author: Moore, J.

text:
    DAHLIN v. KNIGHTS OF THE MODERN MACCABEES FOR MICHIGAN.
    Life Insurance — Mutual Benefit Societies — Beneficiaries— Widows — Effect of Divorce.
    Under section 1, Act No. 119, Pub. Acts 1893, providing that payment of benefits by fraternal beneficiary societies shall be made only to the widows,.etc., of the members, and a by-law, applicable to the certificate in question, providing that a divorce shall annul a designation of a member’s wife as his beneficiary, the divorced wife of a member, designated as his beneficiary prior to the divorce, does not become his widow upon his death, and has no interest in the certificate, especially in a case where the member, prior to his death, designated his estate as his beneficiary, which he might lawfully do.
    Error to Oakland; Smith, J.
    Submitted June 11, 1907.
    (Docket No. 76.)
    Decided March 31, 1908.
    Assumpsit by Anna Dahlin against the Knights of the Modern Maccabees for Michigan upon a policy of insurance. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed.

      John B. Mcllwain, for appellant.

      Andrew L. Moore, for appellee.
   Moore, J.

This suit is brought upon a benefit certificate issued in July, 1890, by the defendant to John Dahlin, in which certificate are the following provisions: .

“In case all the agreements and warranties made by him in his application are found to be true and he continues to comply with the constitutions, laws, rules and regulations of the Great Camp for Michigan, which are now or may hereafter be in force, his beneficiary, to wit, Anna Dahlin, his wife, will be entitled to receive one assessment on the membership, but not to exceed One Thousand Dollars. * * *

“This certificate is subject to the conditions, limitations, warranties and agreements contained in the application for membership executed by the said member, John Dahlin, which said application is made a part hereof.”

John Dahlin in January, 1903, filed a bill for a divorce in the circuit court for Wayne county, in chancery, and a decree was rendered in his favor in said cause against said Anna Dahlin June 29, 1903. June 25, 1903, a stipulation was signed by the solicitors for the parties and filed in said cause, that “alimony both temporary and permanent, besides costs and expenses,” had been adjusted by the parties.

Mr. Dahlin and his wife had no children, and since said decree he has contributed nothing to her. Before his death he made a will disposing of his property.

On the back of the certificate is a blank form to be filled out by a member in case he desires to change his beneficiary. The blank was filled out to read as follows:

“ I, John Dahlin, to whom the within certificate was issued, do hereby revoke my former directions as to payment of the endowment fund due at my death, and now authorize and direct such payment to be made to my estate, executors, estate or assigns.

‘ ‘ Witness my hand and seal this 4th day of May, 1905.

Signed, “John Dahlin.”

The certificate was forwarded to the record keeper of the Tent with the following letter:

“May 4, 1905.

“Record Keeper of Electric Tent, No. 25, Knights of the Modern Maccabees.

Dear Brothers: Enclosed please find certificate No. 22,880 which you will kindly cancel and issue me a new certificate payable to my executors, estate or assigns, as you know I am divorced from my wife, Anna Dahlin, and having no relatives living I wish my insurance to be made payable to my estate. Enclosed please find fifty cents, being the cost of transferring certificate. I trust you will hurry it through.

“Yours fraternally,

“John Dahlin, “Per J. E..B.”

“J. E. B.” was Doctor J. E. Burgess, the attending physician. „

When this certificate with the request for a change was received by the officers of the Tent, it was believed the certificate could not be made payable to his estate, and the commander and record keeper of the Tent went to Mr. Dahlin and so informed him, and told him he would have to make the certificate payable to some person, and he then directed the commander to change it and make it payable to Thomas Smyth with whom he had been living, and designated him therein as his dependent, and the change was there made by the commander of the Tent at the request of the deceased, and witnessed by the commander. The change was approved by both the commander and record keeper. The certificate, with request for a change, and a dollar, were then sent to the great record keeper at Port Huron, together with a letter from the local record keeper requesting the change to be made. The certificate and the one dollar were returned for further proof that Mr. Smyth was a dependent. John Dahlin had an operation in the meantime, and before the correspondence was finished he died.

Anna Dahlin presented a claim; it was disallowed. She sued and a judgment was directed in her favor. The case is brought here by writ of error.

Defendant contends the court erred in directing a verdict for plaintiff, as the latter is a stranger to its benefit funds; that whatever interest or expectancy plaintiff once had under the certificate has been directly cut off—

1st. By the divorce.

' 2d. By the subsequently enacted by-law providing divorce should annul the designation.

3d. By-the act of the deceased, revoking plaintiff’s designation as beneficiary.

On the part of plaintiff it is contended that as the refusal of the Great Camp to pay was based solely upon the fact that the plaintiff was divorced from deceased, that the only question to be considered is whether the reason given was a valid one for refusing payment.

What then is the relation of the plaintiff to the beneficiary fund mentioned in the certificate ? The certificate is made subject to the conditions, limitations, warranties and agreements of the application. The application had the provision:

“I hereby agree that these statements, with this application and the constitution and laws now in force or that may hereafter be adopted by the Great Camp of the Knights of the Maccabees for Michigan, shall form the basis of the contract for endowment * * * and that the constitution and laws of the said Great Camp now in force or that may hereafter be adopted shall be binding on myself and my beneficiary or beneficiaries.”

In 1894 a proviso was added to section 81 of the bylaws as follows:

“Provided, in case a wife is designated as beneficiary and subsequent thereto becomes divorced from the member, such divorce shall ipso facto annul the designation.”

Section 1 of Act No. 119 of the Public Acts of 1893, which is applicable to this case, reads:

“ Payment of death benefits shall be made only to the widows, children and dependent children, mother, father, sister, brother, or blood relatives to the fourth degree of the member: Provided, That where an applicant or member has no relative as above provided, to whom he may make his certificate payable, in such case he may designate any other person, or make his estate, his beneficiary.”

In the case of Union Mut. Ass’n v. Montgomery, 70 Mich. 587, Justice Champlin, speaking for the court, said:

“The same rules of construction should be applied to dispositions of property created by these mutual benefit associations as are applied to bequests by wills. They partake of the nature of testamentary dispositions of property. It is well established law in this State that the policy of our statutes favors vested in preference to contingent estates, and that, unless an intention appears to the contrary, the will shall operate from the death of the testator, and estates vest at that time. Rood v. Hovey, 50 Mich. 395; Porter v. Porter, 50 Mich. 456; Toms v. Williams, 41 Mich. 552; Eberts v. Eberts, 42 Mich. 404.”

In Lansing v. Haynes, 95 Mich. 16, Justice Grant, speaking for the court, said:

“By the decree of divorce in this case, the parties became as strangers to each other, and neither owed to the other any obligation or duty thereafter. There was, therefore, a complete change in these relations, within the language above quoted from Chancellor Kent. It is not, in my judgment, the natural presumption that, after the testator had settled with her, had conveyed to her a good share of his property, and they, by agreement, had terminated all their property, as well as their marital, relations, the will executed nearly 10 years before should remain in force, and operate upon his death as a conveyance of the remainder of his property to her, to the exclusion of his heirs. If this were so, then it would follow that, if he had children living, or a dependent mother or other dependent relatives, or a second wife without issue, his duties and obligations towards them must be set aside, in favor of a most harsh and unjust rule. The like result would follow where the husband had obtained a divorce from his wife on the ground of her adultery, and she had become a cpmmon prostitute; or where the wife had obtained a divorce for a like reason, or because her husband had committed a felony, for which he was incarcerated in prison. To hold the will unrevoked under these circumstances would be repugnant to that common sense and reason upon which law is based. I do not think the common law is so unbending as to lead to this result. ‘ The reason of the law is the essence and soul of the law.’”

We have then a case whereby the statute payments of benefits shall be made only to widows, etc., of the member. Where the certificate refers to the application and makes it a part thereof and the certificate and the application with the constitution and laws then in force or thereafter to be adopted, it is agreed shall form the basis of the contract. It is provided in the certificate that if the member carries out his agreement, Anna Dahlin, his wife, shall be entitled to the fund. The statute provided payment might be made to his widow. The beneficiary thus named ceased to be the wife of the member by reason of the divorce some years before his death. She was not his widow after his death. The member recognized the situation when he caused the letter of May 4, 1905, to be written, in which he referred to the fact of his divorce. From whatever point of view the case is regarded, we think it clear the plaintiff has no cause of action against defendant. See Brinen v. Benefit Ass’n, 140 Mich. 220; Supreme Lodge O. M. P. v. Dewey, 142 Mich. 666; Kaminski v. Great Camp K. O. T. M. M., 146 Mich. 16. Instead of directing a verdict in favor of plaintiff it should have been directed in favor of defendant.

Judgment is reversed, and new trial ordered.

Grant, C. J., and Hooker, Carpenter, and McAlyay, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    DETROIT LUBRICATOR CO. v. LAVIGNE.
    1. Master and Servant — Contract of Employment — Construction — Perfection of Inventions.
    A contract of employment, under which the employé agrees to devote his entire time and best energies as a master mechanic for the welfare of the employer’s business, and that any inventions which may result from such employment in the nature of tools, machinery, and devices to be used in connection with the employer’s business shall be protected by patents and become its sole property, covers devices pf the kind stipulated, invented by the employé during the term of employment and perfected at a place other than the employer’s shops without its knowledge.
    2. Specific Performance — Contract of Employment — Enforceability.
    A contract of employment under which the employé agrees that any inventions which may result from the employment shall be protected by patents and become the sole property of the employer, is not without consideration, does not lack mutuality, is not unconscionable nor against public policy, and is specifically enforceable as against a corporation with notice to which the employe has assigned inventions covered by the contract of employment.
    Appeal from Wayne; Donovan, J.
    Submitted October 16, 1907.
    (Docket No. 26.)
    Decided March 31, 1908.
    Bill by the Detroit Lubricator Company against Joseph P. Lavigne and the Lavigne Manufacturing Company to set aside certain assignments of patents, for an accounting, and for general relief. From an' order sustaining the demurrer of defendant Lavigne Manufacturing Company, complainant appeals.
    Reversed and remanded.

