants contend that Gearing could not furnish material, and then distribute payments to himself as a material man, and thus relieve the owner by such distribution. The contention is that two classes of material men are recognized — First, those who furnish materials as contractors pursuant to a contract made with the owner of the building; second, those who furnish materials as material men to an original or principal contractor, pursuant to a contract made only with the contractor; and that it is only material men of the second class that are meant in those clauses of the statute providing that the owner shall have the benefit of money actually distributed among subcontractors, material men, and laborers.

This contention cannot be sustained. The distribution of payments is to be among subcontractors, material men, or laborers. Section 1 of the act of 1893 provides expressly that contractors may furnish materials and labor and have a lien therefor. To the extent that Gearing furnished materials, he is a material man, within the meaning of the part of the act upon which counsel for complainants relies. Section 29 of the act of 1891 defines the words “material men” to be and include “all persons by whom any materials are furnished in or for the building,” etc.

It is also contended by counsel for complainants that the moneys paid to. Gearing by Schmidt were not distributed pro rata among the subcontractors, laborers, and material men, and that, therefore, the owners are not entitled to have the full amount of deductions claimed. Counsel relies upon the construction which he gives to the provision of the statute above quoted,- — that is, that there must be a pro rata distribution among them, — and cites in support of that contention Fairbairn v. Moody, 116 Mich. 65. It is claimed that, under the rule there laid down, the distribution of the entire fund is to be made among those who, at the end of the work, have claims for labor and material, without regard to the time when they respectively earned their pay by doing their work or furnishing their material.

Counsel is correct in this contention. The rule stated in that case was as follows:

‘ ‘ It cannot be said that the payment to one of the entire contract price would amount to ‘distribution;’ nor is it doubtful that the term, as here employed, means a distribution among all entitled to take. ”

No sworn statements were furnished to the owner, and there was no pro rata distribution of the funds received by Gearing. All the laborers, and some of the subcontractors, who had claims at that date, were paid in full by this distribution. The owner was entitled to be credited with such of the moneys paid into Gearing’s hands as had been distributed by Gearing, in accordance 'with the statute, to laborers and material men, as well as credited with items for materials which were furnished by Gearing that actually went into the building, as Gearing stands, as to such items, as a material man, under the statute. There having been, however, no pro rata distribution of the funds by Gearing, a new computation must be made, in which all the laborers and material men must be included; and if, on such computation, it is found that certain of them have been paid more than their pro rata share, the owners will be held liable for such overpayments, and that amount added to their liability.

We think the proofs show that the owners are entitled to have their’ damages for the 12 days’ delay by Gearing, at $25-per day, making that item $300.

The other defendants are lien claimants, and the complainants, as well as the defendant owners, attack their respective claims upon several different grounds. Claim of Ashland Brown Stone Company: It appears that in April, 1895, the company had a quantity of stone at the dock in the city of Detroit. It was sold to Gearing for this building for $1,841.88, and freight from the dock to Gearing’s yard, to be delivered, there. It was delivered there on May 14th. Mr. Gearing stated that it was to be used in that building, and it was sold for that purpose. In June following, another quantity was sold for $787.85, and delivered at Gearing’s yard. Notes were taken on these sales. The first stone sold was cut at Gearing’s yard at his expense. On account of the delay in the building, none of this stone was put into the building until after September 11, 1895. Between this date and October 1st, he took this stone, from time to time, to the building. Some of the stone was not put in until October 1st. The statement of lien was filed by the company November 9, 1895. It is claimed by complainants that, this claim not being filed until five months after the last stone was delivered at Gearing’s yard, the lien cannot attach. It is also claimed that about 1,000 cubic feet of this stone never went into the building. The total amount of the claim of the company is $2,629.73. The court below disallowed the claim for the stone not put in the building, and allowed the balance at $1,949.13.

The statute of 1891, by section 5, provides that:

“Verified statement or account shall be filed within sixty days from the date on which the last of the materials shall have been furnished, or the last of the labor shall have been performed, by the person claiming the lien.”

It is claimed by the stone company that the 60 days began to run from the date that the materials were delivered at the building. On the other hand, it is contended by complainants that the 60 days began to run from the time that the last of the materials were furnished by the stone company to Gearing at his yard, June 8, 1895. This contention must be settled by the construction which is to be given to the language of the statute. The lien law was enacted for the benefit and protection of laborers and material men, and should be construed liberally. The verified statement or account must be filed within 60 days from the date on which the last of the materials shall have been furnished. We think the meaning of the statute is that the 60 days begins to run from the date when the last of the materials shall have been furnished to the owner, or delivered at the building. The material man furnishes the material to the owner through the contractor, the same as the laborer performs labor for the owner under the direction and authority of the contractor. The stone company, it is true, delivered the stone at the yard of Gearing; but it was delivered there at the request of Gearing, to be dressed and afterwards delivered at the building. Had Gearing filed a claim of lien for'this material at the timé it was filed by the stone company, no question could be raised as to the time. The claim of lien would have been filed in time. It was purchased for the very purpose of being put into this building. The claimant could not have filed a claim of lien for the materials until they were delivered to the owner at the building. In Wentworth v. Tubbs, 53 Minn. 388, it was held, under the statute of that State, that “materials for a building are usually said to be furnished when they are delivered on the premises on which they are to be used.”

The court below was not in error in deducting from the claim the value of the stone not used in the building. The equity of a lien claim for labor or materials arises from the fact that the value of the property to which they have been applied has been increased. The language of the act giving the lien is that:

“Every person who shall, as subcontractor, laborer, or material man, perform any labor or furnish materials to such original or principal contractor, or any subcontractor, in carrying forward or completing any such contract, shall have a lien therefor.”

What we have said in relation to the claim of the Ashland Brown Stone Company applies equally to the claims of the Stanstead Granite Company and the Northwestern Terra-Cotta Company. Those claims were filed in time, and were properly allowed by the court below.

The Wetmore & Brady claim: This claim was filed November 6, 1895, and they insist that the last of the cement was not furnished until September 26th. Complainants claim that the lien was not filed in time. It appears that, in the spring of 1895, Wetmore & Brady agreed to furnish Gearing what cement he required for the building. Gearing said he would want from 200 to 400 barrels. The first delivery was 100 barrels on April 29th. This was paid for, and does not enter into the claim. Wetmore & Brady purchased, and had shipped to them by water, 300 barrels more. This was put in Brady’s warehouse, and delivered by Brady from time to time to the teamsters of Gearing, as they called for it. Up to the 20th of August, 200 barrels more had been delivered, and a bill was presented to Gearing for it, and a note given by him for the amount. It is contended that this note-was considered as payment. The mere fact of giving the note does not estop the claimants from asserting a lien. There is no showing that this note was a settlement of the matter. Mr. Brady testified that the cement was in his warehouse; that no definite amount was specified by Mr. Gearing that it would take to complete the building, and that no definite amount was agreed upon; that the teamsters came and got it as it was needed in the building. It does not appear- that any definite amount was set aside as sold to Gearing. The last delivery was, as Brady testified, September -26th. We are satisfied from the record that the claim of lien was filed in time, and that the court properly allowed the claim.

The claim of the Hall & Wolf Company: The objection to this claim is that each delivery of brick was upon a separate order from Gearing, and that the 60 days began to run from each delivery. The claim of lien was' filed October 31, 1895. It appears clearly that the parties agreed that the Hall & Wolf Company should furnish the brick for the building. There was no showing that each delivery was a separate purchase, but that the brick were delivered from time to time, as needed for use. Mr. Gearing testified that, at the time he had the talk in April with the claimant about this building, he expected to take all the brick for the building from the company. The price was fixed in April at $5.75 per thousand, and they were delivered from time to time from April to October. It cannot be said that these brick were furnished under a series of separate orders, making each order a separate contract. The arrangement amounted to this: That a contract was made for what brick Gearing needed in that building, to be delivered from time to time, as required in the progress of the work. They were all supplied under one continuous contract, and the 60 days began to run from the time of the furnishing of the last material. The claim was properly allowed.

