text:
    FRIESENHAN v. MAINES.
    1. False Imprisonment — Legal Arrest — Unlawful Detention —Trespass Ab Initio.
    An unlawful detention following a lawful arrest by a sheriff does not make him a trespasser ab initio, unless the original arrest was made with the intent of being used as a cover for a. subsequent wrong.
    2. Same — Habeas Corpus — Discharge—Res Judicata.
    Where a petition for habeas corpus showed that the prisoner had been detained an unreasonable time without an opportunity of giving bail, and made no claim that the arrest was illegal, and no testimony was taken, and no order discharging the prisoner could be found, but it was shown by parol that he had been discharged on the ground of an unreasonable detention, the discharge was not an adjudication that the arrest was illegal.
    3. Habeas Corpus — Discharge—Parol Evidence.
    Where no order discharging a prisoner on habeas corpus proceedings is found, parol evidence is competent to show the ground, on which the discharge was based.
    4. Same — False Imprisonment — Evidence—Mitigation of Damages.
    In an action for false imprisonment, plaintiff’s subsequent admission of guilt of the charge on which he was arrested is-admissible in mitigation of damages, although he was discharged on habeas corpus on the ground of an unlawful detention.
    5. False Imprisonment — Damages—Costs of Habeas Corpus. Proceedings.
    In an action for false imprisonment, plaintiff is not entitled to recover attorney fees incurred in habeas corpus proceedings for his release, where such proceedings were instituted by his. father without his consent, and the attorneys were not employed by him.
    6. Same — Trial—Argument of Counsel.
    Where a confessed seducer brought an action for false imprisonment because he was detained in jail two days without being brought before a magistrate, it was permissible for defendant’s counsel to indulge in severe criticism in his argument to the jury.
    Error to St. Clair; Law, J.
    Submitted April 7, 1904.
    (Docket No. 19.)
    Decided June 25, 1904.
    Case by Joseph Friesenhan against Harrison W. Mainesfor false imprisonment. From a judgment for plaintiff for nominal damages only, he brings error.
    Affirmed.
    This is an action upon the case for false imprisonment. The essential facts are as follows: On Friday, January 31, 1902, one Mrs. Halliday, who lives in Sanilac county, with her daughter Mrs. Norris, of Port Huron, called on the defendant, who was then the sheriff of St. Clair county. Mrs. Halliday told defendant that she had a daughter who had been keeping company with the plaintiff right along with the intention and promise of marriage; that she was now about to be confined, and for that reason could not come out of the house. Defendant talked with Mrs. Halliday for some time, and she stated that plaintiff had promised to marry this daughter, and she also showed him several letters written by plaintiff to her daughter. Defendant then told these ladies to go to the prosecuting attorney’s office, and they went away together. She and her daughter then called upon the assistant prosecuting attorney, Mr. Ales. Moore, Deputy Sheriff Shannon coming into Mr, Moore’s private office with them. Mrs. Halliday stated, in substance, to Mr. Moore and Mr. Shannon that-Joseph Friesenhan had seduced her daughter Almira, and that she was not in a condition to come to the office by reason of sickness. She produced the letters above mentioned. She stated that she had had a conversation with Joseph Friesenhan about 30 days prior to the time she came to Mr. Moore’s office, and that plaintiff had admitted to her that he was the cause of the girl’s trouble, and bad said that he would right the wrong by marrying the girl. She said he had apparently changed his mind, or was neglecting the girl, and that she had come to Port Huron to protect her daughter. The daughter had been stopping with Mrs. Norris in Port Huron. Mr. Moore thereupon told Deputy’Sheriff Shannon that the cause of action as stated was a felony, and that, inasmuch as Mrs. Halliday was here from Sanilac county, it might become known to the plaintiff that she was here, and he might leave, and that he (Moore) wanted him (Shannon) to take plaintiff in charge that night. Deputy Sheriff Shannon then went to Sheriff Maines. This was about 6 p. m. Shannon told the sheriff that young Friesenhan had got a girl in trouble, and that Alex. Moore wanted him to go out and get him at once, as he (Moore) was afraid the plaintiff would hear what was going on, and would get out of the country.
    Defendant and Deputy Shannon then drove to the home of plaintiff. Mr. Shannon went in, and brought out plaintiff, and the three rode back to the jail together. On the way back plaintiff wanted to know what they were taking him for. Defendant told him for getting a girl in trouble, and plaintiff answered, ‘ ‘ Which one ?” Defendant told him it was a girl who used to live in Sanilac county, and plaintiff answered, “Oh, yes, I know; I can fix that matter up if I can see the girl.” Mr. Shannon took plaintiff to the jail. The next day Mr. Moore went over to the sheriff’s office. Defendant brought plaintiff into the office, and Moore talked the matter over with him. After explaining to plaintiff who he was, and telling him that any statement he might make would be used either for or against him, as he might see fit, he explained the charge which had been brought against him, and asked the plaintiff if he had anything to say about the matter. Plaintiff thereupon stated that he had promised to marry the girl, and that upon said promise he had intercourse with her. He said that he had seduced her in Port Huron about the month of April, and admitted writing the letters. He also stated that he would not marry the girl.

      At the time Mrs. Halliday and Mrs. Norris were in Mr. Moore’s office, Mr. Moore prepared a complaint and warrant in the name of Mrs. Halliday, and called Justice George to his office to sign the same, but afterwards changed his mind, deciding that it would be better for the girl to make the complaint. He accordingly changed the name, handed the complaint and warrant to Justice George, and requested him to go up to the girl’s residence Saturday morning, and take the complaint. This Justice George was unable to do, by reason of his official business, until Monday morning.
    On Saturday evening, February 1, 1902, the day after the arrest, Mr. Hovey, one of the attorneys for the plaintiff, went to the office of Justice Wagner, and asked him if he knew anything about the case of the People v. Friesenhan, to which the latter replied that he did not know anything about it; that no complaint had been made to him, and that he had issued no warrant; that he had been busy in the circuit court, and had turned over all matters to Justice George. Justice George came in at this point, and told them that he had issued no warrant. Justice Wagner then said that he was powerless in the matter. Mr. Hovey agreed with him, but said he could remedy the situation by habeas corpus, saying he was sure he had a case to base his habeas corpus proceedings upon, and that he would make somebody pay for it.
    On Monday morning, February 3d, Mathew Friesenhan, plaintiff’s father, petitioned for and obtained a writ of habeas corpus. The sheriff answered the writ, a hearing was had, and an order made discharging plaintiff. No testimony was taken at the hearing.
    Another complaint was made and another warrant issued, and plaintiff was again arrested. On Thursday evening, February 6, 1902, plaintiff married Almira Halliday. That evening he had a talk with Mr. Alex. Moore, in which he told Mr. Moore that he wanted the marriage to end all the trouble; that the action against the sheriff was not of his instigation, and that he did not want it, but that it was at the instigation of his father and Mr. Hovey.
    Mr. Hovey testified that he paid out for the habeas corpus proceedings the sum of |4.13, and that he charged the plaintiff for his services $50. He also testified that he had books of account, had this charged in them, and upon request he brought his books into court, but then refused to produce them. Plaintiff recovered a verdict of six cents.

      Hovey & Stockwell, for appellant.

      Avery Bros. & Walsh and Cady & Crandall, for appellee.
   Grant, J.

(after stating the facts). There are 52 assignments of error. We will mention and dispose of those we deem of sufficient importance to discuss.

The court instructed the jury that the crime of seduction is a felony, and that, under the undisputed evidence, the arrest of the plaintiff by the defendant without a warrant was justifiable, and that the facts placed before defendant justified him in believing that plaintiff was guilty of the crime. That he was in fact guilty is established beyond controversy. The instruction was correct.

Plaintiff, however, contends that, though the arrest was legal, the unlawful detention made defendant a trespasser ab initio. The rule invoked has no application to this case. That rule is applied to cases where the legal arrest is used as a cover to subsequent illegal conduct. There is no evidence in this case even tending to show that the arrest was made with any intent to detain plaintiff an unreasonable time, or to do him any other wrong. In such case the legality of the arrest is not tainted by the subsequent illegal detention. Taylor v. Jones, 42 N. H. 25; Page v. De Puy, 40 Ill. 506; Griel v. Hunter, 40 Ala. 542.

The court instructed the jury that the discharge of the plaintiff on habeas corpus proceedings was a-final adjudication that the detention was illegal. Plaintiff’s counsel insist that it also was conclusive that the arrest was illegal. No testimony was taken upon that hearing. The petition of plaintiff’s father for the writ of habeas corpus averred that two justices of the peace had offices within 100 feet of the jail, and that plaintiff had been detained during that time without bail, and without being brought before a magistrate having authority to admit to bail. No claim is made in the petition that the arrest was illegal. The return of the defendant to the writ stated the circumstances of the arrest. It was also shown by parol evidence — no order of the circuit judge being found — that plaintiff was discharged from custody because he had been detained for an unreasonable length of time. It seems clear that, under these circumstances, the discharge was not and could not have been based upon the illegality of the arrest, and that plaintiff’s father did not ask for his discharge upon that ground. It follows that the instruction of the judge was correct. It was also competent to show the reason on which the discharge was based.

Plaintiff’s subsequent admission of guilt was admissible in mitigation of damages.

Error is assigned upon the refusal of the judge to instruct the jury to allow plaintiff as damages the cost of the habeas corpus proceedings, amounting to- $54.13. The request was properly refused. There was testimony that the plaintiff had no hand in bringing that suit; that it was brought by his father; and that he desired his marriage with the girl to end all litigation growing out of the affair, including this suit. The court instructed the jury that, if the attorneys were employed by plaintiff either expressly or impliedly, they should include those expenses in their verdict. The evidence justified the instruction.

Complaint is made that the attorney for the defendant, in his árgument to the jury, used language not justifiable by the record. The entire argument of the attorney is printed in the record. We find nothing in it to condemn. A confessed seducer was asking damages because he was detained in jail two days without being brought before a magistrate. The occasion and the facts justified severe criticism.