      Shaw, Warren, Cady '& Oakes (James Whittemore, of counsel), for complainant.

      Parker & Burton {Bowen, Douglas, Whiting & Mur jin, of counsel), for defendant company.
   McAlvay, J.

This is an appeal from an order sustaining a demurrer of the defendant, the Lavigne Manufacturing Co., appellee, to the bill of complaint. Defendant Joseph P. Lavigne answered.

Complainant avers in its bill of complaint that it has been extensively engaged for more than 20 years in the manufacture and sale of lubricating devices for all kinds of machinery; that in 1902 it largely increased its said business in manufacturing and selling lubricators, force feed oil pumps, mixing valves, carburetors, and other devices used in the construction of automobiles and other forms of engines; that it recognized the large and increasing field for improvements in the foregoing articles named, and other devices used in the construction and operation of automobiles and automobile engines, and desired to engage as a superintendent and master mechanic one who was experienced in the manufacture of automobile and other engines and who also had mechanical and inventive ability to plan, devise, and design improvements upon the then existing devices and to perfect the same; that in the summer of 1902 complainant through its officers had conferences with defendant Joseph P. Lavigne,' explaining to him the matters and conditions above stated and the purpose of complainant of entering into the manufacture of the appliances above named, and for the purposes named to engage a superintendent and master mechanic with the qualifications above set forth; that said defendant represented that he had considerable experience in the manufacture of automobile engines and their appurtenances and that he believed great improvements could be made in the devices then in use; that it was explained to said defendant by complainant’s officers at such conferences that such master mechanic must devote his entire time and best energies to the welfare of complainant’s business, and that his efforts should be particularly directed towards inventing and perfecting improved devices for use on automobile and other engines and that complainant must be protected against any patents which might be issued upon any and all inventions by their superintendent and master mechanic as a result of such employment, and therefore as a condition precedent to such hiring that any and all such inventions should, at complainant’s request and expense, be protected by patents, which, when issued, to become the sole property of complainant; that said defendant agreed to all such conditions of employment and entered upon such work under a contract with complainant made July 11, 1902, as follows :

“Detroit Lubricator Co.,

“Detroit, Mich.

“Gentlemen: I hereby accept your offer of a position as master mechanic of your company for a period of one year at a salary of twenty-five hundred dollars ($2,500) per year, it being understood that I shall devote my entire time and best energies towards the faithful performance of my duties as a master mechanic and for'the welfare of your company. I also agree that any inventions which may result from such employment in the nature of machinery, tools or devices, to be used in connection with your business, shall, at your request and expense, be protected by patents, such patents to become the sole property of the Detroit Lubricator Company. I further agree to report for duty at your factory not later than Monday, July 28th, 1902, my service with your company beginning at that time.

“Very Truly Yours,

(Sgd.) “ J. P. Lavigne.

“Detroit Lubricator Co.,

“Per (Sgd.) F. W. Hodges, Secretary-Treas.”

This contract was in all material matters re-executed from year to year and such employment continued until about January 1, 1906. The salary was increased to $3,000 at the beginning of the second year. The last contract made July 25, 1905, contained the following additional clause:

“This contract of employment may be terminated by either party on sixty days’ notice in writing.”

The bill further avers that after this employment began the officers of complainant company consulted with this defendant frequently as to possible inventions of devices herein mentioned, and that thereafter he spent a large part of his time in endeavoring to invent improvements upon existing devices, and for such experiments he was furnished by complainant with all necessary machinery, tools, and labor; that among the devices he thus worked upon in complainant’s shops were an improved force feed pump, a hot water valve, a mixing valve, and a carburetor ; that while this defendant was in said employment, experimenting upon devices above referred to, he was secretly, and without complainant’s knowledge, working upon the same character of devices at his own home, and used his authority as superintendent of complainant’s shops to fraudulently entice certain of its employés to leave its employment to aid him in such work; that as the result of the employment of said defendant by complainant, and during the same, he invented various devices, tools, and machinery of the character used in connection with complainant’s business, among which inventions were a force feed oil pump, a hot water valve, a mixing valve, and a carburetor; that after inventing said devices while in the employment of complainant and as a result of such employment, with intent to defraud complainant of its rights in such inventions and any patents which might issue thereon, said defendant on October 1, 1905, gave notice that he would terminate his employment. The bill further charges that this defendant, after he left complainant’s employment in furtherance of this scheme to defraud complainant of its rights in such inventions and patents, conspired with Eose Lavigne, a member of his family, and Charles F. Burton, his attorney, and caused to be organized the Lavigne Manufacturing Company, the other defendant to this suit, for the purpose of making it the ostensible owner and holder of said inventions and patents which might issue thereon; that the defendant Layigne was the organizer of the company, its largest stockholder and is now its president, and in practical control of its affairs; that the three parties menr tioned are the only subscribers of its 3,000 shares of stock, of which Lavigne subscribed 2,000 shares, Rose Lavigne 200 shares, and Burton 800 shares; that in payment for his stock defendant Lavigne assigned certain applications for patents upon a force feed pump, a hot water valve, a mixing valve, and a carburetor which complainant claims in right belong to it and which assignments and transfers were fraudulently made for the purpose of defrauding it of its right in and to said inventions named. It is also charged that Lavigne understood this contract and recognized his obligations under it, and actually assigned the entire right and title in certain inventions shortly before leaving said employment.

Upon this appeal it is unnecessary to state the relief prayed for against defendant Lavigne. The relief prayed against the demurring defendant, the Lavigne Manufacturing Co., is that any and all assignments of inventions and applications for patents upon inventions recited in the bill of complaint specifically naming them, be declared null and void, for an accounting for sales of said force feed oil pumps manufactured by it, for an injunction restraining it during the pendency of this suit from selling or transferring any of said inventions and to desist from manufacturing the same, and for a decree declaring these inventions to belong to complainant and requiring the defendant company to assign and transfer all its right and interest in said inventions to complainant, and for general relief.

Of the seven grounds of demurrer alleged, it will be necessary to discuss but two:

(1) Whether the contract between the parties covers the inventions and devices described.

(2) Whether equity will enforce the contract specifically against the demurring defendant.

Upon the first proposition, the clause of the contract to be considered is:

“ I also agree that any inventions or devices which may Tesult from such employment in the nature of machinery, tools or devices to be used in connection with your business shall .at your request and expense be protected by patents, such patents to be assigned to and become the sole property of the Detroit Lubricator Company.”

The bill of complaint, which is taken as true for the purposes of this demurrer, shows clearly that complainant was engaged extensively in the manufacture and sale of lubricating devices of all kinds, and had a large and increasing trade in lubricators, force feed oil pumps, mixing valves, carburetors and other devices used in the construction and operation of automobiles and automobile and other forms of engines, and, being so engaged, employed defendant Lavigne for a specific purpose, entering into the agreement of which the above is a part. Defendant company asks for a construction of this agreement that will include only such machinery, tools, or devices which could be used in complainant’s shops in the manufacture of such articles as it desired to put* upon the market, giving this construction to the clause “machinery, tools and devices to be used in connection with your business.” Complainant’s business was the manufacture and sale of these devices and the improvements contemplated were in these articles in which they were dealing. Lavigne was to devote his entire time and best energies as a master mechanic for the welfare of the business, and agreed that any inventions which might result from such employment, in the nature of tools, machinery, or devices to be used in connection with complainant’s business, should be protected by patents and become its sole property. Our construction is that the contract covered these inventions and devices described in the bill of complaint and all other of like kind.

The doctrine of specific enforcement of contracts is too well established and too frequently recognized by this court to require any exposition. The question is whether this is specifically enforceable, and if so whether enforceable against the demurring defendant. A large part of appellee’s brief is devoted to this proposition, and many cases are cited as in point. The conclusion arrived at is a negative answer to both branches of the question.

1. Because the contract is uncertain, indefinite and ambiguous.

2. Because it is grossly inequitable.

3. Because it lacks mutuality.

4. Because as to part of it at least there is no way in which the court could enforce its decree.

5. Because the relief prayed is with respect to articles not falling within the business conducted by complainant when the contract of hiring was renewed.

An examination of the contract and bill of complaint constrains the court to arrive at an exactly opposite conclusion ; and we determine that this contract is specifically enforceable against defendant Lavigne; and therefore upon the face of the bill which specifically charges the fraudulent scheme of Lavigne in the organization of the company for the purpose of defrauding complainant, which scheme is charged to have been fraudulently executed, this contract is also specifically enforceable against the demurring defendant. In the Federal courts it has been held repeatedly that such contracts are not without consideration; nor do they lack mutuality. These courts have said that these contracts are not unconscionable, nor against public policy, and that they are specifically enforceable. Hulse v. Bonsack Machinery Co., 65 Fed. 864, 13 C. C. A. 180; Thibodeau v. Hildreth, 60 C. C. A. 78; Mississippi Glass Co. v. Franzen, 143 Fed. 501.

The order and decree of the circuit court in sustaining the demurrer is reversed, with costs of both courts to complainant, and said defendant is given the time provided by rule to answer the bill of complaint if such course is desired.

Ostrander, Hooker, Moore, and Carpenter, JJ., concurred:


author: Hooker, J.

text:
    ABE STEIN CO. v. WOOD.
    Dismissal and Nonsuit — Involuntary Nonsuit — Grounds — Failure to Bring Cause to Trial.
    Since the adoption of Circuit Court Rule 54, effective June 15, 1858 (Rule 13, Rules of 1897), authorizing the defendant to notice a cause for trial, the reason for dismissing a cause, on motion of the defendant, for want of notice, no longer exists, and some neglect to bring the cause to trial other than mere failure to notice it should be shown before a nonsuit should be ordered under section 10252, 3 Comp. Laws.
    Error to Schoolcraft; Steere, J.
    Submitted October 15, 1907.
    (Docket No. 69.)
    Decided March 31, 1908.
    Assumpsit by the Abe Stein Company against James C. Wood for goods sold and delivered. There was judgment of nonsuit, and plaintiff brings error.
    Reversed.