The claim of Strelinger & Hart: It appears that certain materials were furnished to Gearing on September 28, 1895, by this firm, to the amount of $580. These materials went into the building, and no contest seems to be made over the correctness of the claim. The court below allowed it at that amount. That finding is approved.

All the claims will draw interest from the time each fell due.

It must necessarily follow that the claims so allowed, when taken together and added to the cost of completing the building by Hudson, will exceed the contract price.' What each claimant will be entitled to will be determined in accordance with this opinion, and the decree below will be modified and affirmed in accordance therewith. The defendants who are lienors will recover their costs from the complainants and the defendant owners. No other costs will be allowed in this court.

The other Justices concurred.

ON APPLICATION FOR REHEARING.

Per Curiam.

A motion for rehearing has been made by the complainants in this cause on the question of costs. We have re-examined that question, and are satisfied that j the defendant lienors should not recover costs against complainants, but that complainants and defendant lienors should recover their costs of this court and of the court ' below against the defendant owners of the property. But one set of costs, however, is allowed, and that to be divided between the parties. Decree will be entered accordingly.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    CASE v. SKINNER.
    1. Tax Sales — Validity of Degree — Collateral Attack.
    The question of the validity of the decree in a tax proceeding, because it does not show an adjudication of any sum of money against the land, may be raised in a suit to set aside the deed based upon the decree.
    2. Quieting Title — Possession.
    Possession of land which is only such as is incident to the removal of timber therefrom is not such possession as will prevent an adverse claimant from maintaining a bill to quiet his title.
    Appeal from Gratiot; Dodds, J., presiding.
    Submitted June 8, 1899.
    Decided September 12, 1899.
    Bill by Richmond E. Case against Abel L. Skinner to set aside a tax deed. Prom a decree for complainant, defendant appeals.
    Affirmed.

      George P. Stone {Kelly S. Searl, of counsel), for complainant.

      John T. Mathews {E. H. Lyon, of counsel), for defendant.
   Hooker, J.

The complainant, being owner of the government title of the premises in controversy, consisting of wild land, filed the bill in this case to restrain the defendant from removing the timber therefrom, and to remove a cloud from the title, growing out of a tax deed held by the defendant.

The decree upon which defendant’s deed rests is alleged to be void because it does not show an adjudication of any sum of money against the land. We do not see that this is disputed, but it is claimed that the question cannot be raised in this suit; but it is held otherwise in the cases of Millard v. Truax, 99 Mich. 157; Taylor v. Deveaux, 100 Mich. 582; McKinnon v. Meston, 104 Mich. 644; Dawson v. Peter, 119 Mich. 274.

It is contended, further, that the bill should be dismissed because it appears that the defendant was in possession when the bill was filed, and therefore entitled to a trial of his right in a court of law. We are satisfied from the proofs that defendant’s alleged possession was only such as was incident to removing the timber,' which he appears to have prepared to do before he obtained his tax deed, and proceeded with expeditiously. As in the case of McKinnon v. Meston, supra, we think the court was justified in finding that the defendant was not in possession.

The decree of the circuit court is affirmed, with costs.

The other Justices concurred.


author: Montgomery, J.

text:
    RUSSELL v. PIERCE.
    Í. Building and Loan Associations — Mortgages—Application op Payments.
    One who takes stock in a building and loan association for the purpose of procuring a loan is not entitled, upon the association’s becoming insolvent, to have the amounts paid by him upon the stock applied on the mortgage by which the loan was secured.
    2. Same — Locus op Contract..
    A contract of a building and loan. association in Minnesota, which is dated and made payable in that State, and which expressly declares that it is subject to the laws of Minnesota, is a Minnesota contract, although the other party to the contract resides in Michigan, and a loan on Michigan land is contemplated.
    Appeal from Clare; Dodds, J.
    Submitted January 5, 1899.
    Decided September 19, 1899.
    Bill by Robert D. Russell, receiver of the Security Savings & Loan Association, against Henry W. Pierce and wife and Alfred J. Doherty and wife, to foreclose a mortgage. From a decree of foreclosure for less than the amount claimed, complainant appeals.
    Reversed.
    This is a proceeding to foreclose a mortgage executed by the defendants Pierce to the Security Savings & Loan Association of Minneapolis, Minn. The defendant Doherty is a subsequent purchaser. The question involved is how much is due on the mortgage.
    On the 10th of January,"; 1890, Henry W. Pierce subscribed for eight shares of the capital stock of the building and loan association, agreeing to pay 60 cents a share thereon monthly until fully matured. He also paid a membership fee of $8. Thereafter the said Henry W. Pierce made, in accordance with the rules and regulations and by-laws of said association, a certain application to the said association for a loan or advance of $400 by way of anticipation of the value, at their maturity, of his eight shares of stock in said association, according to the bylaws of said association, and, in competition with other bidders, bid the sum of $400 as and for a premium for the privilege of obtaining such loan or advancement, and said application was forwarded to the home office of the company at Minneapolis, and the application was granted, and said Pierce received the sum of $400. As evidence of this indebtedness, Pierce and his wife, March 14, 1890, exe-' cuted their joint note to said association for the sum of $800, payable on or before 10 years after date. This note was dated and made payable at Minneapolis, and provided for the payment of 6 per cent, interest per annum on the sum of $400. The balance of the $800 was for the premium. The note provided that, if the maker -failed to make payment of any monthly payment, fine, or dues on said stock, or to pay any installments of interest thereon, for a period of six months after the same became due, then the whole amount should at once become due and payable. At the time of receiving this loan, the said defendant Henry W. Pierce assigned all of his right,'title, and interest in and to the shares of said stock to the association. For the purpose of securing the payment of said note at maturity, Pierce and wife executed a mortgage deed to said association, and said mortgage expressly stated that it was given to secure a loan made on eight shares of stock in said association, the monthly payments on which amounted to $4.80, and said mortgagors did further covenant and agree to make said monthly payments on said stock as they should become due, and to pay all fines and dues as a stockholder of said association, according to its by-laws, and said mortgage contained other stipulations as mentioned in said note.
    Upon said note and mortgage said Henry W. Pierce made 68 monthly payments on his shares of stock, of $2.40 each, on the 10th day of each and every month, commencing the 10th day of February, A. D. 1890, up to and including the 10th day of September, 1895, amounting to $163.20. He also paid 66 months’ interest, at $2 per month, amounting to $132, on the 10th day of each and every month, commencing April, 1890, down to and including September, 1895. He also paid 68 monthly payments on the premium, of $2.40 each, on the 10th day of each and every month, commencing February 10, 1890, down to and including September 10, 1895, amounting to $163.20. After the 10th day of September, 1895, he made no further payments on said note and mortgage, and, being in default to said association for more than six months after the payments on said stock, interest, and premium became in default, the said association elected to declare the whole sum, as secured by said note and mortgage, immediately due and payable, and said association, on the 6th day of May, 1897, filed its bill of complaint to foreclose the mortgage, joining as defendants Doherty and his wife, who were subsequent purchasers.
    Robert D. Russell, on the 29th day of November, A. D. 1897, was duly appointed as receiver for said association by the district court of the Fourth judicial district of the' State of Minnesota, on the ground that the association had become insolvent. Upon the hearing, Robert D. Russell, as receiver of - said Security Savings & Loan Association, was substituted as complainant in this cause. The complainant claims that,- as the association has become insolvent, the said defendant Henry W. Pierce be charged with the $400 actually received from the association, with interest thereon at the rate of 6 per cent, per annum from the date on which the same was borrowed or obtained from the association to November 29, 1897, the date of the receiver’s appointment, and that he be credited with the sums so paid as interest and premium, together with interest at 6 per cent, per' annum on said payments of interest and premium from their respective dates, in the manner of partial payments, to November 29, 1897, with interest at 6 per cent, per annum, leaving all payments made on stock, amounting to $163.20, in the hands of the receiver to await the winding up of said corporation, and to be paid back to him, the said Pierce, in the regular course of distribution by the receiver; and it is admitted- by the defendants that, if computed as above, there was due on said note and mortgage, November 29, 1897, the sum of $201.80. The defendants’ counsel insists that the defendant Pierce be charged with the amount of the loan ($400), less the amount retained for two months’ dues for advance payments, amounting to $9.60, and $8 admission fee, making him charged with the amount actually received by him of $380.40; that all payments made by him, whether stock payments, interest, or premium, be applied on said note and mortgage; and that interest be computed monthly, at the rate of 6 per cent, per annum. This was the view' entertained by the circuit judge before whom the case was heard, and a decree was accordingly entered, and it is contended by complainant that this was error.

