text:
    STROUB v. MEYER.
    1. Negligence — Driving on Street —Injury to Pedestrian — Contributory Negligence — Questions for Jury.
    Plaintiff’s wife, after dark, but when the streets were well lighted, attempted to cross from the curb to a street car, a distance of 24 feet. When starting, she looked up, and could have seen defendant approaching with a horse and buggy, at a rate of six miles an hour. There was a controversy as to the distance he was from her at the time. His horse was under control, and, seeing her danger, he reined in his horse, which slipped, and fell upon the pavement, striking and injuring her. Held, that whether defendant was guilty of negligence, and plaintiff’s wife of contributory negligence, were questions of fact for the jury.
    2. Same.
    It may be negligence, under some circumstances, to drive along a crowded city street at a less rate of speed than six miles an hour.
    Error to Kent; Perkins, J.
    Submitted December 3, 1902.
    (Docket No. 141.)
    Decided December 29, 1902.
    Case by John B. Stroub against Barney Meyer for loss of services of and expenses in caring for his wife, caused by injuries resulting from defendant’s negligence. From a j udgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff sued the defendant to recover for the loss of the services of his wife, and the expenses incurred in taking care of her, from injuries claimed to have been the result of the defendant’s negligence in driving his horse and carriage on one of the streets of the city of Grand Rapids. He recovered a verdict of $101.50. The accident happened after dark on the evening of October 11th, the last day of a street carnival. Mrs. Stroub was waiting with others for a street car, at the southeast corner of Canal and Bridge streets. It was raining. The stores and all the public places were lighted, as were also the electric lights in the streets. A car had come from the south, and stopped about 30 feet south of the south line of Bridge street for passengers to get on and off. Four persons — two women and two children — started from the sidewalk for the car, preceding Mrs. Stroub. Defendant drove along Canal street from the south, between the car and the curb, going, according to his «own testimony, six miles an hour, and, according to other witnesses, faster. Mrs. Stroub and others, desiring to take the car, went from the curb to the rear of the car, thus going diagonally towards the defendant. Defendant was superintendent of the city lighting plant and the waterworks, and was driving from the former to the latter. There was no occasion for haste. One Kelly, his driver, was with him. The gong attached to his carriage was rung at frequent intervals. Mrs. Stroub, when about halfway from the curb to the car, was struck by the defendant’s horse, thrown down, and injured.' The distance in a direct line between the side of the car and the curb was about 24 feet. Defendant, upon seeing the danger she was in, reined in his horse, which slipped upon the pavement, fell upon his haunches, and slid from two to six feet. The witnesses do not agree upon the distance. The jury, in reply to three special questions, found that Mrs. Stroub, at the time of starting for the car, could see the defendant approach with his horse and buggy; that she then looked up the street towards the point whence defendant was approaching; and that defendant had his horse under control.

      Moses Taggart (G-anson Taggart, of counsel), for appellant.

      Dunham & Malcolm, for appellee.
   Grant, J.

(after stating the facts). The defenses urged are no negligence on the part of the defendant, and contributory negligence on the part of Mrs. Stroub. We think both defenses were properly submitted to the jury. The law does not permit parties to drive under all circumstances along the crowded streets of a city at the rate of six miles an hour. In some places, and under some conditions, it would be negligence to drive faster than a walk. It depends upon the condition of the streets, the number of people crossing, of carriages on it, the degree of.light, and various other conditions. Defendant knew that people were getting on and off this car; that it had stopped for that purpose, and that those standing on the sidewalk would probably hurry across the street to reach the car. We are not prepared to say that, even under his own statement, he was not guilty of negligence in driving at the rate of even six miles an hour. It is said his horse was under control. So he might be under the driver’s control if he was going 10 miles an hour. The fact that the driver had the horse well in hand, and that the horse was not frightened, do not show conclusively that the defendant was not guilty of negligence. It was his duty to approach this place at a rate of speed reasonably slow. Travelers on foot had as much right to the use of this street, to go to and from the car, as he had to ride along it. It was the duty of both to use reasonable care to avoid accident. It is well known that street cars in cities stop but a brief time to permit passengers to get on and off, and that passengers are required to move rather speedily.

The women who preceded Mrs. Stroub testified that they did not see defendant’s horse and carriage. Let it be granted that they, as well as Mrs. Stroub, should have seen it. They were entitled to believe that defendant would approach the place at a reasonable rate of speed. Passengers differ as to the distance defendant was away from the place of the accident. It was raining. Many people were on the streets and sidewalks. Her conduct depended on the distance the horse and carriage were from her, and her ability to determine the speed at which they were approaching. It was a question for the j ury to determine whether, under all the circumstances, Mi*s. Stroub was guilty of negligence in attempting to cross.

Judgment affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    CROSSETTE v. JORDAN.
    1. Corporations — Authority to Execute Mortgage.
    Authority for the execution of a chattel mortgage by a corporation is shown by a recital in its records that, at a meeting of all the stockholders (which included all the directors), the mortgage was read, and a motion made and carried approving the same.
    2. Same — Fraud—Stock Subscriptions.
    That stockholders, on the day before the corporation gave them a mortgage, paid the balance due on their subscriptions to its capital stock by giving it credit on its indebtedness to them, does not, as a matter of law, prove that there was fraud in the execution of the mortgage.
    3. Manufacturing Corporations — Reports—Attachment—Instructions.
    Where there was no evidence that an attachment creditor (under whom defendant in a replevin suit claimed) had any information of reports filed by a manufacturing corporation with the Secretary of State, a request to charge that persons dealing with such corporations have a right to rely upon the fairness and honesty of the statements made therein, was properly refused.
    4 Corporations — Mortgages—Fraud—Instructions.
    Where the jury were instructed that, in determining the question of fraud in the execution of a mortgage by a corporation to its stockholders, they should take into consideration the relationship of the parties, defendant, who did not ask for a more detailed instruction, cannot complain that they should have been instructed that the relationship was such as to call for the utmost good faith on their part.
    Error to St. Joseph; Tapie, J.
    Submitted December 3, 1902.
    (Docket No. 139.)
    Decided December 29, 1902.
    Beplevin by Isaiah B. Crossette against Samuel Jordan. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      S. M. Constantine, for appellant.

      B. E. & L. F. Andreios and William Carpenter, for appellee.
   Carpenter, J.

This is an action of replevin for a quantity of shingles, valued at $193. Plaintiff claims to own the shingles as a purchaser at a foreclosure of a chattel mortgage given to him, as trustee for himself and Alice L. Crossette, by the Isaac Crossette Lumber Company, a corporation. The defendant is a constable, who, when the suit was commenced, held the property under an attachment issued at the suit of Harlan J. Dudley against said Isaac Crossette Lumber Company.

The sole question in controversy is whether or not the chattel mortgage which furnishes the foundation for plaintiff’s title is valid. This chattel mortgage was executed November 27, 1897. It covered the entire stock in trade at Three Rivers, Mich., and the book accounts, of the mortgagor. It secured the payment of specified indebtedness amounting to $1,687. It also secured the payment of all advances made by the plaintiff during the life of the mortgage, by indorsement, guaranty, or otherwise, and of the renewals or extensions of the specified indebtedness. This specified indebtedness consisted of three notes made by said mortgagor, held by Alice L. Crossette, plaintiff’s sister, amounting to $360, $35.71 owed the plaintiff by the mortgagor on open account, certain notes made by the mortgagor and held by the mortgagee, and certain notes made by the mortgagor, held by the First State Savings Bank of Three Rivers, “and all renewals of said notes, which said renewals,” the mortgage stated, “the party of the second part [plaintiff] has agreed to indorse.” The mortgage was at once properly recorded. The plaintiff indorsed the renewal notes as agreed, and soon after made' other indorsements for the mortgagor’s benefit. In February, 1898, the mortgage was foreclosed, and plaintiff purchased the mortgaged property for $2,100, which he testifies was less than the mortgagor owed him.

Testimony was introduced on the trial tending to prove, if it did not conclusively establish, the validity of the indebtedness secured by said mortgage. The Isaac Crossette Lumber Company was a corporation organized by the heirs at law and widow of Isaac Crossette, deceased (plaintiff’s father), in 1893, to carry on the business conducted by said Isaac Crossette during his lifetime. Plaintiff’s mother was president of the corporation ^ plaintiff was its vice-president; plaintiff’s sister Alice L. Crossette (mentioned in said mortgage) was its secretary and treasurer; and John L. Keyport, the husband of another of plaintiff’s sisters, was its manager. Its place of business was Three Rivers, Mich. Plaintiff resided at Muskegon, Mich., and until the giving of the chattel mortgage had little to do with its management. On the evening of November 26, 1897, said plaintiff paid $300, the amount unpaid on his subscription for • stock to said mortgagor corporation,' by crediting that amount on his account against said corporation; and his sister Alice L. Crossette paid $450, unpaid on her stock subscription, by canceling her account for that amount against the corporation. This latter account was made up of $355 for salary due Miss Crossette from January to December, 1897, and $95, a portion of the salary owed by the corporation to her mother, which by common consent was transferred to her credit.