      O. W. Dunton, for appellant.

      M. J. Sherwood, for appellee.
   Hooker, J.

This action of assumpsit was commenced in the circuit court for Schoolcraft county on June 22, 1905. After issue was joined the plaintiff noticed it for trial at the September term of that year, when it was continued by consent of counsel. Four terms afterwards passed without notice of trial by either party. It was dismissed in April, 1907, on motion made under and in accordance with the provisions of 3 Comp. Laws, § 10252, judgment of nonsuit being entered. It is before us on error at the instance of the plaintiff. Section 10252 provides :

“When an issue of fact shall be joined in any cause, and the plaintiff shall neglect to bring such issue to trial, according to the course and practice of the court, such court, on the application of the defendant, may give the like judgment for the defendant as in cases of nonsuit, or may, upon just terms, allow a further time for the trial of such issue.”

Counsel for plaintiff contends that this statute has no application to such a case as this. This statute first came into the law of Michigan in 1846, when it became a part of the revised statutes of that year. See chapter 103, § 6?. Another statute affecting this case was also introduced then, being section 6 of same chapter. It reads as follows : '

“Section 6. A note of the issue joined in any cause in a circuit court, shall be served on the clerk of such court, at least four days before the opening of such court.”

It is observable that both of these sections are found in the revised statutes of New York, published in 1836, being respectively 2 Rev. St. N. Y. p. 343, § 81, and p. 331, § 7. Chapter 103 was evidently patterned after Rev. St. of N. Y. pt. III, chap, vii, the sections quoted being the same in each.

In 1846, notices of trial in New York were served by the plaintiff only, no evidence being found justifying an inference that defendants might notice a cause, and apparently it was plaintiff’s duty to embrace the first opportunity of going to trial. 1 Burrill’s Practice, p. 212, and cases cited, and p. 420. Graham’s Practice, p. 263, where it is said that “the plaintiff is the only person authorized to notice the cause for trial, except in replevin, in which either party may do so.”

At the time of the introduction here of the two sections quoted, we find nothing to indicate any practice of noticing for trial by the defendant, and it was apparently introduced here by Rule 54, given effect June 15, 1858 (Cir. Ct. Rule 13, Rules of 1897). At least it was then that the rules expressly so provided. See Rule 95, Rules of 1877. See Circuit Court Rules published 2 Mich., in force in April, 1853. It is fair to state that there were two rules, one given effect in 1843, and one in 1847, which possibly imply the recognition of a practice for either party to notice a cause. See Rules of 1843, Rule 81, and Rules of 184?, Rule 69. The latter is unimportant so far as the question under discussion is concerned; the former may be thought to bé so, as it was prior to the revision of 1846.

When we adopted these statutes from New York, unless they were inconsistent with our practice, we took them with the construction that had been given them there, which, succinctly stated, was that only the plaintiff was to notice cases, and that he must notice for the earliest term practicable, or take the risk of a nonsuit on motion, which was the only relief open to defendant; and, on the other hand, the defendant must act promptly after default or waive it. See 1 Burrill’s Practice, p. 420. In Chapman v. Van Alstyne, 6 Wend. (N. Y.) 517, a defendant who suffered four terms to elapse after a notice, was held to have waived the default. It is a significant fact that our attention has not been called to a case when a plaintiff has suffered nonsuit for want of notice of trial under the provisions of section 10252. After the rule permitting defendants to notice was adopted, as it was in 1858, it was unnecessary to move for nonsuit to get a case to trial speedily, and the same was practically true, if such a practice obtained, although there were no rules authorizing notice by the defendant. That such was early the view taken at circuit is indicated by the language of the late Judge Green, one of the judges of that day, in his work on Practice, published in 1860, where he says of section 10252:

“ Since the enactment of this statute, the supreme court has provided by rule that either party may give notice of trial; and that any party who shall have noticed a cause for trial, and not countermanded such notice, may be compelled to proceed to the trial thereof, at the term for which the same was noticed, unless the same is continued on cause shown, and a compliance with such terms as the court may impose. Rule 54.

“ In general, therefore, if the defendant desires a trial, he may give the notice, and thus compel the plaintiff to bring on the issue to be tried, unless he has good cause for a continuance, or to be nonsuited upon his default; and if the defendant omit to notice- the cause for trial, he is deemed tacitly to assent to the delay.” 1 Green’s New Practice (2d Ed.), p. 499.

This court has not looked with favor on efforts to avoid a trial of the merits by motions to dismiss. See Fowler v. Pixley, 25 Mich. 513; Willis v. Gimbert, 27 Mich. 91. In this case it was said

“ As both parties have equal rights to notice the case for trial, and equal and the same means for expediting the proceedings, no very obvious reason exists for giving the circuit court a general authority to dismiss at discretion, and we do not think such authority has been conferred.”

See, also, Detroit, etc., R. Co. v. Eaton Circuit Judge, 128 Mich. 495. In Leland v. Township of Blair, 97 Mich. 612, we refused to punish laches by dismissal, on the ground that the appellee had never taken advantage of his right to notice the cause for hearing. Hill v. Webber, 50 Mich. 142, was a motion filed under another statute and this was denied on technical grounds, indicating the same reluctance to grant motions to dismiss for want of .prosecution, that has been mentioned. See, also, 2 Shinn’s Pl. & Prac. § 943 a; McCarthy v. Hancock, 6. How. Pr. (N. Y.) 28.

The rules of 1843 and 1847, already referred to, are as follows:

“The party intending to move for the trial of a cause at any term of a circuit court, shall serve on the opposite party a notice of trial at least fourteen days previous to the first day of such term, and unless such notice is given and a brief note thereof handed to the clerk of such court eight days before the first day of term, such cause shall not be placed on the docket for trial without the consent of the opposite party.

“ If the party receiving such notice of trial shall serve a notice on the opposite party that he will move at such term for a continuance of the cause, together with a copy of the affidavits upon which he intends to found such motion, he shall not be liable to such party for any costs of preparing to try such cause accruing after the service of such notice and affidavits in case such continuance is granted on the papers so served.”

It may be thought that they shake the argument that the statute relied on should not be enforced, for the reason that it may be said that such statute was adopted at a time when the defendant might have noticed the case himself as he does now. To this we say that the early practice in New York, and at the common law, did not recognize such right and we are said to have followed the New York practice here prior to 1846, as we evidently did afterwards, that these rules contained no express provision regarding the right of the defendant to notice the case, and the adoption of the rule in 1858 justifies the inference that the judges adopting them thought either that they did not confer such right or that it was in such doubt as to require a rule setting the matter at rest.

We are therefore of the opinion that since the adoption of Rule 54, the reason for dismissing a cause for want of notice, under section 10252, no longer exists, and that some neglect to bring said cause to trial, other than a mere failure to notice the cause, should be shown before a nonsuit should be ordered.

The judgment of nonsuit is reversed, and the cause remanded for further proceedings.

Ostbandeb, Moobe, Oabpenteb, and McAlvay, JJ., concurred.


author: Montgomery, J.

text:
    ELECTRICAL APPLIANCE CO. v. STANDARD ELECTRIC CO.
    1. Evidence — Whitten Contracts — Varying by Parol —Incomplete Writing.
    Where a writing does not embody all the terms of a contract, it is competent to show an additional agreement by parol.
    2. Same.'
    Where defendant, with plaintiff’s catalogue before it, wrote an order for electrical appliances “on condition that you guarantee these phones to us for one year,” no further statement as to the terms of the guaranty being made, and plaintiff accepted the order, the guaranty must be presumed to have been made with reference to the guaranty printed in plaintiff’s catalogue, whence the terms of the contract were not all expressed in the writing, and evidence of prior negotiations was admissible.
    Error to Wayne; Murphy, J.
    Submitted October 24, 1907.
    (Docket No. 130.)
    Decided March 31, 1908.
    Assumpsit by the Electrical Appliance Company against the Standard Electric Company for goods sold and delivered. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Van Zile & Brownson, for appellant.

      Clark, Jones & Bryant, for appellee.
   Montgomery, J.

The defendant is an installing company at Detroit, and the plaintiff is a manufacturer of electrical apparatus and appliances, whose office is at Cincinnati. In the early part of 1904, the defendant was negotiating a contract with the Detroit Stove Works to supply and install in the plant of that company a telephone system. At this time it evidently had before it the. catalogues issued by the plaintiff company. At any rate, the testimony shows that it had such catalogues before the giving of the order in question in this case. On the 3d of February defendant wrote plaintiff asking it to express a sample of its wall phones and of its desk phontes, stating: “ The reason we want these quickly by express is that the Detroit Stove Works will settle their telephone deal this week, and they will not give us the order unless we submit samples,” also asking advice as to whether a long receiver could be used on plaintiff’s phones, adding: “We are badly in need of catalogues. Why can’t you send us about 100 of these ? ”

In reply to this, plaintiff sent defendant the two phones, stating: “You cannot use the long receiver, as you will see when you get the phones. There is no way of hanging them on the hook, and if your parties are prejudiced against the watch case receiver, it is probably because they have gotten hold of some old style, not an up-to-date watch case receiver which ours is,” and adding, “ It is too late to get off the catalogues tonight, but we will send them by express to you in the morning.”

On the 11th of February, defendant wrote plaintiff as follows:

“Kindly enter our order for immediate shipment for the following goods:

“19-25 point inter-communicating wall telephones.

“2-25 point desk inter-communicating telephones.

“ 3,000 feet No. 12 telephone cable, with triple cotton insulation, for twenty-six stations.

“ Five No. 31 type C glass jar storage batteries without the oak cases.

“The wall phones are to have five inch gongs on them as they will be installed in a noisy shop and a smaller gong could not be heard. These phones are to have the general call system the same as is on the phones you put in for the Triumph Electric Co., in Cincinnati.