      Smith & Empson, for complainant.

      O. W. Perry, for defendants.
   Montgomery, J.

(after stating the facts). It is settled by authority that payments of dues on stock are not payments on the mortgage debt, and do not, ipso facto, work an extinguishment of the mortgage. End. Bldg. Ass’ns, § 477; Price v. Kendall, 14 Tex. Civ. App. 26; Rogers v. Rains, 100 Ky. 295; Building & Loan Ass’n v. Price, 169 U. S. 45. There is no evidence of fraud, nor are any misrepresentations shown, such as appeared in Sawyer v. Building Ass’n, 103 Mich. 229. The contention of defendants’ counsel is that the subscription to stock and the loan were parts of one transaction, and that the contract was usurious. The contract was a Minnesota contract. It was dated at Minneapolis, was made payable at Minneapolis, and expressly stated that it was made subject to the laws of Minnesota. This clearly makes it a Minnesota contract. Bennett v. Building & Loan Ass’n, 177 Pa. St. 233 (55 Am. St. Rep. 723); 27 Am. & Eng. Enc. Law, 971, 972, and note; Id. 974. The contract is within the laws of this State authorizing building and loan associations. People’s' Building & Loan Ass’n v. Billing, 104 Mich. 186. The law of Minnesota is not proven. Some authorities hold that the presumption to be indulged, in the absence of proof, is that there is no law in the sister State against usury, while others hold that the presumption should obtain that the law of the sister State is the same as ours. 27 Am. & Eng. Enc. Law, 976. Whichever rule is followed, the defense is not made out in this case.

The decree will be reversed, and a decree entered for the complainant in the sum of $201.80, and interest from November 29, 1897, and costs of both courts.

The'other Justices concurred.


author: Grant, C. J.

text:
    FLUHRER v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Railroads — Brakemen—Defective Planking at Crossing-Assumption op Risk.
    It cannot be said, as a matter of law, that a brakeman should have knowledge of, and assumes the risk of, defects in the planking at a crossing on the line of the road, merely because the particular crossing is one of 40 at which he has done switching during seven months’ service.
    2. Same — Violation of Rules — Contract of Employment.
    Where a brakeman, in his contract of employment, which was signed by him, acknowledged the receipt of a copy of the rules of the company, and stated that he had read the same and would be governed thereby, such contract constitutes a defense to an action to recover for his death, resulting from injuries received while' attempting to uncouple moving cars, in direct violation of a rule, unless the plaintiff shows that the rule had been virtually abrogated by the company, by sanctioning its customary violation by employés.
    3. Same — Company’s Knowledge op Violation — Depenses.
    Mere proof of a custom of brakemen to go between moving cars to uncouple them, in violation of the rules'of the company, is insufficient to preclude the company from relying upon such violation as a defense to an action for injuries received by a brakeman while so engaged, but, to have such effect, it must be shown that the custom was so universal and notorious that the company may be presumed to have known of and ratified it.
    4. Same — Notice op Defect — Repairs.
    Where a defect in the planking over a railroad crossing, by reason of which a brakeman was injured while coupling cars, had existed for so long a time that the company may be presumed to have had notice of it, the fact that the section foreman was furnished with materials, and instructed generally to make repairs when needed, does not relieve the company from the charge of negligence.
    5. Same — Damages—Excessive Award.
    Damages awarded to the wife of a railroad employé, killed through the company’s negligence at a time when he was earning a monthly wage of $45, upon the basis of $30 per month as the amount of which his death deprived her, cannot be said, as a matter of law, to be excessive. Grant, C. J., and Long, J., dissenting.
    Error to Lenawee; Chester, J.
    Submitted February 9, 1899.
    Decided September 19, 1899.
    Case by Mary Fluhrer, administratrix of the estate of John M. Fluhrer, deceased, against' the Lake Shore & Michigan Southern Railway Company, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Reversed.
    John M. Fluhrer, deceased, was a brakeman on the defendant’s road between Adrian and Jackson. He was killed while switching at defendant’s yard at Tecumseh, July 14, 1893, at a highway crossing. The defendant had three tracks at this crossing. The highway was planked between the tracks in the usual manner. Mr. Fluhrer was head brakeman. The engine had two cars attached, and had passed from one track onto the other. It was his duty to turn the switch, and then give notice to the engineer to back up. This he did. As the engine commenced to back, he went forward to meet it, stepped between the two box cars upon the crossing to uncouple them, and in doing so was killed. The negligence charged is the failure to keep this planking in proper condition-It is claimed that the plank next to the rail had become worn away or split off so as to leave a space from 3 to Sc-inches wide between the rail and the plank, so that, when Mr. Fluhrer stepped in, his foot got caught in this space, and caused the accident. Plaintiff recovered a verdict and judgment for $6,900.

      O. E. Weaver (George G. Greene and O. G. Getzen-Danner, of counsel), for appellant.

      Watts, Bean & Smith, for appellee.
   Grant, C. J.

(after stating the facts). Defendant requested the court to direct a verdict for it, and this request presents the first assignment of error.

It is urged that there is no proof that the decedent’s foot was caught in the crack. The shoe was produced in evidence, made an exhibit, and returned to this court. It shows that in some manner it was run over by the wheel. Plaintiff gave testimony, from persons who were a short distance away, and reached the place of the accident within a few moments, that the shoe was found in the crack-The defendant gave evidence, from the engineer, conductor, and others, that they were first upon the scene, and that the shoe was outside the track. It has no marks of blood upon it. The foot and ankle were crushed. If, therefore, the foot was in the shoe at the time the latter was run over, it would have been covered with blood, but was not. The only other inference would be that the deceased pulled his foot from the shoe before the wheel struck it. We think this question was properly left to the jury.

It is urged that deceased assumed the risk, and that, if the defect was such as is claimed, it must or should have been known to him. For some time he had been a brakeman over this branch, and had done switching at this crossing and about 40 others. This is not like the case of Gleason v. Railroad Co., 159 Mass. 68, where the plaintiff had been working in the same yard for six weeks, during which time the planking had remained in the same condition. Nor is it like the case of Ragon v. Railway Co., 97 Mich. 265 (37 Am. St. Rep. 336), where the side track had not been ballasted, while plaintiff supposed it was smooth, but he had passed the place frequently in the discharge of his duties. Those cases are so different from this that we refrain from discussing the point further. It cannot be said, as a matter of law, that a brakeman must know the condition of the planking at every crossing along the line of the road.

The most difficult question is whether negligence is chargeable to the deceased in going between the moving cars to uncouple them. The deceased was an experienced brakeman, and had been in the employ of the company as brakeman for seven months; was furnished with a copy of its rules December 28, 1892, and signed a contract in which he acknowledged to have received and read them, and especially “the caution and rules numbers 601, 602, and 603, as shown on back hereof.” That portion of rule 602 applicable here reads as follows:

“Jumping on or off trains or engines when in motion, getting between cars in motion to uncouple them, and all similar acts, are dangerous. All employés are warned that, if they commit them, it will be at their own peril and risk.”