Defendant insists that the mortgage was invalid because its execution was not authorized by the board of directors of the corporation mortgagor, and that the testimony conclusively established its fraudulent character. The court below decided, as a matter of law, that the mortgage was regularly executed. It left the question of fraud to the jury, who found for the plaintiff. Defendant complains of both of these, as well as of numerous other, decisions of the trial court.

Due authority to execute the mortgage is proved by the records of the mortgagor corporation. They recite that at a meeting of the stockholders held November 27, 1897, when all of the stockholders — and this means all of the directors — were present, “the mortgage having been drawn up and read, a motion was made and carried, approving the same.”

The ground upon which it is contended that fraud in the execution of the mortgage was conclusively established is that certain facts established on the trial are altogether inconsistent with good faith. It is a sufficient answer to this contention to say that some of these alleged facts were not only not conclusively established, but there was no evidence from which they might be inferred; that others were not conclusively established; and that the only one conclusively established (viz., the method adopted November 26, 1897, of paying the balance due on stock subscriptions) certainly did not, as a matter of law, prove that there was fraud in the execution of the mortgage.

Defendant complains because the court did not give the following request:

“Persons dealing with manufacturing corporations upon the strength of the reports which they are required to file with the Secretary of State and the county cler]¡c, the knowledge of which is acquired through the usual channels, have a right to rely upon the fairness and honesty of the statements made therein.”

There was nothing in the case to indicate that Harlan J. Dudley, the creditor in the attachment? proceedings under which defendant claims, placed any reliance upon, or had any information whatever of, the reports referred to in the foregoing request. It would have been improper, therefore, for the court to give the request; and the charge to the jury that, in determining the question of fraud, they might consider “the reports of the company to the Secretary of State, and time or times they were made, whether correct or not, and, if incorrect, whether it was the result of an honest mistake or intentional, and, if intentional, what the purpose,-object, and intention was, — whether it relates to or in any way explains the execution of the mortgage,” — sufficiently protected the rights of the defendant.

Complaint is made because the court charged the jury as follows:

“Under the law of this State, Isaiah Crossette and his sister Alice Crossette would occupy no different position as creditors than any other creditor of the Isaac Crossette Lumber Company. The fact that they were members and officers of the company did not affect their legal rights in that respect.”

This is a correct statement of the law, as defendant seems to concede. He contends that the relation of plaintiff and his sister to the mortgagor called for the utmost good faith on their part, and his complaint really is that the jury were not so charged. The court did charge the jury that, in determining the question of fraud, they should consider, among other things, “the relationship of the parties.” Had defendant wished a charge more detailed and explicit, he should have requested it.

We have carefully examined the other assignments of error. None of them are well taken. They, like those discussed, are founded on ' a misconception, which is removed by a careful examination of the record, or they are fully answered by principles of elementary law.

The judgment is affirmed, with costs.

The other Justices concurred.


author: Moore, J.

text:
    ATTORNEY GENERAL, ex rel. GARTHE, v. CAMPBELL.
    Elections — Recount—Identity of Ballots — Finding of Jury.
    In a proceeding to try the title to the office of judge of probate, the finding of the jury that the ballots counted by the cdunty canvassers were the same ballots that were voted is conclusive.
    Error to Leelanaw; Mayne, J.
    Submitted December 3, 1902.
    (Docket No. 143.)
    Decided December 29, 1902.

      Quo warranto proceedings by Horace M. Oren, attorney general, on the relation of Steiner C. Garthe, against James E. Campbell, to try the title to the office of judge of probate of Leelanaw county. From a judgment for respondent, relator brings error.
    Affirmed.

      Thomas Smurthtoaite and Farm. O. Gilbert (O. C. Ransom, of counsel), for appellant.

      Patchin & Crotser and C. L. Dayton (A. ff. Bunting, of counsel), for appellee.
   Moore, J.

This case has been -here before. It is reported in 130 Mich. 283 (89 N. W. 950). After the opinion was filed, the case was tried before a jury, who returned a verdict in favor of the-respondent. The case is brought here by writ of error.

Counsel for relator argue in their briefs some of the questions which were argued by them when the case was here before. We deem it unnecessary to do further in relation to those questions than refer to the opinion before referred to. The remaining questions relate to the recounting of the ballots from the townships of Cleveland, Centerville, Elmwood, and Leland. It was the contention of relator that the ballot-boxes from these townships had been tampered with'before the recount, and for that reason the ballots therein should not be recounted. This contention was disputed by respondent. Testimony was'given tending to support the respective claims. At the conclusion of the testimony each of the parties requested the judge to direct a verdict in his favor. This request was refused, and the case was submitted to the jury in a full and impartial charge. Among other statements made in the charge were the following:

‘ ‘ If the identical ballots cast by the electors at the election in question were before this board of county canvassers, and were recounted by them, then that recount is final and conclusive. By ‘identity of ballots’ I mean that they were the same as cast by the electors, that they were not changed, but that the board of county canvassers had the same ballots before them as were cast by the people at the election in November.
“It will be necessary for you, then, to determine, and it is the question in this case for you to determine, whether the ballots, as presented to the board of county canvassers to be recounted, and as recounted by them, were the same in identity as those cast by the people at the election, — the same ballots as were counted by the inspectors of election and returned by them to the board of county canvassers.
“The burden of proof is upon the respondent, by a fair preponderance of the evidence, to establish the identity of the ballots recounted by the board of county canvassers. To meet this requirement of the law, he has presented certain evidence covering the time which elapsed from the counting of the ballots by the several township officers constituting the various boards of election inspectors in the several townships of the county, and the depositing of them in the ballot-boxes, until the time they were opened by the board of county canvassers and canvassed by them on the recount. It is for you to determine from the evidence in the case whether this identity has been established.
“The ballot-boxes must not be opened by any one, — not even through idle curiosity, — and if they were opened by any one, and their contents examined, or even if the ballots were not examined, if it is clearly established to your mind that they were opened, that would constitute such an interference, or such a change of the ballots, as to affect their identity, and they could not be counted by the board of county canvassers on the recount. If the provisions of the statute were strictly complied with, and no question was raised concerning the identity of the ballots, then, in a case of this kind, it would be the duty of the court to charge you that the recount was in all respects final and conclusive. But, in proportion as the statutory requirements are not complied with, the value of the ballots themselves, as evidence of their identity, is decreased.
“In this county there were eleven townships. Concerning seven of them there is no question but that as the count was originally made it was correct. Only four townships are in question: Cleveland, Centerville, Elmwood, and Leland. You will, therefore, confine your deliberations to those four townships. I might say, and it is not disputed, that in the township of Centerville, as recounted, the majority for Mr. Campbell was 31. If you should find that the identity of the ballots in the township of Center-ville was the same when presented to the board of county canvassers for recount as cast by the people, — that they had not been changed, — then Mr. Campbell is entitled to your verdict. If you should find that the ballot-box in the township of Centerville had been tampered with and the ballots changed, and you should throw that out, and that were the only township that you should find the ballot-boxes tampered with and the ballots changed, and that in the remaining townships the ballots as presented to the board of county canvassers were the identical ballots cast by the people, and that there had been no change, then the respondent, Mr. Campbell, would be entitled to your verdict, even though you rejected the township of Center-ville, because he would still have, under the undisputed testimony, a majority of seven. If you find that enough of those ballot-boxes have been tampered with — provided you find any of them were tampered with — to change the results of the board of county canvassers as they found the same, then your verdict would be in favor of Mr. Garthe, the relator, because the original count would stand in each and every township in which you find that the ballot-boxes were tampered with and the ballots changed.”

The circuit judge then stated the claims of the parties more in detail, but again told the jury if any box had been opened its contents could not be counted. The court, at the request of counsel for the respondent, submitted the following special questions: (1) Were the ballots counted by the board of county canvassers at the recount the same ballots that were voted in the township of Centerville? (2) Were the ballots counted by the board of county canwassers at the recount the same ballots that were voted in the townships of Elmwood, Leland, and Cleveland? Each of which questions was answered “Yes” by the jury. The issue was quite as favorably presented to the jury as the relator was entitled to have it, and its decision is conclusive.

Judgment is affirmed.

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


text:
    ALLGEMEINER ARBEITER BUND v. ADAMSON.
    Benefit Societies — Change of Beneficiary. •
    Where a mutual benefit association, whose constitution provided that a beneficiary might be changed upon a surrender of the certificate, waived such surrender (because the beneficiary, having possession, refused to return it), ar/d, at the request of the member, issued another in its stead for the benefit of another person, the beneficiary in the first certificate, who had made no payments thereon, could not recover from the association upon the death of the member.
    Appeal from Bay; Shepard, J.
    Submitted December 3, 1902.
    (Docket No. 137.)
    Decided December 29, 1902.
    Bill of interpleader by the Allgemeiner Arbeiter Bund against Emma Adamson and Ursula Merz to determine the right to a death benefit. From a decree for defendant Adamson, defendant Merz appeals.
    Affirmed.

      James H. Davitt, for appellant.

      James Van Kleeck, for appellee.
   Moore, J.

This is a bill of interpleader. At the time of his death, February 1, 1901, Johann Merz was a member in good standing of complainant bund. By virtue of such membership the person lawfully designated by him became entitled upon his death to a beneficiary fund of $500. Both of the defendants claimed the money; hence this suit. From a decree in favor of defendant Adamson, defendant Merz has appealed.