“This order is placed with you on the condition that you will guarantee these phones to us for the period of one year as we have to make that guarantee to secure the order, and we want you to protect us on it. Will you please advise us how quickly you will ship this order as we are in quite a hurry for it.”

The following day a bare acknowledgment of this order was made, and on the 16th the plaintiff wrote defendant as follows:

' “We have your order and have entered same for immediate attention. We are glad to see you successful in your first estimate on our system and assure you of our desire to see you make some money out of it. We shall do our part in the matter and with good work of installation there will be no trouble in the outcome of the contract. We presume you understand how important good work is in telephony. A telephone current is so extremely weak and complicated in character that a little trouble apparently a small thing can destroy good service.

“We have a shipment of wire on the road from Chicago that will enable us to make your cable in one shipment. While you are getting this part of the work done we will get out the other parts of the system so that you will have them in ample time. We make the cable in 500 ft. rolls which is all that can be handled readily. We may have to give you shorter lengths on account of the size of the cable. In the meantime let us know what lengths would be advisable or rather desirable. We do not know how the system is laid out, whether long runs or shorter ones with many taps. It would be a good plan for you to send us a sketch showing relative positions of the stations.

“We note that your order calls for 25 point switches and 26 station cable. A 25 point switch will allow the use of 24 telephones and ‘General Call.’ The ‘general call ’ device is placed near the battery and is connected to the ‘ general call ’ wire. We can give you 25 wire cable if you wish it, but 26 wires leaves you an extra in case of any trouble. Regarding ‘general call,’ Triumph have several gongs as signal on same, at the same time two of the phones ring. We can arrange this device to suit you. You can ring all the phones if you want to. We just completed a large system for the Baldwin Piano Co., here, 21 phones and they find it a good thing to ring all .bells. Triumph thought it would be confusing and hence wanted gongs for the purpose almost exclusively. On the subject of gongs for the phones, we would suggest that you locate the noisy ones by ‘ home ’ number and supply gongs yourself. We will furnish the phone arranged for gong connections. You can buy the gongs as cheap as we can. It has been our experience that there are few places where gongs are really required, and where required they are used in connection with the small bell. We always put up the standard phone and then arrange the gongs as required afterwards, so let us know how many you wish with small bells and how many arranged to connect large ones. We feel confident that you will find about 8 or 10 gongs more than enough for the noisy places. The writer is somewhat familiar with the Stove Plant having lived in Detroit a number of years. It is best to fully understand all these points before going ahead, as mistakes are expensive.

“We will advise you in a few days just when the cable will be shipped. You may rest assured we will push it as rapidly as possible. As we have entered your order and this is our first real business transaction we would like an understanding as to payment, etc. Our terms are 30 days where parties are satisfactory, otherwise, cash. Kindly give us reference. You understand, of course, our position. We shall be pleased to hear from you by return mail.”

The catalogue in the hands of defendant contained descriptions of the material used in considerable detail, and concluded with the statement:

“We are directly responsible for the perfection of everything we sell, and we guarantee our product against inherent mechanical or electrical defects. We are financially responsible and fully able to carry" out our contracts and guarantees.”

Following upon the letter of February 16th were two communications relating to the subject of defendant’s responsibility, but they are of little importance as the material was subsequently shipped and installed in the plant of the Detroit Stove Works.

After what appears to have been a fair test by the Detroit Stove Works, the system installed failed to work, acceptance of it was refused, and defendant was required to remove it from the plant. On the trial, the testimony was conflicting as to whether the trouble arose from defects in the material supplied by plaintiff or from improper installation. This question was fairly submitted to the jury. It was also claimed by the defendant that after some of the material had been received and the installation entered upon, defendant’s agents, being doubtful about the material being proper, visited Cincinnati, taking samples of the material with them, and they offered testimony tending to show that at this time a new contract of guaranty was entered into by plaintiff. This question was likewise submitted to the jury by appropriate instructions.

The circuit judge also instructed the jury that unless there was this second guaranty, it became a question for the jury to determine whether, when the material was received by the plaintiff, any alleged defect was such as could be discovered upon inspection, and properly charged the jury that if ,it was, an acceptance of the material with knowledge of this defect would waive the defect. Indeed the case appears to have been fairly submitted to the jury if the court was right in assuming that the letters of February 11th, 16th, and 16th constituted the entire contract between the parties, not subject to be varied by testimony of prior negotiations between the parties. This question is practically the only question which need be considered in the case.

The circuit judge appears to have been of the opinion that the letter of February 11th, and the replies to it, constituted a complete contract in itself such as to exclude reference to any prior negotiations, and in support of this ruling of the circuit judge, the cases chiefly relied upon are three: Zimmerman Manfg. Co. v. Dolph, 104 Mich. 281; Nichols, Shepard & Co. v. Crandall, 77 Mich. 401 (6 L. R. A. 412); and John Hutchison Manfg. Co. v. Pinch, 107 Mich. 12.

In the first case cited, the order for the machinery in question was reduced to writing formally, contained a warranty in terms, and defined the character of the warranty, and also contained the provision or statement that, “All the conditions upon which this order is made are stated herein.” The case is very clearly distinguishable from the case under consideration.

The case of Nichols, Shepard & Co. v. Crandall was likewise an action brought for recovery of the price of machinery furnished upon a written order stating:

This machine is ordered, purchased, and sold subject to the following express warranty and agreement, to wit

This was followed by a full and complete statement of the terms of the warranty and the provisions as to the course to be taken in remedying any defects which might be found to be in the machinery. The case was one in which the parties had very clearly put in the single writing all the terms of their agreement.

The case of John Hutchison Manfg. Co. v. Pinch was a case likewise of an order describing in detail the property to be furnished and containing an agreement to pay when the mill should be fixed and giving good results. It was sought to vary the terms of this agreement by parol evidence, and it was held that the parties had by this provision fixed the terms of the warranty by the writing, and the p'arol testimony was inadmissible to vary such terms. In this case, however, the rule was recognized that, where the writing does not embody all the terms of the contract, it is competent to show an additional agreement. This rule is supported in numerous cases in this court, the latest expression of the court being Beld v. Darst, 146 Mich. 143.

The case of McCray Refrigerator & Cold Storage Co. v. Woods & Zent, 99 Mich. 269, was a case in which there was a formal contract signed by both parties which was held to include all the undertakings between the parties. The difficulty in any given case is to determine whether the agreement under consideration is one purporting to contain the entire terms of the contract or whether reference may be had to other negotiations in construing it. In the present case, the letter of February 11th does not constitute a formal contract. At most it is a proposition. The statement, “This order is placed on condition that you will guarantee these phones to us for the period of one year, as we have to make that guarantee to secure the order, and we want you to protect us on it,” would seem to import one of two things, either that the plaintiff was expected to inform itself as to the terms of the guaranty which defendant had made to the Detroit Stove Works, and adopt that as the measure of its own guaranty, or, what is more reasonable, that the defendant would be understood to have made this guaranty with reference to its own knowledge as to the guaranty which the plaintiff had asserted that it made in its catalogue. The terms of the guaranty were not stated in the letter. The only guaranty which had been proposed by the plaintiff was the one stated in its catalogue following the description of its appliances. With this catalogue before the defendant, we think it must be assumed that the letter was written with reference to it, and that both parties must have understood that, when the requirement of guaranty was stated, that that guaranty was spoken of which was the only one ever considered between the two parties. The case is quite different from what it would be had the order itself purported to be the culmination of negotiations and upon a contract signed between the two parties in which all the terms of the agreement were upon the face of the written instrument set out.

We think the circuit court was in error in holding that the contract between the parties was evidenced only by the letters of February; 11th, 15th, and 16th, and that for this error the judgment should be reversed and anew trial ordered.

Grant, C. J., and Blair, Ostrander, and Hooker, JJ., concurred.


author: Ostrander, J.

text:
    HOFFMAN v. SHELL.
    1. Drains — Proceedings to Establish — Special Commissioners —Citation—Evidence of Service — Sufficiency.
    Where the order of the probate court appointing special com•missioners in drain proceedings recites that it appears by affidavit of publication on file that due publication of the citation has been made, there is evidence that a copy of the citation was duly published.
    2. Same — Defective Petition — Equitable Interference.
    The fact that a petition for the construction of a drain is defective, for which reason, perhaps, the court should dismiss it, is not ground for equitable interference, the landowner’s remedy being statutory.
    3. Same — Taxes—Restraining Collection — Grounds.
    A nonresident landowner who has not been served with the notice required by Act No. 272, Pub. Acts 1899, chap. 4, § 1, either personally or by publication, and has not waived it, is entitled to have the collection of the special tax levied for the construction of a drain restrained, and the taxes and assessments set aside.
    Appeal from Gladwin; Sharpe, J.
    Submitted October 24, 1907.
    (Docket No. 131.)
    Decided March 31, 1908.
    Bill by A. J. Hoffman against Herbert Shell, drain commissioner, and David S. Streeter, township treasurer, to vacate certain drain proceedings, and to enjoin the collection of taxes. From a decree dismissing the bill, complainant appeals.
    Reversed.

      E. C. Babcock, for complainant.

      Thomas Cf. Campbell, for defendants.
   Ostrander, J.

The bill asks for a decree vacating proceedings to establish a county drain and enjoining the collection of taxes levied to pay for its construction. In the answer, the benefit of a demurrer is claimed upon the ground that the allegations of fact in the bill relating to the proceedings to lay out the drain, if true, are not sufficient to give the court jurisdiction and the other matters alleged, if true, are not sufficient to avoid the taxes. The answer thus proceeds:

“That the several allegations of fact in the said bill, are to the best of the knowledge, information of the said defendants either untrue in fact, or the said defendants and each of them are' unable to say whether the same are true or untrue, and complainant is therefore left to his proof in relation thereto.”