We find no error in the record, and the judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    CROPSEY v. JOHNSTON.
    1. Wills — Powers op Trustee — Collusion —Investment op Trust Funds.
    A will bequeathing to testator’s son §5,000 in cash arising from the former’s property, “such as windmill stock or any other source,” to be controlled by a trustee for said son, a specified amount, whether arising from dividends on said stock or from money at interest, to be paid to him annually, did not give the trustee, who received the fund in cash, a right to purchase windmill stock from another son, by connivance and collusion with him, at a price in excess of its value.
    2. Trusts — Misappropriation op Funds — Payment op Fund Into Court.
    Where a legatee, entitled to the income of a trust fund, filed a bill against the trustee, making the persons entitled to the principal after the death of the first-named legatee parties, who by their answer consented that the court should appoint some suitable person as trustee, and complainant died pending the suit, which was revived in the name of his executor, it was competent for the court, on finding the trustee guilty of misappropriating the fund, to decree that the fund should be paid into court, subject to a further hearing and adjudication.
    Appeal from Kalamazoo; Adams, J.
    Submitted April 8, 1904.
    (Docket No. 23.).
    Decided June 25, 1904.

      Bill by Jesse R. Cropsey, executor of the last will and testament of Melvin Williams, deceased, against Frank P. Johnston, trustee, Malcolm B. Williams, and others, for an accounting. From a decree for complainant, the above-named defendants appeal.
    Affirmed.

      Jesse R. Cropsey and Dallas Boudeman, for complainant.

      A. M. & C. H. Stearns (William G. Howard, of counsel ), for appellants.
   Hooker, J.

The bill in this cause was filed by Melvin Williams, who died pending the litigation, and the proceeding was revived in the name of Cropsey, his executor, and continued in his name.

Melvin Williams was one of several children of Bradley S. Williams, a wealthy resident of Kalamazoo. Melvin Williams, a son, was poor, and a veteran of the Civil War between the United States and the late Southern Confederacy. Bradley S. Williams was owner of a large amount of the capital stock of the Williams Manufacturing Company, a corporation engaged in the manufacture of windmills at Kalamazoo, at the time of his death. He died in 1893, leaving a will, which was duly probated.

It contained the following provisions, viz.:

“Seventh. I give, devise, and bequeath to my son Melvin Williams five thousand dollars in cash arising from my property, such as windmill stock or any other source, to be held and controlled by Frank P. Johnston, trustee, for the benefit of said Melvin Williams. I also give and bequeath to my son MelviD Williams all notes and obligations that I hold against him, and the interest accruing from the same, amounting at this date to about $6,300.
“ I hereby appoint Frank P. Johnston, of Kalamazoo, Michigan, my trustee for the purpose of handling and taking care of the five thousand dollars which I have hereby devised and bequeathed to my son Melvin Williams. The dividends arising from my windmill stock, or money at interest, he shall pay over and deliver annually to my son Melvin Williams, from year to year, so long as he shall live, three hundred and fifty dollars, arising from said interest or dividend money, less the cost for doing the business ; and at his death the said five thousand dollars I direct shall be by him, the said Frank P. Johnston, trustee, conveyed, assigned, and turned over to Mary Williams, former wife of my son Melvin Williams, and to her children by the said Melvin Williams, namely, Lottie Williams, Burt Williams, Homer Williams, and Maud Williams, so to be held and owned by them share and share alike. ”

Frank P. Johnston received the sum of $5,000 under the provision, and the bill is filed to compel him to account, and respond for a misappropriation of the fund.

Malcolm B. Williams was a son, and Homer Manvel the executor, of Bradley S. Williams. On May 15,1894, Homer Manvel, as executor, gave to Johnston, as trustee, a check for $5,000 in payment of the amount provided by the will. Johnston immediately indorsed this check and gave it to Malcolm B. Williams in payment for stock in the windmill company, which the parties now claim that Johnston bought as an investment with the fund, receiving back a small balance of $250. From that time to the death of Melvin Williams, he paid but a fraction of the installments provided by the will to him; claiming that the money was invested in windmill stock, and was not paying dividends. Melvin during this time was in poverty, supported at the Soldiers’ Home in California, and appealed to Johnston often for money. The evidence shows that, at the time of this transaction, the windmill business was not doing well, and the conclusion is irresistible that Malcolm took advantage of his brother, with the connivance of Johnston; getting $5,000 in cash, or thereabouts, in exchange for his depreciated stock.

The court found that the purchase of this stock was without authority of law, and void as to Melvin Williams and his family, and it was adjudged that Malcolm B. Williams account for and pay to the complainant, the executor, as the income of the sum of $4,750 (the exact amount paid for the stock), interest thereon at the rate of 6 per cent, per annum from July 15,1894, to December 5, 1902 (that being the date of the death of Melvin Williams), with interest upon yearly installments after due, less a credit for such sums as had been paid to said Melvin Williams, with interest thereon as aforesaid; the balance found to be due to said complainant being $2,736.98.. It was further ordered that the principal sum of $4,750 be paid by Malcolm B. Williams to the register, with interest from December 5, 1902. It was also ordered that defendant Johnston pay similar interest upon the sum of $250 (the remainder of said fund), less fees in said decree determined at $134.58, and to pay to the register said sum of $250, with interest. The disposition of the moneys ordered to be paid to the register was made a subject for further hearing and adjudication. It was further ordered that, upon compliance with the decree by Williams, Johnston should reassign the stock to him. Johnston and Williams have appealed.

Counsel make an elaborate argument in support of the right of Johnston, the trustee, to make the purchase of stock for Melvin, but admit in their brief that, if there was collusion between the appellants to defraud Melvin, there would be a liability, unless barred by laches or the statute of limitations. We are unable to construe this will in accord with defendants’ contention. It provided for a legacy in cash, and contemplated the sale of windmill stock, of which the testator had considerable, or other property, if necessary. He endeavored to assure the payment of a $350 annual income to Melvin, whether it should arise from interest or dividend money. From this it is urged that he must have contemplated that the trustee would purchase windmill stock with the fund, and. he did this; paying more than the stock was appraised at, instead of letting Melvin have stock from the estate at the inventory price. If it be conceded that the trustee might have used the fund by investing in stocks of any kind, we are of the opinion that the evidence indicates undue thrift on the part of Malcolm, and that, by permitting him to .unload a large block of stock upon bis brother at an exorbitant price* Johnston was á participant in the wrong. Both had an intimate knowledge of the affairs of the company, and were in a position to anticipate the inevitable consequence of depreciation. We think advantage was taken of this brother, and that the decree is a just one, and that, under the circumstances of this case and the state of the record* there is no occasion to discuss the questions of laches and statute of limitations.

It is claimed that the original complainant was not interested in the disposition of the principal of the fund, and that the court should not have made a decree regarding it. Assuming that the appeal properly raises this question, we think the bill and the answers of the parties who> claim to be entitled to this fund justify the court in taking this fund into its custody for such disposition as law and justice may require, and for such persons as may show their right to it, under the prayers of the consent of these parties, who are, apparently without dispute, to be the residuary legatees.

The decree is affirmed, with costs.

Moore, C. J., Carpenter and Montgomery, JJ., concurred. Grant, J., did not sit.


author: Grant, J.

text:
    SMITH v. JACKSON & BATTLE CREEK TRACTION CO.
    1. Highways — Street Railways — Additional Servitude.
    The use of the highways by street-railway companies is a legitimate use of the highways, and does not create an additional servitude.
    2. State and Territorial Roads — Legislative Control — Street Railways.
    The legislature has control over State and Territorial roads, and may authorize the construction of street railways over them.