In December, 1869, Mr. Merz became a member of the local branch of the complainant at Saginaw. Prior to that time he had been married to defendant Merz. These parties lived together until 1897, when they separated,— for what cause does not very clearly appear. At this time there was a division of their property, and Mr. Merz went to live with Mrs. Adamson, a daughter by a prior marriage, and continued to live with her up to thé time of his death. In December, 1893, the complainant company issued a certificate to Mr. Merz, in which his wife was named as beneficiary. After his separation from his wife he caused a letter to be written to her, to which she sent a reply November 1$, 1897, in which she declined to send him what she describes as “the other papers.” At the request of Mr. Merz, the complainant society issued to him, November 4, Í897, a new certificate, in which Mrs. Adamson was named as beneficiary. Mrs. Merz retained the prior certificate, but made no payments thereon. Mrs. Adamson not only took care of her father, but, after the certificate was issued in which she was named as beneficiary, made all the payments which were made to the complainant by reason of said insurance. The constitution of the complainant had the following provision in it:

“Each member shall in this certificate name or designate with the full name of the person or persons to whom after his death the money shall be paid. The sum in such certificate shall not be paid to any one else except the one mentioned in the certificate. No certificate shall be assigned or transferable to any one else except the person named in the certificate. But, in case a member wishes to change the name of the beneficiary in his certificate, then he shall ask the president and secretary of his society for another certificate, and shall turn over to them the first one, through which act of his the first one becomes null and void.”

It is claiméd that, because the first certificate was not surrendered, it is still in force, and Mrs. Merz is entitled to the fund.

Mrs. Merz obtained no vested right as beneficiary that would prevent Mr. Merz from changing the beneficiary named in the certificate. His right to make the change was recognized by the provision of the constitution. Before issuing a new certificate the complainant might insist upon the surrender of the first certificate, if it was in the possession of the assured; but this was a requirement it might waive, and this it did when it issued a certificate to Mrs. Adamson, and received payments thereunder. The right of Mr. Merz to change the beneficiary could not be defeated because he did not have the certificate in his possession, and could not surrender it. He undertook to make the change, and the company recognized that he had done so.

It is suggested that, when the second certificate was issued, the person who issued it .did not know of the prior certificate. The stub of the certificate book kept by the complainant, and produced on the trial by the secretary, showed the date of and to whom the first certificate was issued, and it cannot properly be said the complainant did not know of the existence of the first certificate when the second was issued. The case is controlled by Grand Lodge A.O. U. W. v. Child, 70 Mich. 163 (38 N. W. 1); Same v. Noll, 90 Mich. 37 (51 N. W. 268, 15 L. R. A. 350, 30 Am. St. Rep. 419); Same v. Kohler, 106 Mich. 121 (63 N. W. 897).

The decree of the court below is affirmed.

The other Justices concurred.


author: Grant, J.

text:
    BRAND v. CONNERY.
    1. Mechanics’ Liens — Decree—Bill in Aid op Execution — Res Judicata.
    A consent decree, dismissing a bill to enforce a mechanic’s lien as to the owner of the land, is not a bar to a judgment credit- or’s bill or a bill in aid of an execution issued on the same decree against the owner’s husband, who had furnished a large portion of the money for the building.
    2. Same — Improvements on Wipe’s Property.
    Where a man becomes insolvent by improving his wife’s property with her knowledge and consent, a subcontractor who has furnished the husband ’with material for the improvements can maintain a bill in aid of an execution levied on the land, as well as a judgment creditor’s bill.

      Appeal from Saginaw; Beach, J.
    Submitted December 4, 1902.
    (Docket No. 50.)
    Decided December 29, 1902.
    Creditor’s bill and bill in aid of execution by John F. Brand and Clarence H. Brand, executors of the last will and testament of Daniel Hardin, deceased, against James A. Connery and Christiana Connery. From a decree dismissing the bill, complainants appeal.
    Reversed.
    In the fall of 1896 defendant James A. Connery made a contract with Boergert & Son to furnish the materials and do the carpenter work on a brick building he was erecting in East Saginaw. Boergert & Son made a contract with D. Hardin & Co. to furnish the door and window frames and cornice for the outside of the building and the entire inside finish of the building. The materials for the outside were furnished in the winter and early spring of 1897, and some time in May complainant began the delivery of the inside finish, which amounted to about $750. D. Hardin & Co. were paid about all the work and material amounted to for the work on the outside, leaving the inside finish alone unpaid. In May, 1897, Devillo Dennison, who had general charge of the business of D. Hardin & Co., learned that Boergert & Son were not responsible, and, before delivering any inside finish, informed Mr. Connery that they would not deliver any of the material for said inside finish without pay therefor upon delivery, unless he (Connery) would agree to pay for it, which Dennison testifies he did agree to do, but Connery denied, both in his answer and upon the stand, claiming that he only agreed to assist them in getting their pay, and did notify them every time he paid Boergert & Son any money. While the work was in progress Mr. Connery gave his note for $500, afterwards paid $100 on it, and renewed the note for the balance. Later he gave his note for the balance due on the contract, of $348.76; He has paid neither of those sums.

      D. Hardin & Co., before the 60 days had elapsed from the date of furnishing the last material, filed their lien on the property, and served a notice thereof, with a copy of their account, upon said Connery. When they commenced to enforce their lien, they learned that the land belonged to Mr. Connery’s wife. Said lien suit terminated in a consent decree against said Connery and Boergert & Son for the sum of $888.85 in favor of complainant,'and a decree in favor of Mrs. Connery, declaring her land freed from all claim under the mechanic’s lien. Later an execution was issued against said James A. Connery and Boergert & Son, which was returned wholly unsatisfied. An alias execution was issued later, and levied upon the real estate upon which complainant’s building materials were used, viz., lot 7 in block 17 of Hoyt’s plat of East Saginaw, in Saginaw county, Mich., and this bill was filed in aid of such execution and also as a judgment creditor’s bill. The lot itself was not worth over $1,000, and was entirely unproductive. After the erection of said building it was worth $10,000; and, while defendants occupy one-third as a homestead, the remaining two-thirds yields a gross income of $900 per year. The entire expense of the building was defrayed from the means of Mr. Connery, except $2,500, borrowed on the property, $2,000 of which yet remains a lien on the land.

      Albert Trask (Weadock & Purcell, of counsel), for complainants. •

      James H. Davitt, for defendants.
   Grant, J.

(after stating the facts). We are of the opinion that the decree in the other suit, entered by stipulation, is no bar to the present one. The sole purpose of that suit was to enforce the lien provided by the statute. The solicitors agreed that such lien could not be enforced against Mrs. Connery, and therefore consented to a decree dismissing the bill as to her and to a personal decree against Mr. Connery. There was nothing in the pleadings in that suit or in the decree touching the rights of creditors of Mr. Connery to proceed by a bill in aid of execution or by. judgment creditor’s bill.

Mr. Connery had no creditors at the time he made contracts for the erection of this building upon his wife’s land. The only facts from which any intent to defraud either Boergert & Son or those who furnished the materials are that Mr. Connery made the contracts in his own name; that his wife knew it; that she furnished no funds; that Mr. Connery did not inform those with whom he contracted that he was not the owner of the building, but did in fact by his conduct treat it as his own, and to this conduct she by her silence assented. It is true that those with whom he was dealing might have ascertained, by examination of the records in the office of the register of deeds, that the record title was in his wife. But even prudent merchants are not always thus careful. We think that complainant had a right to believe that Mr. Connery was the owner of the land, and to deal with him as such. He expended all his means in the erection of the building. By so doing he became insolvent, and had not sufficient left to pay the claim of D. Hardin & Co. The question, therefore, is, Can a person, out of debt and solvent, expend all his means in improving his wife’s property, and thus become insolvent, and leave creditors, who have trusted him for materials to be used in such improvements, without redress? Have such creditors a right by suit in chancery to pursue the property of their debtor, which, with the knowledge and consent of his wife, he has expended in improvements upon her property ? Counsel have evidently made diligent search, and find no case directly in point. We also are unable to find any authorities decisive of the question, and must, therefore, decide it upon principle.

The case is not within those where there were existing creditors; nor do we think it within the case of Cole v. Brown, 114 Mich. 396 (73 N. W. 347, 68 Am. St. Rep. 491), and authorities there cited, holding that, where there are no existing creditors, the voluntary conveyance of property by a husband to his wife is valid, unless conveyed for the express purpose of defrauding subsequent creditors. It is well established that an existing creditor may follow the improvements made by an insolvent debtor to the premises upon which they have been made by the consent of the wife, and that he has a lien upon them for his debt. Rose v. Brown, 11 W. Va. 122, 137, and New South Bldg. & Loan Ass’n v. Reed, 96 Va. 345 (31 S. E. 514), and authorities there cited. In all the cases cited by counsel for complainants in which the courts have allowed creditors to follow such improvements the debtor was, at the time of making the improvements, insolvent. Such are the cases of Lathrop v. Gilbert, 10 N. J. Eq. 344; Kirby v. Bruns, 45 Mo. 234 (100 Am. Dec. 376); Newcomb v. Phillips, (Ky.) 9 S. W. 529; Burt v. Timmons, 29 W. Va. 444 (2 S. E. 780, 6 Am. St. Rep. 664); Trefethen v. Lynam, 90 Me. 376 (38 Atl. 335, 38 L. R. A. 190, 60 Am. St. Rep. 271).

