text:
    BAXTER v. OGOOSHEVITZ.
    1. Reformation of Instruments — Land Contracts — Mutual Mistake or FRaud — Building Restrictions.
    In injunction proceedings to restrain defendant from building a public garage on a lot purchased on contract containing a clause restricting the use of said lot to residence purposes only, held, that defendant failed to sustain the burden of proof under his cross-bill to have the contract reformed to the effect that there was either a mutual mistake or fraud in inserting the restrictive clause in the contract.

    2. Injunction — Equity—Building Restrictions — Enforcement-Matter of Right.
    The enforcement in a court of equity of restrictive covenants in a deed is not a matter of absolute right, and is governed by the same general rules which control equitable relief by specific performance.
    3. Same — Interest of Grantor — Building Restrictions — Statutes — Disregarding Restrictions.
    Under the statute providing that conditions annexed to a grant or conveyance of land that are merely nominal may be disregarded (3 Comp. Laws 1915, § 11564)., some interest of the grantor must appear before the restriction will be enforced.
    4. Same — Modification op Decree.
    Where the only interest plaintiffs had in property in the neighborhood was the balance of $3,300 still owing to them on ■ the contract oh the lot in question, they still had an interest in the enforcement of the restrictive clause, but the decree of the court below for a perpetual injunction should be so modified as to be in force only until defendant has fully paid up and performed the terms of his contract.
    Appeal from Wayne; Hosmer, J.
    Submitted February 4, 1919.
    (Docket No. 98.)
    Decided April 3, 1919.
    Bill by John K. Baxter and another against Isaac Ogooshevitz to enjoin the violation of building restrictions. From á decree for plaintiffs, defendant appeals.
    Modified and affirmed.

      Hugh M. Edwards, for plaintiffs.

      William Friedman, for defendant.

       See note in 34 L. R. A. (N. S.) 730.

   Stone, J.

The bill of complaint in this case was filed to obtain an injunction restraining the defendant from erecting a public garage on premises which were under a contract of sale to the defendant from the plaintiffs. The lot in question is situated on the south side of Kenilworth avenue between Woodward avenue and John R. street, city of Detroit, and at 'about the middle of the block. It is a part of an earlier platted subdivision, and the lots in the block were conveyed to the original buyers without restrictions. The lot in question was sold to defendant on land contract, the plaintiffs retaining title until paid for. It was entered into on February 28, 1917. This land contract was what was known as the ordinary Union Trust Company form of agreement, and contained, among others, the following provisions:

"it is a condition of this agreement that the party of the second part, his heirs and assigns, shall use the premises herein described for residence purposes only.”

And also:

"it is agreed by the parties hereto tnat the said parties of the first part, on receiving payment in full * * * will * * * execute and deliver to said party of the second part a good and sufficient warranty deed, * * * which deed shall contain the same building restrictions contained in this contract.”

The price to be paid was $4,000.

At the time of the execution of the contract defendant paid down $700 and was to pay the balance in one year with interest at six per cent, per annum, payable semi-annually. When the year was up, defendant applied for and obtained an extension of time of two years. At the hearing the equities of the parties in the premises were as follows: Lot sold for $4,000. Defendant paid $700 down payment, and he still owed plaintiffs $3,300, with interest at six per cent, from February 28, 1918.

The answer of the defendant admits the execution of the contract, in the form set forth in the bill of complaint, and also that a building for business purposes was being erected on the lot. By way of cross-bill, however, defendant asked to have the contract reformed, so as to omit the clause that the premises therein described should be used for residence purposes only, on the ground of an alleged error and mistake in the insertion of such clause in the contract.

It is asserted by plaintiffs’ counsel, but not distinctly shown by the record, that plaintiffs owned the lot as-tenants by the entireties. It appeared that prior to-the execution of the land contract in question, the property had been listed by the plaintiff John K. Baxter, with Charles Doxtator, a Detroit real estate agent, for sale. This real estate agent had on February 9S 1917, made up an application to purchase the lot, in which the lot was described as unrestricted. This was made to and signed by one Jacob Shevitz (who paid $150 thereon) and was signed by John K. Baxter only. When it came time to close the deal Mr. Baxter went to the office of the real estate agent and there met Mr. Shevitz, who introduced Mr. Baxter to the defendant — a relative of his. Mr. Shevitz then told Mr. Baxter that he was not going to buy the lot but that the defendant would buy it. Mr. Baxter had had the contract drawn by his attorney before he went to the real estate agent’s office. The name of the defendant was- substituted for that of Mr. Shevitz by Mr. Doxtator, and the payment of $150 was. allowed to apply on the contract.

There was a conflict in the evidence as to what happened at the time the contract was signed. It should be stated that at the time the contract was entered into, the plaintiffs were the owners of a four-family apartment building located on the same street and two or three doors away from the lot in question. They were at that time negotiating a sale of the apartment property, and the sale was closed a short time thereafter. Both the defendant and Mr. Shevitz testified that the contract was signed by the defendant without reading it, the defendant testifying that he looked only “at the amount of money,” and he testified that there was no talk whatever about any restriction.

On the other hand on the direct examination of Mr. Baxter he testified as follows:

“Q. Now I am asking you to relate your conversation with Mr. Ogooshevitz regarding the transaction of this'property and I wish you would bring out in detail exactly what was said in regard to the transaction, and whether or not Mr. Ogooshevitz entered into this agreement and talked the matter over with you in regard to restrictions?
“A. Well, when I gave him the contract to read it over, he came to that part about the restrictions, and he says, ‘I don’t like this very well,’ and, I said, ‘Well (I wasn’t sure whether I was going to make a deal to my four-family flat or not), I wouldn’t sell under any other conditions, and that part stays in, and I wouldn’t scratch out the restriction and let you build anything you like.’ But if I sold my property, I wouldn’t mind, and then he said his intention was to build a four-family, anyway. ‘I guess it will be all right,’ he- said.
“Q. Did he read the contract over?
“A. Yes.”

On cross-examination he testified as follows:

“Q. What was said about the restriction?
“A. Well, Mr. Doxtatcr read the contract. When he got through he said that this contract was going to be transferred to Mr. Ogooshevitz. When I found out that Mr. Ogooshevitz was going to buy the lot Mr. Doxtator read the contract over, and said that everything was all right, except the name, and Mr. Ogooshevitz said he did not like the restriction, but I said I wouldn’t sell under any other condition.
“Q. Did you tell Mr. Ogooshevitz that if you had the apartment house sold that then you wouldn’t care about putting in this clause about building restrictions?
“A. If I had it sold I would have scratched that out, but as long as it is mine, I will not sell the lot under any conditions, while I was the owner. I owned the apartment house at that time.”

The testimony of Mr. Baxter was corroborated by that of his wife, who was also present at the execution of the contract.

Upon the subject of whether the plaintiffs had any interest in the apartment building at the time of the hearing, Mr. Baxter also testified, on cross-examination, as follows:

“Q. You state you still own the property three doors from this lot?
“A. No, I don’t state I own it. I owned it at that time, but not now.
“Q. When did you sell this other property that was three doors away?
“A. The deal was going on at the time, but I closed the deal a week after I sold the lot. I do not hold any mortgage or lien of any kind on that building, the apartment house. When I purchased the lot which I sold to Mr. Ogooshevitz there were no restrictions on it. I don’t know whether there are any building restrictions, on any other lots in this same block. I never knew of any other lot in that block that was sold with the building restrictions on it.”

It further appeared, without contradiction, that the only interest which the plaintiffs, or either of them, had at the time of the hearing in any property in the said block is the amount that is still unpaid upon the land contract in question.

It appeared upon the hearing, from the testimony of divers witnesses, that this neighborhood was not exclusively a residential district, but was mainly of that character. The learned circuit judge who heard the case found in favor of the plaintiffs upon the main issues presented, and filed a written finding in which he said in part:

“I am_ satisfied from the testimony that this is more of a residential than a business section, and I see no reason why, if they saw fit, and believed that the value of the property would be lessened by putting in the garage at that particular place, the complainants in this case should not have the contract enforced, and therefore the decree of this court will be, that until the terms and conditions of the contract have been performed and the condition shall be carried out, an injunction may issue in accordance with the opinion of the court.
“I am not prepared to say that after their interest in the property has ceased altogether, that it can be prosecuted by other people, but, of course, that is not a necessary decision at the present time.”

