text:
    Harry E. Gordon v. The Grand Rapids & Indiana Railroad Company.

      Negligence — Fires—Injury to timber — Damages—Evidence.
    1. In a suit brought by the owner of standing timber which had been injured by fires negligently set, as alleged, by the defendant railroad company, the measure of damages as to the timber actually destroyed is its value (or “stumpage,” as it is commonly called), and, as to the remaining timber, the increased cost of cutting the same, that appearing to be the only real damage sustained.

    2. The fire occurred during the latter part of September, and burned into the swampy land upon which the trees stood, loosening their roots and causing some of them to fall. And it is held that the owner, who sues two years thereafter, is not limited as to the increased cost of cutting to the fall and winter after the fire, but has the right to recover for such increased cost at any time before suit brought.
    3. Plaintiff testified that he saw the section foreman of the defendant railroad company setting fires; that after he had set two fires, and while starting another, the plaintiff told him that he did not wish him to set fires; that it was dry, and that he had wood and logs there. And it is held that the evidence was at least competent as showing negligence in not preventing the spread of the fires.
    Error to Muskegon. (Dickerman, J.)
    Argued June 27, 1894.
    Decided December 28, 1894.
    Case. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      T. J. O’Brien and J. II. Campbell, for appellant.

      Chamberlain & Cross, for plaintiff.

       See Bailey v. Railway Co., 19 L. R. A. 653, and note, for cases involving the measure of damages in actions for injury to or destruction of timber.

   Long, J.

Plaintiff sues to recover damages for loss sustained. by injury to standing timber, and the burning of logs, wood, and posts, upon 160 acres of land adjoining defendant’s railway, in Muskegon county, by a fire which occurred in the latter part of September, 1891. The suit was brought in April, 1893, and a trial in October following resulted in a verdict and judgment for plaintiff of $1,600. Defendant brings error.

The defendant relies upon the following claimed errors:

1. In regard to the elements and measure of damages.

2. In the admission of testimony as to statements alleged to have been made by the section foreman after the fire.

3. In improper and prejudicial statements of plaintiff’s counsel on the trial.

4. In allowing testimony as to statements made by Gordon to the section foreman.

Six months after the fire plaintiff, through his attorneys, presented a written statement of his claim for loss, as follows:

60 cords of wood, at $1.00........................ $60 00
25,000 feet of logs.-.'............................. 100 00
Damages to 80 acres of standing timber.......... 400 00
$560 00

On the trial, in October, 1893, two years after the fire, plaintiff claimed for:

100 cords of wood, being 50 cords at $1.00, and 50 cords at 70 cents................................ $85 00
50,000 feet of logs................................ 220 00
200 tamarack posts................................ 4 00
$309 00

It is insisted that the balance of the claim upon which verdict was found was for the total loss of 120 acres of standing timber, equal to 5,000 cords of wood, and for which plaintiff was allowed $1,291, making, with the other claim, the amount of the verdict. It is insisted that no such result could have been reached if the legal measure of damages had been applied, and that in measuring the damages the condition of the timber at the time of the trial should not have been taken into account, but its condition during the fall and winter after the fire; that loss of profits could not be considered; that the legal measure of damages is the increased cost, if any, of cutting the timber, made necessary by the action of the fire, in that fall and winter. It is claimed that these rules were disregarded, and that plaintiff was allowed to go to the jury on an estimate of damages stated in a lump sum, based upon the condition of the timber at the time of the trial, which was two years after the timber burned, and for a total loss of all the timber, including loss of profits and increased value of wood a year after the fire.

The plaintiff was permitted to show the condition of the timber at the time of the trial, and that it was comparatively worthless, so that in estimating the damages the jury had the testimony before them upon which to base a verdict as for a total destruction, when, in fact, it appeared that the timber was not totally destroyed, but that the fire rendered it more difficult to cut it. It appeared from the plaintiff’s own testimony that before the fire 40 acres of the land had been cleared, and nothing of any amount remained on that 40. What remained upon the other portion of the land was only about 100,000 feet of soft maple, and the rest was fit only for wood, and this would cut from 40 to 50 cords to the acre. No great amount of timber was burned. Plaintiff testified that he had cut off considerable of the timber after the fire for wood, but he had to pay higher wages for cutting; that during the winter before the trial some considerable part of the timber was blown down. He also testified that he paid from 20 to 30 cents more per cord for cuttingi than he did before the fire. So that it is clear that but a small portion of the timber was burned, and the only real damage which plaintiff sustained, so far as the wood is concerned, was the increased price of cutting. But he was permitted to show, not only the total loss, but also the profits which he would have made if the wood had all been cut and sold. The utmost the plaintiff could have recovered, even if it had all burned, would be the value of the standing timber, or “stumpage,” as it is commonly called. Skeels v. Starrett, 57 Mich. 350; Michigan Land & Iron Co. v. Deer Lake Co., 60 Id. 143; Ayres v. Hubbard, 71 Id. 594; Miller v. Wellman, 75 Id. 353. As to the timber actually destroyed, the value of the stumpage would be the measure of damages; but that would not be the measure in the present case as to timber not destroyed. Those damages should have been limited to the increased cost of cutting.

Defendant insists that this increased cost of cutting should be limited to the fall and winter after the fire, and not the increased cost after that, as the timber, by being left standing for two years, had been blown down, which made it more expensive to cut. We think not. The plaintiff had a right to recover for such increased cost of cutting at any time before suit brought. The fire burned into the swampy land, loosening the roots of the trees. This was the cause of their falling. They fell by reason of the negligence of the defendant in setting the fire, if the fire was so caused, and plaintiff could not be compelled to cut the wood all off the first winter.

The next claim is that defendant was prejudiced by the admission of evidence, against defendants objection, given by plaintiff's witness Buys, in which he was allowed to state that the same evening, and after the fire had been started by Decker, the section foreman, and at a place remote from the scene of the fire, witness asked Decker if there was not danger in setting fires, and Decker said he didn't care a damn.” This was error, but, as the testimony was stricken out, it need not now be considered.

Complaint is made upon the admission of the testimony of the plaintiff, Gordon, that after Decker, the section foreman, had set two fires, and while starting another, plaintiff told him he did not want him setting fires; that it was dry, and that he had wood and logs there. This was admissible. It was a conversation taking place at the very moment when the fires were being set which caused the damage. It was, at least, competent as showing negligence in not preventing the spread of the fires.

Some claim is made that defendant was prejudiced by the remarks of counsel. We think there was nothing in the statement of counsel which can be said to have prejudiced the defendant's rights, but such practices are not to be commended.

Judgment reversed, and new trial granted.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    Louisa Burtraw v. Henry C. Clark and Hiram Little.

      Trespass — Damages—Evidence.
    In trespass for digging a drain across the plaintiff’s land under void proceedings, it appeared that the plaintiff, at the time she commenced her suit, had taken no steps to incur the expense of filling up the drain, which she claimed on the trial should be her measure of damages. The defendants sought to show, that the drain was a benefit, and not an injury, to plaintiff’s land, and contended that plaintiff should recover only nominal damages. .And^it is held that the_ defendants were entitled to. make the proposedbsEowing; that, if the jury should so find the facts, the rule of damages cbntended for by defendants would be the proper one; blit that if they should fail so to find, and should find that plaintiff intended to fill up the drain, it would not be unreasonable to allow her the cost of doing so as an element of damage, it appearing that such cost would not exceed the value of the land.
    Error to Ionia. (Daboll, J., presiding.)
    Argued October 4, 1894,
    Decided December 28, 1894.
    Trespass. Defendants bring error.
    Reversed.
    The facts are stated in the opinion.

      Ghaddock é Scully, for appellants.

      John Nichol and F. H. Stowe, for plaintiff.
   Hooker, J.

Defendants dug a drain across the premises of the plaintiff, under drain proceedings that were void. It was admitted tq be a trespass. Upon the trial the defendants claimed the right to show that such ditch was a benefit, and not an injury, to plaintiff’s land, and that the damages should be nominal. The court refused to permit this, and confined the evidence of damages to the amount that would be required to place the land in its former condition, by filling the ditch, etc., which he held that plaintiff had the right to recover.

The law aims to compensate parties for injuries, and ordinarily the rule that makes the injured party whole is a safe rule to adopt; but it is not invariably so, for such person owes some duty to a trespasser. In the majority of cases little difficulty is experienced, because the trespass is clearly injurious, and the cost of repair, where feasible, and the skrinkage in value, where it is not, furnish fair measures of damage. In a case where rebuilding is a physical impossibility there is no alternative but to apply the latter rule; and, on the other hand, where it is possible, there is perhaps no good reason why a plaintiff should not recover the reasonable cost thereof incurred in good faith, and under the rules laid down in Allison v. Chandler, 11 Mich. 542, perhaps the court should not be-too reluctant to apply this rule, though it should bear heavily upon the defendant. But there are limits to its application. While it would be plainly absurd to deny to-a plaintiff, by way of damage for the destruction of a few rods of fence, the expense actually incurred, or perhaps the prospective cost of rebuilding the same, upon the ground that his measure of damages • should be the shrinkage in value of a thousand acres of land owing to such destruction, it would be as unjust to say that he should be allowed to recover the amount necessary to replace his farm, which had sunk into defendant’s mine, where the filling of the hole caused thereby, though a physical possibility, would necessarily be attended by an expenditure of an amount many times the value of the farm in its former condition. In such case the value of the premises would be the measure of the damages. Another illustration of a case where this rule must apply is where an injury to the foundation of a building is caused by a trespass, to put which back in its former condition might require the tearing down and rebuilding of a valuable edifice. It would be unjust to require this, where the injury was not such as to endanger the building, and where it was trifling in comparison to the cost of remedying the defect. Still more palpable would be the injustice of allowing a plaintiff to recover from a defendant the amount necessary to-remove a valuable building, erected by him upon plaintiff’s land, thereby greatly enhancing its value, which had' thereby become the property of the plaintiff, and which he might thereafter remove or not at his own will. Undoubtedly, within certain bounds, a plaintiff might remove-such a structure, and collect the cost thereof as damages, if he saw fit to do so before action brought, because the-law recognizes his right to use his land as he may choose. Without undertaking to determine where limitations upon .such right begin, we are impressed with the injustice of allowing a plaintiff in a trespass case to recover the prospective cost of removing a structure or other improvement, and to afterwards avail himself of the benefit of his property by retaining it.