Mrs. Connery stood by and permitted her husband to enter into contracts enhancing the value of her property many times. She is several times richer than before. She has received the benefit of all her husband’s property, and as well the property of complainants to the value of $888.85. Boergert & Son have not received the amount due them from Mr. Connery by about a like sum. This is not a, case where a husband has made an absolute transfer of property to his wife, and has afterwards entered into business, contracted debts, and become insolvent. He had transferred nothing to her when his contract with Boergert & Son was made. He had not agreed with her to do so. So far as she was concerned, he might have stopped work at any time, and removed the unused material. The transfer to her was complete only as the work was done, and after the material used had become a part of the realty. Until then it was his, and subject to levy for his debts. He had become insolvent when D. Hardin & Co. furnished fhe material. She knew that he was erecting this building as though it were his, though he was in fact erecting it for her. Both are occupying a part of it as a homestead, and living upon the income derived from the other. Both are thus enjoying the benefit of the identical property which was erected in part at the expense of his creditors. The transaction is abhorrent to equity and good conscience. Equity stamps it as fraudulent in fact, though not in intent, and will extend its arm to accomplish justice. The original interest of the wife will be protected.

The decree is reversed, and decree entered for complainants, with costs of both courts.

The other Justices concurred.


text:
    BURKHARDT v. JAMES WALKER & SON.
    1. Homestead — Removal of Cloud by Wife.
    A wife may maintain a bill in equity to set aside a levy on and sale of her husband’s homestead on execution.
    2. Same — Abandonment.
    A temporary removal from a homestead, with the intention of a, speedy return, does not constitute an abandonment.
    3. Same.
    A conveyance of a homestead by a husband and wife to a third person, who at once conveys to the wife, being for the purpose of placing the title in the wife, does not constitute an abandonment.
    4. Same — Sale of Fee on Execution.
    The fee in land occupied as a homestead cannot be sold on an execution against the owner.
    Appeal from Macomb; Tucker, J.
    Submitted December 5, 1902.
    (Docket No. 148.)
    Decided December 29, 1902.

      *' Bill by Minnie Burkhardt against James Walker & Son, a corporation, to set aside an execution levy and sale. From a decree for complainant, defendant appeals.
    Affirmed.

      Byron B. Erskine, for complainant.

      William 8. Jenney, for defendant.
   Carpenter, J.

This is a suit in chancery to set aside an execution levy on, and sale thereunder of, a house and lot in Mt. Clemens. The execution issued upon a judgment in favor of defendant, and against complainant’s husband. At the time of the levy the property in question was occupied as a homestead by complainant and her husband. The title stood in his name, and it was worth less than $1,500. Subsequently, and before the sale under the levy, complainant’s husband absconded, leaving complainant in a destitute condition. To procure means for her and her child’s support, complainant (with the intention of speedily returning, and with no intention of waiving her homestead rights) rented the premises in controversy from month to month, reserving only the use of a back room for the purpose of storing her furniture. A couple of months later, and three days before defendant commenced to advertise for the sale under its execution, complainant and her husband conveyed the property in question to one W. J. Dusse, who at once reconveyed the same to complainant. The court below gave complainant a decree. Defendant appeals, claiming that the decree should be reversed, because :

1. Complainant has no right to resort to equity for redress.

2. By moving from and renting the property, and uniting with her husband in the conveyance to Dusse, complainant lost her homestead interest.

3. The levy and sale should be allowed to stand, subject to the horn stead rights of complainant.

In answer to defendant’s first claim, it is sufficient to refer to Lozo v. Sutherland, 38 Mich. 168, Myers v. Weaver, 101 Mich. 477 (59 N. W. 810), and Hitchcock v. Misner, 111 Mich. 180 (69 N. W. 226), which hold that equity has jurisdiction to remove a levy upon and execution sale of a homestead, and Armitage v. Toll, 64 Mich. 412 (31 N. W. 408), which holds that “it is as much the right of the wife, either at law or in equity, to protect the homestead rights of herself and family, as it is that of the husband.”

It is a sufficient answer to defendant’s second claim to say that a temporary removal, with the intention of a speedy return, does not constitute an abandonment (Bunker v. Paquette, 37 Mich. 79; Kaeding v. Joachimsthal, 98 Mich. 78 [56 N. W. 1101]; Hitchcock v. Misner, 111 Mich. 180 [69 N- W. 226]), and that the conveyance to Dusse was for the purpose of placing the title in complainant.

In support of the third claim for reversal, defendant says:

The complainant’s homestead right, by virtue of being the wife of the execution defendant, was simply a contingent right of occupancy, not an interest in the fee. * * * The fee of the execution defendant, subject to the homestead rights of the wife, * * * and other incumbrances, can be sold on execution. * * * Showers v. Robinson, 43 Mich. 502 (5 N. W. 988); Drake v. Kinsell, 38 Mich. 232.”

The most that can be claimed for these cases is that they establish the proposition that an administrator’s sale, under an order of the probate court, of the homestead of the family of his intestate, subject to their homestead rights, is valid, if the order authorizing such sale is not appealed from. The case at bar is not ruled by these authorities, but it is ruled by Lozo v. Sutherland, Myers v. Weaver, and Hitchcock v. Misner, above cited, which hold, in effect, that while property is a homestead there is no interest which can be taken and sold under an execution against the owner.

It follows that the decree of the court below must be affirmed, with costs.

The other Justices concurred.


author: Montgomery, J.

text:
    STOCK v. TOWNSHIP OF JEFFERSON.
    1. Contempts — Acts of Strangers.
    Acts done by strangers, without the privity or consent of a party, do not make him guilty of contempt.
    2. Same — Injunction—Diverting Water.
    In.this case, a decree enjoining defendant from diverting water from a lake, and requiring him to fill up a ditch, is examined, and it is held that it should not be so construed as to render him liable for contempt because strangers, without his knowledge, tore away dams he had built to fill up the ditch.
    Appeal from Jackson; Peck, J.
    Submitted December 5, 1902.
    (Docket No. 25.)
    Decided December 29, 1902.
    Contempt proceedings by Frederick W. Stock against the township of Jefferson and George E. Porter. From a judgment against defendant Porter, he appeals.
    Reversed.

      Franlchauser & Cornell, for petitioner.

      F. H. Stone and F. A. Lyon, for appellant.
   Montgomery, J.

The original bill in this case was filed for the purpose of obtaining a decree enjoining the defendants from diverting water from Lake Pleasant through an artificial ditch or canal. Complainant’s rights were declared in the decree, and the defendants were enjoined as prayed. This decree was, on appeal, affirmed by this court. 114 Mich. 357 (72 N. W. 132). The present proceeding was instituted by petition in the same case in the circuit court, in chancery, alleging that defendants are guilty of contempt in failing to observe the injunction. On the hearing below, it was conceded that no punishment could be administered to the defendant township, but the circuit judge found the defendant Porter guilty of contempt, and imposed upon him a fine of $50. Prom this order the defendant Porter has appealed.

The case was determined below on the decree, and proofs offered bearing upon the question of its performance. The decree contained the following provisions:

“It is therefore ordered, adjudged, decreed, and commanded that said defendant George E. Porter and the said defendant the township of Jefferson, by its officers and agents, be, and they are hereby, perpetually enjoined and restrained from further diverting said water as aforesaid through said big ditch or canal, or any ditch now dug or to be dug, away from the natural course said waters take, as charged in said bill of complaint, and the course heretofore found by this court to be the natural course of said waters, and that they be perpetually enjoined from any and all' attempts and schemes to divert said water from discharging itself by way of the St. Joseph river to Lake Michigan, and from meddling with the headwaters of said river so as to obstruct or divert the same from its natural outlet.
“ It is further ordered, adjudged, and decreed and commanded that said defendant George E. Porter, personally," and the township of Jefferson, by its officers and agents, fill up said big ditch, or cause the same to be done, on or before the 1st day of November, 1896, at the following points and to the following depths, viz.: That the big ditch be filled up with earth or other substance where it crosses the highway running nearly northerly and southerly just east of said Court Walters’, in said township, so it shall completely stop the flow of water through the same, occasioned by the defendants deepening and widening the said ditch in the years 1893 and 1894, and that the same be filled up at said last-mentioned point from the bottom of said ditch until the top of said filling shall‘be on a level with the top of a filling in said ditch five feet high from the bottom, in case the same were so filled at the highest point in said ditch between said highway and where it strikes the marsh west of said highway; in other words, that the top of said filling shall be as high as the filling would be if said ditch were filled five feet high from the bottom thereof at the highest point between the said highway and the marsh west thereof.
“And it is further ordered, adjudged, decreed, and commanded that said ditch be filled, up so as to stop all flow of water occasioned by the deepening and widening of the same by said defendants in the years 1893 and 1894 at the point known as the junction where the waters leave the old channel between McOollum Lake and Pleasant Lake and flow towards the northeast; the same to be filled up until the top of said filling at said last-mentioned point shall be ten inches above the bottom of said old channel, running from said Lake Pleasant to said Lake McCollum, from which channel said waters were diverted. In short, it is ordered that at each of said fillings, herein-before mentioned, said ditch shall be filled up so as to place the respective parties in statu quo.”