      3. Same — Township Boards — Highway Commissioners.
    The provisions of 2 Comp. Laws, § 6446, authorizing the construction of street railways over the streets and highways of any township upon such terms and conditions as may be agreed upon by the company and the township board, are broad enough to include State and Territorial roads, and it is ■unnecessary .to obtain the consent of the highway commis•sioner to the construction of a street railway over such roads.
    Appeal from Calhoun; Hopkins, J.
    Submitted April 8, 1904.
    (Docket No. 193.)
    Decided June 25, 1904.
    Bill by David A. Smith, highway commissioner of Marengo township, against the Jackson & Battle Creek Traction Company, to enjoin the maintenance of an electric railway. From an order sustaining a demurrer to the bill, complainant appeals.
    Affirmed.
    The following are the allegations and prayer of the bill filed in this case:
    1. That complainant is the present highway commissioner, and has been highway commissioner since April 14, 1903, and that he has custody, charge, and control of all State and Territorial roads running through the township.
    3. That the defendant is a Michigan corporation (not stating under what particular law it is incorporated).
    3. That on July 18, 1901, the township board granted a franchise to William A. Foote, his associates, assigns, etc. The proceedings of that board are set up, and show that all the members of the board were present, and that the xesolution granting the permission • was unanimously adopted. The permission is set up at length, and grants the right to construct and operate a street railway in and through such of the highways and public places of the •township of Marengo as may be necessary in building a certain line. Section 3 of the original ordinance provides that, where the track was laid in the highway, it should be laid as near as possible to the outside line of the highway. It also provides that the construction of the railway shall be under the supervision of the highway comxnissioner. Section 4 provides for the use of electric power. Section 5 provides that cars shall be stopped at all convenient points.
    4. Section 1 of the grant of permission was afterwards,, and on October 3,1901, at a meeting of the township board,, at which all the members of the board were present, and by a vote of a majority of the board, amended so as to provide that, commencing at a point in the east limits of the-city of Marshall, the road should run along the center of State street, or the Territorial Road, across the west part of section ¿0, to the point where the Duck Lake Road intersects. By the amendment the grantee was also permitted to build the railway on a private right of way adjacent to the road, and for that purpose to cross any intersecting highways.
    5. That the grantee and his associates proceeded to organize themselves into a corporation under the style of the Calhoun County Railway Company, and use the powers, privileges, and authority granted by the township board.
    6. That they graded and constructed their roadbed along the route as set forth in the amended franchise.
    7. That the franchise, granted by the township board purports to grant authority to construct and operate a street railway in and along the center of the Territorial Road from the east limits of Marshall across the west part of section 30, and then along the north side of the road to the east line of the township.
    8. That the Territorial Road mentioned was laid out and established by the Territory of Michigan, previous to her admission as a State.
    9. That no application was ever made to complainant or to the board of supervisors of Calhoun county for permission to build the road over the route specified, nor was. any such permission granted by complainant or by the board of supervisors.
    10. That, under the laws of Michigan, the town board of the township of Marengo has no jurisdiction of State- and Territorial roads, and that the grant of a franchise to construct, etc., a street railway in the highway known as the “Territorial Road” was without authority, and a mere nullity, and conferred no right on the grantee; that the township board was usurping the jurisdiction and authority vested in the highway commissioner.
    11. That the electric railway, as constructed along the center of the Territorial Road across the west part of seetion 30, has rendered the highway dangerous and unsafe for travel; that the road .is only of the width of-feet, and is one of the principal thoroughfares leading into the city of Marshall; and that the railway, running through the center of the highway without any rights therein, is a great menace to the safety of the residents of the township of Marengo and others, and damages complainant, as highway commissioner, to the amount of $1,000.
    12. That the complainant has requested said Foote and said Calhoun County Railway Company to abandon the franchise granted by the town board, and to make application to the proper authorities for the granting of such franchise, and has furnished them, through his solicitors, a law brief on the validity of the franchise.
    13. Shows a conveyance of the rights of the Calhoun County Railway Company to the defendant in this suit.
    14. That, unless restrained, the defendant will continue to run and operate its railroad in and along the Territorial Road, and the same will be a continuous nuisance to complainant as highway commissioner, and will cause continuous and irreparable injury.
    The prayer for relief is that the franchise granted by the township board may be set aside and declared null and void, and delivered up to the court to be canceled; that the defendant be perpetually enjoined from maintaining any electric or other railway in, upon, through, or across any part of the Territorial Road within the township of Marengo.
    To this bill the defendant demurred for the following reasons:
    1. That it does not appear that the said defendant and the said Calhoun County Railway Company are or were not corporations organized under chapter 168 of the Compiled Laws of 1897.
    2. That it does not appear that the consent and authority of the highway commissioner of the township of Marengo for the construction and maintenance of the railway mentioned in said bill of complaint has not been expressly granted and conferred on said William A. Foote and on the Calhoun County Railway Company, in said bill mentioned.
    3. That it appears by the said bill of complaint that due power and authority has been granted to the said William A. Foote, the Calhoun County Railway Company, and the defendant herein for the construction, maintenance, and operation of the railway mentioned in said bill of complaint.
    4. That it does not appear how or in what manner the construction of said railway has rendered the highway dangerous and unsafe for travel, or how or in what manner the said complainant or the residents of Marengo have been damaged to the amount of $1,000, or in any amount.
    5. That the said bill of complaint does not set forth such facts and circumstances as entitle the complainant to the relief prayed for in said bill of complaint.
    6. That the said bill of complaint does not set forth any such facts and circumstances as entitle the said complainant, in his capacity as highway commissioner or otherwise, to any relief in this court.
    The court sustained the demurrer.

      Hatch & Page, for complainant.

      Mechem & Bailey, for defendant.
   Grant, J.

(after stating the facts). While the bill does not allege the act under which the defendant was organized, we must assume that it was organized under chapter 168 of the Compiled Laws of 1897, being an act to provide for the formation of street-railway companies. That act provides that any company may construct and maintain a street railway in and along the streets and highways of any township upon such terms and conditions as may be agreed upon by the company and the township board. 2 Comp. Laws, § 6446. Under this authority of the legislature, the township board and the company agreed upon terms, a franchise was granted, the road constructed and in operation when this bill was filed. The bill does not set up any facts tending to establish the construction and use of the road along the highway in question as a nuisance in fact. The use of public highways by street-railway companies is now recognized as a legitimate use of the highways, and does not create an additional servitude. Austin v. Railway, 134 Mich. 149 (96 N. W. 35), and authorities there cited. There is no claim in the bill or in the briefs of counsel that the defendant’s railway is constructed in any other than a legitimate and proper manner, or that it obstructs travel upon the highway, or that it is not beneficial to the public in affording commodious and expeditious means of travel. The sole claim of the complainant is that, because the defendant did not procure the consent of the highway commissioner of the township, therefore the existence of the road is a nuisance per se.

The franchises granted to the defendant evidently provided for the construction of its road along this short piece of the Territorial highway within the township limits. There is no allegation that additional expense is caused to- the township or to the highway commissioner, in the care and control of the highway, on account of the construction and use of the street railway. The bill alleges that it was to be constructed under the supervision of the highway commissioner. It is to be presumed that the highway commissioner did his duty, and supervised the construction of the road in accordance with the terms of the franchise. Now, after the road has been so constructed under the supervision of the commissioner, and at very great expense, he seeks to virtually destroy it, and that, too, without showing that the public is in any way injured or the way obstructed. Such a proceeding would be most inequitable and unjust. We deem it unnecessary to enter into a discussion of the powers of the highway commissioner and of the board of supervisors over these Territorial roads. Neither is it necessary to determine whether the complainant is now estopped to complain by reason of the assent of his predecessor in office. It is sufficient to a determination of the case to say that the legislature has control over the State and Territorial roads, and may authorize the construction of street railways over them. It has so authorized the construction of these railways along the highways of the townships upon such terms and conditions as the town-, ship and the company may agree upon. We think the authority thus conferred is broad enough to include the State and Territorial roads within the territory of the township, and for whose condition the township is responsible. The highway commissioner has nothing whatever to do with the granting of these franchises. No power in connection therewith is imposed upon him by statute. His sole power is to see that the roads are opened and kept in repair in the same manner as township roads. 2 Comp. Laws, § 4067. If the highway is obstructed to the detriment of the traveling public, he undoubtedly is the proper person to complain, and to take steps to remove or prevent the obstruction. Beyond this power, he has none other.

Decree of the court below is affirmed, with costs.

The other Justices concurred.


text:
    BIGELOW v. STEARNS.
    Covenants — Taxes—Guaranty op Payment.
    Defendants conveyed by warranty deed to plaintiff’s intestate land against which, there were outstanding tax liens. Defendants’ grantor, recognizing his liability for the taxes, deeded to the intestate a house upon which there was a mortgage, as security for the payment of the taxes. The rents of the house were absorbed in interest, repairs, and taxes. Subsequently the house was conveyed to the mortgagee, and plaintiff realized nothing from it. The intestate, at the time such security was taken, also secured from defendants a written guaranty that the taxes should be paid in any event. Held, that the evidence justified the direction of a verdict for plaintiff, in an action to recover the amount of the taxes.
    Error to Wayne; Donovan, J.
    Submitted April 12,. ,1904.
    (Docket No. 35.)
    Decided June 25, 1904.

      Assumpsit by Ida H. Bigelow, administratrix of the estate of Lewis Bigelow, deceased, against Samuel Stearns and others, for the breach of a covenant against incumbrances. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Affirmed.

      Jay Fuller, for appellants.

      William S. Thomas, for appellee.
   Hooker, J.

The defendants, being owners as tenants in common of certain premises, sold and conveyed them to plaintiff’s intestate by warranty deed. It was after-wards ascertained that there were outstanding tax claims against them, and the plaintiff’s intestate, Mr. Bigelow, called upon the defendants to take care of them. They recognized the justice of this. They had purchased the property from one Holcomb, and they, together with Bigelow, had an inteiwiew with him. He appears to have recognized his liability for the taxes, and agreed to fix it for defendants. Several interviews were had between Bigelow and Holcomb. An arrangement was finally made whereby Holcomb made a bargain under the terms of which he was to deed to Bigelow a house, subject to a mortgage of $4,800, taking a contract back that if ho (Holcomb) should pay the taxes, amounting to $416, he should deed the property back. Bigelow collected rents from the property, but they were absorbed by repairs, taxes, assessments, etc. Plaintiff or her intestate was obliged to pay the taxes referred to. The property, not paying the interest on the mortgage, was conveyed to the mortgagee* and plaintiff never realized anything from it.

At or about the time the security was taken, the defendants executed Exhibit I, reading as follows:

‘ ‘ Whereas, Stearns Bros, have deeded to Louis Bigelow Lot 1 and N. \ L. 4 on Fourth ave.; and whereas, there are unpaid taxes of 1891 and 1892 of $416, which belongs to Henry W. Holcomb to pay, and he, being unable to pay same, has given a deed to Louis Bigelow to secure same* of property on Greenwood avenue; but in any event we, Stearns Brothers, will guarantee that said taxes are paid and Bigelow shall suffer no loss.
“Also that the barn on property we deed stands all on the land deeded.
“ Stearns Bros.,
“ Per Isaac Stearns.”

A verdict was directed for the plaintiff, and we think the testimony in the cause justified such direction.