Reasons are urged in this case for the claim that the plaintiff should not be required to keep this drain. It is said that it would soon ripen into a prescriptive right, whereby others might require her to take care of water Rowing from the lands of adjoining proprietors. However that may be, at the time she launched her action she was taking no step to incur the expense that she insists should be her measure of damage. So far as the evidence goes, there is nothing to show that she will not keep the drain, •or that she will ever suffer the damage, i. e., expend the money in refilling the • ditch, which she has sought to recover. The defendants claim this to have been an improvement, whereby the value of the premises was increased, which they should have been allowed to show, and, if the jury should have so found the facts, the rule contended for by the defendants would be the proper measure of damages. On the contrary, if they found otherwise, and that the plaintiff intended to refill the ditch, it would not be unreasonable to allow the cost of doing so as an element of damage; it being apparent that such cost would not exceed the value of the premises. The defendants should have been permitted to introduce the evidence offered, and the case should have been submitted to the jury as indicated.

The judgment will be reversed, and a new trial ordered.

Lon», Grant, and Mont»omery, JJ., concurred. Mc-Grath, C.- J., did not sit.


author: Grant, J.

text:
    Hattie M. Moore v. Wilbur W. Smith, and George W. Dillenback, Administrator of the Estate of George I. Moore, Deceased.
    [See 95 Mich. 71.]

      Mortgage foreclosure — Assignment of decree — Set-off—Redemption— Evidence.

    1. - Before the assignee of a foreclosure decree can proceed to a sale of the mortgaged premises, he must present a petition to the court setting forth the assignment, and ask for a sale under the decree, and a sale made without such a petition is void; citing Webster v. Hitchcock, 11 Mich. 56; Perkins v. Perkins, 16 Id. 162; Terry v. MeClintock, 41 Id. 492.

    2. A husband, after separating from his wife, assigned a foreclosure decree covering her land, which he had purchased • before their marriage under an agreement with her to hold it until, by the sale of the land, she could repay him the money paid for the decree. The assignee paid no consideration for the assignment. And it is held that he took it subject to the wife's equities.
    3. Prior to her marriage, the wife had been employed by her husband as a domestic. In a suit brought after his death for an accounting, and to redeem from said decree and a sale made by the assignee thereunder, she testified that, at the time of the purchase of said decree, the decedent owed her for her services a sum exceeding the amount of the decree. And it is held that this fact, if true, would not prevent her from setting off the value of her services against said decree.
    4. The defendants contended that the purchase of the mortgaged premises was made by the complainant in the interest of her infant ward. And it is held that the relations between complainant and her ward do not concern defendants; that the deed of the land was made to the complainant, and the agreement of the decedent to purchase the decree, and hold it, was made with her personally, and not as guardian.
    5. A portion of the complainant’s testimony was taken before the death of her husband, and the remainder after his death. And it is held that, as there was no opportunity to take his testimony to explain the transactions testified to by her, her testimony should be carefully scrutinized, and her claim, if allowed, found to rest upon a solid foundation.
    Appeal from Kent. (Adsit, J.)
    Argued October 12, 1894.
    Decided December 28, 1894.
    Bill to set aside a foreclosure sale and for an' accounting. Defendants appeal.
    Decree modified.
    The facts are stated in the opinion, and in 95 Mich. 71.

      Maynard & Olíase (E. A. Maher, of counsel), for complainant.

      Sweet & Perleins, for defendants.

       For a simple mode of revivor in such a case, see Chancery Rule No. 125, adopted March 9, 1893, found in 93 Mich.

   Grant, J.

The object of the bill filed in this case is to set aside a foreclosure sale of the Fitch mortgage, which will be found referred to in Moore v. Smith, 95 Mich. 73. A general statement will also be there found of the relations between Mr. and Mrs. Moore and defendant Smith. The specific prayer in the bill is that an accounting may be had of the amount remaining unpaid on the decree, and of the indebtedness of Moore to the complainant on account of services rendered to him; that so much thereof as shall be found sufficient for that purpose may be set off against the amount found due on the decree, in satisfaction and discharge thereof; and that defendant Smith be decreed to release to her all claims upon the real estate described in the decree. Proofs were taken before a commissioner, and the court decreed that there was due the complainant for services, including interest, $3,072; that there was due on the Fitch decree $1,041.63, leaving a balance found to be due her of $2,030.37, and that it be so certified to the probate court, | to be paid to her by the administrator; that defendant Smith release all claims against the real estate. The offset consists of a claim for services rendered as a domestic in Mr. Moore’s family, and for peddling fruit, etc., for him, She testified that she was to have $2 a week while serving as a domestic, and $2 a day when peddling, and -that her services covered the period from November 21, 1877, to January 14, 1889,'when she was married to Mr. Moore. The court found that she rendered services as a ■domestic for 563 weeks, and as a peddler for 850 days. From the amount of these earnings the court deducted ■;$296.56 for items appearing upon Moore’s books, and held ■chargeable to her.

1. The foreclosure sale under the assigned decree was ■void. After the assignment, further proceedings could not be prosecuted in the name of the assignor. The assignee in such cases must present a petition to the court setting iorth the assignment, and ask for a sale under the decree. Webster v. Hitchcock, 11 Mich. 56; Perkins v. Perkins, 16 Id. 162; Terry v. McClintock, 41 Id. 492. It follows -that the complainant is entitled to redeem, and have the .-sale set aside.

2. The assignment by Moore to Smith was without consideration. His own testimony is that he gave Mr. Moore his note for $100, which was afterwards returned to him ■by Moore, and nothing whatever was paid. The assignment, therefore, is subject to all the equities which existed between Mr. and Mrs. Moore.

3. It is contended that complainant is not entitled to set off the value of her services against the decree, and that, if she had that right, the finding of the court as to the amount of such set-off is not sustained by the evidence. Mrs. Moore testified:

“Mr. Moore told lne that he would pay off the Fitch mortgage and hold the place for me. * * * He said that if the property came up any, and I wanted to sell it, I should only pay what he had expended. I only paid him one year’s interest.”

It is argued by counsel for defendants that, according to her own testimony, Mr. Moore was indebted to her for services at the time of the assignment in at least $1,000, and that therefore an agreement is to be inferred that she-was liable to pay him the amount of the decree absolutely, without any set-off. We do not think such an agreement can be implied from the mere fact that he was indebted to her. It is also argued that the purchase of the land covered by the mortgage was in the interest of the complainant’s ward, Mrs. Baxter. The relations between complainant and her ward do not concern defendants. The-deed was made to her, and the agreement of Moore to-purchase the decree, and hold it for her, was with her personally, and not as a guardian.

4. The only remaining question is, has complainant, maintained her claim for services? The bill in this case-was filed June 10, 1891. The deposition of complainant, was begun October 29, 1891, but was not concluded until after Mr. Moore’s death, in November following. There-was therefore no opportunity to take his deposition to explain the transactions between them. Her testimony, therefore, should be carefully scrutinized, and her claim found to rest upon a solid foundation. The Fitch decree was. assigned to Moore April 21, 1881, at which time her alleged agreement with Moore was made. According to. her testimony, he was then indebted to' her in a sum considerably in excess of the amount due upon the decree. He was a man of means, and fully able to pay, yet she does not claim that she asked him for any payment, nor show any reason why he did not pay her. She also testified that Mr. Moore never paid her any money for her services, but, on the contrary, that she expended her own money in furnishing the house and in buying clothing for him. The story is inconsistent with her own financial condition. Although she had no memorandum, she gave the exact number of days she worked peddling each year. The improbability of her statement appears from her testimony in regard to this work for the year 1880, in which she spent 78 days in selling between 80 and 90 bushels of fruit. When she went to work for Mr. Moore she had a child a few weeks old, she being then married. This child was supported by Mr. Moore during the entire time. Her story seems to us improbable. That Mr. Moore advanced her money.to carry on certain litigation in which she was engaged, that he expended money upon the Fitch land for her, and that he paid her other sums, is fairly established by the evidence. January 22, 1891, she filed a petition in the foreclosure suit of Fitch v. Baxter, setting up this arrangement with Mr. Moore, and the assignment to Smith and sale to him, asking to have the sale set aside, and alleging that she was prepared to pay the principal and interest on the decree according to her agreement with Mr. Moore. In this petition she says nothing whatever about any claim for services. Between four and five months later she brings a suit at law against Mr. Moore, based upon these alleged services, which suit is still pending. Whatever the arrangement between them may have been in relation to her services, we feel satisfied that she has been amply compensated.

The decree will be reversed, and a decree entered in this Court setting aside the foreclosure sale, which will give her ample opportunity to' redeem before defendant ■Smith will be entitled to a sale under the proper proceedings to enforce his decree. The defendants will recover the costs of this Court.

The other Justices concurred.

       After the making of the decree, the complainant became the owner of the mortgaged premises. The decedent took an assignment of the decree to himself, and agreed to hold it until complainant could dispose of the land, when she was to repay him the money he had paid for the decree. Complainant married the ■decedent, and, after he had separated from her, he assigned the decree to the defendant Smith, with whom he was then living, .and who paid no consideration therefor, and Smith caused the land to be sold under the decree. One of the objects of this suit ás to set aside said sale.


author: Montgomery, J.

text:
    The Michigan Trust Company v. The Lansing Lumber Company and Orlando M. Barnes.