The circuit judge filed a special finding of facts, the salient features of which may be concisely stated as follows : The defendant Porter did in fact fill up the ditch in the two places directed specifically by the decree. These dams, as constructed by the defendant, stopped the flow of water through-the canal, and the diversion of water thereupon ceased, and such dams, had they been left undisturbed, would have accomplished all the purposes of the decree; but, shortly after the dams were constructed, they were removed by some person or persons unknown. The circuit judge was unable to find from the testimony that either of the defendants had anything to do with the tearing out of the dams, or that either was directly or indirectly connected therewith, or had any knowledge when they were constructed that they would be torn out by others. The view upon which the circuit judge proceeded was that notwithstanding the defendant had complied with the specific directions for interrupting the flow of water, and notwithstanding the means adopted were adequate to the purpose, yet the decree enjoined upon the defendant a continuing duty to see to it that the waters should not be diverted at any time in the future, and that, as a corollary, those who trespassed by removing the dams offended against the defendant, and interfered with him in the performance of his duty, but did not excuse his full performance.

We cannot assent to those conclusions. In its legal aspect, the case is not different than it would have been had the interference from outside sources occurred many years after the steps which the decree contemplated had been taken. If it is correct to say that the obligation of defendants was continuous, and was to prevent the diversion of water from this lake for all time, rather than to refrain from themselves diverting it, it would follow that, while entirely innocent of any purpose to evade the decree of the court, the defendants might, at any time in the day or night, be placed in contempt by the tortious act of a stranger. The decree should not be so construed. The case is no exception to the rule that a defendant is not punishable for acts done by strangers without his privity or consent. See 3 High, Inj. §§ 1440, 1443.

The order will he reversed, with costs of this court to defendant. No costs will be awarded against complainant for the proceedings below.

The other Justices, concurred.


text:
    ADAMS v. ELSEFFER.
    1. Evidence of Character.
    In an action to recover money misappropriated by a clerk, testimony as to his good character is inadmissible.
    2. Trial — Explanation by Witness.
    A witness, who testified that he knew of defendant’s defalcation two years before he informed plaintiff, should have been permitted to explain why he withheld the information.'
    3. Embezzlement — Evidence—Damages.
    In an action against a clerk to recover for money embezzled, evidence, in addition to proof of specific items taken, that, during the year preceding the last act of defalcation, the profits of the business were largely reduced, although the sales were larger at the same advance over cost, and the expense of the business less, together with testimony that defendant had expended and accumulated sums largely in excess of her income, made it a question for the jury to determine whether a larger sum was embezzled than the specific items proven.
    Error to Saginaw; Beach, J.
    Submitted December 5, 1902.
    (Docket No. 116.)
    Decided December 29, 1902.

      'Assumpsit by James A. Adams against Florence H. Elseffer for money had and received. From a judgment for defendant, plaintiff brings error.
    Reversed.

      John M. Brooks (George W. Weadock, of counsel), for appellant.

      Eugene Wilber (Humphrey & Grant, of counsel), for appellee.
   Montgomery, J.

This is an action of assumpsit. The plaintiff has for several years been engaged in the retail shoe business at the city of Saginaw. From 1895 until August 17, 1901, the defendant was his cashier and bookkeeper. On that date the plaintiff, as the testimony offered on his behalf tend^ to show, discovered that defendant was appropriating money received from sales of goods to her own use, and falsifying the accounts by failing to enter the amounts upon the books. The plaintiff also offered testimony tending to show by one Erhart, a clerk of the plaintiff, that some two years previous he had become suspicious that defendant was misappropriating money, and that for a time he kept watch over her, and accumulated some evidence, which he entered in minutes taken at the time, but which for some reason he failed to disclose to the plaintiff. The alleged misappropriation of money was met by positive denial by the defendant, and she also offered in her defense evidence of her good character. The circuit judge, at the conclusion of the plaintiff’s case, withdrew from the consideration of the jury any claim for moneys misappropriated except the specific items which were claimed to have been appropriated on the 17th of August, and on the previous occasions of which the plaintiff’s witness Erhart kept an account. The jury returned a verdict for defendant, and the plaintiff brings error.

The questions presented are sufficiently indicated by the foregoing statement. Perhaps the most important one is whether the court erred in admitting testimony of character. It is quite apparent from the record that the testimony as to character was not intended to be confined to mere proof of reputation, but the purpose, apparently, was to get an expression from those who had previous dealings with the defendant of their opinion 'as to her probity. Whether the assignment of error raises this precise question may be doubtful, but, in the view we take of the general subject, it becomes unimportant. The question is presented as to whether evidence of character is admissible in a civil case, wherever the nature of the action is such that the evidence to sustain it involves the imputation of moral turpitude to the defendant. The general rule undoubtedly is, as stated in 1 Whart. Ev. § 47, that in civil actions the character of either party is, as a rule, irrelevant. See, also, 5 Am. & Eng. Enc. Law (2d Ed.), p. 861. The correct rule, according to the great weight of authority, is that in civil actions the character of a party to the action may become the subject of proof in case, and only in case, it is involved in the issue. And we think the character is involved in the issue only in the cases in which either the right of recovery or the extent of recovery is affected by the character of either the plaintiff or the defendant. Anderson’s Fx’rs v. Long, 10 Serg. & R. 55. It is true that there are cases which extend the rule further. And Mr. Grreenleaf, in paragraph 54, vol. 1, states the rule more broadly, as follows:

“And generally, in actions of tort, wherever the defendant is charged with fraud from mere circumstances, evidence of his general good character is admissible to yepel it.”

This text is criticised by Mr. Wharton, and it is shown that it rests upon Ruan v. Perry, 3 Caines, 120, the doctrine of which was later repudiated in Gough v. St. John, 16 Wend. 646; Pratt v. Andrews, 4 Comst. 493; Porter v. Seiler, 23 Pa. St. 424 (62 Am. Dec. 341). Referring to Ruan v. Perry, Mr. Justice Champlin, in Fahey v. Grotty, 63 Mich. 383 (29 N. W. 876, 6 Am. St. Rep. 305), said:

“ In the State of New York such evidence was at one time received in civil suits [citing Ruan v. Perry], but that case has been reviewed and overruled in later cases, and the English rule adhered to, as stated by the text-writers on Evidence.”

In the same case of Fahey v. Crotty, Mr. Justice Champlin also said:

“In civil actions, with the exception of those cases where by the pleadings the character of the party is put in issue, the weight of authority is against the admissibility of such testimony to rebut imputations of misconduct or fraud.”

We have met with no clearer exposition of the law upon the subject than is found in Simpson v. Westenberger, 38 Kan. 756 (43 Am. Rep. 195). See, also, Lander v. Seaver, 33 Vt. 114 (76 Am. Dec. 156); Wright v. McKee, 37 Vt. 161; Home Lumber Co. v. Hartman, 45 Mo. App. 647; Vawter v. Hultz, 112 Mo. 633 (30 S. W. 689); Gebhart v. Burkett, 57 Ind. 378 (36 Am. Rep. 61); Norris v. Stewarts Heirs, 105 N. C. 455 (10 S. E. 913, 18 Am. St. Rep. 917). See, also, article by Elisha Greenhood in 16 Cent. Law J. 303, where the authorities are collated. In our view, the testimony offered was inadmissible.

The plaintiff called as a witness Mr. Erhart, who testified that he acquired knowledge of the defendant’s defalcation some two years before he divulged it to the plaintiff. He was asked to state why he withheld this information, and the court ruled out the testimony. We think it was competent for the plaintiff to rebut the inference which would arise from such concealment of .the fact by permitting the witness to explain.

In view of a new trial, it becomes important to determine if there was any testimony to go to the jury upon the question of whether a larger sum than the specific items mentioned was taken by the defendant. The testimony on behalf of plaintiff was this: That, during the year preceding her last defalcation, the profits of the business were reduced very largely, and this notwithstanding the fact that the sales were larger than the preceding year, and the expense of running the business was less than the preceding year. The only fault in this testimony, if any, was that the evidence may have failed to show specifically that the goods in which the plaintiff dealt were sold at substantially the same advance over cost during the last year as during the preceding year. If this were clear, it would be some evidence, at least, that the plaintiff lost by defalcation, or in some other unexplained manner, a considerable sum of money during this period. The evidence further tended to show that the defendant, when she entered the employ of the plaintiff, lived with her mother; that their only source of income, aside from defendant’s earnings, was the rental of two small houses or apartments belonging to her mother, amounting in the aggregate to from $18 to $22 per month, and certain gifts which came to defendant, the exact amount of which does not conclusively appear by the record; that, when she entered plaintiff’s employ, her mother and herself had allowed the taxes to accumulate upon the property to the amount of $228, or thereabouts, and that, for the purpose of paying off the taxes, they had placed a mortgage upon the property for some $350; that thereafter, and while in the employ of the plaintiff, this mortgage, principal and interest, was paid off, taxes were kept up on the property, real estate was bought at a price of $225, and when defendant left plaintiff’s employ she had $260 in the bank. It. appears further that during this time the mother and daughter, and during a part of the time a nephew of the defendant, lived upon an income, as tlm testimony of the plaintiff tended to show, of something like $7 per week. While this may not be impossible, yet, in view; of the fact that the defendant was unable to state, and did not attempt to state, some of the items of her expense of living, we think that, should it appear clearly that the plaintiff suffered a loss in excess of the specific items proven, upon a record showing the defendant’s financial condition substantially as it appeared upon this trial, it would be the duty of the court to submit the question to the jury as to the amount' which defendant embezzled. A case determined by this court upon facts somewhat resembling the present case is Warren v. Holbrook, 95 Mich. 185 (54 N. W. 712, 35 Am. St. Rep. 554).