The other Justices concurred.


text:
    KOPS BROS. CO. v. SMITH.
    1. Sales — Bona Fide Purchaser — Consideration—Indebtedness.
    One who takes goods in payment of a past-due indebtedness will not be protected against a defect in the title of his ven- ' dor on the ground that he is a bona fide purchaser.
    3. Same — Agency—Credit.
    In the absence of authority conferred, or a valid usage, an agent cannot sell property on credit.
    3. Same — Fraud—Evidence.
    Plaintiff consigned pianos to its agent for sale on commission to persons desiring to use them in their homes. The agent sold them on credit, without security, to an insolvent trader, who two days later transferred them to defendant in part payment of an indebtedness. Plaintiffs name was on the pianos. The agent and trader attempted to conceal from plaintiff the fact that defendant had them. In replevin for the pianos, held, that there was sufficient evidence of fraud to justify the submission of the question to the jury.
    Error to Wayne; Frazer, J.
    Submitted April 14, 1904.
    (Docket No. 62.)
    Decided June 25, 1904.
    Replevin by Kops Brothers Company against Stephen B. Smith, doing business as S. B. Smith & Co. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.
    The plaintiff in this case is a corporation of the State of Illinois, and carrying on the business of selling pianos, with head offices in the city of New York and a branch office in the city of Chicago. D. S. Horwitz was traveling agent for the plaintiff. His duties were selling pianos, appointing agents, and selling pianos to dealers. While in Carson City, Mich., about the month of August, 1901, he met one Louis J. Morey, who at some time previous had been employed selling pianos by one J. T. Mc-Ginn, a dealer at St. Louis, Mich. After some negotiations with said Morey, Mr. Horwitz agreed to consign some pianos to him, Morey signing the contracts therefor.
    On October 7th, Morey made an arrangement with Mc-Ginn to sell him one of the pianos, which Morey said he had shipped to Alma with the intention of selling it. The trade was consummated, and McGinn gave plaintiff his note on four months’ time". About a week afterwards, Morey and McGinn entered into an agreement by. which Morey was to work for McGinn, and transfer the other two pianos, which had been consigned by the plaintiff, to McGinn, taking McGinn’s notes therefor on six months’ time. Morey forwarded these notes to plaintiff, assuring it that they were perfectly good. The plaintiff refused to accept the notes, returning them to Morey, who continued to try and have plaintiff accept the notes upon his assurance that they were good. Plaintiff each time returned the notes with a demand for cash according to the terms of the contract.
    J. T. McGinn had been selling pianos for defendant for several years, and at this time, after returning to Mr. Smith all the pianos he then had that he received from him, was indebted to defendant in the sum of $1,180. On the 16th day of October — two days after McGinn had received the pianos in question from Morey — he (McGinn) transferred the pianos, together with organs, a horse, notes received on pianos, and his own note, secured by a chattel mortgage on his household effects, to defendant in settlement of his (McGinn’s) account with said defendant.
    Mr. Horwitz, representative of plaintiff, called on Morey, and together they called on McGinn. McGinn did not tell what he had done with the pianos, but spoke as though he intended paying for them. After some discussion McGinn agreed to give his note, but refused to sign the note prepared by Mr. Horwitz. Morey, who was present when the transfer took place from McGinn to defendant, and at this time in the employ of McGinn, did not acquaint Mr. Horwitz with the facts and circumstances. Mr. Horwitz learned that the pianos had been shipped to Detroit, where he went, and found two of the pianos in the possession of defendant. Mr. Horwitz made a demand for the pianos. The defendant refused to give them up, claiming he had bought them, and plaintiff brought an action in replevin to recover the same.
    The agreement between plaintiff and Morey was as follows:
    “Received of Kops Brothers Company, Chicago, 111., on consignment, one Kops Bros. Style 4, Mahogany, No. 46,472, for sale for the account of said company, or its assigns, in the sum of $185. And I hereby agree to remit forthwith to the Kops Brothers Company, or its assigns, at its Chicago office, the proceeds of the sale of said instrument in cash in the above specified sum. It is understood that I hold the above-described instrument subject to the order of the Kops Brothers Company, or its assigns, free of expense, charges, or costs to it of any kind whatever.
    “ I hereby guarantee the said Kops Brothers Company against loss or damage of any kind on said instrument while in my possession or in my charge.
    “In making sale of said instrument I agree that my compensation and commission hereunder shall be the sum at which I may sell same in excess of $185.”
    The court directed a verdict for the defendant.

      Charles R. Robertson, for appellant.

      Fred H. Aldrich, for appellee.
   Grant, J.

(after stating the facts). If there was an Infirmity of title to the pianos in the hands of McGinn, defendant could not be considered a bona fide purchaser, as he gave no new consideration for the purchase. The ¡sole consideration for the transfer was a past-due indebtedness. Vincent v. Hansen, 113 Mich. 173 (71 N. W. 488); Schloss v. Feltus, 103 Mich. 525 (61 N. W. 797, 36 L. R. A. 161). The only question, therefore, is, Was there evidence of fraud on the part of McGinn and Morey in the sale and transfer of this property? The goods were consigned by plaintiff to Morey for sale. Until sold by Morey, the title remained in plaintiff. When a piano was sold by Morey, as between plaintiff and him the transaction was for cash, and Morey was under obligation to remit cash therefor. In the absence of authority conferred, or a valid usage, an agent cannot sell property on credit; the sale must be for cash. Mechem, Agency, § 353; Burks v. Hubbard, 69 Ala. 379.

Whether, under the contract, Morey was authorized to sell upon credit, we need not determine. It made no difference to plaintiff whether Morey sold for cash or credit, if Morey paid cash on making a sale. McGinn was in the same business as Morey, and received pianos from defendant for sale. They were consigned to him for sale on what defendant termed “consignment contracts,” but the precise terms and conditions are not stated. It is a common method of carrying on business in property of this character. The sales by Morey to Mc-Ginn were not made in the usual course of trade by Morey. Morey received the pianos for sale to customers who desired to purchase for their own home use. Instead he sold them on long terms to an insolvent trader in the same business, without any security, or any attempt to protect plaintiff. McGinn was in debt to his employer to the amount of $1,180, and could not pay. The name of plaintiff as maker was upon these pianos. Whether the circumstances were sufficient to put McGinn upon inquiry as to Morey’s authority to sell to him was a question for the jury to consider in determining the question of fraud. Morey knew that plaintiff was under no obligation to take McGinn’s notes, and that it was entitled to receive cash. Within two days after the alleged transfer by Morey to McGinn, McGinn turned the property over to defendant in part payment of his indebtedness. Without entering into details, the conduct of Morey and McGinn, when-plaintiff’s agent attempted to ascertain where this property, was, and to get it back, showed an intent to deceive the plaintiff. We think there was sufficient evidence of fraud, to justify the submission of the question to the jury. If the transaction was fraudulent, then the plaintiff was entitled to recover. If fraudulent, defendant’s claim against McGinn is the same that it was before the transfer to him. Neither law nor justice permits a creditor to be paid with goods which his debtor has obtained by such fraud as will vitiate the title between the original vendor and vendee.

The judgment is reversed, and new trial ordered.

The other Justices concurred.


author: Carpenter, J.

text:
    SHANE v. SHEARSMITH’S ESTATE.
    1. Estates of Decedents — Compensation for Services — Evidence.
    Statements by a person, since deceased, to the effect that plaintiff, who was in his employ, understood that he was to be rewarded in the end, that he (deceased) had promised to leave the business with plaintiff, and that plaintiff knew well enough what he was working for, are sufficient to justify a finding that decedent agreed to compensate plaintiff for his services by leaving him the business.
    2. Same — Claims—Breach of Contract — Damages.
    The failure of a person to compensate an employé for his services by leaving, at his death, a business to the employé, as had been agreed upon, entitles the employé to recover the value of his services as a claim against the estate.
    3. Master and Servant — Monthly Payments op Wages — Evidence.
    The acceptance of a certain sum at regular monthly periods for services is not conclusive that the amounts received were in full compensation for the services.
    4. Same — Extra Compensation — Instructions.
    Where, on the trial of a suit against an estate for a balance due as wages, the court charged the jury that “an express agreement must be found before any additional compensation can be given,” it was unnecessary to give a request that “the fact that the business of decedent increased under claimant’s management is no evidence that deceased promised to pay claimant more than the wages he was receiving.”
    5. Same — Value op Services — Harmless Error.
    The admission of incompetent testimony as to the value of claimant’s services was not reversible error, where there was competent testimony, and the jury could not have rendered a smaller verdict under the evidence.
    Error to Sanilac; Beach, J.
    Submitted April 12, 1904.
    (Docket No. 31.)
    Decided June 25, 1904.
    Kiorison Shane presented a claim against the estate of John Shearsmith, deceased, for services rendered. The claim was allowed by the commissioners, and defendant appealed to the circuit court. • From a judgment there for claimant, defendant brings error.
    Affirmed.

      Avery & Walsh and John S. Crandell, for appellant.

      W. H. Witt and W. H. Burgess, for appellee.
   Carpenter, J.

For several years before the death of deceased, plaintiff had been in his employ, engaged in managing a hardware and furniture store at Brown City, in this State. During this time he was paid wages, — part of the time $30 per month, and part of the time $35 per month. It is plaintiff’s claim that his services were worth much more than he received; that they were rendered under an express contract between decedent and himself that he should receive additional compensation by bequest in decedent’s will, or by some interest in his business before he died; and that, as this additional compensation was never paid, he is entitled to recover the extra value of his services. This claim was presented to the commissioners on claims. They allowed the same at the sum of $1,000. An appeal was taken to the circuit court, where the case was tried before a jury, and a verdict and judgment obtained by plaintiff for $500.

The principal ground upon which it is contended that the judgment should be reversed is that there was no evidence which justified the jury in finding that the alleged express contract was in fact made. There was testimony that decedent stated that he could “hardly get along” without Shane, “* * * but he [Shane] understands that he is to be rewarded in the end; * * * ” that he was “fortunate” in having “a good shopkeeper, as Mr. Shane is, here, and a good buyer and a good seller; * * * ” that he “had promised to leave the hardware with Mr. Shane, or with Riorison. * * * Riorison keeps things up in good shape, because he knows well enough what he is working for.” One would infer from this testimony that decedent recognized the great value of plaintiff’s services, and had agreed to compensate him by leaving him the hardware. The failure to perform that contract entitles plaintiff to recover in this suit. See In re Williams' Estate, 106 Mich. 503 (64 N. W. 490), and cases there cited.