The decree, however, as entered by the court below, made the temporary injunction perpetual, the language being:

“And the said defendant is hereby restrained from erecting, constructing or completing any building upon said premises described in said bill of complaint filed in said cause which will violate or conflict with the restrictions imposed upon said premises by the contract.”

The defendant has appealed, and he claims in this court:

(1) That the land contract should be reformed to conform to the original, preliminary agreement by omitting the restrictive clause.

(2) That if the contract is not reformed, the circumstances surrounding the entire transaction, the present situation of the plaintiffs, and the conditions on the street, do not warrant the issuance of an injunction.

(3) That if, in the opinion of the court, an injunction should issue, it should be limited until the defendant has performed the conditions in the contract and has received his deed.' •

1. A careful reading of the entire testimony in the case leads us to the conclusion that the defendant has failed to sustain the burden of proof under his cross-bill, to the effect that there was either a mutual mistake, or fraud, in inserting the restrictive clause in the contract. We are of opinion that the contract, as signed by the parties, must control.

2. We agree with the defendant’s contention that the instant case is not one where a general scheme or plan of improvement has been established, and a departure therefrom has been attempted by one of the owners of lots conveyed in the restricted district. Under the evidence, we are of the opinion that the restrictive clause was inserted in the contract for the purpose of protecting the plaintiffs’ apartment building property, and their interest in the property described in the contract. To the extent of their interest such provision should be sustained. It appears that plaintiffs have a present interest in the observance of the condition.

We recognize the rule as stated by counsel, and as often announced by this court:

“The enforcement in a court of equity of restrictive covenants in a deed is not a matter of absolute right, and is governed by the same general rules which control equitable relief by specific performance.”

It is urged by defendant that the issuance of the injunction will not benefit the plaintiffs, but will bear heavily upon the defendant. Counsel for defendant calls attention to section 11564, 3 Comp. Laws 1915, which is as follows:

“When any conditions annexed to a grant or conveyance of lands are merely nominal, and evince no intention of actual and substantial benefit to the party to whom, or in whose favor they are to be performed, they may be wholly disregarded.” * * *

In considering this section this court, in Barrie v. Smith, 47 Mich. 130, in speaking of a clause in a deed prohibiting the sale of intoxicating liquors upon the premises, said:

“The right to insert conditions, like the one in this case, we do not question, where it appears that the grantor has a special interest in the enforcement thereof. An owner of real estate, when conveying a part thereof, may undoubtedly impose conditions, which, if reasonable, courts would by an appropriate remedy restrain and prevent the violation thereof, for the protection of the grantor and his privies in estate, certainly so long as the reasons which gave rise to the conditions still existed.
“Nothing, however, of this kind exists in the present case. It does not appear that the plaintiffs at the time of the conveyance or since then owned any other lands in the village or vicinity of Otsego, or that they resided in the village or vicinity, or had in any way a special interest in the enforcement of this condition. A party owning two adjoining lots or a tract of land, may when selling one, or a part of the tract, be interested in preventing any noxious business from being carried on thereon, or in having it improved in a certain manner. The reason in such cases would be apparent, and so long as it existed should be ground for enforcing the condition. When, however, the grantor has parted with all interest in the remaining property, while his subsequent grantees may be interested in and have a right to insist upon such a condition, it may be very questionable whether he has any such right or interest. * * *
“Where the observance of the condition is an existing substantial benefit, or its breach works an actual substantial injury to the grantor it cannot be considered as nominal merely, but what the effect of a breach even in such cases would be we need not determine in the present case.”

The same case appears by the title of Smith v. Barrie, 56 Mich. 314 (56 Am. Rep. 391). Under the record made in that case this court held that the grantors had a purpose in view by the restriction which was grounded in substantial interests; that the condition was not arbitrary, but was imposed for the protection of their somewhat extensive business.

A similar question also arose in Abraham v. Stewart, 83 Mich. 7 (21 Am. St. Rep. 585). This same statute was invoked in that case, but the court held that the grantor had a substantial interest sufficient to sustain the restriction. The court, however, remarked:

“It is entirely possible that the time may come when the maintenance of these conditions will be of no benefit to defendant or her grantees. (The defendant was the grantor.) In such case complainant and his grantees would no longer be compelled to maintain them. That is a question for future consideration. Courts will not compel the observance of restrictions and conditions when they have ceased to be of any benefit.”

While in this case there is no evidence of a general plan of improvement containing restrictions, it does appear that the plaintiffs have still a substantial interest in the premises described in the contract, and will continue to have such interest until the contract is fully paid up. That the plaintiffs, in order to obtain relief, must have a substantial interest in the maintenance of the condition is clearly established by the authorities. An illustrative case is that of Dana v. Wentworth, 111 Mass. 291. There the owner of a parcel of land bounding on a street conveyed it by a deed containing a condition that the grantee, or his heirs or assigns, should not build on the land within eight feet of the street. The grantee conveyed the land in several lots. 'Held, that the grantor could not maintain a bill in equity, for the benefit of the owners of some of these lots to restrain the owner of another from violating the condition, in the absence of evidence that the condition was imposed as part of a general plan for the benefit of the land granted, and of other land on the street. There the court said:

“The plaintiff does not show that since that conveyance she is the owner of any land which may be affected by a disregard of the restriction. She is not, therefore, entitled to ask a court of equity to enforce the restriction for her own benefit.”

Under the statutes providing that conditions “merely nominal” may be disregarded, some interest of the grantor must appear before the restriction will be enforced. 8 R. C. L. p. 1118.

The plaintiffs’ interest in the premises described in the contract are such that they have the right to enforce this restriction so long as their interest remains. The language of Chief Justice Ostrander in Hammond v. Hibbler, 168 Mich. 66 (upon which point there was no dissent), is pertinent:

“It is the law of this State that a condition or covenant in a deed of real, estate, restricting the use to which property may be devoted, and not opposed to sound public policy, may be sustained and enforced, if the party in whose favor it is made or reserved has an interest in the observance of the condition or eovenantf’ — citing cases.

See, also, Davison v. Taylor, 196 Mich. 605, quoting language in Whitney v. Railway Co., 11 Gray (Mass.), 359 (71 Am. Dec. 715).

3. While plaintiffs have an interest in the enforcement of the restrictive clause because there is still a sum of money unpaid on the land contract, we think the decree below was too broad and sweeping, and that it should be modified and the injunction should not be absolute and unlimited in its terms. It should be effective only until the defendant has complied with the terms of his contract. The learned circuit judge seemed to be of this opinion, as we have shown, and yet the decree herein perpetually enjoins the defendant from proceeding with the garage building. As we have already stated, the plaintiffs have no interest in any other property in the neighborhood, having sold and disposed of the apartment building. It appears to us that the restrictive clause was made for the use of the plaintiffs and their property only. The only persons before the court are the parties to this suit. With the payment in full of the contract, the plaintiffs will have no interest of any kind or nature in the property involved in this case, or any other property in the neighborhood.

The decree below and the injunction will be modified, and be in force only until such time as said defendant has fully paid up and performed the terms of the contract with the plaintiffs, at which time the defendant shall have the right to apply to the court below for an order that said injunction become inoperative. As so modified, the decree below will be affirmed, with costs of this court to the appellant.

' Bird, C. J., and Ostrander, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    PEOPLE v. GOGAK.
    1. Weapons — Carrying Concealed Weapons — Statutes — Construction.
    Where in Act No. 7, § 1, Extra Session 1912 (3 Comp. Laws 1915, § 15236), prohibiting the carrying of concealed weapons, after specifically mentioning certain weapons, the words “or other offensive and dangerous weapons or instruments concealed upon his person,” are added, held, to be the legislative intent to go further than the specific things mentioned in the statute.
    2. Same — Criminal Law — Dangerous Weapons — Knife — Question for Jury.
    Where, in a criminal prosecution for carrying concealed weapons, the offense charged was the carrying of a knife, which was offered in evidence, the court properly submitted to the jury the question as to whether the weapon or instrument in question was offensive and dangerous, although the carrying of a knife was not specifically prohibited in the statute.