      Mortgage — Right of mortgagee to possession — Equity jurisdiction —Receiver.

    1. It has never been the .policy of our law to divest the mortgagor of possession until foreclosure and the expiration of the period of redemption.
    3. While it is within the power of the parties to stipulate that such possession may precede foreclosure, and while in such case a court of equity may enforce specifically such an engagement, yet such power should be exercised by the court'with a full recognition of the settled policy of this State, and only in a case where the right is clearly given by the engagement of the parties.
    Appeal from Ingham. (Person, J.)
    Argued October 24, 1894.
    Decided December 28, 1894.
    Bill for the appointment of a receiver. Defendants appeal.
    Order appointing a receiver vacated, and record remanded for further proceedings.
    The facts are stated in the opinion.

      Smith, Lee & Day and Fletcher <& Wanty, for complainant.

      M. V. & li. A. Montgomery and Cahill & Ostrander, ior defendants.
   Montgomery, J.

The defendant the Lansing' Lumber ■Company, being largely indebted to various creditors, and having incurred obligations to a large amount upon which the defendant Orlando M. Barnes was indorser, on the 17th •of April, 1893, executed to said Orlando M. Barnes real estate and chattel mortgages covering substantially its entire property, to indemnify him and save him harmless from loss on account of his suretyship. Following upon this, a meeting of creditors of the Lansing Lumber Company was held, and a committee appointed to investigate the affairs of the company, which committee reported that the company had assets amounting to $573,032.35, and gross liabilities of $461,163.61, upon which liabilities defendant Orlando M. Barnes was indorser to the amount of •$278,395.65. A proposition was made by the Lansing Lumber Company to its creditors submitting a scheme by which the company should execute a mortgage to a trustee, to be agreed upon, to secure its entire indebtedness, which should be accompanied by coupon bonds collateral to the mortgage, bearing interest at 6 per cent., payable semiannually, on the 1st day of May and the 1st day of November of each year; said bonds to be issued to the holders ■of the obligations of the company then outstanding, in lien of existing evidences of indebtedness, the bonds to consist of two series, and be known as A bonds and B bonds, the A bonds having priority, and to be issued in lieu of the securities upon which Orlando M. Barnes was an indorser, he at the time agreeing to enter into an agreement continuing his guaranty upon such securities. The proposition contained the following further provisions:

“Said trustee shall be empowered, upon the failure of said company to provide sufficient means, during any half year to pay the interest due at the end thereof, at the-request of a majority in interest of all the creditors secured thereby, to declare said, mortgage due and payable at-once, and proceed to foreclose the same. Said trustee-may, at his option, at any time when the company is in default in the payment of interest or principal, or if he-finds that the business of the company is being conducted at a loss, or is not being economically conducted, take-possession of all the property, real and personal, of said company, and its entire business, and conduct the same in the ordinary way for the benefit of the parties in interest, until the principal and interest of said bonds are paid, or until the holders of a majority in amount of the bonds secured by said mortgage require him to foreclose the-same.”

This proposition was acted upon by the creditors, and resulted in the execution by the Lansing Lumber Company of a trust deed to the complainant, which covered the entire property of the Lansing'Lumber Company, real and personal, and was given to secure the bonds of the A and B issue contemplated in the proposition, and which trust deed contained the following, provisions, which are-those only which we deem material as bearing upon the-questions which we are called upon to consider:

The conveyance was stated to be in trust for the uses and purposes hereinafter mentioned; that is to say, that if the interest on any • of the bonds so to be issued shall not be paid by the party of the first part when the-same shall become due, and if such interest shall remain in arrear for one month, then it shall be lawful for the said party of the second part and its successor or successors in the trust to take possession of all and singular the said premises, property, and franchises so conveyed, and as the-attorney or agent of the said party of the first part, by its agents or substitutes duly constituted, to have, use,, enjoy, and operate and manage the same, making from time to time all needful repairs, alterations, and additions, and, aftpr deducting the expense of such use, repairs, alterations, and additions, to apply the proceeds thereof to-' the payment of the principal and interest of said bonds issued hereunder, remaining unpaid, in the order herein provided; and upon the written request of the holders of at least one-half in amount of said bonds issued hereunder, and then outstanding and unpaid, * * * shall cause the said premises, real and personal estate, rights- and franchises, to be sold at public auction,” etc.

The trust deed contained the further provisions, defining the powers of the trustee, as follows:

“Said trustee shall have power, upon the failure of said company to provide sufficient means during any half year to pay the interest due at the end thereof, or within one-month thereafter, at the request of a majority in interest of all the creditors secured hereby, to declare this mortgage due and payable at once, and proceed to foreclose-the same.

“ Said trustee, if at any time the 'business of said company is not profitable, or if the management thereof by the company is so wanting in economy, in the judgment-of the trustee, as to endanger the security of the bondholders, may, if a majority in interest of said bondholders, shall so request in writing, take possession of all the property, real and personal, of said company, and its entire business, and conduct the same in the ordinary way for-the benefit of the parties in interest, paying the net income of said business, after the taxes upon the property,, the insurance, and expenses are paid, upon said bonds,, until the principal and interest of said bonds are paid; or, upon taking possession as herein provided, if a majority in interest of the bondholders shall so request in writing, sa'id trustee shall proceed to foreclose this mortgage.”'

On the 10th of March, 1894, a fire occurred which consumed the saw and shingle mills and all the lumber, lath, and shingles belonging to the company, at Dodge, which was the place where the principal manufacturing of the-company was done, entailing a very heavy loss. On the 4th of May, 1894, a meeting of the creditors was held, at which a report of the trustee was submitted, which contained the following:

“ In accordance with this provision of the deed, we have-kept ourselves informed in a general way as to the business methods of the company, and have from time to times made such suggestions in regard to the management of their affairs as to us seemed proper. These suggestions hare always been well received by the members of the company, and generally they have acted in accordance with them.

“We have checked up the books, from the date of our appointment to December 15, 1893, the end of the fiscal year, and find their receipts and disbursements are proper and correct.

“ We present for your consideration a balance sheet of the company, which shows you the face of their books on the 15th of December, with only such changes in them as would occur in the ordinary conduct of the business, from the figures which the committee found there upon their examination in May, 1893. We have prepared a profit and loss account in such a manner as to show you the result of the business for the current year, without charging off any items which did not properly belong to the business of the year. The result shows a gain in the Landing or retail department of $4,122.65, and a loss in the Dodge or wholesale department of $10,988.86, — a net loss •on the year's business of $6,866.21. We are frank to say that we are not very much surprised at this result, owing to the fact that during the first half year the company was struggling with an enormous indebtedness, all of which was pressing them, and, after, the trust deed was executed, •a large amount of time was required on the part of the management in the settlement- of ' their indebtedness, necessary to the issuance of the bonds, and this extra work naturally left the business without the care that had usually been given it; and, again, the financial depression which began in May continued and grew steadily worse during the year, and it is something of a surprise to us that, under all the circumstances, they were able to keep the mill at Dodge and the shop at Lansing in operation."

The report further proceeded to show that the expense •of manufacturing the hemlock, including the estimated .stumpage of $1 per thousand feet, was $9.54, while -the •average selling price of the hemlock lumber was estimated at $8.38; and the report proceeds:

“ It must be apparent to every creditor, from the figures given you, that it will be utterly impossible for the Landing Lumber Company to ever pay its indebtedness out of the assets’ and profits of their business; for, while it is probable that a material reduction can be made in the cost of their lumbering operations, the standing timber, being hemlock, naturally yields but a small average return, so-that even with a good lumber market, such as we had in 1892, the profit, if any, would be very small.”

The report further states:

“It must also be apparent to you that a business of this magnitude cannot be managed successfully and profitably without credit and without money, and there are no provisions in the trust deed which would enable the trustee to borrow or to advance any sum to the company for the geúeral conduct of its business, for which- there would be security; and we ai’e satisfied that they cannot, from the receipts of the business, accumulate a working capital.”

The creditors adopted the following resolution:

“Whereas, the Michigan Trust Company, trustee under a certain mortgage or trust deed, dated the 1st day of May, 1893, made and executed by the Lansing Lumber Company> * * * has reported to the holders of bonds under said mortgage and the creditors of said Lansing Lumber Company holding interests under said mortgage or trust deed, at a meeting of said creditors called by said trustee, and held in the city of G-rand Rapids on the 4th day of May, 1894, that, in the judgment of said trustee, the business of said company is not profitable:

“ Now, therefore, we, the undersigned, a majority in interest of the bondholders under said mortgage or trust deed, hereby request the said trustee, the Michigan Trust Company, to take possession of all the property, real and personal, of said company, and its entire business, and proceed to the foreclosure of said mortgage or trust deed; any and all of us, however, reserving the right hereby and herein to apply to any court of competent jurisdiction for the appointment of a receiver in the foreclosure of said mortgage or trust deed.”

The trustee thereupon demanded possession of the property, which was refused by the defendant company. Complainant thereupon filed this bill, asking a specific performance of the contract, and for the appointment of a receiver pendente lite; the theory of the complainant being that the defendant has contracted and agreed that, upon the happening of certain contingencies, the complainant, •as trustee, shall succeed to the management and control of •all the business and affairs of the corporation. The contingencies named are: First, if the interest on any of the bonds shall remain in arrear for one month; second, if the business of the company is not profitable; or, third, if the management of the business is so wanting in economy, in the judgment of the trustee, as to endanger the security •of the bondholders, and if the majority in interest of the bondholders shall so request in writing. The bill alléges that each of these contingencies has arisen.