In this contract he agreed as follows:

‘! I will, so long as I remain in its service, faithfully respect and obey all said orders, rules, and regulations, and all others which may be adopted and of which I may have notice; and I do further agree that I will, for myself, in all cases, before exposing myself in working or in being on the track or grounds of the company, or in working with, or being in any manner on or with, its cars, engines, machinery, or tools, examine, for my own safety, the condition of all machinery, tools, tracks, cars, engines, or whatever I may undertake to work upon or with, before I make use of or expose myself on or with the same, so as to ascertain, so far as I reasonably can, their condition and soundness, and that I will promptly report, either to the superintendent of the company, or to its agent who may be my immediate superior officer, any defect in any track, machinery, tools, or property of the company affecting the safety of any one using or operating upon or with the same. The object of this agreement being — First, to protect me from suffering personal injury from any cause; second, that while the company will be responsible to me for the discharge of all its duties and obligations to me, and for any fault or neglect of its own, or of its board of directors or general officers, which are the proximate cause of injury, yet it will not be responsible to me for the consequences of my own fault or neglect, or that of any other employés of the company, whether they, or either of them, are superior to me in authority or not. It being expressly agreed on the part of the company that it is my right and duty, under all circumstances, to take sufficient time, before exposing myself, to make such examination as I have here agreed to, and to refuse to obey any order that would expose me to danger.”

Defendant preferred the instruction, which was refused, that decedent’s attempt to uncouple the cars while in motion barred recovery, and the alternative instruction that it was the duty of the decedent to obey this rule, and if he did not, but went between the moving cars and attempted to uncouple them while" in motion, and thereby received the injuries which caused his death, then this conduct was in violation of the rule, and plaintiff could' not recover. It is well settled that a violation of the rules of the company will defeat recovery. The exception to this is where the company itself has sanctioned the custom of its employés to act in violation of the rules, and has thus virtually abrogated them. This exception is based upon the theory that it would be unjust in employers to establish rules, and then sanction their violation, and interpose such violation as a defense. Hunn v. Railroad Co., 78 Mich. 513, 526 (7 L. R. A. 500); Eastman v. Railway Co., 101 Mich: 597, 602. Fairly construed, the above rule is notice to brakemen not to enter between the cars while in motion, to uncouple them, and an agreement not to do so. The danger in doing so is apparent. Only when this rule is violated by brakemen so universally and notoriously that it is a fair inference that the company sanctioned and approved the violation is the company barred from this, defense. The court instructed the jury that if they believed that the motion of the cars was so slow that it was not negligence to pass between them to uncouple them, and that such was the usual custom of brakemen under like circumstances, then such act would not necessarily prevent recovery by the plaintiff. There was evidence tending to show that it was usual and customary for brakemen to pass between the cars while in motion, to uncouple them. The case was not submitted to the jury upon the theory that the company had sanctioned a violation of this rule. The question was not referred to in the instructions. Under the instructions given, this rule was virtually thrown out of consideration, and the jury permitted to find that, if it was customary for brakemen to do this, then it was not negligence on the part of the deceased. Custom alone is not sufficient. It was held in Glover v. Scotten, 82 Mich. 369, that where a safe place was provided for switchmen to ride, and they chose to ride in a more dangerous one, and always did so, that would not relieve them from contributory negligence. When the defendant had entered into the contract with the deceased, in which he acknowledged the receipt of a copy of these rules, and agreed to abide by them, it-had met the plaintiff’s case, even though it was not negligence per se to go between the cars when in motion. The onus probandi was then cast upon the plaintiff to show that the company sanctioned a departure from the rule by a custom so universal and notorious that the company was presumed to have had knowledge of it and to have ratified it. This is an important feature of the case, and was not, we think, by the instructions, properly submitted to the jury.

Counsel for plaintiff urge that the evidence does not show that Fluhrer ever read or saw these rules. The production of the duplicate contract signed by him was prima facie proof that he had received and read them. If there was a conflict of testimony on this point, it should be submitted to the jury under proper instructions.

We think the verdict excessive. It is evident that the jury based it upon the claimed testimony that the deceased had contributed to his wife $30 per month for her support and maintenance, and would have continued to do so during the entire expectancy of his life according to the tables. The testimony does not show that he contributed to her $30 out of his earnings of $45 per month. This $30, as testified by the plaintiff, included rent and household expenses both for herself and husband. It would be absurd to hold that a husband gave his wife $30, and that he lived upon $15. It is further apparent that the jury estimated the damages upon the compound discount table which was introduced in evidence, subject to objection, at 6 per cent, per annum. $6,900 at 6 per cent, would yield $414. This would give plaintiff more money annually than she could by any possibility have received from her husband. If it be said that money cannot now be loaned at 6 per cent., it should be replied that annuities should not, therefore, be computed at 6 per cent. This court, in an opinion written by Justice Campbell in Staal v. Railroad Co., 57 Mich. 239, said, “$5,000 seems to be a large verdict, but, when we consider how it is to be apportioned, it loses some of its apparent magnitude.” There were in that case three minor children. Of the amount recovered, $1,666.66 went to the widow, and $1,-111.11 to each of the children. It was also said in that case, “Courts should not allow juries to give anything that goes beyond a fair pecuniary compensation, based on the actual pecuniary loss.” See, also, Nelson v. Railway Co., 104 Mich. 582.

Error is assigned upon the refusal to instruct the jury that the section foreman was furnished with the necessary material to renew the planking on this and other crossings whenever the same was necessary; that, therefore, the railway company had fulfilled its duty in that regard; and that, if said foreman neglected to repair the planking when needed, such negligent act was the act of a fellow-servant. The only testimony upon this point was from the road-master, who testified that he kept the section foreman at Tecumseh supplied with raw material for the renewal of the planking from time to time, and that his instructions were to watch those things, and repair them as needed. Counsel rely upon Gardner v. Railroad Co., 58 Mich. 584, to support this contention. The differences between the facts in that case and this are apparent, and I will not take time to point them out. The request leaves out one important element, viz., the existence of this defect for so long a time that the defendant may be presumed to have had notice of it. Retan v. Railway Co., 94 Mich. 146.

Judgment reversed, and new trial ordered.

Long, J., concurred with Grant, C. J.

Hooker, J. I concur in the above, except on the question of damages.

Montgomery and Moore, JJ., concurred with Hooker, J.


text:
    GROSVENOR v. DUFFY.

    Food — Adulteration—Coloring of Oleomargarine — Statutes —Insufficient Title.
    The title of Act No. 193, Pub. Acts 1895, entitled ‘ ‘An aot to prohibit and prevent adulteration, fraud, and deception in the manufacture and sale of articles of food and drink,” is not broad enough to cover the provision of the amendatory act (Act No. 118, Pub. Acts 1897, § 3) making the coloring of an article of food an adulteration, and its sale a crime, where the coloring matter used is not deleterious, and is not used for the purpose of fraud or deception; and the sale of oleomargarine colored with a harmless substance, which the statute permits to be used for the coloring of butter, where it is properly labeled, stamped, and marked with the name and address of the manufacturer, does not subject the seller to criminal prosecution.

      Certiorari to Washtenaw; Kinne, J.
    Submitted April 4, 1899.
    Decided September 19, 1899.

      Mandamus by Elliot O. Grosvenor, dairy and food commissioner, to compel John L. Duffy, a justice of the peace, to issue a warrant for an alleged violation of the pure-food law. From an order denying the writ, relator brings certiorari.