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

The other Justices concurred.


text:
    GARY v. EATON CIRCUIT JUDGE.
    Pleading — Bill oe Particulars — Discretion oe Judge — Torts.
    In an action of criminal conversation, a circuit judge may,' in his discretion, require the plaintiff, whose declaration is general, to furnish a bill' of particulars, specifying the particular place and date of each alleged act of intercourse.

      Mandamus by Fanny Gary to compel Clement Smith, circuit judge of Eaton county, to vacate an order requiring relator to furnish a bill of particulars.
    Submitted December 16, 1902.
    (Calendar No. 19,670.)
    Writ denied December 29, 1902.
    In an action of Grim, con., brought by the relator against one Pearl Darling, the court made an order directing her to furnish a bill of particulars. The declaration contains four counts. • Each count alleges that on a certain day, “and on divers other days between that date and the commencement of suit, to wit, at the city of Eaton Rapids, in said county, to wit, at the township of Hamlin, in said county, the defendant had illicit carnal intercourse with plaintiff’s husband.” The order required the plaintiff to furnish a bill of particulars, specifying the particular place and time and the date of each of the alleged acts of intercourse and clandestine meetings of which plaintiff intended to give evidence, and upon which she intended to rely. Relator insists that the court had no power to order a bill of particulars, and asks the writ of mandamus to compel him to vacate the order.

      J. M. & J. L. Powers, for relator.

      J. M. C. Smith and John M. Corbin, for respondent.
   Grant, J.

(after stating the facts). Bills of particulars in actions of tort do not rest upon any strict legal right. They rest in the sound discretion of the trial court, to be required or refused, according as justice and fair dealing require. The declaration in this case is general, fixing neither time nor place. The charge is a serious one. Plaintiff has charged acts of sexual intercourse and clandestine meetings. If she, when planting her suit anil making these charges, was unable to fix time and place, then her suit would become a dragnet, and the defendant compelled to meet any act which plaintiff might fish up in this process against her. When specific acts of this character are charged, it is but justice to the party against whom they are charged that he be furnished with time and place of the alleged acts, so he may be able to prepare to meet them upon the trial. This practice at the common law is thoroughly discussed by Chief. Justice Shaw, in Com. v. Snelling, 15 Pick. 321. Tilton v. Beecher, 59 N. Y. 176 (17 Am. Rep. 337), was an action of crim. con. The trial court declined to require a bill of particulars, on the ground that it did not possess the power to do sp. The court of appeals reversed-the decision, holding that it rested in the sound discretion of the, trial court, and remanded the case, with direction to the court' below to exercise its discretion upon the merits. The practice is there thoroughly examined and the authorities cited. They fully sustain the respondent in making the order.

The writ is denied.

The other Justices concurred.


author: Grant, J. Moore, J.

text:
    PREUSCHOFF v. B. STROH BREWING CO.

    1. Witnesses — Credibility.
    The jury are not bound to believe a witness whose testimony on direct examination not only differs from that on cross-exam- • ination, but is also inconsistent with the circumstances, although there is no other testimony bearing on the same question.
    2. Negligence — Notice—Question eor Jury.
    The presence of a carpenter in a doorway, removing the door, is not notice to a fellow employé that a platform and stairway inside the door have been removed, so as to make him negligent, as a matter of law, in not heeding the warning. Grant, J., dissenting.
    Error to Wayne; Brooke, J.
    Submitted October 9, 1902.
    (Docket No. 7.)
    Decided January 6, 1903.
    Case by August C. Preuschoff, administrator of the estate of Conrad H. Huber, deceased, 'against the B. Stroh Brewing Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Defendant’s brewery is situated between Elizabeth and Columbia streets, in the city of Detroit. These streets run east and west, Elizabeth street being on the south. Elizabeth street proper extends only to that one of the defendant’s buildings which constitutes its cellars and shipping rooms, but is continued east by an alley known as “Elizabeth-Street Alley,” upon which this building abuts. The cellars are on the west and the shipping rooms upon the east; the large shipping room being upon the north end of the building, the small one upon the south. A driveway extends from the end of Elizabeth street to the north on the west side of this building to the yard upon the north, in which yard are situated defendant’s barns and shed. The entrance to the small shipping room from the alley is through a door 2 feet 10 inches in width, swinging in and to the left. The sill is 4 inches higher than the alley pavement. A small platform, 6 inches higher than the sill and 2-J- or 3 feet square, is situated inside the door. At the end of this platform is a closed stairway leading into the cellar, and directly in front of the door, while at the right there are steps leading to the floor of the small shipping room, which is 3 to 4 feet higher than the alley pavement. Beer was loaded onto the peddlers’ wagons from this floor through an opening next to the door. A stairway leads to the room above directly over the cellar stairway. Beer for city trade was loaded at the small shipping room; that for outside trade from the large shipping room.
    Mr. Huber, the deceased, was a driver of one of defendant’s city delivery wagons. He received orders from the shipping clerks at the office. When there were no orders to be filled, it was the duty of Mr. Huber to report to the barn. The defendant had arranged with a certain company to put three large cast iron casks into the cellar. These casks were in sections 8 feet in diameter and 30 inches wide, with three sections to each cask. Each cask had two rims. This company had hauled the evening before, and placed near the door in Elizabeth-street alley, one or more of the sections. The other sections and rims were drawn in the morning, and deposited around the door. They obstructed the alley so. that no team could pass through.
    The deceased and another driver had taken out loads from the small shipping room in the morning before the alley was thus obstructed, in accordance with orders received from one Schrantz, a„ shipping clerk. Stempel, the other driver, loaded first. The day was stormy, and, after delivering his load, Mr. Huber returned, put his horse under the shed, went to the office, asked for orders, but there were none just then for him to fill. Meanwhile Mr. Stempel had returned from delivering his first load, drove into the alley for another load, found it obstructed, the door nailed up, the stairs being removed, and then turned around and drove through the driveway to the plátform of the large shipping room to obtain his load. On his way he met Mr. Huber. Mr. Stempel testified that Mr. Huber asked him what the matter was, and if he was not going to take the other orders out; that he (Stempel) told Mr. Huber that he could not load there; that they had taken the stairway away “to load casks down.” A large truck was standing at the platform, and Stempel asked Huber to help push it away so that he could get his load there. This he did. Mr. Stempel loaded and drove away. From this time until Mr. Huber went to the door of the small shipping room and fell down the stairway no one saw him. Mr. Stempel’s testimony as to Mr. Huber’s assisting him to remove the large truck is corroborated by another teamster named Baxter.
    Meanwhile one Lewis, an employe of the company which had contracted to put- in the casks, came, with other employés of said company, to the alley to do the work. The casks and rims, 15 in number, lay in the alley in front of the door. One Burmeister, a carpenter in the employ of the defendant, was there to assist in the work, which was evidently under the direction of Mr. Lewis. While Mr. Burmeister was taking out the platform and the stairs, the door was fastened by one nail driven into the casing. It took from a half to three-quarters of an hour to remove the stairway -and platform. After this was done, the nail was taken out, the door swung in, and Mr. Burmeister stood in the doorway with his back to the alley, reaching to the upper hinge with a screwdriver, removing the screws for the purpose of taking down the door. It was necessary to remove the door and also tear down the platform in order to obtain the proper width to admit the sections of the casks. While Mr. Burmeister was engaged in this work, Mr. Lewis was arranging his tackle overhead for the purpose of lowering the casks. Mr. Burmeister was a large man, 5 ft. 5 in. high; weight, 195 pounds, breadth of shoulders, 20 inches, breadth of hips, 15^- inches. While Mr. Burmeister stood in the position above described, and Mr. Lewis was at work fixing the tackle, .Mr. Huber, without warning, approached the door, pushed Mr. Burmeister aside so that he had to grasp the casing to prevent being thrown into the cellar himself, fell into the cellar, and was killed. Plaintiff seeks to recover damages for his death on account of the negligence of the defendant in leaving the doorway unguarded. The circuit judge left the question to the jury, who found a verdict for the plaintiff.

      Brennan, Donnelly & Van De Mark, for appellant.

      Ira A. Lieghley, for appellee.

       Rehearing denied March 23, 1903.

   Grant, J.

(after stating the factsj dissenting). The court instructed the jury:

“I charge you as a matter of law that you may believe the testimony of any witness or disregard the testimony of any witness.”