It is further averred that the proceedings to establish and construct the drain, including the spreading of taxes for such construction, have been free from errors and irregularities prejudicial to the rights of complainant. The particular charges in the bill are in no other manner answered. The court below was of opinion that inasmuch as the complainant admitted having knowledge that some proceedings were being taken to establish the drain, and as fraud, in fact, on the part of the drain commissioner was not alleged or proven, a court of equity would not, and under the rulings of this court should not, interfere.

The meritorious question is whether the court should have retained, for any purpose, jurisdiction of the case. See Strack v. Miller, 134 Mich. 311, and cases cited in the opinion; Crandall v. McElheny, 146 Mich. 191. All material allegations of the bill are admitted by the answer. Chancery Rule 10. The most of them are, also, proven. It appears that there was no legal application for the laying of the drain (2 Comp. Laws, § 4319; Act No. 272, Pub. Acts 1899, chap. 3, § 1); that such application as was made was not acted upon for two years after it was filed (2 Comp. Laws, § 4320); it was made to a predecessor in office of the defendant drain commissioner. The commissioners appointed by the probate court met neither at the time nor place appointed by the court (2 Comp. Laws, § 4326), and they took their oaths six days after the time appointed for their meeting; the final order of determination was not filed with the county clerk (2 Comp. Laws, § 4340; Act No. 272, Pub. Acts 1899, chap. 4, § 1); the notice of letting contracts and of review (2 Comp. Laws, § 4340; Act No. 272, Pub. Acts 1899, chap. 4, § 1) contained no description of the special assessment district or of the assessments for benefits, but only a description of lands traversed by the drain, and it was neither posted nor published as required by law; four 40-acre descriptions of complainant’s land, taxed to pay for the drain, are not described at all in the said notice of letting of contracts; some of the land of complainant which is taxed lies below the mouth of the drain and the drain has its outlet on complainant’s land, to his injury. See Bruggink v. Thomas, 125 Mich. 9. No assessment roll was made by the drain commissioner and filed with the town clerk. Complainant is a nonresident of the county. He is a sailor, spending his winters ashore. He knew, that a drain running through some of his lands was proposed. In February or March, 1905, he was applied to-by the drain commissioner to release the right of way and damages, and declined to do so for the reason that the survey which had been made indicated that the drain would, as it does, have its lower end and outlet on his land. In the fall of 1905, he was confronted with a demand for the taxes in question. He acted promptly.

But it is not charged in the bill, and therefore is not admitted by the answer, that complainant was not served with a citation (2 Comp. Laws, § 4323), or that a copy of the citation was not duly published (2 Comp. Laws, § 4324). In the brief it is said that there was no service or attempted service of the citation, and it is claimed, also, that this fact is established by the evidence. The record justifies a different conclusion, though perhaps upon slight evidence, because in the order of the probate court, appointing commissioners, introduced by counsel for complainant, is recited the issuing of the citation and that it appears—

“ By affidavit of publication now on file with this court that due and legal publication of said citation has been made as notice to all persons who are nonresident owners of lands to be affected by such drain.”

There is therefore no denial of the jurisdiction of the probate court to act, in some way, upon the petition filed by the drain commissioner. In saying this, it is apparent that we are deciding that the mere fact that a petition is defective, for which reason, perhaps, the court should dismiss it, is not a ground for equitable interference. The court acted and the remedy of complainant, so far as the proceedings to lay the drain are concerned (a remedy which it would appear from his allegations is still open to him), is the statute remedy.

Should the court have restrained the collection of the taxes ? The question is answered, in favor of complainant, by the decision of this court in Hinkley v. Bishopp, 152 Mich.— He is nonresident. He had not the notice required by Act No. 272, Pub. Acts 1899, chap. 4, § 1, since it appears that there was no notice containing proper matter, that none was published or posted, and that he was not personally served with such notice as was prepared. He has not waived the notice. He may, if he chooses, have a decree setting aside the taxes and the assessment, subject to a reassessment. Neither party will recover costs of this appeal.

Grant,. C. J., and Blair, Montgomery, and Hooker, JJ., concurred.


text:
    COWHAM v. SHIPMAN.
    1. Partnership — Death oe Partner — Duty of Survivor.
    On the death of one of two partners in a venture having for its object the collection from the government of claims in favor of certain Indians, it became the duty of the survivor to collect the assets, pay the debts, and wind up the concern.
    2. Same — Contracts—Limitation—Expiration of Period.
    Though the contracts by which the partners were authorized to prosecute the claims were limited by their terms to a period which had expired at the time of the death of the partner, it was proper for the survivor to continue to make efforts to collect under them, where they were still being acted upon by the parties.
    3. Same — Duty of Survivor — Prosecution of Business.
    After final defeat of the enterprise, and the ending of all hope of obtaining anything for the Indians owing to the disbursement of the fund by the government, all legal obligation to the Indians and to partner’s representative was ended, and the survivor was under no duty to proceed further, since he could not do so with any expectation that he would thereby be able to have any portion of the expense allowed against the estate in case he should fail in his efforts.
    4. Same.
    It was the survivor’s duty to dispose of the asset if possible, if it was worth anything in the market, or, if he appropriated it to his own use, to recompense the deceased’s estate for it, or allow it to share in the proceeds.
    Appeal from Branch; Yaple, J.
    Submitted October 25, 1907.
    (Docket No. 143.)
    Decided March 31, 1908.
    Bill by William F. Cowham, special administrator of the estate of Edward Twiss, deceased, against John B. Shipman for an accounting. Prom a decree dismissing the bill, complainant appeals.
    Reversed and remanded.

      T. E. Barkworth, for complainant.

      Mark S. Andrews, for defendant.
   Hooker, J.

Twiss, a doctor sustaining intimate relations with certain Pottawatomie Indians, interested Ship-man, a lawyer, in a project to collect from the Federal government their share of certain annuities due them under a treaty of 1833, made with that tribe. Twiss secured two contracts, made in 1888 and 1889 respectively, with a large number, but by no means all, of said Indians, by which the copartners agreed to attempt the collection of the shares of said Indians for a contingent fee of 10 per cent. Shipman made strenuous efforts to do this. He was instrumental in getting Congress to pass a bill submitting the matter to the court of claims. He began an action in said court and prosecuted it to judgment in conjunction with another suit begun byoneCritcher for other and possibly some of the same Indians who had contracted with Twiss and Shipman, and in 1892 a judgment was rendered in favor of Critcher’s Indians and against those represented by Shipman and Twiss, and this was affirmed by the Supreme Court in 1893. Phineas Pam-to-pee v. U. S., 148 U. S. 691.

Appropriations were made to pay these annuities, and finally an arrangement was made by the government under which it appropriated and disbursed $156,000 in liquidation of all claims held by said Indians. One of the provisions of the bill was that amounts due counsel should be withheld and paid to them. For about two years after said appropriations Shipman made repeated attempts to obtain the commission which he and Twiss claimed that they were entitled to, but without success, both the commissioner of Indian affairs and the secretary of state denying this claim, the last decision (being rendered on May 25, 1896. The money was distributed to the Indians, or to them and Critcher, in November and December, 1896, and Shipman received none of it.

The two contracts were limited to five years from January 1, 1889. In August, 1894, a writing executed by Shipman was made and this was found among the papers of Twiss after his death, which occurred May 12, 1895. A copy follows:

“ For value received, I do hereby sell, assign, transfer, and set over to Edward Twiss, his personal representatives and assigns, a one-half interest in all contracts made and to be made with Pottawatomie Indians in relation to claims against the United States under various treaties with said Indians, said contracts consisting of several papers, but all dated April 5, 1894, or since then, said contracts having been originally intended for the joint benefit of both, but being made in my name for convenience.

“Aug. 2, 1894.”

By the death of Twiss the copartnership was dissolved, and, as already appears, Shipman continued his efforts to secure the commission from the fund of $156,000 then in the hands of the commissioner of Indian affairs, of the department' of the interior. He afterwards began a suit as survivor, in the court of claims, in the further effort to collect the commissions.

About the year 1898 we find him making an effort to adjust the matter with the executor of Twiss, recognizing that the estate had an interest in the claim then pending. The correspondence shows that he was unwilling to be to the expense of continuing his efforts, and he threatened to quit and go home from Washington, where he then was, if he could not make some arrangement about the matter. On February 9, 1898, he wrote:

tlMy dear Jo:

“ I don’t believe I shall ever get a cent from the govt, for fees in the Indian matter without a suit in the court of claims. All this is expensive and tedious. Now what will the executor of Dr. Twiss do in the premises ? I mean how much or rather how little will he take if I get anything and be satisfied ? I presume I am out five dollars to his one so far. How much is his expense account ? I don’t feel like going ahead without more knowledge for I shall earn all I get and if I must pay much of it out I will not go on with the uncertainty also of success. Please write.

“ Yours,

“John B. Shipman.”

On March 20, 1898, Shipman wrote:

“My dear Jo:

“Your letter is too uncertain in the Indian matter to do business on. I must have something definite if I am to go ahead. I propose to go on, furnish the funds necessary and out of the avails give the estate one-sixth and take the balance, this division to be in full for all claims in the matter including disbursements past and future. If I had not so much in it now I would not do this, but what I get is clear gain or would be rather if I let go now and I am willing to take some chances on getting part of it back, if not the whole, but you see it will involve another appropriation by Congress to get it even if I go into and succeed in the court. And then the amount would be uncertain, thus: would ten per cent, be figured' on the proportionate number I actual represented who ought to have been paid? If so, the amount should be over $7,000. Or the number actually paid. If this is the basis it would be much less. Now if you accept, senda little agreement to the effect mentioned, signed by you as executor of the estate at once, or if you choose, send it in duplicate, both signed and I will sign and return one to you. If you will not, say so and end it.

“Hastily yours,

“John B. Shipman.”