    3. Constitutional Law — Statute—Titee—Object Expressed.
    Act No. 7, Extra Session 1912 (3 Comp. Laws 1915, § 15236 et seq.), prohibiting the carrying of concealed weapons, held, not open to the objection that it is unconstitutional because it contains more than one object which is not expressed in its title, in violation of section 21, art. 5, Const. Michigan.
    4. Same — Special Privilege — Police Power — Licenses—Carrying Concealed Weapons.
    The provision in said- statute for licensing certain corporations to arm their employees, held, not open to the objection that it is unconstitutional as giving special privileges to corporations in violation of section 1, art. 12, Const. Michigan, but is an exercise of the police power, and is a reasonable police regulation.
    5. Same — Sheriffs—Other Office — Added Duty.
    Nor is said statute unconstitutional because thereby the sheriff is made a member of the board to issue licenses to go armed with weapons, since no new or other office is conferred in violation of section 5, art. 8, Const. Michigan, but simply a new or additional duty is assigned.
    Error to recorder’s court of Detroit; Wilkins, J.
    Submitted January 16, 1919.
    (Docket No. 117.)
    Decided April 3, 1919.
    George Gogak was convicted of carrying concealed weapons, and sentenced to imprisonment for not less than one year nor more than two years in the Detroit house of correction.
    Affirmed.

      Ira J. P&ttiford, for appellant.

      Alex. J. Groesbeelc, Attorney General, Charles R. JasnowsM, Prosecuting Attorney, and Harry B. Keidan, Assistant Prosecuting Attorney, for the people.

      See note in 34 L. E. A. (N. S.) 1176.

   Stone, J.

The defendant was convicted in the recorder’s court for the city of Detroit, under an information charging that on the 27th day of January, 1918, at the city of Detroit, he did wilfully, unlawfully and feloniously go armed with a certain offensive and dangerous weapon, to-wit: a knife concealed upon his person; he not then and there having a license to go armed with an offensive and dangerous weapon; contrary to the form of the statute, etc. Upon the trial there was evidence that the defendant, at the time and place charged, was carrying upon his person, and concealed in his hip-pocket a certain knife which was produced and exhibited to the jury and there was no claim that he had a license, but the contrary appeared. The knife was spoken of in the record as a “hunting knife.”

The conviction was had under Act No. 7, Extra Session 1912, entitled:

“An act to amend section one of act number two hundred seventy-four of the Public Acts of nineteen hundred eleven, entitled, ‘An act to prohibit the sale, keeping for sale, loaning, giving away or carrying of certain dangerous weapons; to prevent the carrying of concealed weapons except in certain specified cases when a license is issued therefor; to provide punishment for the violation of the provisions hereof; and to repeal act. number one hundred twenty-nine of the Public Acts of eighteen hundred eighty-seven, entitled,’ ” etc.

Section 1, as amended, reads as follows:

“It shall be unlawful for any person, except as hereinafter provided, to go armed with a dirk, dagger, sword, pistol, revolver, stiletto, metallic-knuckles, pocket-billy, sand-bag, skull-cracker, slung-shot, razor, hatpins over ten inches long, or other offensive and dangerous weapons or instruments concealed upon his person.”

Counsel for defendant requested the court to charge the jury as follows:

“1. The defendant, George Gogak, is charged with a violation of the concealed weapon act, being Act Number 274 of the Public Acts of Michigan of 1911 as amended; the act under which the information is drawn names a number of weapons which it prohibits a person from carrying concealed on his person, such as a revolver, pistol, dagger, dirk, stiletto, metallic-knuckles, pocket-billy, sand-bag, etc., but does not name a knife, which the information in this case charges the def endant had on his person on the night in question; therefore I charge you that the act does not cover the charge in this case, and the information filed in this case charges no criminal offense, and it is your duty to find the defendant not guilty, without leaving your seats.
“2. I charge you that the act under which this information is charged is unconstitutional, being a violation of section 21 of article 5 of the Constitution of Michigan, in that the act has more than one object which is not expressed or embraced in its title; that being the case you will find the defendant not guilty.
“8. Section four of this act provides for the licensing of the employees of banks, trust companies, railroad companies and express companies, upon payment of a blanket license feet of ten dollars; obviously this concession was made to these corporations named as a measure of protection of their property rights, so that an individual citizen that puts a gun in his pocket to protect one dollar, or a thousand, that he may have on his person from robbery or theft, no matter how innocent his motives may be, may be for such act, sent to the State prison from one to two years, while any of the corporations named are given the privilege to pay the sum of ten dollars, and arm any of their employees without restriction; this act confers certain special privileges and power upon certain corporations doing business in this State, and is therefore in direct conflict with section 1, article 12 of the Constitution of the State of Michigan, and void; and if any crime has been committed by the defendant in this case, the same would come within the provisions of the old statute making the same a misdemeanor, and this court has no jurisdiction of that offense, therefore I discharge you from further consideration of this case, and discharge the defendant.
“4. I further charge you that the act in question is in conflict with article 8, section 5 of the Constitution of the State of Michigan and is therefore void.”

Each of the foregoing requests to charge was refused, and the court among other things charged the jury as follows:

“Now, the knife is not specifically named in this statute, and in fact, as you notice, and as Mr. Pettiford said to you, but the statute does provide and prohibit any person from going armed with any offensive or dangerous weapon or instrument concealed upon his person; and the question for you, gentlemen, to determine, one of the questions in this case, is, whether this knife is a dangerous and offensive weapon.
“There are certain things that must be proven to your satisfaction, beyond reasonable doubt, before you would be entitled to bring in a verdict of guilty. First, that the defendant was armed with an offensive and dangerous weapon, as charged. Second, that such an offensive and dangerous weapon was concealed upon his person. I charge you that if he had it in his pocket that is a sufficient concealing. Third, that he had no lawful permit or license from the board or commission authorized to grant licenses for persons to go armed with such weapons.”

The defendant, having been convicted by the verdict of the jury, was sentenced to imprisonment in the Detroit house of correction, and he has brought the case here upon writ of error. His counsel in his brief in this court discusses the questions raised by his requests to charge, which are made subjects of assignments of error.

1. It is the contention of the defendant that the information does not charge a criminal offense, because the word “knife” is not specifically mentioned in the statute* As we understand counsel, he here invokes the doctrine of ejusdem. generis, which doctrine is to the effect that in statutory construction where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. We think the rule applicable here is that stated by this court in McDade v. People, 29 Mich. 50, where Chief Justice Graves said:

“It is a well-settled general rule, and one especially applicable in the interpretation of statutes which define crimes and regulate their punishment, that general words are to be restrained to the matter with which the act is dealing, and that if it be dealing with specific things or particular modes only, the general words must be limited to such things or modes, except when it is apparent that the legislature intended! by the general words to go further” — citing cases.

We think it clearly appears that the legislature here intended to go further than the specific things that are mentioned in the statute, and meant to embrace all “other offensive and dangerous weapons or instruments concealed upon his person.” It is manifest that there may be many offensive and dangerous weapons or instruments falling within the scope and spirit of this statute other than those specifically mentioned. As we know, there are knives and knives, some dangerous and offensive and some not. This knife was offered in evidence and was shown to, and examined by the jury, and we think the court properly submitted the question to them as to whether the weapon or instrument in question was offensive and dangerous. We find no error in refusing to give the first request to charge.

2. It is next claimed that the act contains more than one object, which is not expressed or embraced in its title, and is therefore invalid.

We have already copied the title of the act, and section 1. Section 2 prohibits the sale of such weapons. Section 3 specifies who shall constitute the board to issue licenses. Section 4 makes it the duty of the board to issue licenses to peace officers and certain other persons. Section 5 makes the county clerk the secretary of the board. Section 6 relates to the carrying of weapons by peace officers. Section 7 relates to the form of the application for license. Section 8 •makes it the duty of any person armed with a weapon to produce the license at the request of any peace officer or other person in authority. Section 9 provides the punishment for violation of the. statute.

We are of the opinion that the general purpose and object of the act are sufficiently expressed in its title. As was said by this court in Kurtz v. People, 33 Mich. 279:

“This provision of the Constitution was intended to prevent legislators from being entrapped into the careless passage of bills or matters foreign to the ostensible purpose of the statute as entitled; but it was not designed to require the body of the act to be a mere repetition of the title, nor to preclude the introduction of such means as are reasonably adapted to secure the object indicated by the title.”

See, also, Toledo, etc., R. Co. v. Dunlap, 47 Mich. 456; Attorney General v. Sanilac County Supervisors, 71 Mich. 16; Bissell v. Heath, 98 Mich. 472; People v. Brooks, 101 Mich. 98.