This instruction was .given without any qualification or explanation. It is not the law. Jurors are not at liberty to arbitrarily set aside the testimony of a fair and unimpeached witness. The books are full of cases where courts have directed verdicts where the testimony is uncontradicted, and the witnesses, though in the employ of the parties, are unimpeached. There must be something ápparent upon the record to cast discredit upon the testimony of an uncontradicted witness before the jury are justified in disregarding his testimony. Underhill v. Railway Co., 81 Mich. 43 (45 N. W. 508); Fruit Dispatch Co. v. Russo, 125 Mich. 306 (84 N. W. 308), and authorities there cited; Michigan Pipe Co. v. Michigan Fire & Marine Ins. Co., 92 Mich. 482 (52 N. W. 1070, 20 L. R. A. 277). The decisions of other courts are to the same effect. Evans v. George, 80 Ill. 53; Harding v. Brooks, 5 Pick. 244; Berzevizy v. Railroad, Co:, 19 App. Div. 309 (46 N. Y. Supp. 27).

The facts set forth in the above statement are undenied by a single witness, or by any circumstances in the case. The only ground a jury could have for setting aside the uncontradicted testimony of Stempel is that on cross-examination he testified that he had not talked with the defendant’s attorneys about the facts he testified to. When his attention was called upon redirect examination to conversations with defendant’s attorneys, he promptly admitted them. On recross-examination he explained that he supposed counsel for the plaintiff was referring to conversations before he was subpoenaed. Plaintiff’s counsel on cross-examination also elicited from witness the fact that he at the time of the accident told others that he had so told Huber. The inquiry by Mr. Huber was natural, and Mr. Stempel’s reply was equally natural. Whether, under the circumstances, this denial of the witness that he had talked with the defendant’s counsel was sufficient to authorize the jury to wholly disregard his testimony, corroborated as it was in other particulars, is not specifically argued by counsel, and I express no opinion upon it. It was at least important for the court to instruct the jury that, before they could utterly disregard his testimony, they must be able to find that this denial was sufficient to destroy confidence in the truthfulness of the witness.

I think the plaintiff failed to make out a case of negligence. In addition to the facts already stated, the opening for taking out beer at the right of the door was eight feet long and six to seven feet high. It was partly raised. The only testimony upon this point is that “it was about half to a quarter open; about half, or a little lower.” Two gaslights were burning in the cellar,-one near the foot of the stairs, the other farther in. A light was also burning in the small shipping room. There was a small window in the transom over the door. Three men were employed in and around the doorway to put the casks into the cellar. One.of these stood in the doorway in the act of removing the door; another w;as inside on the stairs over the door, arranging the tackle; and the third was just inside the doorway upon the shipping room floor. About two years before, other casks had been lowered into this cellar at the same place and in the same way, the door, stairs, and platform being removed. Mr. Huber was then in the employ of the company.

The defendant’s employés acted with'commendable care in nailing up the door while removing the stairs. It was then necessary to remove the door. The door could not be obstructed; -the space must be left open. A rail outside of the casks would have been no warning or protection, unless built high enough to keep persons odt. Ordinarily, no one could enter this door in the usual and proper manner without being seen by some one of the defendant’s employés. Was it the legal duty of the defendant to suppose that one of its employés would rudely push another employé, who stood in the doorway, aside, and rush to his death? Burmeister was there for two purposes, — to keep defendant’s* employés out, and to assist in the work. If he had been placed there for the sole purpose of notifying those who had occasion to go there of the danger, and he stood with his back to the alley, obstructing the doorway so that no one could enter without pushing him aside, would not defendant have performed its duty towards its employés ? Would not Mr. Burmeister have been justified in believing that no one would attempt to push him aside and rush into the building? Burmeister’s speedy action in grasping hold of the casing alone saved him from going into the cellar with the deceased.

Why Mr. Huber entered does not appear. He was not going after a load. It does not appear that he had occasion to go there for any other purpose. It evidently was not the usual place for employés to stay when not at work. His proper place, when not engaged in hauling beer, was at the barn. His team was at the time in the shed near the barn. He had no work to perform in the shipping room at this time. Had Mr. Huber entered this doorway in a proper manner, he would not have been injured. He could not enter until Mr. Burmeister was out of his way. Instead of asking him to step aside, he rudely pushed him aside. He had no right to do this. There is no dispute as to the fact upon this point. Both Burmeister and Lewis testified that Huber, without saying a word, deliberately and forcibly pushed Burmeister aside, and their testimony is uncontradicted. I think that the defendant was under no obligation to anticipate such action on the part of its employes, that it had done all that the law requires to protect them, that the surroundings were sufficient to put Mr. Huber upon his guard, that he entered this door in an unjustifiable manner, and that the accident was the result of his own rash conduct. I think the court should have directed a verdict for the defendant.

Judgment should be reversed, and new trial ordered.

Moore, J.

I cannot agree with the conclusion reached by Justice Grant. In relation to the two important questions discussed by him, the circuit judge charged the jury as follows:

“ I need hardly say to you that the defendant in this case had an undoubted right to have, them [ the vats ] put in the building, and, if, it was necessary at that time to remove the stairway and the platform and the door, they had a right to do this also. They had clearly a right, in the manufacture of beer, to make such improvements as were necessary or essential to the proper conduct of their business. Under these circumstances, the law unquestionably cast upon them a duty, and I charge you that the fact of taking up the platform and the stairs just inside of the door by the defendant, forming a pit or an opening in the floor, and the fact that the entrance in question over the platform that had been taken out was the usual and ordinary method of entering that portion of the building known as the shipping room, made it the duty of the defendant to properly guard the opening; and, if it was not practicable to guard it with a railing, to use some other and more efficient method. That is unquestionably the law. They knew at that time that people would be likely to go and enter at that door, and it was their duty, having taken up the platform and the stairway, to use a reasonable degree of care to prevent others from going in and going down to their injury. When I say to prevent them, I do not mean to say that it was essential that they should insure the lives of all who came there, for they were not insurers; but they were bound to use that proper degree of care which an ordinarily prudent man would have exercised under like circumstances. That is the only extent to which the defendant in this case can be held. They cannot be regarded as insurers of Mr. Huber’s life, nor of the lives of the other employés; but in the conduct of their business, and with reference to this particular danger, they should use that ordinary degree of care that a reasonable man would have exercised under like circumstances. In other words, if the defendant changed its premises or its appliances with which the deceased worked, or which he used in his ordinary employment, between the time he had last used them, so as to render its premises more dangerous than they were before, it became the duty of the defendant either to warn its employés, or to take reasonable means to protect them from accident.
“Now, gentlemen of the jury, you have heard the testimony in ‘this case, and it is for you to determine in this matter whether this is to be regarded as a pure accident, whether the defendant was negligent in failing to properly guard the danger which had been created, or whether the plaintiff’s intestate — -that is, Conrad Huber himself — was negligent in the way in which he went into the building, as you have heard detailed by the witnesses upon the stand. If it was an accident, — that is, if it was a thing for which nobody was to blame, — then the plaintiff cannot recover in this case. If it was due to the negligence of Mr. Burmeister, he being for the purposes of this case the B. Stroh Brewing Company, and Mr. Huber himself was not negligent, then Mr. Huber could recover, or the plaintiff in this case could recover. But, even though Mr. Burmeister was negligent in the guarding of the doorway, if you find that Mr. Huber did not use such care in the entrance of that building as an ordinarily prudent man would have used under the circumstances, then he cannot recover, even though Mr. Burmeister was negligent. If you find that Mr. Burmeister was not negligent, that he did prop•erly guard it, then, even though Mr. Huber did use ordinary care and prudence, he could 'not recover. So that, in order that the plaintiff may recover in this case, you must determine, first, that Mr. Burmeister was negligent, —that is, that he did not use such care in the guarding of that doorway as a reasonably prudent man would, — and you must also find that Mr. Huber, in going in there in the way that he did go in, did use such care as a reasonably prudent man would have used under the circumstances.
“In determining whether Burmeister did use such ordinary care, you must take into consideration all the testimony. You will remember the width of the door and the size of Mr. Burmeister. Understand, he is the master in this case. You will remember how nearly he filled the door up, and whether he had a right to suppose that standing in the door there as he did was sufficient notice to anybody coming there, — he being engaged in taking off the hinges of the door, — was sufficient notice to anybody coming there that something was going on, and whether it was such notice as would have reasonably put anybody •of ordinary prudence upon their guard. That is the real point in this case. If he had a right to suppose that, then he was not to blame, and if he had a right to suppose that, :and did suppose it, then this plaintiff cannot recover in this case.
“Now, gentlemen, there is another question in this case, and that is the question of notice. Irrespective of what happened just at the moment of the accident, there is the question of the notice to Mr. Huber. There are the surrounding circumstances, the question of the tubing, the vat, portions being piled around there. That is supplemented by the testimony of one Stempel, who swears that upon the morning in question, and very shortly before the accident, he told the deceased, Huber, having driven around there to load, and found he could not load by reason of the obstruction there, that he told Huber that he could not load there, and that was the reason he was .going back to the other entrance, and that they were taking the stairway away. I charge you that, if that testimony is true, and Mr. Huber had actual notice of this, that is an end to this case, because a man cannot disregard a warning of that kind and recover. So, if you find that Mr. Stempel did tell him, that ends the case. If Mr. Stempel made that statement to him, and he understood it, he cannot become careless and negligent and go to his death, and then hold anybody responsible for it. That is another element which you will consider.”