It is contended that a verdict should have been directed for the defendant estate because it conclusively appeared that plaintiff accepted the amounts paid him as full compensation for his services. The jury might infer from the testimony introduced on the part of the plaintiff that, when plaintiff received pay for his services, he did so under the agreement that he should receive additional compensation under the contract heretofore referred to. In other words, the inference' might well be drawn that the money paid to plaintiff was not in full compensation for his services.

Defendant preferred this and other similar requests:

“ The mere fact that the business of deceased did increase is no evidence that the deceased promised to pay claimant anything more than the wages he was receiving.”

We think the court sufficiently covered the points presented by these requests when he charged the jury that “an express agreement must be found before any additional compensation can be given.”

It is contended by defendant that some of the testimony introduced by plaintiff to prove that his services were worth more than the amount paid him was incompetent, and improperly admitted. Assuming this contention to be sound, it nevertheless does not constitute reversible error, because plaintiff did introduce competent testimony on this issue which was not controverted by defendant, and the jury could not, according to this testimony, have rendered a smaller verdict than they did. In short, it is clear from the record that defendant was not harmed by the introduction of the evidence under consideration.

We do not think that the record shows any reversible error, or that there is any other question that demands discussion.

The judgment is therefore affirmed, with costs.

The other Justices concurred.


text:
    BROWN v. FOSTER.
    "1. Partnership — Authority oe Partner — Contracts. »
    A member of a partnership engaged in selling farm implements, and in the sale of threshing machines on commission, who, by the articles of copartnership, was to have charge of 1 the “canvassing part of the business,” the other members to “look after the buying and selling of stodk,’-’ could, by reason of his general authority as a partner, bind the firm to an agreement with the owner of machinery that it should not be delivered to a purchaser until the purchase price was secured.
    2. Same — Goods on Consignment — Conversion.
    Where a threshing machine received by a partnership to be-sold on commission was delivered to a purchaser in violation of the terms of the agreement under which they received it,, and was subsequently taken into possession by one of the firm, his possession was the possession of the firm, and its wrongful delivery by him to another was a conversion by the firm.
    3. Sale — Ratification—Conversion.
    A wrongful sale by defendants of a machine consigned to them, by plaintiffs for sale on commission was not ratified by conduct indicating a willingness to let the sale stand if defendants would pay plaintiffs the value of the machine less their commissions.
    4. Same.
    Defendants, having received from plaintiffs a threshing machine for sale on commission, without authority sold it to a person on condition that it should prove satisfactory. It not being satisfactory, plaintiffs offered the purchaser to exchange another machine for it, but the offer was not accepted. Held, that such offer was not a ratification of the sale.
    5. Torts — Waiver—Assumpsit—Bailments.
    Where a bailee, without authority from the owner, turned the property over to another under an agreement that, if it should prove satisfactory, such person would buy it, the owner could, waive the tort, and sue the bailee on the common counts in assumpsit for its value.
    Error to Emmet; Shepherd, J.
    Submitted April 15, 1904.
    (Docket No. 70.)
    Decided June 25, 1904.

      Assumpsit by Frank E. Brown and John Sehler, co-partners as Brown & Sehler, against Frank F. Foster, Cornelius Burke, and William H. Coon, copartners as the Harbor Springs Implement Company, to recover the value of chattels converted. From a judgment for defendants, plaintiffs bring error.
    Reversed.

      Ward & Brown, for appellants.

      Wade B. Smith and Halstead & Halstead, for appellees.
   Carpenter, J.

This case was tried by the court with•out a jury. A finding of facts was made, and judgment rendered for defendants. We state such of said facts as are necessary to a disposition of the legal questions involved.

Plaintiffs are copartners engaged in the business of selling machinery at Grand Rapids, Mich. Defendants were ■copartners engaged in selling farm implements at Harbor Springs, Mich., under the firm name of the Harbor Springs Implement Company. Their business was the sale of farm implements, but it did not include the buying and selling of threshing machines, and no such machines were in fact sold except on commission. Some time after the formation of the partnership, plaintiffs stated to defendants that they would pay 20 per cent, commission if the defendants would procure a customer to whom they ■could sell a threshing outfit. The articles of copartnership between defendants contained this clause:

“The said W. H. Coon is to give his undivided time and attention to the said business, and is to have general charge of the canvassing part of said business. The said Frank F. Foster and Cornelius Burke are to look after the buying and selling of stock, to the keeping of the books of account, and the store work generally.”

Before the transaction hereinafter set forth, defendant Foster notified plaintiff Brown of the substance of the foregoing clause.

On the 24th of August, 1900, defendant Coon and one Frank Gillespie met plaintiff Brown at Grand Rapids. Said plaintiffs and said Frank Gillespie, who acted for himself and assumed to act for his father, John Gillespie, entered into a written agreement whereby plaintiffs sold ■and said Gillespie purchased a steam threshing outfit for ;#650; $100 cash (which had been deposited with defendants), and the payment of the balance to be secured by a mortgage upon certain chattels and a mortgage on the home farm of John Gillespie. Said Frank Gillespie signed the name of “John Gillespie Sons,” but he had no authority whatever to bind his father, John, by this agreement. Said Coon, in the name of the defendant partnership, signed a writing guaranteeing “the settlement for said machinery just as agreed by the son.” It was verbally agreed at this time between plaintiffs, defendant Coon, and Frank Gillespie that said Coon should go with said Gillespie to Beaver Island, where the latter lived, and procure the signatures to the necessary papers, and complete the settlement agreed upon, before the-machinery should be shipped to Beaver Island from Harbor Springs. Notes and mortgages were prepared in accordance with this contract, and the notes and chattel mortgage signed by Frank Gillespie, and a real-estate mortgage was prepared to be executed by John Gillespie and wife on John’s home farm, and all of these securities were delivered to defendant Coon to be taken to Beaver Island to obtain execution thereof by John Gillespie and wife. The machinery was immediately shipped by railway to Harbor Springs, billed, “Frank and John Gillespie.” Frank Gillespie took the machinery from the railway company at Harbor Springs (Coon advancing from, defendants’ funds money to pay the freight), and carried the same to Beaver Island. John Gillespie, however, refused to carry out the proposed arrangement. Defendant Coon soon afterwards arrived at Beaver Island, and, upon learning of John Gillespie’s refusal, assumed charge of the machinery. Assuming to act for plaintiffs, and without authority, he turned the same oyer to one Gallagher, under the arrangement that, if the power proved satisfactory, Gallagher should purchase the same for $600. Gallagher paid $80 to apply on his’ purchase, and used the threshing outfit during that season, but the power proved unsatisfactory, and the sale to him never has been consummated, though the machinery continues to remain in>. his possession.

The learned trial judge gave judgment for the defendants on the ground that the plaintiffs were not entitled to recover under their declaration, and also on the ground that the acts and dealings of Coon with Gallagher created no liability enforceable against defendants Foster and Burke. "We will examine each of these questions separately, and in inverse order.

First. Was the partnership composed of the three defendants responsible for Coon’s action in turning the machinery over to Gallagher? We think the verbal agreement made between defendant Coon, as the representative of his partnership, the plaintiffs, and Frank Gillespie, that the machinery should not be shipped from Harbor Springs to Beaver Island until the securities were obtained, created an obligation binding upon the defendant partnership. Though the business of the copartnership did not-include the buying and selling of threshing machines, it is a necessary inference from the findings that those were sold on commission. While the articles of copartnership gave defendant Coon “ the general charge of the canvass ing part of said business,” and made it the duties of defendants Foster and Burke “to look after the buying and selling of stock,” we cannot presume that the general authority of the defendant Coon, as a copartner, was not sufficient to authorize him to make arrangements inspecting threshing machines to be sold on commission. He had, in our judgment, as the representative of the defendant partnership, sufficient authority to agree with the owner of goods to be sold on commission that they should not be delivered to a purchaser until payment of the purchase price was secured. If it were otherwise, proper arrangements between owners of goods and agents who sell on commission could not be made. Is the rule changed by the circumstance that the outfit in question was shipped in the name of the Gillespies? I do not think so. By verbal arrangement between defendant Coon, Frank Gillespie, and the plaintiffs, Coon had authority to keep the threshing machine in Harbor Springs until this settlement was made. It is true this agreement was not in writing, but I know no provision of law that requires it to be in writing. The Gillespies recognized his authority, and, acting upon it, as he was justified in doing, Coon assumed to control and did obtain the possession of the machinery. Nor can it be said that because Coon permitted the machinery to be taken to Beaver Island contrary to this arrangement, and later took possession of it there, he was not acting under this authority. He had violated this agreement by permitting'Gillespie to take the machinery to the Island, and when he retook possession of the machinery he was taking a step which he was in duty bound to take to protect plaintiffs from the consequences of that violation.

Was this possession of defendant Coon the possession of the defendant partnership? I think we are bound to conclude that it was the intent of this arrangement to obligate the defendant partnership, and not simply defendant Coon, to assume possession of the machinery if the Gillespies failed to make the agreed settlement. And, as we have aready indicated, defendant Coon had authority to bind the defendant partnership by such arrangement. We must conclude, therefore, that when Coon took possession of the machinery, on the failure of the Gillespies to furnish the agreed security, his possession was the possession of the defendant partnership. His delivery of the machinery to Gallagher was the wrongful conversion by defendants of plaintiffs’ property.

It is insisted that plaintiffs cannot recover because they, by their conduct, ratified the contemplated sale to Gallagher. There is certainly no finding of fact that they ratified said sale, but it is insisted that their failure to promptly disaffirm the contract made in their names amounts to a ratification. The most that can be said of that conduct is that it indicates their willingness to let the sale to Gallagher stand if the defendants would pay them the value of the machinery less their commissions. Surely, defendants have no right to say that this conduct amounts to a ratification.