In our opinion there is no force in this claim of the appellant. We have examined the cases cited by counsel and do not think they support his contention.

3. As we understand counsel, he claims that the act in question is unconstitutional as giving special privileges to corporations. In this claim we do not agree with counsel. Our attention is called to section 1, art. 12 of the Constitution, which reads as follows:

“Corporations may be formed under general laws, but shall not be created, nor shall any rights, privileges or franchises be conferred upon them, by special act of the legislature. All laws heretofore or hereafter passed by the legislature for the formation of, or conferring rights, privileges or franchises upon corporations, and all rights, privileges or franchises conferred by such laws may be amended, altered, repealed or abrogated.”

We are unable to fully understand the position of counsel here. The act in question is a general, and not a special act of the legislature. The point of counsel seems to be that, because the act provides that a general permit may be given and issued to certain corporations, for their employees, it therefore confers upon such corporations a special privilege, forbidden by the Constitution. We do not so understand it. This is an exercise of the police power, and is a reasonable police regulation; and in so far as it regulates the action of the board in licensing certain corporations, it cannot be said to be class legislation, or the conferring of special privileges, if it operates alike, on all such corporations. 6 R: C. L. p. 240 et seq. See collection of cases in Maclam v. City of Marquette, 148 Mich. 480. The general principle is that equal protection is not denied where the law operates alike upon all persons, similarly situated. We think there is no force in the position of counsel upon this point.,

4. Under this head it is claimed that the act is unconstitutional because the sheriff is made a member of the board, to issue licenses to go armed with weapons. The provision of the Constitution referred to by counsel is section 5 of article 8, which provides that the sheriff shall hold no other office. We do not think that this statute conferred any new, or other office, but simply assigned a new, or additional, duty to be performed by the sheriff. We see no force in the objection.

We find no reversible error in the record, and the judgment of the recorder’s court is affirmed.

Bird, C. J., and Ostrander, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred.


text:
    HOUSEMAN-SPITZLEY CORP. v. AMERICAN STATE BANK.
    1. Forgery — Indorsement of Fictitious Name.
    The indorsement of a fictitious payee’s name on a check by one not authorized to do so is to be treated as a forgery.
    2. Banks and Banking — Payment of Forged Check — Liability of Bank — Release—Debtor and Creditor.
    In an action against a bank for paying a check drawn by plaintiff on which an indorsement had been forged by an employee of plaintiff, defendant was not released from liability because the employee confessed his guilt and turned over to plaintiff all his property to make good his defalcations, which it accepted before notifying defendant of the forgery; under the common law rule a debtor having a right to prefer a creditor.
    3. Same — Trusts—Resulting Trusts.
    Where said employee had used plaintiff’s money to purchase land and had taken the contract therefor in his own name, a resulting trust was thereby created in favor of plaintiff (3 Comp. Laws 1915, § 11573), which entitled it to a conveyance at any time, and its assignment to plaintiff therefore would not affect defendant’s liability in said action. ,
    4. Same — Forgery—Laches—Estoppel.
    A delay of four or five days in notifying defendant of the forgery would not affect its liability, in the absence of evidence showing that it had been prejudiced thereby.
    5. Same — Evidence—Prejudice.
    In order to establish an equitable estoppel for failure of the depositor to promptly notify the bank of a forgery, it must show that it was prejudiced, or lost some opportunity to protect itself by action against the forger.
    Error to Wayne; Mandell, J.
    Submitted January 23, 1919.
    (Docket No. 105.)
    Decided April 3, 1919.
    Assumpsit in justice’s court by Houseman-Spitzley Corporation against the American State Bank and another for money had and received. There was judgment for defendants, and plaintiff appealed to the circuit court. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Reversed.

      Goodenough, Voorhies & Long, for appellant.

      Ralph L. Aldrich, for appellees.
   Stone, J.

This case grew out of certain fraudulent transactions of one Stephen I. Kux as hereinafter stated. Kux was, in June, 1917, in the employ of the plaintiff as its west side salesman. About the 19th of that month he came to B. C. Spitzley, president of the plaintiff corporation, with a proposition that he join the plaintiff in the purchase of certain property located on the west side of the city of Detroit. He represented that a considerable profit could be made by taking an option upon the property and reselling it at an advance price, before the option should expire. He stated that because of his connection with the plaintiff, he felt that he ought to give it a chance to share in the proposition. He represented that the land was owned by one Fred Maples, who lived in Dearborn, and that Maples was willing to sell at $600 per lot, and would give a 90-day option at that price, upon the payment of $500; and he proposed that plaintiff should pay one-half of that sum, and that he should pay the other half.

Because Kux was a trusted employee of the plaintiff, and because Mr. Spitzley did not have time to make a personal investigation, other than to ascertain the location of the property upon the map, he assented to the proposition, stipulating that the option should be taken in the name of the plaintiff, and that Kux should immediately undertake the sale of the lots.

Á check payable to the order of Maples for $250 was, on June 20, 1917, drawn on the defendant, the American State Bank, signed by the plaintiff, and handed to Kux to take to Maples, as plaintiff’s half of the option money. The following day Kux brought to Mr. Spitzley what purported to be the option signed by Maples, which recited the consideration of $500, the description of the lots to be conveyed, and the purchase price. The option was dated July 19th instead of June 19th, and Mr. Spitzley inquired why it was dated ahead. Kux replied that he had made a mistake in dating it, but that it was satisfactory to Maples, and that it was to their advantage, as it gave them an extra 30 days.

Kux’s story was a complete fabrication. He knew of no one by the name of Maples, had no transaction with the owner of the property, and had written the names of Maples and the witnesses to the option agreement, himself. He also wrote the name Fred Maples upon the back of the check, and deposited it in his own account in the Federal State Bank. That bank obtained credit for the check through the clearing house, and the check was charged against plaintiff’s account in the American State Bank.'

Plaintiff was first led to suspect Kux about July 20th, following. There was another man in plaintiff’s employ named Black who had been defrauded by Kux, and was about to have Kux arrested. Black reported the matter to Mr. Spitzley, and advised him to investigate transactions with Kux. Mr. Spitzley immediately obtained cancelled checks which had pássed through Kux’s hands, and began investigating. On July 31st, Mr. Spitzley had Kux arrested, because he had been informed by Black that Kux was endeavoring to go out of town, and he thought it was his duty to have him apprehended, as a matter of protection to the banks against which claim would be made on account of cashing the checks with forged indorsements.

All of the other checks upon which Kux had forged indorsements were drawn on the Merchants National Bank, and Mr. Spitzley did not notice until his attention was called to it by an official of that bank on August 6th, that the check payable to Maples was drawn on the American State Bank. Consequently the latter bank did not obtain information concerning the forgery of the Maples check, until several days after the Merchants National Bank was first advised of plaintiff’s suspicions, and had seen the checks. It appeared that the checks drawn upon the two banks were of the same size and color of paper, which was shown to be the reason why Mr. Spitzley failed to notice the fact.

Upon August 6th or 7th notice was given to the defendant American State Bank of the forgery of the indorsement upon this Maples check, and notice was then transmitted by that bank — through the Peoples State Bank from which the American State Bank had received the check — to the defendant the Federal State Bank. The latter bank received notice of the forgery upon this check on the 8th of August, but had on the 6th received notice from the Merchants National Bank that Kux had forged indorsements upon the checks drawn upon that bank.

At the trial at the circuit, verdict and judgment were directed against the plaintiff, because the trial court was of the opinion that certain transactions between plaintiff and Kux, after the discovery of the forgery, and before notice to defendants, released the latter from liability. It appeared that upon August 2, 1917, Kux, while in jail, was persuaded to make a complete confession of his crime before an assistant prosecuting attorney, and plaintiff’s attorney, and that at the time of the confession, Kux voluntarily transferred to plaintiff all the property which he owned, being an automobile which he was purchasing from a dealer upon a title retaining contract. It did not appear that there was any understanding, as to what application was to be made of anything that might be secured out of the automobile. Plaintiff afterwards realized $292.27, after disposing of the automobile, and paying the indebtedness to the dealer, and other charges against it. Kux was at the time of this transfer indebted to plaintiff in the sum of $133 for rents collected and misappropriated, also $46.22 for money misappropriated, which had been given him for payment of taxes, and $12 for a check cashed which turned out to be worthless. These items were afterwards charged against the sum realized upon the automobile, and showed Kux as having a credit of $101.05.