    Affirmed.
    The relator presented to a justice of the peace a complaint in writing, charging that:
    “Caspar Rinsey did unlawfully offer and expose for sale, and did unlawfully sell and deliver to said Elliot O. Grosvenor, a large quantity, to wit, one pound, of oleomargarine, which was then and there an article of food intended to be eaten by man, and which was then and there adulterated, within the meaning of Act No. 193 of the Public Acts of Michigan for the year 1895, as amended by Act No. 118 of the Public Acts of Michigan for the year 1897, in this, to wit: That said oleomargarine was then and there an imitation of another article of food, to wit, an imitation of a rich June butter; and the said qleomargarine had been and was then and there colored, whereby inferiority was concealed, and by which means it was made to appear better and of greater value than it really was, to wit, in this: That it was thereby made to appear like butter of. a grade which was then and there of a greater value than the said oleomargarine. That the said oleomargarine was labeled ‘ Oleomargarine,’ and stamped with the seller’s name, and that the tub and wrapper which contained the same bore the name and address of the manufacturer, and was distinctly labeled ‘ Oleomargarine. ’ Said complainant, on his oath aforesaid, further says that he called for oleomargarine, and that the said oleomargarine was sold to him as oleomargarine, the same as to an ordinary customer, freely and without objection, and that for this reason he did not take the steps required by section 6, Act No. 154, of the Public Acts of Michigan for the year 1897.”
    The justice refused to entertain the complaint and issue a warrant, 'whereupon the relator applied to the circuit court for Washtenaw county for the writ of mandamus to compel the justice to issue a warrant and proceed to hear the case. The circuit court refused the writ, and the case is brought to this court, by certiorari, for review.

      Smedley & Corwin, for relator.

      John J. Speed, for respondent.

      Jay P. Lee, amicus curiae.

       Rehearing denied December 12, 1899.

   Grant, C. J.

(after stating the facts). The title of the act reads:

“An act to prohibit and prevent adulteration, fraud, and deception in the manufacture and sale of articles of food and drink.”

Section 3, as amended by Act No. 118, Pub. Acts 1897, so far as it applies to this case, reads:

“An article shall be deemed to be adulterated, within the meaning of this act: * * * Fourth, if it is an imitation of, or is sold under the name of, another article; * * * sixth, if it is colored, coated, polished, or powdered, whereby damage or inferiority is concealed, or if by any means it is made to appear better or of greater value than it really is; seventh, if it contains any added substance or ingredient which is poisonous or injurious to health: Provided, that nothing in this act shall prevent the coloring of pure butter: And provided further, that the provisions of this act shall not apply to mixtures or compounds recognized as ordinary articles or ingredients of articles of food, if each and every package sold or offered for sale bear the name and address of the manufacturer, and be distinctly labeled under its own distinctive name, and in a manner so as to plainly and correctly show that it is a mixture or compound, and is not in violation with definition fourth and seventh of this section.”

It is not claimed that the sale made by Rinsey violates subdivision 7.

The act charged in the complaint is neither adulteration, fraud, nor deception, under any definition of these words to be found in any dictionary. Adulteration is ‘ ‘ the act of corrupting or debasing; the act of mixing something impure or spurious with something pure or genuine, or an inferior article with a superior one of the same kind.” Bouv. Law Diet.; Cent. Diet. Counsel do not urge that it comes within the word “fraud” or “deceit.” Neither is it urged that the article is made to appear of greater value than it really is. It is not claimed that the coloring matter used is in the least deleterious. The law permits its use to color butter. Counsel rely upon People v. Snowberger, 113 Mich. 86. That case is not in point. The gravamen of the offense there was that the article of food was damaged, inferior, its inferiority concealed, and it was made to appear of greater value than it really was. This brings us to the only question we need to determine, viz., Is the title to the act broad enough to include the sale complained of? Would any person reading the title to the bill, in the legislative journals or elsewhere, suppose that the bill would make criminal an act which in itself was entirely harmless, honest, innocent,-and contained no element of wrongdoing ? or that it would change the well-known definition of a word so as to include within it things which were in no sense akin to it, and which could only be included in it by the most arbitrary legislative enactments? Would a manufacturer of or dealer in butter or oleomargarine be notified by the title that the harmless coloring of either was not only to be prohibited, but to be punished by fine or imprisonment or both? There can be but one answer to these questions. When the legislature attempts to change definitions, and to make acts criminal which per se are innocent and contain no element of wrong, there must be something in the title to show such purpose or object, under section 20, art. 4, of the Constitution. The title contains not even an intimation that an entirely innocent act is to be made a crime. It follows that this part of the act is void. Bissell v. Wayne Probate Judge, 58 Mich. 237; Northwestern Manfg. Co. v. Wayne Circuit Judge, Id. 381 (55 Am. Rep. 693); McKellar v. City of Detroit, 57 Mich. 158 (58 Am. Rep. 357).

This statute is assailed as unconstitutional upon other grounds. This disposal of the case renders it unnecessary to discuss them. How' far the legislature may go, under the police power inherent in the State, in prohibiting and punishing acts which in themselves are perfectly harmless, would be an interesting subject of inquiry; but, as it is not necessary to a disposal of the case, we decline to enter upon it.

Judgment affirmed.

The other Justices concurred.


author: Moore, J.

text:
    SHADFORD v. ANN ARBOR STREET RAILWAY CO.
    1. Master and Servant — Faulty Tool — Assumption op Risk.
    A lineman, in the employ of a street-railway company cannot be said, as a matter of law, to have assumed the risk that a vise, which the company furnished him for drawing up trolley wires upon a curve, might slip and injure him, although the tool was a simple one, where there is evidence that he was inexperienced, and that he undertook its use upon the express assurance of his foreman that it was a suitable tool, and would “hold anything ” without slipping.
    2. Same — Contributory Negligence.
    A lineman in the employ of a street-railway company cannot be said, as a matter of law, to have been guilty of contributory negligence in working on the inside of the curve of a trolley wire held in place at great tension by a vise furnished by the company, precluding his recovery for injuries sustained by reason of the vise’s slipping and releasing the wire, where there is evidence that it was necessary for him to work there, and that, had he occupied a place on the outside of the curve, • he would, under the circumstances surrounding the accident, have been equally liable to injury.
    Error to Washtenaw; Kinne, J.
    Submitted April 18, 1899.
    Decided September 19, 1899.
    Case by John H. Shadford against the Ann Arbor Street Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Isaac N. Payne (O. E. Butterfield, of counsel), for appellant.

      A. J. Sawyer, for appellee.
   Moore, J.

This case has been here before, and is reported in 111 Mich. 390. A reference to that case will aid in understanding this .one, and will make it unnecessary to make so full a statement as would otherwise be necessary. Upon the second trial the plaintiff recovered a judgment, from which defendant has appealed.

As to the assignments of error in relation to the admission of evidence, we deem it unnecessary to say more than that we think the assignments are not well taken.

It is claimed by the defendant that the vise of which complaint is made was in general use by railway companies in the same or similar lines of work, and that the proof offered by it established this claim, and the judge should have directed a verdict in its favor. If this claim was uncontroverted, as was said when the case was here before, that would be a complete defense, but upon this trial the claim was controverted.

It is insisted by the plaintiff that the tool was not a reasonably safe one for this kind of work; that, while it was in general use by electric railways, telephone and telegraph companies for many purposes which did not subject it to much strain, it was not in general use for drawing up trolley wires upon a curve, under the conditions which obtained when the accident happened. Witnesses were produced whose evidence tended to show the truth of this contention. Some of them claimed to have been employed upon the same lines of road upon which witnesses for the defense claimed the'instrument had been used, and gave testimony contradicting the testimony of defendant’s witnesses about the instrument being in use upon those lines. There were so many of these witnesses, testifying about so many roads, and the testimony was so contradictory, that the question of whether the instrument was in common use in the same or similar lines of work became a controverted question of fact, — a question not competent for the court to decide as a matter of law, but a question of fact very proper to be left to a jury under proper instructions. Washington, etc., R. Co. v. McDade, 135 U. S. 554; Vinton v. Schwab, 32 Vt. 612.