It is also contended that an offer on the part of the plaintiffs, made on the 27th of October, to exchange with Gal-' lagher another engine for the one he had received, amounted to a ratification. We think it clear that plaintiffs made this proposition hoping to satisfy Gallagher, and to induce him to complete his contemplated purchase. Gallagher ■did not accept plaintiffs’ proposition, and the sale was not ■concluded. No one had a right to understand that this proposition was intended to ratify Coon’s sale to Gallagher. If it is true that by this proposition plaintiffs indicated that ■the property had ceased to be theirs, that position is consistent with their present claim, which is that defendants’ action in delivering the property to Gallagher amounted to a conversion.

The suggestion is also made that the action, being brought on the common counts in assumpsit, amounts to a ratification of the sale by Coon to Gallagher, because plaintiffs cannot recover on the common counts except on the theory of such ratification. Our conclusion, as hereinafter stated, that plaintiffs can waive defendants’ conversion, and recover on the common counts, is a sufficient .answer of this contention.

Can plaintiffs waive this tort, and maintain an action of assumpsit ? If they can, they can recover under the declaration in this case, for the common counts in assumpsit are a part of their declaration. When the machinery was delivered to Gallagher, it was in defendants’ possession as agents or bailees of plaintiffs. We think it is settled that, under these circumstances, the owner of the property may waive the tort and recover on the common counts in assumpsit. See Newman v. Olney, 118 Mich. 545 (77 N. W. 9); Tuttle v. Campbell, 74 Mich. 652 (42 N. W. 384, 16 Am. St. Rep. 652).

We think the parties, by their correspondence, have fixed $600 as the value of the threshing outfit, and that ■defendants are entitled to 20 per cent, of this as commission.

We conclude, therefore, that the judgment of the circuit court should be reversed, and that the plaintiffs are entitled to a judgment of $480, with legal interest thereon since September 8, 1900, the date of the sale to Gallagher.

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


author: Carpenter, J. Grant, J.

text:
    MAYNARD v. REYNOLDS.
    1. Trespass — Cutting Trees — Highway—Title.
    Where plaintiff brought an action for trespass in cutting trees located in the highway, he could recover only by proving, title to the land on which the trees stood.
    2. Same — Pleading—General Issue.
    A plea of the general issue in justice’s court, without the notice and bond prescribed by 1 Comp. Laws, §§ 782-786, to a declaration in trespass averring that defendant cut and carried away trees owned by and standing “on the land of” plaintiff, does not admit title in plaintiff. Grant, J., and Moore, C. J., dissenting.
    Error to Newaygo; Palmer, J.
    Submitted April 13, 1904.
    (Docket No. 54.)
    Decided June 25, 1904.
    Trespass quare clausum fregit by Romie Maynard against Wells S. Reynolds. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      E. L. Gray, for appellant.

      W. D. Fuller, for appellee.
   Carpenter, J.

Plaintiff brought this action of trespass in justice’s, court to recover, under section 11204 of the Compiled Laws of 1897, treble damages from defendant for cutting down and carrying off certain pine trees standing on his land. His testimony proved that these trees were located in the highway. Plaintiff could recover only by proving title to the lands on which the trees stood, unless the title was admitted by the defendant. See Ostrom v. Potter, 71 Mich. 44 (38 N. W. 670); Orris v. Kempton, 105 Mich. 229 (63 N. W. 68). The defendant insisted that the pleadings did not admit title in plaintiff, that the justice had no right to determine the question of title, and that it was made his duty, by section 787 of the Compiled Laws of 1897, to at once certify the cause to the circuit court. See Ostrom v. Potter and Orris v. Kempton, supra. This the justice declined to do, but proceeded to try the case, and rendered judgment in favor of the plaintiff. Defendant brought the cause to the circuit court by certiorari, and there defendant’s contention was upheld, and the judgment rendered by the justice was reversed. Plaintiff brings the case to this, court, contending that the circuit court erred. It is obvious that the title to land was in question, unless that title was admitted by the defendant. See Ostrom v. Potter and Orris v. Kempton, supra. The only question, then, is, Did defendant admit plaintiff’s title to the land?

According to section 786 of the Compiled Laws of 1897, “any claim of title to lands made by the plaintiff in his declaration * * * shall be deemed to be admitted by the defendant,” unless he files a bond, and pays fees, costs, etc. As the defendant in this case did not file a bond and pay fees and costs, we must hold that he admitted plaintiff’s title, if that claim was made in plaintiff’s declaration. Was that claim made ? The claim in plaintiff’s declaration is that defendant “did cut down and carry off, without the leave of said plaintiff, the owner thereof, two pine trees of great value * * * then and there being and standing * * * on the land of the said plaintiff.” The statute undér consideration was. adopted by our legislature from the State of New York. In Ehle v. Quackenboss, 6 Hill, 537, it was construed in that State. It was there held: '

“The term ‘title,’ as used in the statute, does not embrace the fact of possession, nor any right founded on possession of land. * * * It is synonymous with the right of possession.”

This decision, and the construction the statute there received, were approved in Vandoozer v. Dayton, 45 Mich., at page 250 (7 N. W. 814). And, in accordance with this principle, we have held that, if the claim set up in plaintiff’s declaration is one which can be proved by possession, the declaration contáins no claim of title, within the meaning of the statute. See Ostrom v. Potter and Orris v. Kempton, supra.

The averment in the declaration in question that the trees were standing “on the land of the said plaintiff” •could be established by proving plaintiff’s possession of the land. This averment is not, therefore, a claim of title. Indeed, it does not materially differ from the averment in Ostrom v. Potter, supra. There the premises were described as “the close of the plaintiff.” Neither does it materially differ from the averment in Orris v. Kempton, supra. There it was averred that the defendant broke and entered “the lands and premises of the said plaintiff.”

It is contended, however, that the averment respecting the ownership of the trees is a sufficient claim of title to the lands to bring the case under the statute. To this I cannot assent. I think a fair construction of this averment is this: That plaintiff owned the trees because they stood “on the land of the said plaintiff;” that is, on land in his possession. And if the trees did stand on land in plaintiff’s possession, he had a right to recover damages for their destruction. See Hoffman v. Harrington, 44 Mich., at page 185 (6 N. W. 225). The question is not what title plaintiff claimed in the trees standing on the land, but what title he claimed in the land on which they stood. When defendant was called upon, as he was, to determine what title plaintiff claimed to the land, he had a right to rely upon what plaintiff stated in his declaration respecting that title. He could not be expected to suppose that it was plaintiff’s intent to enlarge his claim of title to the land by his claim respecting the ownership of the trees growing thereon. In other words, defendant had a right to act upon the assumption that the only title plaintiff asserted to the land was possession. ;

The suggestion is made in plaintiff’s brief “that the title to real estate” did not “arise, because, as soon as the trees were severed from the land, they became personal property.” The answer to this suggestion is that the only cause of action asserted by plaintiff is that of cutting down and carrying off certain pine trees. The gravamen of plaintiff’s complaint is a trespass to his land.

It is also suggested that the form of the declaration is taken from Tiffany’s Justice Guide, p. 639. It is true that the author of this excellent work suggested this form of declaration, and- it is a proper form in the ordinary case where plaintiff is in possession of the lands from which trees are cut and carried away. I am unable to find any evidence that, in suggesting this form, the author intended that it should be used where the plaintiff desired to obtain the advantages of section 786, 1 Comp. Laws, by asserting a claim of title to the land upon which the trees stood. In my judgment, it is clearly inappropriate in such a case.

I think that the judgment of the circuit court should be affirmed.

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

Grant, J.

(dissenting). Plaintiff brought an action of trespass guare clausum, fregit against the defendant, and in his declaration alleged that the defendant did cut down and carry away, without the leave of plaintiff, the owner thereof, two pine trees (alleging value) then and there being and standing as shade and ornamental trees •on the land of the plaintiff (describing it), and claiming three times the amount of damages sustained, under section 11204, 3 Comp. Laws. The summons was returnable July 26th. The justice of the peace returned to the circuit court that the parties appeared on that day; that the above declaration was filed; that the defendant pleaded the general issue, and the case was adjourned until August 9th; that on August 9th the parties appeared, and defendant made a motion that the cause be referred to the circuit court, because title to the.land would come in question ; that defendant, without producing any bond or paying any costs, left the trial; that plaintiff produced proof, and the justice rendered a judgment for plaintiff for $50. In the amended return the justice certified that, after said motion was made, the attorney for the defendant stated that plaintiff might swear one Anderson, a surveyor; that •said Anderson was sworn, and cross-examined by defendant’s attorney; that plaintiff, Maynard,'was sworn, and testified, without objection, that he was the owner and in possession of the land upon which the trees were cut; that •other witnesses were sworn to the same effect; that defendant’s attorney then filed a writing with the justice setting forth that title to the land came in question, and demanded that the proceedings should be certified to the circuit court for trial, and then left the court-room without entering any plea or notice or tendering any bond or paying costs. Application was made for a third return by the justice, and the justice returned that the trees, according to the testimony of Surveyor Anderson, were about 12 feet from the center line of the highway, and on the land of the plaintiff. The case was removed to the circuit court by writ of certiorari, and the judgment reversed.

The sole question is, Should the justice have certified the case to the circuit court for trial, for the reason that title to land was in issue? An action of trespass lies where shade trees are unlawfully cut in the highway opposite the owner of the land. Stretch v. Village of Cassopolis, 125 Mich. 167 (84 N. W. 51, 51 L. R. A. 345, 84 Am. St. Rep. 567). The court below evidently reversed the judgment in the justice’s court in reliance upon Ostrom v. Potter, 71 Mich. 44 (38 N. W. 670), and Orris v. Kempton, 105 Mich. 229 (63 N. W. 68), and held that the declaration did not allege ownership. In Ostrom v. Potter the premises were described simply as “the close of the plaintiff.” It contained no allegation of ownership. In Orris v. Kempton the declaration charged that the defendant “broke and entered the lands and premises of the said plaintiff.” There is no allegation in either of those cases of ownership. In this case the declaration alleges the ownership of the trees “being and standing as shade and ornamental trees on the land of the said plaintiff.” We think this was a sufficient allegation of ownership. It is in compliance with the form prescribed by Tiffany. Tiffany’s Justice Guide, p. 639, form No. 159. The plea of the general issue admitted the title alleged in the declaration, and therefore the only issues were the trespass and the damages. Keyser v. Sutherland, 59 Mich. 455, 465 (26 N. W. 865).