A fire occurred March 10, 1894, consuming the entire plant at Dodge, consisting of mills, lumber product, etc.; and insurance money came into the hands of complainant •on account of lumber products amounting to $52,218.85. The policies of insurance were made payable to complainant, trustee, as its interest might appear. The bill alleges that the holders of prior liens claim the insui’ance money, .and that the holders of bonds claim that such moneys •should not be so disbursed unless it be necessary to protect the security under the trust deed.

It will be noted that the provision that the trustee may take possession of the business if the management thereof by the company is so' wanting in economy, in the judgment of the trustee, as to endanger the security/-’ is limited by the proviso that a majority in interest of the bondholders so request in writing. The only request made by the creditors, as appears by the bill, was basecj. upon the •claim that the business was unprofitable; and hence this question and that of whether, within the meaning of the trust deed, the company was in default in paying the interest, are the two grounds to be considered.

It is true that the interest was not paid, but it is averred in the answer that the casualty of the fire is a reason for -this, and that the insurance money which came into the hands of the trustee was received on account of the loss •of the lumber and material which could have been, but ■for such misfortune, applied to the payment of interest. 'The complainant insists that the letter of the trust deed required that the interest should be paid as it fell due, :and that, furthermore, it was fairly inferable from the terms of the statement that such interest was to be paid out •of the profits. It is, doubtless, true that none of the parties to the instrument contemplated any such catastrophe as befell the company, nor was the instrument drawn with .any such possibility in view. Other provisions were made ~fco guard against mismanagement, and against unprofitable prosecution- of the business; but we cannot say that there should be read into the instrument a provision that these •interest moneys should be paid from the profits alone where unexpected loss has made it necessary either to yield possession or pay the interest from the funds.

Is the business shown by the provisions of the bill and -answer to have been unprofitable, within the meaning of the trust deed? The bill avers that,—

“In the'judgment of your orator, and as a matter of ■fact, the business of said company as a whole, as now con-ducted, is not profitable, and your orator avers that said Lansing Lumber Company has paid nothing upon the principal of its indebtedness since the execution of said • deed of trust.”

The answer denies that the business of said company as .a whole, as now conducted, is not profitable. The averment of the bill is based upon the inventory taken on the 15th of December, 1893, which upon its face shows a net Joss on the year’s business of $6,866.21. The answer -accounts for this showing by averring that—

“From December 15, 1892, until the creditors of this -company were called together, the company was making ►extraordinary endeavors to pay its indebtedness and to maintain its credit;” that “the rates of interest charged! the company were not the most favorable. In its attempt to fund its debt, and to secure the same by mortgage upon its property, extraordinary expenses were incurred. The bills for printing, for attorneys’ fees, for the costs of the-committee appointed by the creditors, for traveling expenses of officers of the company, and the thousand and one other-items of expense occasioned by the funding of the debt, and the arrangement with creditors, were all charged as-expenses for the business of the year ending December 15,. 1893. It is estimated on behalf of the defendant that, these extraordinary expenses were not less than the sum of $8,000, and are believed to amount to nearly $10,000, although it is impossible now to separate from other items the particular items of expense occasioned by the funding of the debt. But defendant has caused to be prepared, and attaches to this its answer, a statement showing some of the more important items of expense incurred in this behalf.”

This statement shows a total of $4,761.25. It is also-set out in the answer that, at about the time the trust deed was given, the insurance upon the property at Lansing and Dodge was canceled, and was again procured by considerable effort; that it was renewed about July, 1893, for one year, and the total amount paid for premiums-was about the sum of $5,300. This was all charged off in. making the inventory of 1893, although it paid for insurance to July, 1894. The answer also sets out that, the statement of complainant is based upon the inventory of December 15, 1892, and that the estimate of logs on hand was too great by 2,000,000 feet. We should not be disposed to regard this statement, however, without a more-complete and full showing, as fairly meeting the avermentsof the bill, if our conclusion were to be rested on it. But the answer contains a further averment that the-inventory of lumber taken December 15, 1893, was at 50 cents per 1,000 less than the inventory of December, 1892,. the difference between the two items being estimated at. $3,000, and that no piece of property which appears in both inventories was inventoried higher in 1893 than in 1892.

The answer, if taken as true, or fairly weighed as evidence, shows, as we think, that the business of the company was not being conducted in an unprofitable manner. If it be accepted as true that the lumber was inventoried at 50 cents per 1,000 less than in 1892, making a difference of $3,000, this shows either a disposition to make a more conservative estimate, or that the material has depreciated, but does not show a loss from operation which could be remedied by a change in management, which is unquestionably the nature of unprofitableness which is guarded against by the agreement. It is also evident that only that portion of the insurance money which Was paid as premiums for insurance during the fiscal year ending ' December 15, 1893, should be charged to expense for that year. If to these items be added the extraordinary ex- . penses incident to refunding the indebtedness which are shown in the itemized figures alone (and excluding all others which are not thus accounted for), which expenses cannot be treated as a running expense, we have a total of $10,411.25, and the business will thus show a profit during the fiscal year ending December 15, 1893, of something more than $3,500. We see no reason to doubt the substantial accuracy of these figures.

We have not considered the charge of want of economy, as we do not think complainant has shown the prerequisite conditions. If, as alleged in the bill, excessive salaries are being paid, or the management is wanting in economy in other respects, the remedy under the trust deed is still available to the creditors.

It cannot be doubted that the parties, if all were acting in good faith, contemplated that the management of the business of the concern should be left in the officers of the corporation until the contingencies, or some one of them, arose, which would give to the trustee the right under the terms of the agreement to demand possession. It has never been the policy- of our law to divest the mortgagor of possession until foreclosure and the expiration •of the period of redemption; and while we think it within the power of the parties to stipulate that such possession and management of the business may precede foreclosure, and that in such case a court of equity may enforce specifically such an engagement, as was held by the court below, and as we think is sustained by the authorities (Shepley v. Railroad Co., 55 Me. 395; Shaw v. Railroad Co., 5 Gray, 162; Railroad Co. v. Superior Court of San Francisco, 55 Cal. 453; McLane v. Railroad Co., 66 Id. 606; Rice v. Railroad Co., 24 Minn. 464), yet such power should be exercised with a fall recognition of the settled policy of this State, and should not be exercised except in .a case where the right is clearly given by the engagement of the party. See Beecher v. Rolling Mill Co., 40 Mich. 307.

We think the order appointing a receiver should be vacated, and the cause remanded for further proceedings.

The other Justices concurred.


text:
    The Talbot Paving Company v. Charles A. Gorman.

      Sale — Warranty—Unfitness—Right of vendee — Waiver.
    1. There are cases which hold that an acceptance of goods preeludes a recovery by the vendee, either by way of recoupment or in a suit against the vendor, of damages growing out of their failure to equal the specifications under which they were sold, and there are cases to the contrary. On principle, the distinguishing feature seems to be a warranty. If the sale is made without warranty, and an opportunity is afforded for ascertaining whether or not the goods conform to the description, the doctrine of caveat emptor applies, and an acceptance cuts off all rights of recovery. If, on the other hand, the sale is with a warranty, the vendee may lawfully receive the goods and recover or recoup damages upon the warranty, which is ■ held to be a collateral undertaking.
    2. A paving company contracted for a quantity of stone of a given kind and stated dimensions. The stone were delivered, and used by the contractee upon jobs upon which it was at work. The contractee sued the contractor for the value of work alleged to have been necessarily done upon the stone in order to make them conform to the specifications under which they were furnished, and claimed that, inasmuch as the contractor knew what the specifications were, the law implied a warranty of fitness. And it is held that no such warranty can be implied; that the contractee, having furnished specifications, and having a right to insist that the stone should conform thereto, regardless of the contractor's judgment, cannot claim that the law should imply a warranty to make the stone conform to some other test, nor can it be said that knowledge on the part of the contractor of the use to which the stone were to be put required him to vary from his contract as to the dimensions of the stone.

    U. Whether the contract may be said to embrace an express warranty that the stone should conform to the specifications,— quaere.

      Error to Wayne. (Hosmer, J.)
    Argued October 24, 1894.
    Decided December 28, 1894.

      Assumpsit. Plaintiff brings error.
    Affirmed.
    Tbe facts are stated in tbe opinion.

      Brennan, Donnelly & Van De Marie, for appellant.

      Walter Barloio, for defendant.

       For cases discussing the question of implied warranty of fitness, see note to McQuaid v. Ross, 22 L. R. A. 187.

   Hooker, J.

Tbe plaintiff contracted with the defendant for the delivery f. o. b., Detroit, of a quantity of Medina paving stone, the same to answer the requirements of Detroit specifications, of which defendant had a copy. The contract was made by correspondence. At request of defendant, the plaintiff advanced $2,500 upon the contract, and afterwards made other payments, leaving a balance of $1,338.47. The requisite amount of stone was shipped to Detroit, where it was unloaded, and used by the plaintiff upon its paving jobs, upon which it was at work. It is claimed upon its behalf that the stone did not conform to the specifications, rendering it necessary' to put work upon them, of which it seasonably informed the defendant, with the suggestion that he might send men to do such work if he chose, and that he did send men who did some such work. This action was brought by the purchaser, which claimed a balance its due of $684.49 for such work done by it and for some broken stone. The defendant claimed the amount of $1,338.47. The defendant recovered $1,462.30, which probably included some interest.

The court instructed the jury that—

“There can be no question, with reference to this executory contract, that the acceptance by the Talbots in the first instance precluded their recouping, as we may say, for the character of the stone, because it did not come up to the Detroit specifications. In other words, they had the opportunity to examine the stone as it was delivered on the cars in this city, and, unless there was something further than that, — unless there was some other promise on the part of the defendant, — then the defendant would be entitled to a verdict at your hands for the amount claimed, viz., $1,338.47, with interest from November 5, 1892.”