This sum, however, does not take into account other large sums 'which Kux owed plaintiff, as a result of losses sustained through his various fraudulent transactions. These losses exceeded $10,000, and are more than the total amount that can be realized upon claims against banks upon forged indorsement of checks, as appears by the evidence. This is due to the fact that plaintiff was, after it had commenced the erection of ■buildings upon property obtained through Kux, obliged to pay larger sums for such property than it had expected, or intended to do. It should be stated, in explanation of the last above statement that, at the time of this confession, Kux also assigned to plaintiff a land contract between Thomas H. Conway and wife as vendors, and himself and one Louis H. Cassin, as vendees, covering 50 lots in Detroit. This contract had been obtained the previous year in the following manner:

Kux had represented to the plaintiff that the lots conveyed by it could be purchased for $500 per lot, net to purchaser, and had given it a paper purporting to be a sales agreement signed by Conway and wife, the owners, agreeing to sell 44 of the lots at that price. Conway actually required $700 per lot, net to him for the lots, and Kux, who had forged Conway’s signature and that of his wife to the sales agreement, felt obliged to get some title to the lots, as plaintiff was already building thereon. He, therefore, arranged the purchase of the lots as follows: He obtained a check from the plaintiff payable to Conway for $12,-600, sufficient to pay the full purchase price of 18 lots. He delivered this to Conway and received a deed to the plaintiff, for the 18 lots. He also obtained from plaintiff a check for $3,200, to which he added $200 of his own, and gave the same to Conway as first payment on a contract.for 32 lots. This contract was made out in the names of Kux and Cassin as vendees, although the latter never knew of the transaction. It provided for final payment of $19,000 one year after date. Kux had covered up his fraud by retaining possession of the deed and contract, and giving plaintiff a forged deed for 44 of the lots; and it was not until he made his confession, August 2, 1917, that he explained the transaction, and delivered to plaintiff the deed for the 18 lots, and the contract. Kux seems to have recognized that the contract, having been fraudulently obtained with plaintiff’s money, equitably belonged to plaintiff, and he, therefore, executed an assignment of this contract when requested.

It is claimed by defendants that the transfer of the automobile, and the assignment of the land contract to plaintiff, being made before defendants had knowledge of the forgery, released defendants from liability, and the trial court so held.

Except as above, there was no evidence that defendants were deprived of any remedy against Kux, because they did not learn of the forgery as soon as plaintiff did. His bank account at the Federal State Bank had been drawn down to $4.03 July 28th, and had not changed after that date.

At the conclusion of all the evidence both parties moved for a directed verdict. The court granted defendants’ motion. The plaintiff has brought error, and its assignments thereof, are that the court erred in refusing to direct a verdict for the plaintiff for $250, as requested; and that the court erred in directing a verdict for defendants.

That the indorsement of a fictitious payee’s name by one not authorized to do so is to be treated as a forgery, as held in Harmon v. National Bank, 153 Mich. 73, 79 (17 L. R. A. [N. S.] 514, 126 Am. St. Rep. 467), does not seem to be questioned by either party, and by the record it appears that the ground upon which the court directed the verdict was that plaintiff by its delay in giving notice, coupled with the acceptance of the forger’s property, had estopped itself to claim that the payment of the check was unauthorized.

Plaintiff contends here:

1. That notice reached the banks interested within a reasonable time.

2. That neither bank suffered by the delay.

3. That plaintiff had the right to take the forger’s automobile, and apply the proceeds from its sale upon its claims against the forger.

Considering the last question first, it seems to us that the plaintiff was not bound to refrain from accepting the assignment of Kux’s interest in the automobile. Both plaintiff and defendants were Kux’s creditors, and either had the right to.receive payment of Kux’s indebtedness, in whole or in part,' except as such payments might be declared preferential in bankruptcy; in which case the payment would merely have to be shared among all creditors. This is not a court of bankruptcy, and it must follow the common law rule, which protects payments received by any one creditor.

In so far as the assignment of the land contract was concerned, it appears to us that it was a voluntary act by Kux of a duty which a court of equity would have required him to perform. He had, by his fraud, secured a contract interest in, the lots in his name with money furnished by the plaintiff. A resulting trust was thereby created in favor of plaintiff, which entitled plaintiff to a conveyance at any time. See section 11573, 3 Comp. Laws 1915, and note of cases.

Plaintiff’s second position is that unless defendants show prejudice by the delay of notice, there can be no estoppel; and that prejudice has not been shown; that the basis of a defense of this kind is the doctrine of equitable estoppel, and it is conceded that where a bank can show that by reason of the delay in obtaining notice, it was deprived of an opportunity to collect from the forger, as was shown in Brown v. National Bank, 170 Mich. 416 (40 L. R. A. [N. S.] 657), the depositor should not recover. And it is urged that to show equitable estoppel, however, the party asserting it must show actual prejudice resulting from the act or omission claimed as the basis of estoppel, and that mere fancied or conjectural prejudice is not sufficient, and Meisel v. Welles, 107 Mich. 453, and earlier cases are cited.

And it is contended that delay in giving notice to the bank is not material, unless such delay is shown to be prejudicial; and that the great weight of authority is to that effect. The following cases are cited: Pratt v. National Bank, 79 N. J. Law, 117 (75 Atl. 313); Janin v. San Francisco Bank, 92 Cal. 14 (27 Pac. 1100, 14 L. R. A. 320, 27 Am. St. Rep. 82); Wind v. National Bank, 39 Mo. App. 72; Brixen v. National Bank, 5 Utah, 504 (18 Pac. 43) ; Murphy v. National Bank, 191 Mass. 159 (77 N. E. 693, 114 Am. St. Rep, 595).

In Pratt v. National Bank, supra, the evidence showed that plaintiff discovered the forgery in the spring of 1908. The precise date did not appear. On May 23d he notified the bank. The court did not find that an unreasonable delay had intervened, but said:

“Assuming that there was an unreasonable delay in reporting the forgery after discovery, there remains for consideration the question whether it must appear in order to preclude the plaintiff’s recovery, that, because of such negligent failure to give notice, the bank was prejudiced in its right of action against the forger' or other third parties. While there is some conflict in the cases, yet the rule established by the great weight of authority is that a depositor’s delay in giving notice to the bank of the forged indorsement of this check, after he discovers it, will not be a defense to his action against the bank to recover the amount of the check, unless the bank was injured by the delay.”

The doctrine of the responsibility of the depositor to his bank, for the result of failure promptly to notify it of the forgery, was held in Hardy v. Chesapeake Bank, 51 Md. 562, 34 Am. Rep. 325), to rest upon the principle of an estoppel in pais, which may be invoked to prevent an injustice only by one who can show that he has acted or refrained from acting, by the conduct of another which would ordinarily influence other persons; and the court relying upon this doctrine, held that it was incumbent upon the bank to show that it had been actually misled to its injury, by the conduct of the depositor.

Counsel for defendants contends that the better doctrine is that delay of itself, without any proof of a change in the relations between the parties, is a bar to recovery, and the following cases are cited: United States v. Exchange Bank, 45 Fed. 163; Van Wert Nat. Bank v. First Nat. Bank, 6 Ohio C. C. 130; McNeely Co. v. Bank of North America, 221 Pa. 588 (70 Atl. 891).

An examination will show that in 20 L. R. A. (N. S.) 79, in a note to McNeely Co. v. Bank of North America, supra, it is said:

“It seems to be the general rule, contrary to that laid down in McNeely Co. v. Bank of North America, that before a bank is justified in charging the amount paid upon the forged paper, against the account of a depositor, or correspondent bank, because of negligence in discovering, or reporting the forgery, it must show that it was prejudiced, or lost some opportunity to protect itself by action against the forger,”

—and the cases are reviewed at considerable length.

The Ohio case cited by defendants’ counsel is not a decision of a court of last resort, and we are unable to find that it has been followed by any other court of the State.

In Brown v. National Bank, supra, while this court denied recovery by the payee on the ground that she was guilty of laches, it placed its decision upon the .ground that an equitable estoppel had been shown; it appearing that defendant could have avoided loss by holding the bank account of the forger, if the payee’s agent had seasonably informed it of the forgery. We invite attention to the language of Justice Steere, upon that subject.