As late as March 23, 1898, the executor wrote:

My friend John:

‘ ‘ I have your letter of the 20th inst. Do you think I have the authority to make this agreement which you request ? Suppose the judge should say I had not ? In that case would not J. W. McCausey have to do about .what he (the judge) will say is right ? I am perfectly willing to make any agreement that will satisfy the parties who are interested in the will, but I would not think it would do for me to act upon my own motion in the matter. The heirs or legatees should be heard and the judge should give me some authority in the matter. The will has not been proved? No? I will let the whole business drop before I will put myself in shape tó be squeezed at the last end. I may be wrong concerning my liability, but if I am, I don’t see why any executor may not dissipate and go as you please with any estate. You certainly should have good pay for your time and money and the chances you take if you go on with the case, but I don’t believe that I have thé right to say what that shall be.

“ Yery truly,

“ J. W. McCausey.”

In 1903 Congress passed an appropriation bill providing $78,000 for certain Indians who did not share in the former distribution. This probably included some Indians who had been parties to the original contracts. Shipman testified that it included a much greater number who had not. There is little doubt that Shipman was instrumental in obtaining this legislation, and he is shown to have paid a large sum of money for assistance in the matter.

In 1904 he obtained contracts from many Indians to collect their share of this appropriation for a contingent fee of 25 per cent., and he ultimately received some $19,000 as such fee, from the fund. One' claim in this caséis that these contracts made in 1904 were covered by the assignment of 1894, of a half interest in certain contracts, and the administration asks a decree to that effect and an accounting. The bill was dismissed and complainant has appealed.

The relation between Twiss and the defendant was that of copartners. On the death of Twiss, in 1895, it became the defendant’s duty to collect the assets, pay the debts, and wind up the concern. These contracts, although limited by their terms to five years, were still being acted upon by the parties, and it was proper for defendant to continue to make efforts to collect under them. Tompkins v. Tompkins, 18 S. C. 1; Ayres v. Railroad Co., 52 Iowa, 491; Oliver v. Olmstead, 112 Mich. 483; Clay v. Field, 34 Fed. 375.

But after his final defeat in 1896, and when all hopes of obtaining anything for his clients under appropriations already made were ended by the disbursement of the fund, there was no further legal obligations to the Indians or to his copartner’s representative to proceed further with the contract, as he could not do so with any expectation that he would thereby be able to have any portion of the expense allowed against the estate in case he should fail in his efforts. He would proceed at his peril and this he was not under obligation to do. Matteson v. Nathanson, 38 Mich. 377; Potter v. Tolbert, 113 Mich. 486; First Nat. Bank of Cooperstown v. State Sav. Bank of Ionia, 130 Mich. 332; Frey v. Eisenhardt, 116 Mich. 160.

What was his further duty? Under the circumstances, it can hardly be said that he could bind his copartner’s estate to share the expenses of an. uncertain effort to obtain a further appropriation, and if he attempted anything of the kind it would have to be at his own risk. Twiss was dead and could furnish him no assistance in getting an extension of the contraéis from the. Indians who had made the original contracts, or new contracts from others. We think that he was under no further obligations to the representatives of Twiss, i. e., no obligations to make further efforts to perform the original ¡contracts with the Indians.

The fact remains that he did pursue the scheme of collecting claims under the treaty in the manner stated, and made no effort to dispose of any interest that the copartnership had in the contracts, except as before doing it, and as early as March, 1898, he proposed terms in which he would take the estate’s interest, assume the burden and chances, and pay contingently an aliquot part of the proceeds that he might receive by way of compensation. .Bee letter of March 20 th, above. This was five years before the new contracts were made and some years before the appropriation was made. He may not have contemplated a new appropriation or 25 per cent, contracts, or contracts with new Indians, and it is not strong evidence of the market value of the interest of the copartnership.

The copartnership owed no further duty to the Indians. The defendant owed no further duty to his copartner’s representative, in the way of attempting to perform the contract. It was his duty, however, to dispose of the asset if it was worth anything in the market, if possible, and if he appropriated it to his own use, to recompense the estate for it, or to permit it to share in the proceeds. See Freeman v. Freeman, 142 Mass. 98; King v. Leighton, 100 N. Y. 386; McClean v. Kennard, L. R. 9 Ch. App. Cas. 336.

It is somewhat difficult to determine what, if any, value the rights under the contract had, and what, if anything, they contributed to the success of defendant’s last effort. It is probable that they were of some use and aid to him, and equity demands that whatever it was he should share with the estate. In defendant’s letter of March 20, 1898, he offered one-sixth of the proceeds to be allowed to go on with the matter, and we will adopt that as the only evidence of value in the record.

We do not overlook the fact that complainant seems to base his claim largely on an assignment dated in August, 1894. Of this it is enough to say that this record fails to include any contract therein described or to which it has reference. It has been quoted, and clearly refers to some contracts with Indians which bore date prior to the death of Dr. Twiss, and no such contract has been produced. Hence we need give it no further consideration.

Decree is reversed. The complainant may take a decree in this court for an accounting, his share to be one-sixth of the commissions received from the Indians who were parties to the first two contracts made by Twiss and defendant, discharged from any obligation to contribute further than Twiss has already done to the expense of collecting said claims, with costs of this court. The cause will be remanded for the accounting and final decree in conformity with our decree. Costs of the circuit court to be determined on the final decree.

Grant, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.


author: Carpenter, J.

text:
    MALONE v. MALONE.
    1. Trusts — Bill to Establish — Evidence—Sufficiency.
    On a bill to establish and enforce a trust in a fund consisting of the proceeds of crops raised on complainant’s farm by defendants’ testator, evidence examined, and held, to support the claims of neither of the parties to the entire fund, but to show that there was an understanding between complainant and defendants’ testator that the fund should be equitably divided.
    2. Judgment — Chancery Decree — Relief Demanded — Conformity to Evidence.
    Complainant, entitled to an equitable interest in a fund, cannot complain of the failure of the trial court to give him any relief, where the only relief he demanded was the entire of the fund, and he presented no testimony upon which to base an award of a less amount.
    3. Appeal — Chancery Decree — Denial of Relief.
    Complainant, entitled to an equitable interest in a fund, will not be denied all relief because he claimed the entire of the fund in the court below and presented no testimony upon which to base an award of a less amount, but the record will be remanded with instructions to the trial court to permit the introduction of testimony to prove the interests of the parties in the fund and to enter a decree in accordance with the facts shown by such testimony.

      4. Trusts — Enforcement—Lien on Land.
    On a bill to establish and enforce a trust in a fund invested in real estate in defendants’ names, the decree in complainant’s favor may be made a lien on the land to be enforced as a mortgage if not paid by defendants.
    5. Same — Remedy in Equity.
    Complainant, entitled to an equitable interest in a fund in the hands of defendants’ testator, was not obliged to present his claim to the probate court as a creditor of testator’s estate, but had a right to resort to equity to enforce the trust.
    6. Costs — Appeal—Appellant at Fault.
    On appeal from a decree dismissing a bill to establish a trust in a fund in the hands of defendants, complainant having demanded the entire fund, though only entitled to an equitable interest therein, and having offered no testimony upon which to base an equitable division of the fund, the court, on reversing the decree and remanding the record with instructions to permit proof of the interests of the parties, awarded costs to defendants.
    Appeal from the superior court of Grand Rapids; Stuart, J.
    Submitted November 13, 1907.
    (Docket No. 177.)
    Decided March 31, 1908.
    Bill by Peter Malone against Sarah Malone, Elizabeth Malone, and Margaret Malone to compel the conveyance to complainant of certain real estate. From a decree dismissing the bill, complainant appeals.
    Modified and remanded.

      Martin H. Garmody, for complainant.

      Walter I. Lillie, for defendants.
   Carpenter, J.

Complainant is the father of defendants. The controversy relates to a fund of $4,556.15, which was on deposit, in bank in the name of William Malone, a son of complainant and a brother of defendants, at the time of his death, March 7, 1903. William Malone left a will whereby he devised this fund to his sisters, the defendants. The will was probated and the fund distributed to defendants and by them invested in real estate in the city of Grand Rapids. The bill prays that defendants be compelled to convey said real estate to complainant. The case was heard in the superior court on testimony taken in open court, and the bill dismissed. Complainant appeals.

The fund in controversy is the proceeds of the sale of crops raised on a certain farm in Ottawa county. Most of this farm belonged to complainant. A small portion of it belonged to his son William. Both complainant and William resided on this farm for many years. During most of this time complainant was living with his second wife, not the mother of William and the three defendants, while William resided with his sisters, the defendants. During all this time William was the manager of the farm and gave his entire time and attention thereto. His father, the complainant, was a plasterer and carried on his trade in the city of Grand Rapids.

The determining question in this case is this: What was the arrangement between complainant and William whereby the latter carried on the farming operations ? Complainant insists that that arrangement gave him the entire proceeds of the crops after the expenses were paid. Defendants insist that that arrangement gave the entire proceeds to William. We can agree with neither of these contentions. Neither of them is probable and neither is established by convincing testimony. We are convinced that there was an understanding that the proceeds of the crops should be divided, and that William held the fund in controversy in pursuance of that understanding, but we are bound to say that there is no credible testimony tending to prove what share each should have therein. In accordance with this understanding, the fund should be divided between the parties and upon the assumption that their respective rights are determined by no express agreement. Under these circumstances it may be presumed that there was an implied agreement to divide this fund on an equitable basis; that is, according to the value of the respective contributions of each party thereto. A decree so dividing it is the appropriate decree to be made in this case. It must be said, however, that neither the trial court nor this court can, upon this record, enter such a decree. In the trial court, as in this court, complainant’s sole claim was that the entire fund belonged to him. Neither his testimony nor that of the defendants affords data by which the fund can be equitably divided. The value of their respective contributions cannot be definitely ascertained. Upon such a record complainant cannot complain that the trial court gave him no relief. He asked the trial court to give him the entire fund. He presented no testimony whereby he could be awarded a less amount. He made no claim for a less amount. The trial court could not give him the only relief he asked, and therefore, as above stated, he could not complain that he received nothing. We think, however, that it would be unjust to deprive complainant of what he is entitled to have — the equitable portion of this fund— merely because he claimed the entire fund. We are therefore of the opinion that the record should be remanded with instructions to the trial court to permit the parties to take additional testimony tending to prove the value of the respective contributions to this fund, and also with instructions to enter a decree in accordance with the facts shown by such testimony. The decree in complainant’s favor may be made a lien on the real estate in which the fund is invested, and if not paid by defendants it may be enforced as if it were a mortgage thereon.