The court instructed the jury further that if they should find that the defendant came to Detroit, and agreed with the plaintiff to p,ay for the work mentioned, there was a moral consideration that would support the promise, and the amount should be allowed to the plaintiff.

The principal question in this case is whether the plaintiff, by receiving and using the stone, accepted them as a full compliance with the contract, or whether it had a right to take them, and recover its damages, by way of recoupment or action, growing out of their failure to equal ihe specifications. There are cases which hold that an acceptance of goods precludes such recovery, and there are others which hold the contrary. On principle, the distinguishing feature seems to be a warranty. If the sale is without a warranty, and affords an opportunity for ascertaining whether the goods conform to the description, the doctrine of caveat emptor applies, and an acceptance cuts •off all rights of recovery. The vendee should decline to receive the goods, and sue for a breach of the contract. If, on the other hand, the sale is with a warranty, the vendee may lawfully receive the goods, and recover or recoup damages upon the warranty, which is held to be a collateral undertaking. It is believed that this principle is generally recognized. In addition to cases cited by counsel, see Pierson v. Crooks, 115 N. Y. 539. It seems to be in tbe present case; counsel for appellant insisting that an implied warranty exists, while, upon the other hand, it is said that the provision in relation to the specifications is a condition precedent merely.

The contract was an executory contract, and may fairly be said to have contemplated the manufacture of the curbing from a specified stone, in accordance with specified dimensions and workmanship. If the agreement to furnish such stone of the specified dimensions was a warranty at all, it is difficult to understand why it was not an express warranty, and, if it Avas such, there can be no implied warranty that the stone should conform to the specifications. Indeed, this does not seem to be claimed. These things Avere a necessary part of the description of the commodity, and nothing more, unless the face of the contract justifies the conclusion that it was intended as a warranty. Neither party asserts this, and so we turn to the question of implied warranty. The exact point made by plaintiff appears to be that, inasmuch as the defendant knew what, the specifications were, the law implied a warranty of fitness. A pertinent inquiry is, “A fitness for what?” Was it fitness for the paving jobs that the plaintiff had on hand? If this be claimed, it is a sufficient answer to-say that the evidence fails to disclose that the defendant knew what jobs plaintiff had. Moreover, if the law is to-imply that the stone were to be fit for the job, it must be because defendant knew what the job actually required, and had undertaken to provide that, and his liability would be tested by that. But this was not so. He only knew what the specifications required. They might be right or wrong. He had no means of determining, and it was not left to defendants judgment to make suitable stone for the jobs. He had simply undertaken to deliver certain stone of given dimensions. If he should deliver such he would be entitled to pay. If he did not, it could hardly be claimed that he could require acceptance on the ground that the stone were suitable, or better adapted to-the purpose of the plaintiff than as though made according to direction. Clearly, if plaintiff had furnished specifications, and had a right to insist on the stone being in conformity thereto, regardless of defendant’s judgment, it could not sustain the proposition that the law should imply a warranty to make them conform to some other test; and manifestly it cannot be said that knowledge of the use intended should require defendant to vary from his contract as to dimensions. The conclusion appears to us irresistible that no such warranty as this can be. implied.

Breen v. Moran, 51 Minn. 525, is cited as a case “upon all fours” with this, but we infer from a perusal of that case that the contractor there undertook to furnish stone-for a particular purpose which he understood; and in that, case the court based the right to recover upon a warranty, and not the failure to perform a condition precedent, thus, recognizing the rule of law stated. The distinction between conditions precedent and warranty is clearly recognized in. the Minnesota cases cited in Breen v. Moran. See Maxwell v. Lee, 34 Minn. 511; Thompson v. Libby, 35 Id. 443.

An examination of the brief of the plaintiff’s counsel will show, that all of the cases cited are based on the existence of a warranty. In this respect they are in harmony with the cases cited by opposing counsel. See Potter v. Lee, 94 Mich. 140. We notice one or two that seem to rest upon facts leading to the inference that a warranty may have been found from a bare promise to deliver goods of a given description. Such is perhaps the rule in North Carolina, and possibly other states. But if such can be called a warranty, it is an express warranty, and in this case would be a warranty to deliver stone according to specifications, and not a warranty to deliver those fit for the purpose that plaintiff had in hand, whatever that may have been. The correctness of those decisions may be questioned in view of the English and American cases in opposition to them. They seem to be based upon language of Mr. Starkie in his work on Evidence, and a discussion to be found in notes to the case of Cutter v. Powell in 2 Smith, Lead. Cas. 1, substantially implying that when the vendee uses the goods to prevent loss or injury the rule should not apply. See Cox v. Long, 69 N. C. 7; 2 Smith, Lead. Cas. (6th Amer. ed.) p. 36. But as counsel have not discussed the point, or planted their case upon any such claim, we do not feel called upon or at liberty to discuss or decide the question.

It was claimed by the plaintiff that the defendant came to Detroit, and agreed to pay for the work in question. The court instructed the jury that plaintiff should recover if they found such to be the fact, which was as favorable a charge as the plaintiff was entitled to.

This view of the case renders it unnecessary to discuss the question in relation to the admission of evidence of the meaning of the term “f. o. b.,” as the plaintiff was not injured by the evidence.

The judgment must be affirmed.

The other Justices concurred.

         Doane v. Dunham, 65 Ill. 512; Polhemus v. Heiman, 45 Cal. 573; Vincent v. Leland, 100 Mass. 432; Lewis v. Rountree, 78 N. C. 323; Cox v. Long, 69 Id. 7; Gurney v. Railway Co., 58 N. Y. 358; Kellogg v. Denslow, 14 Conn. 411; Hull v. Belknap, 37 Mich. 179; Forcheimer v. Stewart, 65 Ia. 593; Babcock v. Trice, 18 Ill. 420; Brantley v. Thomas, 22 Tex. 270.

        Comstock v. Sanger, 51 Mich. 497; Roebling’s Sons Co. v. Hematite Co., 70 Id. 346; McFadden v. Wetherbee, 63 Id. 390; Day v. Pool, 52 N. Y. 420; Manufacturing Co. v. Allen, 53 Id. 515; Parks v. Tool Co., 54 Id. 590; Gurney v. Railway Co, 58 Id. 364.


text:
    Edwin E. Armstrong et al. v. William H. Potter and Thomas J. Gristock.

      Partnership — Evidence—Admissions—Estoppel—Instructions to jury.

    1. An admission by one of two defendants, who are sued as partners, that such relation exists, made in the absence of his co-defendant, while not admissible to prove the partnership as against the absent defendant, is admissible for that purpose as against the defendant making the admission.

      2. Where, in a suit against alleged partners, there is testimony that each defendant has admitted the existence of the partnership, it is proper to submit that question to the jury, even though both defendants deny making such admissions, and testify to facts which, if believed, show that they are not partners.
    3. In a suit to recover for goods sold by the plaintiffs to the de-' fendants, and upon a like claim which had been assigned to them by a third party, the main question at issue was whether or not the defendants were partners. There was testimony which, if believed, would estop the defendants from denying the existence of the partnership as against the assignor of said claim, but not as against the plaintiffs in their own right. And it is held reversible error so to instruct the jury as to allow them to apply said estoppel to both claims.
    Error to Clinton. (Daboll, J.)
    Argued October 31, 1894.
    Decided December 28, 1894.

      Assumpsit. Defendants bring error.
    Reversed.
    The iacts are stated in the opinion.'

      Fedewa & Walbridge, for appellants.

      H. M. High,' for plaintiffs.
   Hooker, J.

The plaintiffs obtained a judgment in an action of assumpsit against the defendants, as partners, irom which the defendants appeal.

TJpon the trial the plaintiffs called one Bryson as a witness, who testified that he loaned some money to defendant Potter, and upon that occasion Potter said to him (in-the absence of Gristock) that—

“He [Gristock] is a partner of mine now, and I intend to buy him out when I get this money.”

The court instructed the jury that this statement by Potter could not be used to bind Gristock, unless Gristock authorized Potter to say that he was a partner. The‘main point in controversy was the question of partnership, and we think the statements of one were not competent to prove the partnership against the other. But either partner had the right to make this defense, and both were making it. Both testified, in substance, that they were not copartners. The admission of Potter could not establish it as against Gristock, nor could that of Gristock be used to prove it against Potter, but the admission of each was evidence against the party making such admission. 2 Greenl. Ev. § 484. This testimony was competent, therefore, to show that Potter was a partner. Being admissible for that purpose, it was proper to receive it.

The court submitted the question of actual partnership to- the jury, and this is said to be error. There was testimony that each defendant had admitted that they were in partnership. This justified the submission of the question to the jury, although i't were true, as claimed, that both parties denied such admissions, and testified to facts which, if believed, showed that they were not partners.

The court instructed the jury that in one view of the case the defendants would be estopped from denying the partnership. This was based upon testimony that Potter introduced Clark, the traveling salesman of Herman Deitz, at the time he gave an order for goods, to Gristock as his partner, and that the fact was communicated to his employer before the goods were shipped, at a time when Deitz was disinclined to let them go, because a former draft upon Potter had been returned unpaid. Being told that Gristock was a partner, he allowed them to be shipped. Subsequently (but at what time does not appear) Armstrong asked Clark if Deitz was still selling to Potter. Being told that he was, he asked who the company was, and was told by Clark that Gristock was; that he (Clark) had been introduced to him. The court truly said that this was evidence tending to show the partnership. He also said it might operate to bind Gristock by way of estoppel, on the familiar principle that one who knowingly permits himself to be held out to any person or the public as a partner is liable for debts incurred by the concern to persons who should give credit in reliance upon such representation. But this liability, if it exists at all, must be predicated upon the well-known rules of estoppel. It might bind him as partner as to sales by Deitz, but no further. There is nothing in this' case to show that the defendants held themselves out as partners to Armstrong, or that they expected or knew that such information would or did reach him; nor does it appear that Armstrong sold any goods with knowledge of or in reliance upon such holding out. It should be stated that the plaintiffs’ cause of [action consisted of both claims, Deitz having assigned his to the plaintiffs before action brought. This evidence did not warrant a recovery upon the Armstrong claim, on the ground of estoppel. The court said:

“If you find any goods were sold to them under the statement made and understanding had by these parties, or by their actions, or the actions of Gristock, that they were partners, or such actions as would lead the party to fairly believe it, and he acted upon it in good faith, they are liable.”