We are of the opinion that the great weight of authority is as claimed by counsel for plaintiff; that the defendants have not sustained the burden of showing-prejudice or injury; and that it does not appear that defendants would have been in any better condition had they received notice of the forgery on the day of Kux’s confe'ssion. He had not been allowed to escape, but was in custody upon complaint of plaintiff at the time of notice. Upon this record we think the plaintiff was entitled to a directed verdict in its favor.

The judgment below is reversed and a new trial, granted, with costs to appellant.

Bird, C. J., and Ostrander, Moore, Steere, Brooke, and Fellows, JJ., concurred. Kuhn, J., did not sit*


text:
    THURSTON v. NORTHERN NAVIGATION CO.
    1. Carriers — Connecting Carriers — Responsibility por Entire Trip — Presumptions—Special Contract.
    The presumption that a common carrier in selling a ticket over its own and a connecting line does not assume any responsibility for the acts- of the connecting carrier or its agents, is not applicable where there is -a special contract with the initial carrier by which it assumes the responsibility for the entire trip.
    2. Same — Personal Injuries — Liability oe Initial Carrier — Contracts.
    Where defendant steamship company sold plaintiff a round-trip ticket for a voyage on the Great Lakes, including side ‘ trips in automobiles which it arranged for and advertised as part of the trip and which were paid for in the price of the ticket, in an action for personal injuries received while plaintiff was on a side trip riding in an automobile owned by another company, evidence held, sufficient to sustain the finding of the jury that defendant by its contract assumed responsibility for said side trips, rendering it liable for the negligence of said other company or its agents.
    3. Same — Evidence—Ticket—Contract op Carriage — Parol Evidence.
    The ticket sold by a carrier to a passenger is not the sole evidence of the contract of carriage, but the real contract may be shown notwithstanding the issuance and acceptance of the ticket.
    4. Same — Tickets—Conditions Limiting Liability — Acceptance.
    In case of a full-fare ticket, a passenger is not bound by the conditions thereon limiting the common-law or contractual liability of the carrier unless such conditions are called to the attention of the passenger and assented to by him.
    Error to Wayne; Mandell, J.
    Submitted January 7, 1919.
    (Docket No. 4.)
    Decided April 3, 1919.
    Case by Lucy E. Thurston against the Northern Navigation Company, Limited, for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Miller, Canfield, Paddock & Perry, for appellant.'

      R. E. Hof click, for appellee.
   Stone, J.

This is an action for damages for personal injuries to plaintiff. The plaintiff was injured at Duluth, Minnesota, on August 14, 1917, while on a cruise, so-called, given by the defendant. At the time of the injury she was riding in an automobile1 owned by the Board of Trade Livery Company, of Duluth, the automobile ride being given as a part of the cruise.

The plaintiff was the editor and sole manager of a monthly publication known as “Modem Methods,” published by the Richmond & Backus Company of Detroit, a corporation, under the name of Modern Methods Publishing Company.

The defendant operates a line of steamers between Windsor, Ontario; Detroit; Sarnia, Ontario, and Duluth, and intermediate ports. About June 1, 1917, there came into the hands of the plaintiff, as such manager, a letter from the advertising manager of the defendant, which, omitting immaterial portions, was as follows:

“Modern Methods,
“Detroit, Mich.
“Gentlemen: We want to extend to you the opportunity of taking a six-day, round trip Great Lakes Voyage this summer, paying for one-half of the entire cost of the trip with advertising in your publication.
“The trip is the 1,600-mile Huron-Superior Cruise, starting at either Detroit, Sarnia or Duluth. * * * The entire cost is $53.50 from Detroit or $50.00 from Sarnia, including transportation, meals, berth, side trips — everything.
“The enclosed ‘proof’ shows you our double column, seven-inch advertisement. If you will run this advertisement in your publication enough times to equal the cost of transportation on the trip — or, in other words, one-half of the entire cost — we will accept the other half, $26.75 or $25.00 in cash as payment for meals, berth, etc. You may accept this offer for yourself, or some member of your family or organization. In case you wish more than one ticket, you should figure on allowing us enough advertising to equal the amount of the transportation. For instance, if you desire two tickets from Detroit to Duluth, you should allow us $53.50 in advertising, and the cruise for two will cost you $53.50 in cash.
“This Huron-Superior Cruise is truthfully called the Greatest Fresh Water Voyage in the world. * * * We could never begin to explain its wonders in this limited space, so we are sending under separate cover a folder, including time table, which will tell you all about it. Please read the enclosed card carefully. Then sign and mail it, being sure to fill out all blank spaces. * * * When we receive the card we will consider the agreement made between us. * * * Come along this year and * * * bring someone in your family or organization with you.”

The “proof” referred to in the foregoing letter and enclosed therewith, was an advertisement headed “Northern Navigation Cruises,” and contained, among other things, the following:

“1,600 Mile, Six-Day Detroit-Duluth Cruise — Between Detroit, Sarnia, S. S. Marie, Port Arthur, Ft. William and Duluth. Excellent meals, comfortable staterooms, side trips — all included in your ticket. No extras.”

The folder referred to in the letter was received by the plaintiff and read by her. She also secured an additional folder and took it home with her. This folder contained a detailed description of the Detroit-Duluth trip with the following references to the Boulevard drive in Duluth:

“To enhance your pleasure, we have added personally conducted side trips, such as visits to Falls, Boulevard Drive, fishing excursions and basket picnics to quaint spots.
“So that none of the most wonderful things may be missed, arrangements have been made by the Northern Navigation Company for a personally conducted trip about the Boulevards, and interesting places of Duluth, — a most pleasing and delightful diversion.”

After the descriptive portion of the folder and in the portion giving rates of fare, time tables, etc., appears the following:

“Northern Navigation Continuous Cruises. Personally Conducted Tours of the Great Lakes, with Side Trips, Meals, Berths, Afternoon Teas, etc., all included in the Tickets.
“Cruise No. 1. Detroit, Mich., or Sarnia, Ont., to Duluth, Minn., and return. * * * This six-day cruise includes meals, berth, trip to Kakabeka Falls at Port Arthur, drive around the boulevards at Duluth, returning to Detroit six days after embarking. Price of entire cruise (continuous passage) $53.50.”

The minimum round trip fare, including meals and berth, is shown by the table of fares to be $53.50. Near the end of the folder is a list of the connecting carriers at the various ports. The Board of Trade Livery Company is not included in this list of connecting carriers, nor is it specifically mentioned anywhere in the folder.

After discussing the trip with members of' her family, the plaintiff filled out and returned the card enclosed with, and referred to in, the letter. The material portions of this card read as follows:

“I accept your proposition as outlined in your letter of June 1st. * * * Please issue ticket (tickets) to Mr. and Mrs. «John Ferguson, Miss L. E. Thurston (Editor) and Mrs. J. 0. Thurston (Mother). I will arrange the date of sailing and inform you whether I wish to start from Detroit or Duluth when you ask me for this information.”

The defendant’s advertisements were run in the July and August issues of “Modern Methods,” and about July 11th the plaintiff received a letter, enclosing transportation tickets, so-called, the material portions of which are as follows:

“Modern Methods,
“Detroit, Michigan.
“Attention: Mr. L. E. Thurston.
“Gentlemen: You will find enclosed transportation tickets for Miss L. E. Thurston * * * all of which will apply on the Northern Navigation exchange contract which you have with us. If you will take these tickets to the office of Mr. Leidich, 69 Fort street, west, he will show you a chart of the boat, so that you may reserve just the accommodation you desire, and these transportation tickets enclosed will apply on your tickets to the values indicated on each ticket.”

Enclosed with this letter were transportation tickets for the several persons named in the letter. The material portion of the ticket issued to the plaintiff was as follows:

“Northern Navigation Company, Ltd. Duplicate Advertising Order. Good for One First Class Passage, Meals and Berth Extra. From Detroit to Duluth. For L. E. Thurston account of ‘Modern Methods/ * * * Under no circumstances must this ticket be sold or transferred. * * * It will not be accepted for passage unless presented by the person named hereon, whose signature is reproduced on back hereof before presentation for passage. Meals and berth to be paid for in cash at one-half of regular fare for any trip. To be signed in ink before presenting for passage. Side trips which are a part of regular cruise are included in this ticket. If presented by any other person than the one whose name is shown hereon, ticket will be forfeited and purser will collect regular fare.”