It is claimed by defendant that the vise was a simple tool, and plaintiff could see as well as any one whether it was a safe one to use or not, and that he could also soon learn what were the dangers incident' to the stringing of the trolley wire around curves. Counsel say the servant is held by his contract of hiring to assume the risk of injury from the ordinary dangers of the employment; that is to say, from such dangers as are known to him, or discoverable by the exercise of ordinary care on his part. Hayball v. Railway Co., 114 Mich. 135; citing Beach, Contrib. Neg. § 370; Kean v. Rolling Mills, 66 Mich. 277 (11 Am. St. Rep. 492). The rule is too well settled to be longer open to discussion that when a servant enters upon employment which is, from its nature, dangerous, he assumes the usual risks and perils of the service, and this is especially so as to those risks which require only the exercise of ordinary observation to make them apparent. Louisville, etc., R. Co. v. Frawley, 110 Ind. 18; citing Atlas Engine Works v. Randall, 100 Ind. 293 (50 Am. Rep. 798); Pittsburgh, etc., R. Co. v. Adams, 105 Ind. 151. See, also, Kean v. Rolling Mills, 66 Mich. 277 (11 Am. St. Rep. 492); citing Davis v. Railroad Co., 20 Mich. 105; Michigan Cent. R. Co. v. Dolan, 32 Mich. 510; Cooley, Torts, 542. The rule is undoubtedly as contended for by counsel; but it is the claim of plaintiff that he was not acquainted with the dangers of the employment, and was not familiar with the tools used in work of this character. He claims he was told the vise was a suitable tool for this work, that it would hold anything, and that he relied upon this statement. His counsel says in his brief:

“The danger attending the use of this vise consisted of its treacherous nature. There was nothing to indicate, in its construction, that at some times it would slip and at other times it would not slip when exactly the same strain was applied, and under exactly the same circumstances. * * * For that reason it was an unfit and unsafe instrument for the uses and purposes to which plaintiff was required to put it. There was no telling when it would hold or when it would slip. It was impossible to tell just how much strain it would hold at any time, nor was it possible to tell whether the same amount of strain was applied at each time. It would either hold or slip, and the only way by which it was possible to learn which it would do, under any given state of facts, was after, and not before, it slipped.”

Plaintiff gave testimony tending to prove this claim. He claims that, under such circumstances, he does not come within the purview of the doctrine of “assumption of risks,” but had a right to rely upon the statement that the tool so -furnished was safe, and would hold anything. The defendant denied the claim that the tool was a dangerous one, and insisted it was reasonably safe for the use to which it was put. It also denied the statements of the plaintiff in relation to the experience he possessed in this kind of work, and in relation to the representations he claimed the foreman made to him as to the safety of the instrument. We do not think it can be said, as a matter of law, that under such circumstances the risks of the business were assumed by the plaintiff, and he cannot recover. If the facts are as claimed by plaintiff, the doctrine of assumption of risks does not apply. . The question of fact was a proper one for the jury.

The defendant insists that, as a matter of law, the plaintiff was guilty of contributory negligence when he undertook to do this work from the inside of the curve. It is said he is bound to know the workings of natural laws, and that any person of ordinary intelligence would know there was danger in being on the wrong side of a trolley wire stretched upon a curve, and held in place by the grip of an instrument; and that the court should have directed a verdict upon the ground of contributory negligence,— citing Kroy v. Railroad Co., 32 Iowa, 357, Oil City Fuel Supply Co. v. Boundy, 122 Pa. St. 449, and many other cases. It is the claim of plaintiff that he was not’ familiar with the fact that to work on the inside of the curve was more dangerous than to work on the outside; that, if the vise held fast to the guy wire, as he was told by the foreman it would do, which statement he believed to be true, it would not be more dangerous to work on the inside of the curve than on the outside. He asserts that the necessities of the business frequently made it necessary for the men to work on the inside of the curve, for the reason they could not reach the work necessary to be done unless they did so, and that this was done by men of experience. He also says that the tension on the guy wires was very great, causing them, when released by the slipping of the vise, to be thrown back with great force; that, after the accident, the strap and vise were found attached to the trolley wire, and that, if he had been on the outside of the curve, he might have been struck by one of the guy wires, or by the vise and strap, and that no one can say which side of the wire would have been safer. He offered testimony tending to show the truth of his contention. • In this situation we think it was proper to allow the jury to say whether plaintiff was guilty of contributory negligence. Kinney v. Folkerts, 78 Mich. 687, 84 Mich. 616; Ferren v. Railroad Co., 143 Mass. 197; McDonald v. Railway Co., 41 Minn. 439 (16 Am. St. Rep. 711); Nyback v. Lumber Co., 33 C. C. A. 269, 90 Fed. 774.

The trial judge gave a very able and impartial charge, fully instructing the jury as to the law applicable to the case.

We do not think it necessary to disbuss the other questions raised by counsel.

Judgment is affirmed.

The other Justices concurred.


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    JENNEY v. TOWNSHIP OF MUSSEY.
    1. Townships — Treasurer—Levy for Taxes — Defense of Action.
    A township treasurer’s possession of property seized for taxes is not the possession of the township, and does not, therefore, impose upon the township the legal duty of defending an action against him growing out of such levy.
    2. Same — Assumption of Obligation.
    A township, however, may, though no legal obligation exists, defend and indemnify a township officer in a bona fide attempt to discharge a duty, when the duty is imposed by law, and the matter is one in which the township is interested.
    3. Same — Drain Taxes — Interest of Township.
    An action growing out of the attempted enforcement by a township treasurer of drain taxes levied under the general tax law of 1889 (Act No. 195) is not an action of which, under the above rule, the township may assume defense; the township, as such, having no interest in the proceedings.
    4. Same — Insignificant Items.
    The mere fact that a levy for taxes by a township treasurer included an insignificant item in which the township is interested will not authorize the township to employ an attorney to defend suits against the treasurer growing out of such levy, where the levy was almost entirely for drain taxes, the validity of which is the real matter in controversy.
    5. Same — Authority of Township Board.
    In any event, the township board would have no authority to assume the obligation on behalf of the township; 3 How. Stat. § 671, providing that no board or officer shall create any debt or liability against a township, unless the same shall have been authorized by a vote of the electors.
    Error to St. Clair; Eldredge, J., presiding.
    Submitted April 19, 1899.
    Decided September 19, 1899.

      Assumpsit by Henry P. Jenney against the township of Mussey for services as attorney. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Avery Bros. & Walsh, for appellant.

      Henry P. Jenney and Atkinson, Wolcott & Moore, for appellee.
   Hooker, J.

Drain taxes were assessed by the county drain commissioner. The treasurer was sued in replevin and otherwise by various persons from whom he attempted to collect these taxes. Acting under a resolution of the township board, the supervisor employed plaintiff to defend these suits, and he has brought suit against the township for his services. The learned circuit judge held that the township was interested in these taxes, and that the supervisor had authority to employ counsel, under 1 How. Stat. § 737, upon the theory that these were actions against the treasurer in his official capacity, and therefore against the township, and that, if defeated, the township would be liable for the costs.

We think that township treasurers are not so far agents of their townships as to make the latter liable ordinarily for their misfeasances, and that the treasurer’s possession of property taken for taxes is not the possession of the township. We have never known of the replevin of such property from the township. Such actions should be, and so far as we have known are, brought against the alleged wrong-doer, and, if his official title should be added to his name in the writ, it would be treated merely as descriptio personae. Taxes are imposed by law, as are the duties of township officers, who have no right to disregard their duties at township dictation. It is a treasurer’s duty to collect the taxes upon his roll. He does this, not as a representative of the township alone, but of the State, which controls his action. For convenience, the assessment and collection of taxes is confided to officers elected by cities and townships; but it does not follow that their acts are the acts of the cities and townships which elect them, and that such cities and townships are responsible for misconduct. In discussing the subject of eminent domain, Mr. Justice Cooley states the principle as follows:

“ And as the State is not responsible for the acts or neglects of public officers in respect to the duties imposed upon them for the public benefit, so one of these corporations is not liable to private suits for either the nonperformance or the negligent performance of the public duties which it is required to assume, and does assume, for the general public, and from which the corporation itself receives neither profit nor special privilege.” Cooley, Const. Lim. (6th Ed.) 256, 257, and note; Cooley, Tax’n (2dEd.), 816, 817.