We think it possible that the court understood this language to apply to the Deitz claim. But evidence had been given by the plaintiffs with a view to making it applicable to tbe other claim, and counsel expressly called attention to the fact that in his opinion the charge went so far as to include both. The language was broad enough to cover both, and we think that the jurors would have naturally inferred that both were included.

We therefore feel constrained to reverse the judgment, and order a new trial. Ordered accordingly.

The other Justices concurred.


author: McGrath, C. J.

text:
    John Stevenson and George F. Marsh v. The Michigan Log Towing Company.

      Contract — Towing logs — Liability for loss — Evidence—Principal and agent.

    1. The owners of a tug sued a log-towing company for towing logs. The contract called for a “first-class long raft line.” The testimony tended to show that certain other tugs, larger and stronger than the plaintiffs’, carried lines from 1,200 to 1,500 feet in length, bub that these were exceptional cases. The line used by the plaintiffs was 1,000 feet long. And it is held that what was considered and known as a “first-class long line ” was a matter for the jury, and that, in the absence of evidence upon that point, neither the court nor the jury could determine the question.
    2. The line parted, causing the loss of certain booms and chains, and expense in recovering the scattered logs, and the defendant sought to recoup for these losses. Plaintiffs identified 500 feet of the line, and gave testimony tending to show that this portion of the line showed the very break itself. And it is held that the plaintiffs were entitled to exhibit to the jury the entire 500 feet of line, and that their application that the jury be permitted to view the same should have been granted.
    8. Defendant sent its “log man,” so called, to plaintiffs with two letters, in one of which it introduced him as “ our log man,” and stated that any orders from him would be the same as from its office. The other letter directed plaintiffs to take said log man and certain booms, and tow a certain raft to a designated point, and, on arriving there, to wire the defendant for orders. And it is held that the term “log man” is a technical one, and may have a signification limiting the range of the duties of the person to whom it is applied; that, in the absence of such explanation, it cannot be said that the defendant, by said letters, intended to restrict the authority of its log man to matters respecting the booming of the raft and the placing of lights thereon while in transit; that if he had authority to direct the rate of speed of .the tug (which plaintiffs claim he assumed to do), and as to what should be done in emergencies, and gave such directions, and the same caused an increased strain upon the line and its parting, and the line was not defective, or if the loss was aggravated by what was done under said directions, the plaintiffs cannot be made to respond in damages therefor.
    4. The testimony did not tend to show that said log man had examined the line, or that he was aware of its defects, if any existed. And it is held that it cannot be said that he waived such defects, or that there was such an acceptance by him of the line as relieved plaintiffs from their obligation to furnish a first-class line.
    Error to Bay. (Maxwell, J.)
    Argued November 21, 1894.
    Decided December 28, 1894.

      Assumpsit. Plaintiffs bring error.
    Beversed.
    The facts are stated in the opinion.

      Hatch & Gooley (Harvey D. Goulder, of counsel), for appellants.

      McDonell & Hall (John K Simonson, of counsel), for defendant.
   McGrath, C. J.

Plaintiffs were owners of the tug Gladiator. On April 5, 1893, they wrote defendant as follows:

“We have the large lake tug Gladiator, commanded by Capt. Bobt. Eerguson, a capable and experienced raft tug man. If you have any raft towing to do this season, .we will be pleased to make you figures that will be satisfactory.”

On August 3, 1893, defendant sent the following telegram to plaintiffs:

Give lowest price Gladiator. We furnish fuel; you furnish everything else, including first-class long raft line.”

After other correspondence the Gladiator was engaged, and ordered to report to Bay City. On August 21, 1893, defendant sent one Wilds to Bay City with two letters addressed to the captain of the tug. Both had the same date. One read:

The bearer, Larrie Wilds, is our log man. Any orders from him will be the same as from this office, and I hope you will do your best to work for his and our interest.”

The other was as follows:

Take our man and 130 booms to E. Tawas; get another string booms; clear at Tawas for French river; tow Holland & Emery raft to E. Tawas. Soon as you arrive with raft at E. Tawas, wire here for orders. I hope you will do your best, and work the tug for all is in her.”

Plaintiffs sue to recover for tug services under the contract. Defendant insists that, by reason of the failure of the plaintiffs 'to furnish a first-class towline, the line parted while towing the Holland & Emery raft, causing the loss of certain booms and chains, and large expense in the recovery of the scattered logs, and it claims the right to recoup for these losses. Plaintiffs insist that Wilds in fact managed the transportation; that the line was brought out on deck on the out passage, and Wilds made no objection to its use or complained as to its character; that the line parted in the storm, by reason of the speed of the tug, which was increased by the direction of Wilds; that after the line parted the tug should have made an effort to recover the raft, but the captain was directed by Wilds to leave the raft and go to Tawas. Defendant’s testimony tended to show that a long raft line was 1,200 feet in length; that plaintiffs’ towline was but 1,000 feet in length, and was decayed in places. Plaintiffs’ testimony tended to show that the line parted in a heavy sea; that, under such circumstances, it was usual to slack the speed of the tug, because of the liability to part the towline or wreck the raft. The engineer testified that—

“ He [Wilds] came down in the engine room. He says, ‘We are going astern.’ Says I, ‘I can’t help it; she is working as strong as she ought to work.’ He says, ‘You better work her a little stronger.’ Says I, ‘You will part your towline.’ Says he, ‘Oh, no; you can’t part that.’ Says I, ‘Will you take the chances of parting it?’ He says, ‘Yes; I will take the chances; you can’t part it.’ I pulled her a little stronger. I told him to go back and look at it. He could get up on the railing that runs .around the stern right in front of. the window. I says, ‘Get up there and look at that line.’ He got up there, •and looked at it. He was quite a little while looking at the line. I went around by the throttle, and says, ‘ Shall I give her some more?’ He says, ‘Yes; open her out.’ ■So I pulled open the throttle, and he hadn’t any more •than got on deck when the line parted.”

Plaintiffs’ testimony further tended to show that the line had not had much use; that a line 1,000 feet in length was regarded as a long line; that the line was a first-class line; that first-class towlines frequently broke under circumstances indicated here; that two or three years on board a tug would not impair a towline, if it had been properly cared for; that it was use that ordinarily affected •a line, and that the line - had been properly cared for.

The court instructed the jury that—

“Under the contract between the parties, the plaintiffs •did not guarantee the safe delivery of the raft. They are not liable as guarantors or warrantors of the absolute safe delivery of the raft, but they must furnish a sufficient line for that purpose, and they are not liable for an extraordinary emergency or accident that happened on the lakes that could not be foreseen or provided against.”

They were further instructed:

“ A line suitable for that boat ought to be sufficient for her to pull on it with substantially all her might. It appears from the testimony that the progress of these rafts, when she had them, was from nothing, even a retrograde movement, up to a mile or a mile and a quarter an hour. The distance across Lake Huron is some 250 miles, and to make that journey at that rate would take from 8 to 10 days. The line ought to be sufficient to hang on to that boat and that raft through all the perils that were likely to happen on that journey, including storms, head winds, and everything likely to happen, and, unless the line was sufficient for that purpose, the plaintiffs are liable for the consequences of it. * * *

“I am requested to state that the plaintiffs cannot be liable for damages caused by the acts of the defendant or the agent Wilds. The plaintiffs cannot be liable for any damage caused by the acts or directions of the defendant, but the agency of the defendant’s man Wilds, so far as it has been proved in this case, is all in the two letters that have been read to you. I charge you that, under the authority in those two letters, he had no authority to modify this contract.”

During the trial the court said:

“ I don’t think I ought to admit any evidence in regard to compliance with the contract; that is, that this line or any other line answers the purpose of the contract. It is purely a question of law what the contract means. It. means a long line and a good line.”

“If there is in common use on Lake Huron lines varying in length from 800 to 1,500 feet, the contract calls, for a long line. It is one of the long class. Not one-that is 800 feet long, nor 1,000 feet, but one that is 1,200, 1,400, or 1,500 feet long. That has got to be furnished by the parties, or they must stand the consequences. I shall tell the jury so.”

“ I shall charge the jury that they were bound to furnish a line that was sufficient to hold all that the Gladiator could pull under ordinary circumstances.”

“ Yesterday afternoon I announced to the plaintiffs’ counsel my opinion that the plaintiffs were liable to furnish a good, long raft line, — a line of sufficient strength, to hold all that the tug could pull under ordinary circumstances, even during such gales and such weather as was common or frequent on the lakes. This opinion so expressed at the time seemed to me so decisive of the main point in dispute in this ease as to render the opinion of witnesses as to the line of no value. Soon after this announcement Mr. Bennett was sworn, and his evidence presented a question equally important as to the authority of Wilds to modify the terms of the contract. I was unable for a while to satisfy myself on the question, and permitted some evidence to be introduced which, in my judgment, ought not to have been received. This hesitation of the court no doubt, on the last question, misled the plaintiffs' counsel, who still persisted in offering testimony that the court regarded as objectionable. I now strike out of the case all the evidence of the witnesses of the recent examination of the different parts of the towline, as not being material to the controversy."