After the foregoing was a blank for the holder’s signature. This ticket was signed by Miss Thurston, and .was taken by her to the office of Mr. Leidich, the defendant’s agent, where she made her reservation and paid the balance of the cost of the trip in cash. At the time of surrendering the ticket and paying the balance of the money, she received another ticket in booklet form containing seven coupons for the several portions of the trip. The first three coupons were for use on the defendant’s boats and did not purport to be anything more than tokens evidencing the passenger’s right to transportation and accommodations. The fifth coupon was for the Boulevard drive at Duluth and was in the following form:

“Issued by Northern Navigation Company (Limited). Board of Trade Livery. Boulevard Drive at Duluth. On Conditions named in contract. First Class — Not good if detached from contract bearing signature. Duluth, Minn. & Return.”

On the inside of the back cover of the ticket were certain conditions in fine print, among- which was the following:

“2nd. In selling this ticket for passage over other transportation companies’ lines, this company acts only as agent, and assumes no responsibility beyond, its own line.”

Below the conditions were the words, “I agree to the above,” with a blank space marked “Signature,” and another marked “Witness.” The plaintiff testified that these conditions were not called to her attention at the time the ticket was issued to her; that she did not sign the same; that she was not asked to do so, and that she had no knowledge of their existence. This testimony was not contradicted, and the defendant did not produce the unused portion of the ticket, which had been surrendered by the plaintiff. She had the ticket in her possession for about two weeks before sailing, but according to her testimony she made little or no examination of it, but put it away in a safe place and did not get it out until the morning she started away. When the ticket was called for, she handed it to the purser, or other officer, who took out the necessary coupons and returned it to her, and she put it in her bag.

The plaintiff commenced her trip on August 11th, and was injured on August 14, .1917, while taking the Boulevard drive, called for by her ticket, in a vehicle furnished by the Board of Trade Livery Company, a Minnesota corporation, under an arrangement between the latter and the defendant. This arrangement between the two companies, which are separate corporations having no identity of ownership or management, appears to have been oral, and was made at the direction of the defendant’s general passenger agent, who testified that the cruise was gotten up in as attractive a manner as possible, in order to procure as many tourists as possible, and that the side trips, including the Boulevard drive, were for the purpose of adding to the attractiveness of the cruise. The defendant paid the Livery Company seventy-five cents for each of the former’s passengers carried by the latter. The full name of the Board of Trade Livery Company does not appear anywhere in any of the correspondence, or folder, or the tickets issued to the plaintiff; and the only place where the words “Board of Trade Livery” appear is on the coupon in the ticket, exhibit 7. It further appeared that the plaintiff had twice before taken this same trip, using the same kind of ticket.

At the time of the injury said automobile was being driven by an employee of said Board of Trade Livery Company, nor was there an employee of defendant in the machine. This livery, company conducted a general taxi-cab, transfer and baggage business in Duluth.

At the close of the plaintiff’s evidence, defendant moved for a directed verdict, on the ground that the plaintiff’s proofs show that at the time of the injury alleged in the declaration the plaintiff was not a passenger of the Northern Navigation Company, but was a passenger of the Board of Trade Livery Company; and that she was such a passenger of the Board of Trade Livery appears on the face of the coupon in the ticket entitling her to the Boulevard drive at Duluth; and, further, defendant is not responsible for the injuries received by the plaintiff while taking this Boulevard drive over the line of the Board of Trade Livery by virtue of the provision in the contract of carriage, the second condition being:

“In selling this ticket for passage over other transportation companies’ lines, this company is acting only as agent, and assumes no responsibility beyond its own line,”

—which ticket and contract were accepted by the plaintiff and kept in her possession for approximately two weeks before starting the voyage, and after the commencement of the voyage for three days before taking the Boulevard drive.

This motion was denied by the court, and was renewed at the close of all the testimony, with the additional reason that all the counts of the plaintiff’s declaration rely solely upon the contract for transportation made with “Modern Methods,” — a trade name under which the Richmond & Backus Company trade; and that the plaintiff cannot rely upon this contract of transportation because she was not a party to it. The court reserved its decision upon this last motion. Upon the trial the plaintiff recovered a verdict of $1,700.

There was made subsequently a motion for judgment for the defendant non obstante veredicto. This motion was denied, defendant duly excepting, and a judgment upon the verdict was entered for the plaintiff. The defendant has brought error, and the only assignments of error are on the refusal of the court to direct a verdict for the defendant, and to the refusal to enter judgment non obstante veredicto.

The only question upon this record is whether there was any evidence from which the jury might find that the defendant company contracted as principal, to furnish the plaintiff with the Boulevard drive. The legal questions raised and discussed by the appellant are: That it appearing that the accident occurred off defendant’s own line, it is not liable.

First. That the defendant, presumptively, is not liable.

Second/. That this presumption is not rebutted, and therefore there is no extra terminal liability.

Third. That the ticket (exhibit 7) is. the contract, and that the plaintiff is bound by the limitation against extra terminal liability, in the ticket.

Fourth. That the statements in the defendant’s folder and in the correspondence between it and “Modern Methods,” are no part of the plaintiff’s contract, plaintiff not being a party thereto.

1. Upon the first proposition appellant quoted from 10 Corp. Juris, p. 818, the following language:

“Rule of No Extra Terminal Liability. By the weight of authority, in the absence of a special contract for through transportation, the sale by a carrier of an ordinary coupon ticket for transportation over its own, and an independent connecting line, does not give rise to a contract for through transportation, but the initial carrier acts as principal merely with reference to its own line, and as agent of the connecting carrier in contracting for transportation over the connecting line; and the right of the purchaser' and the responsibility of the different companies are the same as though separate tickets had been purchased by him from, each, and each is responsible only for the acts of its own agents and for injury suffered on its own line, or for the fault or negligence of its employees while running its cars on the connecting line. ■ In such a case the initial carrier discharge's its duty when it delivers the passengers at the end of its own line ready to continue the transportation on the connecting line, and it will not be liable for any failure of the connecting carrier to perform its independent contract.”

Also, counsel cite Dresser v. Railway Co., 53 C. C. A. 559, 116 Fed. 281; Chicago, etc., R. Co. v. Mulford, 162 Ill. 522 (44 N. E. 861, 35 L. R. A. 599); and Pennsylvania R. Co. v. Jones, 155 U. S. 333 (15 Sup. Ct. 136). We have examined these authorities, and we think they are to the effect that in the absence of any special contract, the mere act of selling tickets of other transportation companies does not make the selling company liable as principal. But this, in our opinion, does not fully meet the question before us. At the close of the section in Corpus Juris, from which appellant’s counsel quoted, is the following:

“It has been held, however, that where the initial carrier sells a passenger a ticket entitling him to ride over the lines of the initial and connecting carrier, but without any stipulations as to liabilities for accidents, the initial carrier does not thereby relieve itself from liability for injuries received on the line of the connecting carrier.”

It is said by plaintiff, in reply to appellant’s contention upon this point, that the presumption against extra terminal liability has no application, because the claim of the plaintiff is founded upon a special contract for the entire trip. In other words, that the presumption contended for by appellant only exists in the absence of a special contract, and that the principle of the cases cited is not applicable to the instant case, in which plaintiff’s claim is founded upon a contract by which the defendant assumed the responsibility for the entire trip. We think there is much force in this position of plaintiff’s counsel.

2. It is urged by appellant that this presumption is not rebutted by any evidence in the case; that there is nothing in the letter of the defendant, or in what is termed the “proof,” or the regular folder of the defendant, that even approximately shows a contract for extra terminal liability, and defendant’s counsel, upon this point, cite Myrick v. Railroad Co., 107 U. S. 102 (1 Sup. Ct. 425), to the effect that such agreement will not be inferred from doubtful expressions or loose language, but only from clear and satisfactory evidence. And counsel insist that without relying on the limitation against extra terminal liability apparent in the ticket, the defendant is entitled to a reversal of the judgment below.

In reply to this position, it is urged by plaintiff’s counsel that the evidence clearly established a contract by which the defendant, as principal, assumed the responsibility for the Boulevard drive; that the final ticket issued to the plaintiff is not the sole evidence of the contract, the existence and terms of which are to be determined from the facts and circumstances in the case.