We are of the opinion, therefore, that this township was under no legal obligation to defend these actions. But the officers employed counsel, and undertook such defense, upon behalf of the township, and, unless their action was without authority, the plaintiff should recover the value of his services.

It is settled by numerous cases that a township may defend and indemnify its officers in bona fide attempts to discharge their duty, when such duty is one imposed by law, and when the matter is one in which the township has an interest. See Cooley, Const. Lim. (6th Ed.) 258, 259, and cases cited; Gregory v. City of Bridgeport, 41 Conn. 76 (19 Am. Rep. 485); Bristol v. Johnson, 34 Mich. 123; 1 Dill. Mun. Corp. (4th Ed.) § 147. When the township has no interest, the contract is ultra vires, and no implied contract arises to compensate the contractor for work actually done. • Cooley, Const. Lim. (6th Ed.) 261, note. The case of Dawson v. Township of Aurelius, 49 Mich. 479, “recognizes this doctrine, and applies it in a case somewhat analogous to the present case. It was there held that the township was not liable for a drain tax paid under protest, and the reason given was that it had no right to, or interest in, the money collected, which was said to be in the hands of the treasurer for other than township purposes. This case has been followed by others. In Camp v. Township of Algansee, 50 Mich. 4, it was said that ‘ ‘ a township treasurer does not receive such money for the township, or as money to be used in a township matter.” Wallace v. Sortor, 52 Mich. 161. In Ander son v. Hill, 54 Mich. 477, 485, this doctrine is applied to moneys collected by a 'township treasurer, to be expended by a state board. A similar case is County of Alcona v. White, 54 Mich. 505. See, also, Barker v. Township of Vernon, 63 Mich. 516; Taylor v. Township of Avon, 73 Mich. 604.

These cases must be conclusive of the case, só far as the suits which involved only drain taxes are concerned, unless the statute under which this drain was laid has changed the pre-existing rule, and given the township an interest in the matter, an'd this is strenuously urged. The general tax law of 1889 (Act No. 195, Pub. Acts 1889) is said to have been in force when these taxes were levied. Section 23 requires the township clerk to make and deliver to the supervisor of his township a certified copy of all statements and certificates on file, and of all records of any vote or resolution, in his office, authorizing or directing moneys to be raised therein, by taxation, for township, school, highway, drain, and all other purposes. The supervisor is required to file these with the county clerk. Section 24 requires the board of supervisors to examine these, and to hear objections made by any táxpayer. They shall direct that such of the several amounts of money proposed to be raised for township, school, highway", drain, and all other purposes as shall be authorized by law be spread upon the assessment roll. Section 26 provides that “all school taxes and the one-mill tax [shall be entered ] in one column, highway taxes in another, township taxes in another, county taxes in another, and the State taxes in another column, and, if other taxes are at any time required to be raised, they shall' be placed in separate columns. * * * The taxes thus assessed shall become at once a debt to the township from the person to whom they are assessed,” etc.; and it is said that the supervisor, as agent of the town, may sue for the same. Township of Bangor v. Smith Transp. Co., 112 Mich. 601. Section-41 permits any person to pay any tax, whether levied on personal or real property, under protest, to the township treasurer, and to sue the township therefor. It is said that no allusion was made to drain taxes in the law of 1885, and that the law of 1889 was passed a few weeks after the decision of the case of Taylor v. Township of Avon, for the purpose of placing drain taxes on a footing with other taxes. It is also urged that the township has an interest by reason of the assessment by the drain commissioner of a portion of these taxes upon the township at large; but, as this was permissible under all of the acts under consideration, we think the question is settled by former decisions. In fact, all of the points urged seem concluded by the case of Hillyer v. Township of Jonesfield, 114 Mich. 644. The more recent tax laws seem to have imposed additional duties upon various officers, and perhaps upon counties and townships; but the interest of the township in the fund is held to be no greater than heretofore.

In some of the cases, dog taxes were included in the taxes for which the levies were made, and it is said that these, being township taxes, gave the township an interest in the result of such suits. If this is so, and we think it is, the township might defend the action of the treasurer in making a levy, and might make a valid contract with counsel to conduct the defense; but these dog taxes were but one dollar in each case, and in the' aggregate but two dollars, and there is force in the. contention that they were not considered by any of the parties when plaintiff was employed. We think the finding indicates that the employment was in relation to the drain taxes, and that these dog taxes were merely incidental. We see nothing to indicate that the board or supervisor upon the one side, or plaintiff upon the other, understood that it was the purpose to enter upon expensive litigation for a paltry two dollars.

But, be that as it may, there is another reason for holding that this contract was invalid. We have said that it is well settled that townships may defend their officers in some cases, although there is no legal obligation to do so. But we think it is not within the power of these officers to obligate the town to do so, by employing counsel upon behalf of the town, nor can the township board do so. The law permits townships to sue and be sued (1 How. Stat. § 670), and the supervisor may prosecute, in the name of the people or otherwise, for penalties and forfeitures incurred within his township (Id. § 732). He is also the agent for the. transaction of all legal business, and he is to bring and defend suits for and against the town, and process is to be served upon him. Id. § 737. But these sections do not confer upon any officer or board the power to determine when it will protect or indemnify an officer against personal litigation or loss when there is no legal obligation upon the township to do so. These are matters which must go before the electors of the township. Such has been the course taken in many of the adjudicated cases where townships have been held liable for assuming such obligations. Babbitt v. Selectmen of Savoy, 3 Cush. 530; Fuller v. Inhabitants of Groton, 11 Gray, 340; Nelson v. Inhabitants of Milford, 7 Pick. 18; Baker v. Inhabitants of Windham, 13 Me. 74; Hadsell v. Inhabitants of Hancock, 3 Gray, 526. If there were otherwise any doubt about it, the provisions of 3 How. Stat. § 671, should set the question at rest. In the case before us the treasurer, in his personal capacity, was defendant in some suits in which no liability was claimed against the town. The township board and supervisor, without any vote of the electors, and without any authorization by provisions of law, undertook to create a liability by employing the plaintiff upon behalf of the township.

We cannot concur in the view taken by the learned circuit judge, and the judgment must be reversed, and a new trial ordered.

The other Justices concurred.


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    VINING v. MILLAR.
    Possession oe Chattels — Inconsistent Claims.
    A claim that the possession, of chattels by a member of the firm which owned them was a possession as managing partner, and, at the same time, a possession as the mortgagee in an unrecorded mortgage, is not consistent, and will not be sustained where the rights of subsequent mortgagees are concerned.
    Error to Wayne; Donovan, J.
    Submitted April 20, 1899.
    Decided September 19, 1899.
    Replevin by James B. Vining and Donald Ferguson against Charles Millar and David W. Fox. From a judgment for defendants on verdict directed by the court, plaintiffs bring error.
    Affirmed.

      F. L. Brooke (Thomas S. Jerome, of counsel), for appellants.

      Moore & Moore, for appellees.
   Grant, C. J.

This case is before us for the third time. For statement of facts and the issue involved, see 109 Mich. 205, and 116 Mich. 144. Upon this trial the court directed a verdict for the defendants for the amount due Millar on his mortgage. It is now claimed that there was evidence to show that plaintiffs, through Vining, had possession all the time under their mortgage, and that, when Vining was taken sick, Stilson took his place, and held possession under the same authority. The question of possession was the vital point in issue on the second trial. The case was reversed on the ground that there was no evidence that plaintiffs were in possession as mortgágees. Plaintiffs insisted on the second trial that they were in possession as mortgagees. In their brief on the second appeal to this court they say: “Plaintiffs had a lien, and defendants had a lien; but plaintiffs perfected their lien by possession, either immediately, or, at least, before defendants did.” The same witnesses testified upon the third trial as upon the second. Ferguson’s testimony differs from that given before only in that he testified upon the last trial: “Vining was to go and take possession under our mortgage, as well as for the partnership, and he was to manage the partnership; but that partnership was additional security as regards our mortgagé.” We do not think there is such a difference in the evidence as to justify a reversal and a new trial. How could Vining be in possession as managing partner, and still be in possession as the mortgagee in an unrecorded mortgage?