The trial court's instructions to the jury, and the remarks made pending the trial, were clearly erroneous. The telegram did not give either the size or the length of the line. The words “a long line” cannot be arbitrarily construed to mean the longest line in use. There was testimony tending to show that certain other tugs carried lines from 1,200 to 1,500 feet in length, but these were exceptional cases, and the testimony tended to show that the tugs carrying such lines were larger and more powerful than plaintiffs' tug. The object of a long line was to clear the back current made by the wheel, and to avoid any strain upon the line or raft in case of a sea. The more powerful the tug the greater the current, and the heavier the tug the greater would be the strain upon the line and raft. What was considered and known as “a first-class long line" was a matter for the jury, and neither court nor jury could determine the question, in the absence of evidence upon that point.

It would seem that the best evidence of the general condition of the line was the condition of the 500 feet which plaintiffs identified, and sought to have the jury view. Defendant's testimony respecting the condition of the line was not confined to the point of the break, but tended to show that it was generally in a state of decay. Even if this were otherwise, plaintiffs testimony clearly tended to show that the part of the line which they sought to exhibit showed the very break itself. Plaintiffs certain ly had the right to produce a portion of the line in the court room, but they were denied even that privilege. The best evidence would have been the entire 500 feet, rather than a selected portion. This was not an application to have the jury view premises or the locality of an accident, where the grant is dependent largely upon the discretion of the trial court, but plaintiffs desired to exhibit to the jury a portion of the rope in question, something which was in and of itself real evidence, and the application to the court was made by reason of the bulk of the thing sought to be exhibited. Plaintiffs were entitled to the added weight of the testimony afforded by an exhibit of the entire 500 feet, rather than be subject to a suspicion or charge that a selected portion had been brought in and placed before the jury. The ordinary juror would be enabled, upon examination, to determine whether or not the line at the break was decayed. In any event, there was testimony which would have aided them in that determination, and the court should have granted the application.

Defendant contended that the man Wilds was sent with the tug merely as a log man, — to look after the logs; to see to lights upon the raft; to see that the logs were properly rafted, and the rafts delivered to the tug; and that orders from Wilds necessarily referred to orders in the line of his employment, and not to orders relating to the navigation of the vessel. On the other hand, it is insisted that the effect of the letter was to notify the captain of the tug that Wilds was a man in whose judgment and ■skill as a log man the defendant corporation had confidence; that the defendant did not care to trust the matter of the navigation of the raft wholly to the captain of the tug; that Wilds was placed on board the tug as defendant's representative, clothed with the largest- possible authority, and that he was so stationed to superintend the matter of the rafting of the logs. One of the letters sent gives to the captain of the tug explicit directions as to his movements, and includes a direction that on his return to 'Tawas he should wire defendant for further orders. The orders which the other letter contemplated must, in the absence of explanation, be deemed to relate to other matters connected with the transportation of the raft. The ■special business of defendant was the transportation of rafts. Log towing was not a mere incident of its business. It was not a rafting, but a log-towing, company. In view ■of the nature of the business in which defendant was engaged, the letters do not warrant the construction given to them by the trial court. The term “log man" is a technical term, and may have a signification limiting the ¡range of the duties of the person to whom applied. It may be that in the performance of his duties, such as the booming of the logs and the care of the raft, the cooperation of the tug captain was essential, and that the authority conferred related only to such as was necessary to secure that co-operation. In the absence of such explanation, it cannot be said that by these letters the defendant, a log-towing company, engaged in the navigation ■of logs, and expert in all matters pertaining to such navigation, intended to restrict the authority of the man Wilds to matters respecting the booming of the raft and the placing of lights thereon while in transit. If Wilds had authority to direct the rate of speed of the tug, and as to what should be done in emergencies, and he did so direct,, and such directions caused the increased strain upon the line and its break, and the line was not defective, or the loss was in any event aggravated by what was done under his directions, the plaintiffs cannot be made to respond in damages for what was done by the direction of defendant’s-duly-authorized agent.

The testimony does not tend to show that Wilds had examined the line, or that he was aware of its defects, if any existed. Hence it cannot be said that he waived such defects, or that there was such an acceptance of that appliance as relieved plaintiffs from their obligation to furnish a first-class line.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    William Brighton v. The Lake Shore & Michigan Southern Railway Company.

      Release and discharge — Claim for personal injuries — Railroad companies — Contract for employment — Authority of officers —Breach—Waiver—Measure of damages.

    1. Two division superintendents of a railroad company represented tire company on the final settlement of a personal injury case, and the company carried out the settlement as made by Prepayment of the amount agreed upon. The claimant sued the company for the breach of a contract which he alleged was-made with him by said superintendents in behalf of the company at the time of said settlement, under which he was to be furnished with employment at a fixed monthly salary during his life, or during his ability and disposition to perform the duties pertaining to said employment. And it is held that it was proper to allow the jury to find that said officers had authority to make said contract.
    3. The plaintiff testified that the contract was signed by the officers who made the settlement, and his attorney testified that the contract was drawn, but that he was not sure that it was signed. The evidence tended to show that the contract was lost. And it is held that the question of whether or not the evidence established the contract was properly left to the jury.
    3. The plaintiff was entitled to employment according to the terms of the contract, if made, during the period of his ability and fidelity, but, if he became incompetent, unfaithful, or disobedient, he was subject to discharge,' and forfeited his rights under the contract.
    4. The plaintiff was at first given employment at' the agreed salary, but shortly afterwards his salary was reduced, and he accepted the same for 15 years without protest. And it is held that this was evidence of a waiver of his right to the agreed salary for the time covered by such payments, and, if unexplained, amounted in law to such waiver.
    5. Where, as a part of the settlement by a railroad company of a claim for personal injuries, the company agrees to furnish the injured party employment at a given monthly salary during life, or during his ability and disposition to perform the duties of his position, the injured party is entitled to recover, for a breach of the contract, its fair and reasonable present value.
    Error to Washtenaw. (Einne, J.)
    Argued November 22, 1894.
    Decided December 28, 1894.

      Assumpsit. Defendant brings error.
    Eeversed.
    The facts are stated in the opinion.
    0. E. Weaver (George 0. Greene and 0. G. Getzen-Eanner, of counsel), for appellant.

      Lehman Bros, and Thomas J. Navin, for plaintiff.
   Hooker, J.

On October 19, 1874, the plaintiff, at the time an employé of the defendant, was injured by reason of a collision of trains upon its railroad. The plaintiff subsequently made a claim against the defendant,.through Charles R. Miller, Esq., his attorney, for damages, and on March 24, 1875, a settlement was made between them. Counsel for the appellant state in their brief that the whole controversy grows out of a disagreement as to what-the tertns of the settlement were. It seems to be conceded that the defendant paid to.the plaintiff the sum of $540, and that the plaintiff executed a release and discharge, of which the following is a copy:

“Name, William Brighton, Adrian, Michigan.

“ For the consideration of. $540, received, to my full satisfaction, of the Lake Shore & Michigan Southern Railway Company, I hereby release and discharge the said company from all claims and demands which I have, or may be entitled to have, against it, either in my own name or in' that of any one else, and especially from all liability to me for loss or damages which has resulted or may result to me from injury suffered by me by reason of a collision of two construction trains between Sisson and Deerfield, having my right hand crushed. and lost one finger, and injured about my side and back, which occurred on or about the 19th day of October, A. D. 1874.

“Received payment, March 24, 1875.

Ris

“[Sg.] William X Brighton. [L. S.]”

mark

The plaintiff claims that at the time of the settlement, and as part thereof, it was agreed that the plaintiff should have employment in a position paying $43.75 per month, or a better place, and that he should be so employed and paid during life, or during his ability and disposition to perform the duties of his position, and could not be discharged without cause. It was further claimed that this agreement was put in writing, signed by the officers who made the settlement for the defendant, and was delivered to the plaintiff or his attorney. The defendant denied that any such agreement or writing was executed, and claims that when presented such execution was refused, but that the plaintiff was given a place on the same terms as any other employé. The plaintiff was given the position of target tender at Manchester, where he remained about 15 years, until the target at that point was discontinued. He was then transferred to another point, where he was employed as target tender for two years, and until that target was discontinued. He was then given work as a section hand, under one Stegmiller, commencing in February, 1891, and was discharged by direction of the road master on August 33, 1891. His wages as target tender were $43.75, until January 1, 1876, when they were reduced to $31.50, and so remained until November, 1889, when they were made $30 per month. As section hand they were $39.50 or thereabouts, depending somewhat on the amount of Sunday work done. The plaintiff did not. produce the disputed writing, which he claims was left, with his attorney, and cannot be found; after proof of' which secondary evidence was admitted, and he was> allowed to recover at the rate of $43.75 per month for the time employed, less what he had received. The jury were also permitted to allow him prospective damages upon the.expectancy of life and ability to work.

The more important questions involved are:

1. Whether the court erred in refusing to direct a-verdict for the defendant.

3. The measure of damages.

Counsel for the defendant assert that there was no-evidence tending to prove the contract, for the reason— First, that those said to have made it had no authority to make it; and, second, that the evidence of the plaintiff and Miller is insufficient to establish it.

If there was such a writing, it was executed by the persons who adjusted the claim for damages, and was a part of that transaction. This settlement was carried out by the payment of money, and it was proper to allow the jury to find that the officers had authority in the premises.

It is sufficient to say, about the second point, that there was evidence tending to show that the disputed writing was made and delivered, and that it was lost. Miller testified that the agreement was made and writing drawn. He admitted that he was not sure that it was signed. The plaintiff said that it was 'signed by the officers of the company who made the settlement. There was therefore no error in leaving the question to the jury. Dailey v. King, 79 Mich. 568.