Defendants urge that complainant should have presented his claim to the probate court and has no standing in a court of equity. This would be true if he were merely a creditor of his son’s estate. But he is more than that. The testimony that both he and his son regarded the fund in controversy as a trust fund is convincing, and under these circumstances he has a right to resort to equity to enforce that trust. See Richardson v. Richardson, 100 Mich. 373.

Defendants contend that complainant had no claim upon the real estate in which the money was invested, because he assented to said investment in the name of defendants. We reject this contention because we do not believe complainant assented to such investment.

In so far as the decree of the trial court denies the right of complainant to the entire fund in controversy, it is affirmed. We do not, however, affirm that portion of the decree dismissing complainant’s bill of complaint. Instead of dismissing the bill, the record is remanded for further proceedings in accordance with this opinion. It is due to complainant’s own conduct that he was compelled to take this appeal, and therefore we award defendants costs of this court. The costs in the trial court may be determined by the final decree therein rendered.

Grant, C. J., and Blair, Moore, and McAlvay, JJ., concurred.


author: GI-rant, C. J.

text:
    WADE v. DETROIT, YPSILANTI, ANN ARBOR & JACKSON RAILWAY.
    1. Railroads — Electric Lines — Trespassers on Track — Duty oe Motorman — Discovered Peril.
    The motorman of an electric-railway oar, operating upon private right of way inclosed by fences, is under no obligation to keep a lookout for trespassers; his duty being to sound his gong or blow his whistle when he sees trespassers on the track, aiid to take all precautions possible to stop his car when he discovers that they are not aware of his approach.
    2. Same — Contributory Negligence — Discovered Peril.
    Where a boy, 14 years old, on his way with a companion to a lake to skate, instead of continuing along the highway which was just as near, crawled through two wire fences onto defendant’s right of way running parallel with the highway, and while walking along the track was killed by being run down by a fast freight car overtaking him on a curve upon which the view was obscured by poles and fence posts, the railway company was not liable for his death, in the absence of proof that the motorman discovered his peril in time to have stopped, the boy being a trespasser and it being his duty to keep a lookout for his own protection.
    Error to Jackson; Parkinson, J.
    Submitted January 15, 1908.
    (Docket No. 61.)
    Decided March 31, 1908.

      Case by James Wade, administrator of the estate of Leo Wade, deceased, against the Detroit, Ypsilanti, Ann Arbor & Jackson Railway for the negligent killing of plaintiff’s intestate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      James 8. Gorman and Charles E. Townsend, for appellant.
    Corliss, Leete & Joslyn, for appellee.
    The track of the defendant’s road, the track of the Michigan Central Railroad, and the public highway extend east and west near the village of Chelsea, and are located side by side, the defendant’s track being on the south and the highway upon the north. Defendant’s right of way is inclosed with barbed wire fences, as is also that of the Michigan Central Railroad.
    On January 27, 1906, plaintiff’s son, Leo, 14 years old, and another boy, came from the north on a highway to the highway mentioned above, parallel with the railroad tracks. They intended to go to a' pond, lying to the south of these roads, to skate. Instead of taking the highway, which would have been just as near, they crawled through two wire fences onto the defendant’s roadbed and walked east between the rails. It was time for a fast freight car, weighing 25 tons and loaded with 10 tons of freight, to pass this point on its way east. A freight train was passing east at the same time on the Michigan Central Railroad. While passing over a curve about 1,000 feet long, and near the center thereof, this car came up behind the boys, and struck and killed the deceased. The other boy glanced behind him in time to see the approaching car, to jump from the track, and escape. He hallooed to Leo but the warning came too late. Around this curve were located telegraph and telephone poles and fence posts, which obstructed the view of the motorman. The car was running from 45 to 55 miles an hour. When the plaintiff had rested his case, the court directed a verdict for the defendant.
   GI-rant, C. J.

(after stating the facts). The two boys were trespassers upon the track. They knew that they were. They were familiar with the defendant’s road, the funning of its cars, and the danger incident to walking on its track. They knew that it was about time for this car to pass. Counsel for plaintiff upon the trial conceded that “the motorman did not intentionally run into the boys.” The claim then was that the motorman did not see when he should have seen, and that this was gross negligence. The same counsel in their brief now assert that he “deliberately drove his car with an utter disregard of consequences against them.” It is sufficient to shy that the record is barren of any evidence upon which such an assertion can be based. The motorman was under no obligation to keep a lookout for trespassers. His legal duty was to sound his gong or blow his whistle when he saw the boys on the track, and to take all precautions possible to stop his car when he discovered that they were not aware of his approach. That he did this, is conclusively established.

It was the duty of the deceased, first, to keep off the track, and, second, when on it, to keep a careful watch behind him. A glance in time would have revealed to him the situation and have enabled him to step off the track which he could have done in a second of time. Under plaintiff’s contention the same watchful care would be required to protect trespassers as those who are rightfully on the tracks at crossings and in streets and highways. The case is ruled by Trudell v. Railway Co., 126 Mich. 73 (53 L. R. A. 271); Buckley v. Railroad Co., 119 Mich. 587; Buxton v. Ainsworth, 138 Mich. 537.

Judgment affirmed.

Blair, Moore, Carpenter, and McAlvay, JJ., concurred.


author: Grant, C. J.

text:
    CHARRON v. UNION CARBIDE CO.
    1. Master and Servant — Injuries to Servant — Appliances and Plages to Work — Duty of Master — Anticipation of Accident.
    In an action for the death of a servant caused by an explosion of acetylene gas in a manufactory of calcium carbide, evidence examined, and held, to show conclusively that defendant manufacturer knew that a combination of water, carbide, air and a spark would produce an explosion, and that defendant was also chargeable with knowledge that there was carbide in the pit of an elevator in its factory; that the floor was so constructed that water falling upon it would reach the pit; and that sparks were produced in the elevator, so that an explosion following the uncoupling of a steam pipe containing a quantity of water which ran upon the floor was not an accident which could not have heen anticipated, but was one which defendant should have anticipated and used every precaution to prevent.

      H. Same — Degree of Care Required.
    The degree of care required of a master is measured by the danger known to him.
    3. Same — Contributory Negligence.
    A foreman of the packing department in a calcium carbide manufactory was not guilty of contributory negligence in continuing at his work while a steam fitter, under control of another superior, uncoupled a steam pipe which discharged water upon carbide in an elevator pit, causing an explosion, the foreman having no warning of danger.
    4. Same — Assumption of Risk.
    Neither did he assume the risk of injury from that source, it not being an ordinary risk which the employés in other departments assumed.
    6. Same — Fellow-Servants—Delegable Duties.
    The duty of ascertaining whether there was water in the pipe, and causing it to be drained before uncoupling it, was one which devolved absolutely upon defendant, and was nondelegable, whence the steam fitter directed to remove the' pipe, was not, as to that duty, the fellow-servant of the foreman in the packing department, injured by the explosion which followed the removal.

      Error to Chippewa; Steere, J.
    Submitted January 17, 1908.
    (Docket No. 84.)
    Decided March 31, 1908.
    Case by Barthelmy Charron, administrator of the estate of Michael J. Moriarity, deceased, against the Union Carbide Company for the negligent killing of plaintiff's intestate. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Fred L. Vandeveer (Oren, Webster & Carleton, of counsel), for appellant.

      F. T. McDonald, for appellee.
    The defendant is engaged in the manufacture of calcium carbide, a commercial product used in the generation of acetylene gas, a brilliant illuminant, extensively used in the various forms of commercial lighting. Defendant’s plant is an extensive one, consisting of two very large buildings and several smaller ones. A minute description of the machinery and the method of manufacture is unnecessary.
    In one of these large buildings was located the grinding and packing department. This was, the.main carbide building, was 300 feet long and 80 feet wide, and was heated with steam. In it were screen cases and elevators. Steam pipes ran along the wall of the building, with radiators appropriately arranged to secure»the requisite heat. Along the north wall of this room was located the main return pipe of the Various. steam radiators which were located along said wall. This pipe was located near the top of the conveyor, which had been removed, and could not be raised and reset at the angle proposed, unless the steam pipe was raised. One William Gunyon was the regularly employed steam fitter and plumber of the defendant. He had been directed by his foreman to make the requisite change in the pipe. This foreman, Robert P. Byers, had been instructed by the assistant superintendent, Mr. Scales, to have this change made. Mr. Gun-yon was assisted in the work by one Matheson, an iron worker and boiler maker, and an employé of the company.
    At the bottom or pit of one of the elevators, No. 33, there was carbide. When water or considerable dampness comes in contact with the carbide it generates a dangerous gas, and when mixed with air, a spark would ignite it and cause a severe explosion. The defendant knew this danger, and consequently precautions were taken to keep the room dry and prevent water or moisture reaching the carbide. The defendant’s employes, at least those who had been long in its employ and directly engaged in the manufacture, also understood the liability to explosion. When the mill is in operation sparks are formed in the elevators. This return pipe was provided with a valve by which it could easily be ascertained whether there was water in the pipe, and by which if there was it could be drawn out. Neither Gunyon nor his foreman, nor the superintendent who ordered the work done, took steps to ascertain whether there was water in the pipe. Neither did the superintendent or the foreman caution Mr. Gunyon to see that the water was removed from the pipe, or inform him of the danger if water escaped therefrom upon the floor. Gunyon was not a witness, and no explanation was given for his conduct in breaking the pipe without removing the water. Mr. Matheson testified that Mr. Gunyon asked him if he (witness) thought there was any water in the pipe. Witness replied: “I told him I did not know anything about it, it was not my affair.” When the pipe was broken the water ran out. Mr. Matheson caught up a can and succeeded in catching and throwing out of the window a part of it. The other ran upon the floor into the pit of elevator 33, where there was carbide. An explosion immediately followed, killing plaintiff’s decedent, Mr. Moriarity. Mr. Moriarity was foreman of the packing department. He was engaged in working at the elevator when the explosion occurred. He had no control over Mr. Gunyon or his work.