The two are inconsistent, when the rights of subsequent mortgagees are concerned.

Judgment affirmed.

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


author: Grant, C. J. Moore, J.

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    BAILEY v. BAILEY.
    Divorce — Extreme Cruelty — Sufficiency of Evidence.
    Evidence that a husband was in the habit of indulging for a month at a time in fits of sullen silence, during which he would speak to his wife only to call her opprobrious names, and that he habitually committed acts of slovenliness about the house, such as spitting upon the' floors, walls, and bed-clothing, and soiling the curtains and floors, is sufficient to justify a decree of divorce on the ground of extreme cruelty. Grant, C. J., and Hooker, J., dissenting.
    Appeal from Van Burén; Buck, J.
    Submitted April 20, 1899.
    Decided September 19, 1899.

      Bill by Sina Bailey against William Bailey for a divorce. From a decree for complainant, defendant appeals.
    Affirmed.
    From a decree of divorce and for permanent alimony of $775, defendant appeals. The bill charges extreme cruelty, failure to support, and adultery. The last charge failed for want of proof. The court granted a divorce on the other two grounds. The parties were married March 5, 1880, and have one child, a boy, 15 years old when this bill was filed, October 23, 1897. He owned 40 acres of land adjoining her father’s homestead. He had nothing but this land. Upon this he built a house, and there they lived for a while, and then moved into the village of South Haven, where her parents had already moved. After moving into the village, he still worked his farm, and cooked his own provisions while working there. He was poor, and both worked hard, and were obliged to economize. Domestic affairs did not always run smoothly, and on two or three occasions she left him, and returned to her parents. These matters were, however, amicably arranged, and she returned to his home. Finally she left him, and filed this bill.

      Johnson & Wicksall, for complainant.

      Lincoln H. Titus (William J. Barnard, of counsel), for defendant.
   Grant, C. J.

(after stating the factsj dissenting). We cannot concur in the conclusion reached by the circuit judge that defendant failed to support his wife in a manner commensurate with his means. It is fully established that she had at one store, at least, authority to purchase what she wanted on her husband’s credit, and that she did so. This is virtually admitted by her. Several bills of goods, purchased at other places, were introduced, and they show the purchase of such things as are common in such a family. Much stress is laid upon the fact that he did not always furnish sufficient wood for heating and cooking. While he should have been more careful in this regard, we do not think that the testimony on this point makes out a case of failure to support.

We also think the record fails to make out a case of extreme cruelty. It is virtually conceded that defendant was a man of good habits. He did not use tobacco or intoxicating liquors. He was industrious and hard-working. He was not addicted to the use of profane or vulgar language. A sister of complainant testified to one instance in which he used a profane expression to his wife one morning when he called her to get up. Complainant does not testify to this, and it is the only specific act of profanity used to her which appears in this record. Complainant’s mother testified that defendant had spells when he did not speak either to her or to his wife. She testified: “I never heard him talk back to her, or tell her to shut up, or anything of that kind. I have not heard him swear at her.” Defendant was, perhaps, not as clean and neat as he might have been when he came into the house, but this is not extreme cruelty, and I do not think the record shows that he did the uncleanly acts complained of with any view to offend her. No violence or threats are claimed. No habitual use of cruel epithets or language is shown. It is not extreme cruelty for a hard-working man to neglect at times to speak to his wife. Counsel cite Briggs v. Briggs, 20 Mich. 34, and quote from page 45. There is no conduct in this case to which the language there used is applicable, even upon complainant’s own testimony. We think that the testimony of complainant and defendant may, with propriety, be put out of consideration, and the case decided on the other testimony. Outside of complainant’s testimony, we find nothing to make a case of extreme cruelty. The court said, in Cooper v. Cooper, 17 Mich. 210 (97 Am. Dec. 182):

“The law does not permit courts to sever the marriage bond, and to break up households, merely because parties, from unruly tempers or mutual wranglings, live unhappily together. It requires them to submit to the ordinary consequences of human infirmities and of unwise selections, and the misconduct which will form a good' ground for a legal separation must be very serious, and such as amounts to extreme cruelty, entirely ^subverting the family relations by rendering the association intolerable. Our statutes do not confine such cruelty to mere physical violence, which is by no means the worst injury that can be inflicted on persons of refined sensibility; but the grievance,, of whatever kind, must be of the most aggravated nature to justify a divorce. While the proof shows that these parties lived in very unpleasant relations, it is not clear that matters had proceeded to extremity.”

That language describes this case.

Defendant complains of the decree for alimony on the ground that it is excessive. While we are not called upon to decide this question, I desire to call attention to one feature of the case upon this subject. The court found that “this 40 acres is easily worth the sum of 12,700.” There is ample testimony upon which to base this conclusion. Defendant offered in evidence the assessment rolls for 1894 to 1897, inclusive. Those were objected to “as no proof of the value of property.” They were received, and showed the assessed cash value for 1894 and 1895 to be $500 each year, and for the other ■years $600 each. For some of those years one of the solicitors for complainant was assessor. Comment is unnecessary. Assuming that said solicitor performed his constitutional duty as supervisor, he asked the court to decree to complainant $175 more than the property was worth according to his own estimate of its value.

Decree should be reversed, and bill dismissed.

Hooker, J., concurred with Grant, C. J.

Moore, J.

I cannot agree with the conclusion reached by the Chief Justice. The testimony was taken in open court, where the circuit judge had an opportunity to see the witnesses, and to judge of their truthfulness. The testimony is conflicting, and the appellate court ought to be fully persuaded it must have reached a different conelusion, had it been in the position of the trial court, before it should reverse its decree. Nicholas v. Nicholas, 50 Mich. 162. Taking the record as it reads, there is abundant testimony of cruelty on the part of the defendant. It shows neglect of her when she was ill from the birth of her child. He had an unpleasant habit of swearing at her, and calling her a “ nigger,” and a “dirty devil,” and a “damned devil,” and would not speak to her for a month at a time, except to say mean things to her. When she would get the house cleaned, and the floor freshly mopped, he would go scuffing through the house with dirty shoes, and on one occasion emptied the contents of the teapot upon the recently-cleaned kitchen floor. He would wash his face and hands, and wipe them upon the window curtains, or upon the freshly-washed white dress of his wife as it hung upon the bars. He would spit upon the floor, Upon the walls of the rooms, and upon the bedclothes. I should suppose a sensitive woman, who had some love for her husband, and some pride in her housekeeping, would prefer an occasional whipping to these fits of sullen silence, opprobrious'epithets, and habits of slovenliness. Defendant had no business to disregard the decencies of life until his acts made her life miserable. I think the charge of extreme cruelty is sustained, and complainant ought not to be required, in view of the showing made in the record, to longer live with defendant. Briggs v. Briggs, 20 Mich. 34; Goodman v. Goodman, 26 Mich. 417; Palmer v. Palmer, 45 Mich. 150 (40 Am. Rep. 461); Whitmore v. Whitmore, 49 Mich. 417; Warner v. Warner, 54 Mich. 492; Hoyt v. Hoyt, 56 Mich. 50.

The testimony about the value of the property belonging to defendant is conflicting, but I am satisfied it warranted the conclusion of the trial judge, and that his order for alimony should stand.

The decree should be affirmed, with costs.

Montgomery and Long, JJ., concurred with Moore, J.