I think it cannot be said the jury were bound by the testimony of Mr. Stempel. His testimony upon the cross-examination and direct examination differed. It is also-contradicted by circumstances. But a few minutes, and probably but a few seconds, after it is claimed Mr. Huber was warned by Mr. Stempel, Mr. Huber, heedless of the alleged warning, rushed into the danger, and to his death. It is hardly credible that he would have done this if the conversation occurred as stated. In any event, it made it a question for the jury whether the warning was given or not.

Did the presence of Mr. Burmeister in the doorway warn him of the danger, so it can be said as a matter of law Mr. Huber- was negligent in not heeding the warning? These two men were both in the employ of the defendant. They were well acquainted with each other. Mr. Burmeister was in the doorway apparently for the purpose of removing the door, and was actually engaged in so doing when the accident occurred. Mr. Huber was in the habit of entering the building through this door. The removal of the door would not make it dangerous for him to enter through the doorway. The day was stormy. He knew Mr. Burmeister well. An act which might properly be regarded as rude if it occurred between strangers would have an entirely different aspect when occurring between friends. I do not think it can be said that the presence of Mr. Burmeister in the doorway, as described by the witnesses, was such an indication to Mr. Huber of danger that it can be said as a matter of law that he was guilty of negligence. The disputed questions were left to the jury under a very careful and able charge.

I think the judgment ought to be affirmed.

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


text:
    HOWELL ELECTRIC LIGHT & POWER CO. v. VILLAGE OF HOWELL.
    1. Municipal Corporations — Contracts—Lighting."
    Under 1 Comp. Laws, § 8908, giving villages general authority to contract for lights, the municipality may be held liable to pay for lights upon any evidence which convinces the jury that the service was rendered and accepted with the expectation that it would be paid for.
    2. Same — Renewal op Contract — Presumption.
    The renewal of a yearly contract for furnishing lights to a village will not be conclusively presumed from the acceptance of service after the expiration of the contract, where there is anything to show a contrary intention.
    8. Same — Evidence.
    Where a village had a written contract with an electric-light company for street lights for one year, and at the end of the year the company continued to furnish the lights, evidence that the company refused to enter into a new contract except at the old price and for five years, and that, one month after the termination of the contract, the council passed a resolution that it would not 'accept such terms, is admissible to show that the parties did not understand a renewal of the contract for a year had taken place.
    Error to Livingston; Smith, J.
    Submitted October 15, 1902.
    (Docket No. 57.)
    Decided January 6, 1903.

      Assumpsit by the Howell Electric Light & Power Company against the village of Howell to recover for street lighting. From a judgment for plaintiff on verdict •directed by the court, defendant brings error.
    Reversed.

      Francis J. Shields (Fdmund G. Shields, of counsel), for appellant.

      William P. Van Winkle, for appellee.
   Montgomery, J.

This is an action of assumpsit brought by the plaintiff to recover the sum of $953 for electric lights furnished by said plaintiff to the defendant village for the months of February, March, April, May, and 13 days in June, 1901. The charge for said lights was at the rate of $215 per month.

On the 18th of August, 1890, said village passed an ordinance allowing George L. Beetle and J. H. Andrews a franchise to erect and construct an electric-light plant for the purpose of furnishing lights for the streets of said village. On August .18, 1890, said village entered into a written contract with Beetle and Andrews whereby it agreed to pay $60 per light per year for a period of three years to light the streets of said village. Said contract was to begin on the 15th of October, 1890, and end on the 15th of October, 1893; payment to be made by said village regularly at the end of each month. On the 19th of August, 1891, the parties who secured said franchise and contract assigned their interest and right therein to the Howell Electric Light & Power Company, plaintiff in this action. On November 22, 1893, the common council of said village entered into a contract with the plaintiff company for lighting the streets in said village for a term of five years from the 1st day of December, 1893, until the 1st day of December, 1898, by which contract the village was to pay the plaintiff the sum of $60 per light per year; payment to be made at the expiration of each month. On November 30, 1898, another contract was entered into between the parties to this suit, which was to begin on December 1, 1898, and to expire December 1, 1899; payment to be made at the rate of $60 per light per year at the end of each month. At the end of said contract,, namely, December 1, 1899, no new contract was made, but the plaintiff company continued to light the streets of said village the same as before, and at the expiration of each month to present its bill for monthly lighting of the streets, and said bills were audited and paid by said village up to the 31st of January, 1901.

On January 2, 1900, immediately following the expiration of the last written contract, the council of said village passed a resolution expressing dissatisfaction with the lights. On the 31st of January, 1901, a resolution was passed by the village council wherein the council expressly stated that they would not be bound further by lights furnished by said company, and directing plaintiff to cease lighting. Up to the time of the passage of said resolution .of the 31st of January, 1901, all bills then owing by said village to said electric-light company were paid and fully satisfied. Some of the officers of the company, including the president and treasurer, were present in the council chamber on the night of the 31st of January, 1901, when' the aforesaid resolution was presented and passed. On February 1, 1901, the next day after the passage of said resolution ordering the company to cease lighting, notice was served upon the company, which notice contained the resolution aforesaid. On the 15th of February, 1901, another notice was served upon said company by the clerk of said village. Said company continued ,to light said village through the months of February, March, April, May, and up to and including the 13th day of June, 1901; and the bills for lighting covering said period were presented to the village council, but were not allowed.

The circuit judge directed a verdict for the plaintiff for the amount of the contract price for the period after notice that the city refused to pay, and before the plaintiff actually ceased to furnish lights. This result was reached by holding that under section 2908, 1 Comp. Laws, the village was not restricted as to the manner in which it might contract; that it was authorized to contract from year to year; and that as it had contracted in writing for the year ending December 1, 1899, and continued to accept like service for more than a year thereafter, the law will imply a promise to pay at the old rate, and a renewal of the contract from year to year.

It may be granted that in a case like the present, where general authority to contract with reference to a subject is conferred, and the manner of executing the power is not restricted, the municipality may be held to a contract upon any evidence which convinces the jury that the service was accepted on the one hand with an expectation to pay for it, and, on the other hand, was rendered for an expected compensation, 20 Am. & Eng. Enc. Law (2d Ed.), pp. 1157, 1158. Does it follow that the acceptance of service after the expiration of the year resulted at once, and as a matter of law, in creating a new contract for exactly another year ? The cases of hiring by the year are cited in support of the view of liability on this basis, and the familiar rule obtaining in case a tenant holds over after his term is also instanced. If we assume that there is an analogy between these cases and one like the present, we should not lose sight of the limitations upon this rule. If there be anything to show a contrary intention, the renewal of the contract for the stated period will not be inferred. See Mechem, Ag. § 212; Sines v. Superintendents of Poor, 55 Mich. 383 (21 N. W. 428); Tallon v. Mining Co., 55 Mich. 147 (20 N. W. 878). In other words, the rule is in no case so unyielding that a court or jury is bound to foist upon a party a contract which no one expected he was engaged to perform. There is reason to believe that just this is what occurred on the trial of this case.

Defendant offered to show that prior to January 2, 1900, a conference was held between the officers of the plaintiff company and a committee of the common council, and that at said conference the plaintiff’s officers refused to enter into any contract at less than the old price, and would not renew on those terms for a shorter period than five years; and in the same connection offered a resolution of the council, adopted January 2, 1900, as follows:

“Moved by Wilcox, seconded by Euler, that the following preamble and resolution be accepted and adopted:
Whereas, the question of lighting the streets of Howell has become a serious one, from the fact that the cost of such lighting is a great burden upon the taxpayers, and constantly increasing as new lights are added, with no hope of a decrease under the present circumstances, as the Howell Electric Light & Power Company refuse to further contract with the village unless the present high rate of $60 per light per year is maintained, and ask, furthermore, for a five-year contract at that price, which would amount to $2,580 per year with our present number of lights, viz., 43, and for the five years, with no additional lights, would amount to the enormous sum of $12,900, — an amount more than sufficient to erect and equip a first-class plant. At the termination of a five-year contract, with the present number of lights, at an expense of $12,900, we would be just where we are at present, — at the mercy of a private corporation or company, who, after receiving more than $20,000 of the people’s money for lights, are demanding of us to deliver $12,900 more. Deeming the lights insufficient, and terms exorbitant and unjust to the over-burdened taxpayers of the village, we therefore refuse to again contract with the Howell Electric Light & Power Company on the terms demanded by them; and, from facts obtained after careful research by your committee during the past year, we are satisfied that a municipal electric-light plant, to be run in connection with your waterworks plant, would be feasible, and not only effect a great saving in taxes, but furnish more satisfactory results in lighting:
“ Therefore, be it resolved by the common council of the village of Howell that we hereby declare it is expedient for said village to acquire, by construction, suitable works and apparatus for the purpose of supplying said village of Howell, and the inhabitants thereof, with electric lights.

“Which motion prevailed.”

All this testimony was excluded. We think the ruling was erroneous. Had this testimony been admitted, it would have had weight in determining the question whether the plaintiff and defendant understood that a renewal of the contract for a year had taken place, or was expected to follow from a mere indefinite continuation of the service.

Judgment reversed, and a new trial ordered.

Hooker, C. J., Moore and Grant, JJ., concurred.