The judgment of the circuit court should be reversed, and the judgment of the justice’s court affirmed, with costs to the plaintiff of the circuit'and Supreme courts.

Moore, C. J., concurred with Grant, J.


author: Montgomery, J.

text:
    BEEBE v. COMMISSIONER OF STATE LAND OFFICE.
    Tax Homestead Lands — Commissioner of Land Office — Certificate — Mandamus.
    Section 131 of the general tax law (Act No. 141, Pub. Act® 1901), requiring the commissioner of the State land office to-issue a certificate showing a homestead entry only when, “in his judgment, the application is made in good faith,” vests in the commissioner a discretion that will not be reviewed on mandamus.
    Mandamus by William C. Beebe to compel Edwin A. Wildey, commissioner of the State land office, to issue a certificate showing a homestead entry.
    Submitted June 7, 1904.
    (Calendar No. 20, 165.)
    Writ denied
    June 25, 1904.

      H. K. Gustin, for relator.

      E. Stenberg (Charles W. McGill, of counsel), for respondent.
   Montgomery, J.

The relator asks a mandamus to> compel the respondent to grant a certificate showing a homestead entry by relator of certain land in town 32 N., range 9 E. The petition avers that the lands had been open to entry as homestead lands for more than three years; that, after this time had elapsed, the auditor general received an application from one Oakes to purchase the land; that, acting under the provisions of section 131 of the general tax law, as amended by Act No. 107, Pub. Acts 1899, and Act No. 141, Pub. Acts 1901, the commissioner directed an appraisal of the land; and that pending such appraisal, and beforo the purchase by Oakes was finally consummated, the relator’s application was made. Relator contends that, by the terms of the section cited, an application to homestead lands takes precedence over any incompleted sale, even though a regular application to purchase has been made, and the commissioner has taken steps to determine the value by appraisement. This construction is controverted.

We find it unnecessary to decide this question. The return of the commissioner shows that he was satisfied that the application to homestead these lands was not made in good faith; that the lands are not fit for a homestead. The statute (section 131) requires the commissioner to issue the certificate only when, “in his judgment, the application is made in good faith. ” This vests in the commissioner the power to determine the question of the good faith of the application, and vests him with a discretion which will not be reviewed on mandamus. Mechem, Public Officers, § 945; The Secretary v. McGarrahan, 9 Wall. 298.

The writ is denied, with costs.

The other Justices concurred.


text:
    GRINKY v. WAYNE PROBATE JUDGE.
    1. Insane Persons — Certificate of Physicians — Probate Courts.
    A probate judge will not be required to proceed under Act No. 217, Pub. Acts 1903, and determine the sanity of an alleged insane person, where the two physicians appointed by him to make an examination of the alleged lunatic have not certified to her insanity.
    2. Constitutional Law — Insane Persons — Vested Rights.
    Said act is not unconstitutional in that it makes the order of the probate court depend upon the certificate of nonjudicial persons, as the requirement amounts to nothing more than a rule of evidence which does not deprive the alleged insane person of vested rights, but safeguards those rights.

      3. Same — Vested Rights.
    No one can have a vested right to have another sent to an insane asylum.
    4. Same — Title to Aot.
    The provision of Act No. 217, Pub. Acts 1903, requiring the certificate of two physicians that an alleged insane person is insane, is sufficiently expressed in the title of the act, viz.: “To revise and consolidate the laws organizing asylums * * * and to provide for the .apprehension of persons believed to be insane, and for their care and custody.”
    5. Same — Keepers oe Asylums — Judicial Powers.
    The provision in said act that keepers of asylums cannot hold patients “except upon certificates of insanity and an order for admission ” does not confer judicial powers on them.
    Certiorari to Wayne; Mandell, J.
    Submitted June 14, 1904.
    (Calendar No. 20,546.)
    Decided June 25, 1904.
    Mandamus by Joseph Grinky to compel Edgar O. Durfee, probate judge of Wayne county, to proceed to a hearing on a petition for the admission of an alleged insane person to an asylum. From an order denying the writ, relator brings certiorari.
    Affirmed.

      Henry F. Chipman, for relator.

      Ira A. Lieghley, for respondent.
   Carpenter, J.

Certiorari to review mandamus proceedings.

April 5, 1904, relator petitioned respondent for an order admitting his wife, Celia Grinky, to an insane asylum. Respondent thereupon set April 8, 1904, at 3 o’clock in the afternoon, for hearing said application. At the time set for hearing respondent refused to proceed with the same, because two reputable physicians, appointed by him to examine said Celia Grinky, had reported that she was not insane. One of these reports was not in precise statutory form, but, as it cannot be considered a certificate of insanity, its formal character was, in our judgment, as shown by this opinion, immaterial. Relator thereupon instituted these proceedings in the Wayne circuit court for the purpose of obtaining a mandamus compelling respondent to proceed to a hearing on said petition. An order to show cause was issued, a hearing had, and the mandamus denied.

The correctness of that decision, which we are asked to review, depends upon the construction and effect of Act No. 217 of the Public Acts of 1903.

Section 16 of that áct made it the duty of the respondent, upon the filing of the relator’s petition, “to fix a day for the hearing thereof,” and “appoint two reputable physicians to make the required examination of the alleged insane person, whose certificate shall be filed with the court on or before such hearing.”

Section 14 of said act provides:

“No person who is a resident of this State shall be held as a public or private patient in any asylum, public or private, or in any institution, home, or retreat for the care or treatment of the insane, except upon certificates of insanity and an order for admission, as hereinafter provided.”

Section 15 provides:

“Certificates of insanity must be made by two reputable physicians, under oath, appointed by the probate court of the county where such alleged insane person resides, or is an inhabitant, to conduct the examination.”

It is urged by the relator that, notwithstanding the language above quoted, section 16 of the act makes it the duty of the judge of probate, even though the physicians appointed by him certify to sanity, to himself determine that question. We cannot assent to this construction. Under such circumstances a finding of insanity by the probate judge would be a mere idle formality, for without the physicians’ certificate of insanity the patient could not be held by the asylum authorities. The language of section 16 does not indicate the legislative intent to compel the probate court to make an adjudication which would be altogether meaningless. On the contrary, the language in that section, above quoted, requiring the certificate ‘ ‘ to be filed with the court on or before such hearing, ” and the fact that the form of the order therein set forth shall contain a recital of the “ filing the certificates of two legally qualified physicians,” indicates to us that the legislature intended that the probate judge should not proceed when said physicians certify to sanity. It is alleged that the statute so construed is unconstitutional, because:

(а) The authority of the probate court to make an order for the admission of an alleged insane person to an asylum cannot constitutionally be made to depend upon a certificate made by nonjudicial persons. I think the most that can be made of this objection is that the legislature has prescribed a certain rule of evidence, viz., it prohibited the making of the order in question unless a certain kind of proof is adduced. The authority of the legislature to prescribe this rule might be denied if it deprived any person of a vested right. See dissenting opinion of Justice Grant in Crane v. Waldron, 133 Mich. 76 (94 N. W. 594). The rule in question certainly does not deprive the alleged insane person of a vested right, for it tends to safeguard her rights. It deprives no one else of a vested right, because it cannot be conceived that any one has a vested right to have another committed to an insane asylum. In our judgment, the constitutional objection under consideration is not well taken.

(b) It is contended that the provision under consideration is unconstitutional, because its object is not expressed in the title of the act, as required by section 30, art. 4, of our Constitution. It is argued that the provision in question changes the rule of evidence, makes the authority of the probate court depend upon the certificate of nonjudicial persons, and that these objects are not stated in the title of the act. The title of the act is :

“To revise and consolidate the laws organizing asylums for the insane and to regulate the care, management, and use thereof, and to provide for the apprehension of persons '.believed to be insane, and for their care and custody.”

In our judgment, the object of the legislation in question was “for the apprehension of persons believed to be insane, their care and custody.” The object was, there.fore, correctly stated in the title of the act. The legislature was not required to state in the title the precise manner in which it intended to effect this object. See People v. Insurance Co., 19 Mich. 398.

Nor can we agree with counsel for relator that the legislation in question confers upon keepers of asylums judicial powers because it prohibits their holding a patient “except upon certificates of insanity and an order for admission.”

In our judgment, the order of the circuit court should be affirmed.