That the jury, under the charge, considered the facts, and found the existence of a contract for through transportation, no doubt from the letter of the defendant, the “proof” enclosed with the letter, the folder, and the first ticket issued to the plaintiff (being the ticket which she exchanged for the coupon ticket), the original ticket having stated that “the side trips which are a part of regular cruise, are included in this ticket.” This ticket was issued to the plaintiff with her name written thereon, in the space provided therefor, and she was required to, and did sign it at the time of presentation for the coupon ticket. The fare was the regularly advertised fare. The “side trips” therein referred to as a “part of the regular trip” could mean nothing else than the trips including the Boulevard drive, referred to in the folder.

It is further urged by plaintiff that even if the language used were less plain and unambiguous, any doubt regarding the meaning of the same would, under a well-established rule, be resolved against thé defendant — citing Norman v. Railway Co., 161 N. C. 330 (77 S. E. 345, Ann. Cas. 1914D, 917), where the following language is used:

“In construing contracts of this kind, language of uncertain or doubtful meaning should generally be taken in its strongest sense against the company by which the ticket was issued and sold, and in favor of the purchaser.”

See Georgia Railroad & Banking Co. v. Clarke, 97 Ga. 706 (25 S. E. 368); Baltimore & Ohio R. Co. v. Doyle, 74 C. C. A. 245, 142 Fed. 669; Stanard Milling Co. v. Transit Co., 122 Mo. 259 (26 S. W. 704).

It is answered by plaintiff that the fact that she had made the Duluth trip on former occasions and had used a ticket similar to the ticket in this ease, is unimportant; that it was merely a circumstance to be considered by the jury in determining whether the plaintiff had actual knowledge of the conditions of the ticket — citing The Majestic, 166 U. S. 375 (17 Sup. Ct. 597).

We cannot say that the correspondence in connection with the “proof,” especially the folder which came into the possession of the plaintiff, outside of the correspondence, and was evidently intended for the use of the public generally, furnished no evidence for the jury to reach the conclusion which it did.

3. It is the proposition of the appellant here, that the ticket (exhibit 7) constituted the entire contract. Counsel there cite 10 Corp. Juris, p. 702, § 1137-5; McWesthy v. Railroad Co., 127 Mich. 333 (55 L. R. A. 306), and many authorities from other jurisdictions.

It is claimed by appellant that all authorities, both English and American, agree that the carrier in selling a ticket beyond its own line, may appropriately limit its liability to its own line, there being no obligation on its part to assume extra terminal liability. We agree with this proposition, but think the question involved here is, whether in selling this ticket it appropriately limited its liability to its own line, in explicit terms that were called to the attention of the plaintiff.

In McWethy v. Railroad Co., supra, the question of whether the plaintiff’s attention there had been actually called to the terms of the ticket was not involved; and there was no evidence of a special contract. It is the contention of the plaintiff upon this branch of the case, that the ticket is not the' sole evidence of the contract; that the real contract may always be shown notwithstanding the issuance and acceptance of the ticket; that the coupon contained no reference to the back cover; that while it is true that the coupon in question did contain the words “on conditions named in contract” and “not good if detached from contract bearing signature,” there was nothing which in any way tended to call the attention to the inside of the back cover; and it is urged that the ticket was not sold, as claimed by defendant, at a reduced rate. It was sold for the price stated in the letter of June 1st and in the company’s folder as a regular fare; and an inspection shows that the ticket itself does not purport to be a reduced rate ticket.

The rule that the ticket is not the sole evidence of a contract is stated in 2 Hutchinson on Carriers (3d Ed.), at section 1050, as follows:

“There is, however, nothing in the employment of such tickets (coupon tickets) inconsistent with the idea of a contract for through transportation by the first carrier, which will make him the responsible party to the passenger for all injuries or losses throughout the entire journey. It may, therefore, be shown that there was such a contract notwithstanding the acceptance of such tickets, and that the tickets were delivered .in pursuance of the contract; and whether or not there was such a contract must, in every case of the kind, depend upon the facts.”

Plaintiff’s counsel also cites. Hayes v. Railroad Co., 163 Mich. 174 (31 L. R. A. [N. S.] 229). We invite attention to that case, and especially to the following language of this court:

“Argument is made that the contract between these parties is determined by the ticket issued at the time. * * * The contract of carriage may be shown by parol, and the plaintiff’s proof tended to show that it was made several days before the tickets were purchased.”

See, also, a leading case upon this point, Quimby v. Vanderbilt, 17 N. Y. 306 (72 Am. Dec. 469); Hutchins v. Railroad Co., 181 N. Y. 186 (73 N. E. 972, 106 Am. St. Rep. 537); New York, etc., R. Co. v. Winter’s Adm’r, 143 U. S. 60 (12 Sup. Ct. 356); Chicago & Alton R. Co. v. Dumser, 161 Ill. 190 (43 N. E. 698), and many additional cases might be cited from other jurisdictions.

In the Quimby Case it was held that a part owner of one of several lines for the transportation of passengers, running in connection over different portions of a route of travel, may contract as principal for the conveyance of a passenger over the whole route, and that such contract may be established by the circumstances, notwithstanding the passenger receives, tickets for the different lines signed by their separate agents ; and that passage tickets are generally to be regarded as tokens, rather than contracts, and are not within the rule excluding parol evidence to vary a written agreement.

It is further urged by plaintiff that in the instant case the attempted limitation on the inside of the back cover in fine print did not bind the plaintiff, as she might have been bound had it appeared upon the face of the ticket, or had it been called to her attention. The following cases apply the universally recognized-rule, that in the case of a full fare ticket a passenger is not bound by conditions thereon, limiting the common law or contractual liability of the carrier, unless such conditions are called to the attention of the passenger, and assented to by him. A very strong case upon this subject, and one which reviews many English and American cases, is The Majestic, supra; and the following cases seem to be to the same effect: Norman v. Railway, 65 S. C. 517 (44 S. E. 83, 95 Am. St. Rep. 809); Boyd v. Spencer, 103 Ga. 828 (30 S. E. 841, 68 Am. St. Rep. 146); Louisville, etc., R. Co. v. Turner, 100 Tenn, 213 (47 S. W. 223, 43 L. R. A. 140); The Minnetonka, 77 C. C. A. 217, 146 Fed. 509; Hutchins v. Railroad Co., supra. Without quoting therefrom we especially refer to The Majestic Case.

The learned circuit judge, in submitting the case to the jury, laid much stress upon the question whether the plaintiff had, or had not, notice of the condition printed upon the inside of the back cover of the coupon ticket, above referred to, and upon that subject charged the jury as follows:

“If you believe from the testimony in this case and from the circumstances surrounding the purchase of the ticket that the plaintiff actually knew, prior to the time that she boarded the automobile in Duluth, that the ticket contained printing in the form of a contract, then, in that event, plaintiff was not, at the time of the accident sued upon, the passenger of defendant, and defendant is not responsible to her in this action. That raises the question as to whose passenger the plaintiff was when she was injured. Was she the passenger of the defendant, or was she the passenger of the independent corporation? If you believe that the plaintiff was familiar with the contents of the ticket because of having traveled on like tickets on previous occasions, the same rule applies as to liability.”

Manifestly, the jury, by its verdict, must have found that the plaintiff had no knowledge or notice of the printed matter in the so-called condition upon the inside of the back cover of the coupon ticket. There the defendant undertook to limit the contractual liability which it had, we think, before that time expressly assumed. We are of the opinion that the position of the plaintiff upon this point is the correct one. Hause v. Insurance Co., 172 Mich. 59.

4. It is lastly urged by the appellant that the preliminary correspondence cannot avail the plaintiff in any event, because the letter was not addressed to her. It is true that the first letter was not addressed to her, but to her employer. However, the card which was sent to the defendant contained the plaintiff’s name, and the last letter was directed to the attention of “Mr, L. E. Thurston,” undoubtedly meaning Miss L. E. Thurston, whose name is mentioned in the letter.

There is no assignment of error raising objection to the introduction of evidence upon the trial. Whether or not the plaintiff was a party to the first correspondence, she certainly became a party before the contract was closed, and was recognized by the defendant as possessing rights under the contract. It appears also that the plaintiff had access to other copies of the folder, and it must be said that they were addressed to the public generally; and where a contract was made, as appears in the first ticket (exhibit 5) signed by the parties, we think it became controlling as against any language contained on the back cover of the coupon ticket which was not called to, and did not come to, the attention of the plaintiff.

Upon the whole record we are of the opinion that no reversible error appears, and the judgment of the court below is affirmed.

Bird, C. J., and Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred. Ostrander, J., did not sit.