If this contract was made, as the jury must have found, the plaintiff was entitled to employment according to its terms during the period of his ability and fidelity, and the court so instructed the jury. He added: “If he became incompetent, unfaithful, or disobedient, he was subject to discharge, and forfeited his rights under the contract.-’'’ This was correct.

Upon the subject of damages he ^instructed the jury as follows:

“You will bear in mind that this suit is brought to recover damages for a breach of "an alleged contract, and that the damages which the plaintiff is entitled to recover are such as may be fairly and reasonably considered as arising from the breach of such contract, and such as may be considered to have been contemplated by the parties when such contract was made, as a probable result of the breach of the same, and the plaintiff can only recover such damages as he has actually sustained.

“ During the period of his employment, if he received less than the contract price, he can now recover the difference thereof, unless he has waived such difference, and accepted the less sum in full satisfaction thereof.

“ The plaintiff also claims that his contract called for permanent employment, and he seeks in this case to recover the full value of his contract with the railroad company in this respect; this contract, as he claims, covering the entire period of his life, — that is, as far as he is able to labor. If you should find from the evidence that the contract in this regard was of the character claimed by the plaintiff, then the plaintiff is entitled to recover in this ■case such sum as from the evidence you may determine to be the present value of such contract. .In estimating the present value of such contract, or, in other words, the damages to the plaintiff by reason of the breach of such contract, you should consider his age, his health, his ability to labor, and the probable duration of his life. These damages are not represented by a computation of $43.75 per month for a series of years called his ‘expectancy; 3 that would be an unfair adjustment to the railroad company. The‘plaintiff is only entitled to such a sum as will represent fairly and reasonably the extent of his loss. He has no right to remain idle. It' is his duty to labor as best he may, and his measure of damages must in part be controlled by his ability to work add earn wages and ■otherwise decrease his apparent damages. You should, on the other hand, consider his possible inability to find suitable employment, or to earn in such way the amount which he claims the railroad company agreed to pay him. You should also consider the fact that, in allowing the plaintiff damages for breach of this contract, he will now, at the present time, be receiving moneys which otherwise he would only obtain in the future as the same were earned, and that hence the present value of such services of the plaintiff, if now allowed and paid, must be materially less than their aggregate sum. In a word, gentlemen, you should consider all the circumstances and surroundings of the plaintiff, and therefrom, under the evidence in the case, determine the fair and reasonable present value of the alleged contract, — or, in other words, the damages which the plaintiff has sustained by reason of the breach of said contract, — and accord to the plaintiff a just compensation for the same, provided you find the plaintiff is entitled to recover.”

The charge is said to be erroneous in allowing the jury to award damages for the deficiency in monthly payments and also prospective damages. It is said that the receipt of a less sum than-$43.75 per month, without protest or claim of more, for a period of 15 years, andsup to the time of his discharge, is strong evidence of acquiescence in his employment at lower wages, and for a part of the time, at least, in a less responsible and laborious place. There is no evidence upon the subject beyond the bare fact of the changes and his payment. No complaint appears to have been made. We think this was strong evidence against the execution of the contract, and, while it was not sufficient to take that question from the jury, it was a clear waiver of his right to a better place,” or to a subsequent claim of $43.75 per month for the time sovered by such payments. It was not only evidence of waiver, but, unexplained, it amounted in the law to a waiver, involving, as it did, a monthly account stated, and' payment. Button v. Russell, 55 Mich. 479; Cobbs v. Fire Association, 68 Id. 463; Marthinson v. Insurance Co., 64 Id. 372.

We think the instruction of the court in relation to-prospective damages was correct.

Other questions are raised by the assignments of error which we think it unnecessary to discuss.

We are constrained to reverse the judgment, and order a new trial.

McGrath, O. J., Long and Grant, JJ., concurred.1 Montgomery, J., did not sit.

       The defendant was represented by the superintendents of two divisions of its road.


text:
    William P. Campbell, Administrator, etc., v. Barbara A. Smith, Administratrix, etc., et al.

      Estates of deceased persons — Mortgage—Subrogation—Dower.
    An administrator contracted in writing with the widow of the decedent, who had remarried, for the purchase of her interest in the estate for the benefit of the heirs, for which interest she was to receive $1,400 and some personal property belonging to the estate. The estate was appraised at $5,704.15, of which $1,004.15 was personalty. The administrator secured a license, and mortgaged a portion of the land for §1,000, which sum he paid to the widow. The mortgagee filed a bill to foreclose the mortgage, and a decree was made declaring the mortgage void, but a valid claim or lien upon the dower interest of the widow. The heirs were given the right to pay the complainant the amount due on the mortgage, and thereupon to require of the widow a release of her dower interest. On their failure to elect to make such payment, the complainant was given the privilege of applying for the appointment of commissioners to assign and set apart said dower interest, after which it was to be sold, and ten-fourteenths of the proceeds applied, first, to the payment of costs and expenses, and, second, to the discharge of complainant’s claim, and the surplus, if any, to be paid to the administrator. And it is held that there is no error in the decree of which the defendants can complain.
    Appeal from Jackson. (Peck, J.)
    Argued November 23, 1894.
    Decided December 28, 1894.
    Bill to foreclose a mortgage. Defendants appeal.
    Decree affirmed.
    The facts are stated in the opinion.

      A. J. Waters (Thompson & Harriman, of counsel), for complainant. *■

      Lewis M. Potoell, for defendants.
   Hooker, J.

Jacob Frederick, a resident of Jackson county, died intestate in December, 1880, leaving a widow (defendant Mullerheile, she having since married) and eight children, — seven by a former wife, and one (Bertha) by his widow. He left an estate consisting of land and personal property. In December, 1881, Morgan Case was appointed administrator, and on December 16, 1882, he made a contract with the widow, who had married in the meantime, to purchase her interest in the estate for the benefit of the heirs, some of whom were minors. She was to receive $1,400 in money and some personal property belonging to the estate. The real estate consisted of a 20-acre parcel in addition to an 80-acre lot, which was the home of the deceased at his death. On December 18, 1882, Case filed a petition in the probate court, alleging that $2,250 would be required to pay the debts and expenses and purchase the widow’s dower, and praying for a license to sell the 20 acres, and to mortgage the 80-acre lot. The license was granted as prayed, and the sale of the 20 acres was made and confirmed. A mortgage for $1,000 was made to the complainant’s intestate, who paid $1,000 therefor to the administrator. From the proceeds of the sale and mortgage the widow was paid $1,400, and she abandoned the premises, and the estate has had the full possession and proceeds of the place since. Case died in 1884, and in'1885 one of the heirs was appointed administratrix, and has acted as such since. The widow relinquished all claim to the estate from ‘ the time she received payment as aforesaid, though no formal conveyance of her dower interest has been attempted. The 80 acres has been, the home of the children since. The widow’s interest in the personal estate considerably exceeded $400, and it is fairly inferable from the evidence that the sum of $1,000 was fully equal to her dower interest, if it did not exceed its value.

The circuit court held that the mortgage was void, but that it was a valid claim or lien upon the dower interest. It gave to the heirs the right to pay to complainant the sum of $1,665.25 (being the amount of the mortgage and interest), and thereupon to require of the widow a release of her dower interest. In the event of a failure upon the part of said heirs to elect to pay said sum, the complainant was given the privilege of applying for commissioners to assign and set apart said dower interest, after which it should be sold by a commissioner of the court, ten-fourteenths of the proceeds to be applied — First, to the payment of costs and expenses; second, to the discharge of complainant’s claim; the surplus, if any, to be paid to the administratrix. From this decree the defendants have appealed.

It is contended that this decree was erroneous, for the reason that the courts cannot create a lien upon the dower interest of the widow; that liens must be created by agreement, or by some fixed rule of law. In this case we have the unequivocal agreement of Mrs. Mnllerheile, not to create a lien, but to sell outright her interest. -This agreement is in writing. It was followed by payment and acceptance of full consideration, and surrender of such possession as she had in the premises. She received payment from the estate, and she could not resist a bill for specific performance if the heirs were here asking it. They would have so much of a lien upon the dower interest that a court of chancery would compel its' release at their suit. But they seem disposed to hold on to the dower interest, and repudiate the obligation under which it was acquired. Mrs. Mullerheile’s answer admits the sale of her interest and the receipt of the money, and she does not seem to have any controversy with her stepchildren over it, but all unite in an appeal to prevent the payment of this obligation. It is contended that the evidence does not show that this money was used for such purchase, but it is patent that it was, as the circuit judge found. We see no difficulty in holding that the -complainant should have a lien on this interest. If the heirs propose to hold the dower interest, thus taking the benefit of the contract made by the administrator, they must recognize the mortgage, to the extent, at least, of the dower interest. On the other hand, if they propose to repudiate the contract in toto (of. which we see no evidences), Mrs. Mullerheile must submit to the subrogation of complainant to the rights of the heirs or Case, under her contract. We think there was no error in the decree of the circuit court of which the defendants can complain.

Counsel for the complainant contend that, if necessary to pay complainant’s claim, the entire sum realized from a sale of the dower interest should be applied, and we are asked to make such a decree, or remand the case with direction to make such a decree. We think complainant should have appealed if he desired such relief. See Millard v. Truax, 73 Mich. 381, 382; Harrington v. Upton, 78 Id. 34; Auditor General v. Baker, 84 Id. 117; Macomb v. Prentis, 78 Id. 255, 260; Lamont v. Le Fevre, 96 Id. 175, 177.

The decree will be affirmed, with costs to be paid by the defendants.

The other Justices concurred.

       The personal property was appraised at $1,004.15, and the real estate at $4,700.