The other Justices concurred.


text:
    HUNTER v. VILLAGE OF DURAND.
    ,1. Municipal Corporations — Personal Injuries — Verification .of Claim — Waiver.
    Failure of plaintiff to verify a claim, presented to a village council for injuries due to a defective sidewalk, was waived •where the village council, without objection to the lack of •verification, referred it to an investigation committee, who subjected the plaintiff to a painful physical examination.
    Pleading — Performance—Waiver.
    .Under a declaration alleging performance of a statutory requirement that a claim against a village shall be verified, evidence of waiver is admissible.
    ;3. Municipal Corporations — Personal Injuries — Sidewalks— .Contributory Negligence.
    Where plaintiff testified that he knew of a defect in a sidewalk several weeks before he was injured thereon, and»that he knew repairs had been recently made in the vicinity, defendant’s motion for a directed verdict, on the ground that plaintiff’s negligence contributed to the injury, was properly denied, as the jury might find that plaintiff had a right to-believe, and did believe, that the defect had been remedied.
    4. Same — Contributory Negligence — Ordinary Care.
    A request, in an action for personal injuries, which implies art obligation on plaintiff’s part to exercise more than ordinary diligence, is properly refused.
    5. Samé — Defective Sidewalk — Notice—Negligence.
    Evidence that an unsafe hole in a sidewalk has been in existence for two or three months, and that it was obvious to persons passing over it, justifies the jury in finding that the-municipality was negligent.
    6. Trial — Requests to Charge — Improper Assumptions.
    Requests to charge, which assume disputed facts or the existence of evidence not in the record, are properly refused.
    7. Appeal and Error — Theory Urged Below.
    Where defendant contends for his theory on an unfounded' assumption as to the evidence, it is not error for the court to fail to perceive that the same theory was sound on a proper assumption.
    8. Trial — Instructions—Damages—Aggravation of Injury.
    Where, in an action for personal injuries, the court gave defendant’s request that plaintiff could not recover for the aggravation of an existing disease, it was not error to add, as a reason for the ruling, that no such claim was made in the declaration.
    9. Damages — Personal Injuries — Aggravation of Disease.
    The fact that plaintiff was suffering from disease, at the time of an injury, will not prevent a recovery for pains and injuries caused solely by the accident, although he was more susceptible to suffering because of other ailments.
    10. Intoxication — Evidence—Effeot on Injuries.
    In an action for personal injuries, it was proper to exclude evidence of habitual intoxication of the plaintiff, offered on the ground that it would account for his physical ailments, until it was shown that such intoxication could have some effect in producing the injuries for which suit was brought.
    Error to Shiawassee; Smith, J.
    Submitted April 13, 1904.
    (Docket No. 55.)
    Decided June 25, 1904.

      Case by James Hunter against the village of Durand for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Byron P. Hicks (Albert L. Chandler, of counsel), for appellant.

      Rowland M. Connor, for appellee.
   Carpenter, J.

On the evening of October 30, 1898, plaintiff claims that he received injuries by a fall on a defective sidewalk in defendant village. He brought this suit to recover compensation, and secured a verdict and judgment in the court below. Defendant asks us to reverse that judgment for various reasons.

It is contended that a verdict should have been directed for defendant because plaintiff did not give the notice required by sections 2754, 2775, 1 Comp. Laws. Plaintiff did on the 28th of November, 1898, give the defendant a notice which in all respects complied with the law, except that it was not verified, as this court has held, in Griswold v. City of Ludington, 116 Mich. 401 (74 N. W. 663), it should be. The question arises whether the evidence does not prove that defendant waived this lack of verification. When the notice was received, none of defendant’s officials objected to the lack of verification, and its common council appointed an investigation committee, empowered “to incur such expenses in such investigation of the injuries sustained by said Hunter as they may think proper; ” and on the following day, November 29th, expert physicians employed by said committee subjected plaintiff to a very painful physical examination. We are bound to say that this constituted a waiver of the want of verification. See Lindley v. City of Detroit, 131 Mich. 8 (90 N. W. 665); Holtham v. City of Detroit, 135 Mich. 17 (98 N. W. 754). Under these views, the circuit judge might very properly have instructed the jury to find that the undisputed facts proved a waiver. It is therefore unnecessary to determine whether he erred in admitting testimony or in charging the jury respecting that question.

Neither can we accede to the legal proposition that evidence of waiver is inadmissible under a declaration alleging performance. Dean v. Crall, 98 Mich. 591 (57 N. W. 813, 39 Am. St. Rep. 571); Levy v. Insurance Co., 10 W. Va. 560 (27 Am. Rep. 598); West Rockingham, Mut. Fire-Ins. Co. v. Sheets, 26 Grat. 854.

It is contended that the court should have directed a verdict for the defendant on the ground that plaintiff was guilty of contributory negligence. This contention is based upon the fact that it appears by plaintiff’s testimony that he knew of the existence of this defect several weeks before his injury. We cannot assume from this testimony that plaintiff believed at the time of his injury that this defect continued to exist. Indeed, we are bound to assume from his testimony that he believed it did not. He knew that repairs had recently been made in its vicinity, and the jury were clearly warranted by his testimony in finding that he had a right to believe, and did believe, this defect to have been remedied. Under the decisions of this court, the question of plaintiff’s negligence was one for the jury. Whoram v. Township of Argentine, 112 Mich. 20 (70 N. W. 341); Urtel v. City of Flint, 122 Mich. 65 (80 N. W. 991); Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011, 5 L. R. A. 143, 13 Am. St. Rep. 457); McEvoy v. City of Sault Ste. Marie, 136 Mich. 172 (98 N. W. 1006); and Belyea v. City of Port Huron, 136 Mich. 504 (99 N. W. 740).

In this connection we will notice certain assignments of error respecting the charge of the court on the subject of contributory negligence. The court denied defendant’s request that “if plaintiff was guilty of any act, or the omission of any act, which in itself was negligence, and contributed to the injury received, it would make no difference how slight the negligence may be, if it contributed to the result, it defeats recovery.”

In Benedict v. City of Port Pluron, 124 Mich., at pages 605, 606 (83 N. W. 616), this court refused to reverse a judgment where the trial judge used the above language, saying:

“The language quoted from the charge might, under some authorities, be objectionable if standing alone; but, in connection with the remainder of the charge, it is clear that want of ordinary care was made the test of contributory negligence.”

It is thus made clear that the request under consideration is not legally exact. It implies an obligation on plaintiff’s part to exercise more than ordinary diligence. There was no error in denying this request, and in charging the jury as the trial court did:

“ The plaintiff will not yet be entitled to recover unless he has shown to you by a preponderance of the evidence that his own negligence did not contribute to his injury. If the plaintiff herein, by the exercise of reasonable and ordinary care, under the circumstances, might have avoided the consequences of defendant’s negligence, but did not, he cannot recover.” .

Defendant preferred other requests on the subject of contributory negligence, which the court properly refused. These requests either improperly assumed that plaintiff’s eyesight was defective, or that he had knowledge of the existence of the defect at the time of his injury, or they were opposed to the principle heretofore stated that the circumstance that the plaintiff supposed the walk to have been repaired made the question of his negligence one for the jury.

Defendant claims that there was no evidence of negligence which justified the submission of the case to the jury. There was evidence that this hole had been in existence for two or three months, and that it was obvious to passers-by. This evidence clearly justified the jury in finding that the existence of the hole was generally known, and that defendant was negligent. See the decision of Pearl v. Township of Benton, 136 Mich. 697 (100 N. W. 188).

The charge respecting defendant’s negligence was a clear and correct statement of the law. It was not inconsistent with our decision in Thomas v. City of Flint, 123 Mich. 10 (81 N. W. 936, 47 L. R. A. 499). There it was. held that a municipality was not liable because it was. negligently ignorant of a latent defect. The defect complained of in this case was not a latent one. It was a patent and obvious one.

Defendant complains because the court refused to give certain of its requests bearing on its claim that it was not guilty of negligence. One of thése requests improperly assumed that there was evidence that defendant had no-notice of the existence of this defect until the morning of plaintiff’s injury. This request was properly refused.

The court refused to give this request preferred by defendant :

“ If you believe from the testimony that Edward Barrett repaired the sidewalk in front of lot 1 of block 16 of the Durand Land Company’s Second Addition to the village of Durand on the 25th day of October, 1898, and put the same in a condition reasonably safe and convenient for public travel thereon, and that it was subsequently broken down at the place where plaintiff claims to have fallen, I charge you, as a matter of law, there being no evidence of actual notice in this case to defendant, that the time was too short for the law to presume notice from the lapse of time, and therefore plaintiff cannot recover.”

This request is based upon the assumption that there was testimony that Barrett put the walk in question in a condition reasonably safe and convenient for travel on the 25th of October, 1898. There was no such testimony. The testimony referred to indicated that Barrett did not repair this walk; that he did nothing to it; that he did repair a walk 75 or 100 feet distant, and noticed that this walk was not out of repair. It is possible that this testimony would have justified a finding that the walk in question was broken down between October 25th and October 30th, and perhaps, under such a finding, the rule of law is as stated in the request. But we decline to consider these questions. They are not presented by this record. Defendant’s counsel saw fit to contend for this theory upon an unfounded assumption. We cannot hold that it was erroneous for the court to fail to perceive that the same theory was sound on a proper assumption. It may not be improper in this connection to say that it is doubtful if the defendant was prejudiced by the failure of the court to submit the case to the jury on this theory. It is morally certain that the verdict of the jury was rendered upon the ground that the defect in the walk had existed for a long time before plaintiff’s injury.

The court charged the jury, as requested by defendant, that if, by reason of the accident, an existing disease was aggravated, plaintiff could not recover therefor. Complaint is made because the court added to this charge, “Because no such claim is made by plaintiff in his declaration.” We do not think this remark improper. It was a correct statement of the ground upon which the request was preferred and given. We can understand why a trial court should desire that a jury should understand the reason for what otherwise might appear to be a doubtful ruling.

Neither was it improper for the court to add to defendant’s request under consideration:

“ The fact that plaintiff, at the time he claims to have’ received the injury in question, was suffering from other ailments or disease, will not alone prevent a recovery by plaintiff for the pains and suffering and other injuries, caused solely by and resulting from the accident, although he was more susceptible to suffering because of other ailments or disease.”

Defendant complains because he was not permitted to show that plaintiff was in the habit of getting intoxicated. It is his claim that this evidence, if admitted, would have accounted for many physical ailments which plaintiff now claims resulted from his injury. There was-no testimony in the case to indicate that the use of intoxicating liquors could have any effect in producing those injuries, and, when the testimony under consideration was objected to, the court said:

“ Until you have shown * * * that the question of intoxication cuts some figure on the injury that it is claimed occurred October 30, 1898, I sustain the objection. ”

This ruling was correct, and indicated the proper course to be pursued if defendant wished to introduce the testimony in question.

We do not think that defendant’s brief points out any reversible error, nor do we think that any of the other errors relied upon demand discussion.

The judgment is affirmed.

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