      The negligence charged is that the defendant “negligently, carelessly, and unskillfully broke and uncoupled the steam pipe or elbow, then' and there being, without first having inspected the same to ascertain if there was water therein, and without any warning to plaintiff’s intestate of danger, so that he ndight seek a place of safety.”
    At the conclusion of the plaintiff’s case defendant’s counsel moved the court to direct a verdict for the defendant, because,—
    (1) Gunyon and Moriarity were fellow-servants.
    (2) The accident could not have been anticipated.
    (3) Moriarity was guilty of contributory negligence.
    (4) The risk was assumed.
    The motion was denied, and the case submitted to the jury on the plaintiff’s evidence, the defendant offering none. The jury rendered a verdict for the plaintiff.
   Grant, C. J.

{after stating the facts). The evidence conclusively shows that the defendant knew that a combination of water, carbide, air, and a spark would produce an explosion. It was its duty to take every precaution possible to avoid such a condition. The defendant was also chargeable with knowledge that there was carbide in the pit of the elevator; that- the floor was so constructed that water falling upon it would reach the pit; that sparks were produced in the elevator, and that a combination of these was likely to produce disastrous consequences. So far, therefore, from this being an accident which could not have been anticipated, it was one that the company should have anticipated and used every precaution to prevent. Geller v. Briscoe Manfg. Co., 136 Mich. 330. The degree of care required is measured by the danger known to the master.

There was no evidence that Moriarity was guilty of contributory negligence. His work belonged entirely to another department of the business from that of Mr. Gun-yon. He was foreman of the packing department. Gun-yon was not subject to his control. There is no evidence that plaintiff knew that this work was going on, and we may reasonably infer that it was being done out of his sight. But had he known what Gunyon was doing, he would have no occasion to anticipate danger. There is nothing to indicate that he had any warning of the danger. Under these circumstances he was not only guilty of no negligence, he did not assume the risk. It was not an ordinary risk which the employés in other departments assumed.

The only question of doubt is whether Gunyon and Moriarity were fellow-servants. Gunyon and Moriarity were employed in departments of the defendant’s business entirely separate and distinct. Gunyon is not supposed, and is not shown, to have had knowledge of Mr. Moriarity’s position or work. He was simply a steam fitter and plumber. He had nothing to do with the manufacture of the product. There was nothing in his position as a steam fitter and plumber which would cause him to know the conditions under which an explosion might .occur. There is no tangible evidence that he did know. Why he was not called as a witness does not appear. Confessedly the defendant’s superintendents did not inform him. They assumed that he knew it, and knew that the water should be drawn from the pipe, if there was any there, before he could safely do his work. The learned counsel for the defendant say in their brief that if defendant had called in an outside steam fitter or plumber it would have been its duty to tell such man the danger of water coming in contact with the carbide, and the necessity of draining the pipe before breaking it. Not only would that have been its duty, but the duty would still have remained to see that it was properly done. It was no less its duty to know, not to infer, that Mr. Gunyon, its employé, had that knowledge. This defendant cannot excuse itself upon the ground stated by its counsel, ‘ ‘ that Gunyon would presumably have become acquainted with the purposes for which carbide was manufactured, and that moisture and water coming in contact with it would generate at least an inflammable gas.” Mr. Gunyon may have been a competent steam fitter and plumber without having any knowledge whatever essential to his doing the work which he was instructed to do properly and safely. The duty of defendant was the same with Gunyon in this work that it would have been with an outside plumber.

The superintendent and foreman both knew the danger and the necessity of preventing it. Either could in a few moments have turned the valve at the proper place and removed the water. Common prudence would have required them to do so. They knew that their employés, working in the plant, manufacturing the product, would have no knowledge of any danger and no occasion to guard against it. It was not one of the ordinary pieces of work about which workmen might be supposed to know. It furthermore appears from the evidence that these pipes are not used in the summer time, and had not been used during that summer prior to the accident, which happened on August 16th. There would be much force in saying that Mr. Gunyon knew this and would have no occasion to suppose that the pipe would be full of water. It was the duty of the master to know whether there was water in the pipe. It was not in condition for the performance of the work which Gunyon was instructed to do, as long as there was water in it.

We are of the opinion that the duty to cause the water to be removed from the pipe before instructing the plumber to do the work, which necessitated breaking the pipe, devolved absolutely upon the master and was non-delegable. This case is within the rule of the following cases: Northern Pacific R. Co. v. Herbert, 116 U. S. 642; Ford v. Railroad Co., 110 Mass. 240; Balhoff v. Railroad Co., 106 Mich. 606; McDonald v. Railroad Co., 108 Mich. 7.

The judgment is affirmed.

Blair, Moo;re, Carpenter, and McAlvay, JJ., concurred.


text:
    MASCITELLI v. UNION CARBIDE CO.
    Death — Right of Action — Beneficiaries—Nonresident Aliens.
    Under section 10427, 3 Comp. Laws, creating a liability for wrongful death,- and section 10428, providing for bringing suit and a distribution of the amount recovered to the decedent’s heirs, the language being broad and comprehensive, and making no exception on the ground of residence or citizenship, damages may be recovered in behalf of the widow and children of the deceased though they are nonresident aliens.
    Error to Chippewa; Steere, J.
    Submitted January 17, 1908.
    (Docket No. 42.)
    Decided March 31, 1908.
    Case by Pasquell Mascitelli, administrator of the estate of Petri Alphonsi, deceased, against the Union Carbide Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Fred L. Vandeveer (Oren, Webster & Oarleton, of counsel), for appellant.

      M. M. Larmonth, for appellee.
   Grant, C. J.

Plaintiff’s decedent, Petri Alphonsi, was killed by the same explosion as that in Charron v. Union Carbide Co., ante, 687. Alphonsi was a laborer, and the decision in the Gharron Case establishes the liability of the defendant in this.

Alphonsi was an Italian, — came to this country from Italy in June, 1906, and entered the employ of the defendant. He left surviving him a widow and two children in Italy. It is urged that the statute (sections 10427 and 10428, 3 Comp. Laws) does not permit recovery of damages in behalf of nonresident aliens who are the sole distributees of the deceased’s estate. The authorities upon this subject are in conflict. The principal cases denying the right of action are Deni v. Railroad Co., 181 Pa. 525, and McMillan v. Lumber Co., 115 Wis. 332 (60 L. R. A. 589). Opposed to the holding in these cases are Mulhall v. Fallon, 176 Mass. 266 (54 L. R. A. 934); Kellyville Coal Co. v. Petraytis, 195 Ill. 215; Szymanski v. Blumenthal, 3 Penn. (Del.) 558; Renlund v. Mining Co., 89 Minn. 41; Bonthron v. Fuel Co., 8 Ariz. 129 (61 L. R. A. 563); Romano v. Pipe Co., 125 Iowa, 591 (68 L. R. A. 132); Cleveland, etc., R. Co. v. Osgood, 36 Ind. App. 34; Pocahontas Collieries Co. v. Rukas, 104 Va. 278; Alfson v. Bush Co., 182 N. Y. 393; Pittsburgh, etc., R. Co. v. Naylor, 73 Ohio St. 115 (3 L. R. A. [N. S.] 473); Trotta’s Adm’r v. Johnson, Briggs & Pitts, 28 Ky. Law Rep. 851; Atchison, etc., R. Co. v. Fajardo, 74 Kan. 314 (6 L. R. A. [N. S.] 681); Patek v. Refining Co., 154 Fed. 190.

The arguments for and against the remedy are ably-presented in the opinions in the cases above cited.

Section 10427 provides a liability upon the death of the person injured. No such liability existed at the common law. Section 10428 provides for bringing the suit and a distribution of the amount recovered “to the persons and in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate.” This language is broad and comprehensive. It includes the widow and children of the deceased. It makes no exception on the ground of residence or citizenship.

In the recent case of Alfson v. Bush Co., supra, decided in 1905, the court attaches considerable importance to the fact that for a century emigrants have come to this country, and that they were poor and unable to bring their families with them. The court uses the following language:

“The statute not only benefits the survivors, but protects the laboring man, as it tends to enforce observance, by the employer, of the rule requiring him to furnish his servant a safe place in which to work. The laborer, leaving wife and children behind him and coming here from abroad, has a right to enter into the contract of employment, fully relying upon the statute. The conflict of authority in England and our sister States leads us to deal with this question on principle and to' base our answer to it on reasons that are weighty and controlling.”

Some of the decisions point out a distinction between the different statutes upon which the decisions are based. Thus the supreme court of Wisconsin, in McMillan v. Lumber Go., supra, points out a distinction between the statute of Massachusetts and that of Wisconsin.

It is said in Deni v. Railroad Co., supra:

“No case has been brought to our notice in which an English court has held that a nonresident alien is entitled to the benefits conferred by the act of 1846.”

A recent case in England, reviewing many authorities, is in point. Davidsson v. Hill, 2 K. B. Div. (1901) 606. The court in that case points out that some of the decisions of the English courts, denying the right of action, are based upon statutes relating to matters “ of a special and exceptional kind.” Under a statute the language of which is no broader or more comprehensive than our own, the court in that ca!se held that parliament intended to confer the benefit of the legislation upon foreigners as well as upon British subjects. I have not taken the time to compare and examine the statutes involved in these various decisions with our own. I have compared a few, and where the language is as broad and comprehensive as that in our own statute, the clear weight of authority is in favor of sustaining the right of action.

We are in accord with those decisions holding that the statute gives the right of action for the benefit of aliens, and therefore affirm the judgment.

Blair, Moore, Carpenter, and McAlvay, JJ., concurred.