author: Moore, J. Brooke, J.

text:
    McCONNELL v. UNITED STATES EXPRESS CO.
    1. Carriers — Contracts—Express Companies — Special Damages.
    In an action for failure to deliver a trunk, as agreed by the defendant’s express agent, evidence that plaintiff informed him she was about to start for New York and intended to embark for Europe in a certain steamship, which would sail at noon on the fifth day thereafter, and was to join a personally conducted tour, that plaintiff had no baggage except the contents of the trunk; the agent assuring her if it was sent at a time specified it would he delivered in time, held, to present a question of fact whether the agent had notice of the purpose and of the special damage likely to be suffered as a result of the breach, also, whether there was an agreement to deliver at the time and place named by plaintiff in her testimony.
    2. Damages — Excessive Amount — New Trial.

      Held, also, that, under the evidence, a verdict of $558 need not be set aside as excessive.
    3. Damages — Contracts—Special Loss or Injury.
    Where special circumstances have been communicated to a party at the time of making a contract, so it is apparent that a breach will result in special damages, they are recoverable, although they would not result ordinarily from failure to perform.

      4. Same — Mentad Suffering — Breach of Contract.
    As damages suffered because of defendant’s failure to deliver plaintiff’s trunk, in pursuance of tbe terms of the contract of carriage, she was entitled to recover for the mental as well as physical suffering, discomfort and inconvenience that resulted to her directly because of the alleged breach, if defendant was found to have had notice of the special circumstances.
    McAdvay, C. J., and Brooke, Stone, and Ostrander, JJ., dissenting on the ground that damages for mental suffering were not recoverable.
    Error to Oakland; Smith, J.
    Submitted November 10, 1913.
    (Docket No. 8.)
    Decided March 27, 1914.
    Assumpsit by Isadore N. McConnell against the United States Express Company for breach of a contract of carriage. Judgment for plaintiff, and defendant brings error.
    Affirmed.

      Walker & Spalding (I. T. Cowles, of counsel), for appellant.

      Perry & Lynch, for appellee.
   Moore, J.

This case was commenced by declaration which, stripped of its legal verbiage, states in substance: That in July, 1910, the plaintiff, planned through Cook & Son a tour from the city of New York to Italy and other parts of Europe and return by way of England to the city of New York, and had secured her tickets for transportation from New York to Naples by the Cunarder steamer Carpathia, which ship was to leave Pier 54-56, New York, on Thursday, July 7, 1910, at noon, and for return transportation from the city of Liverpool, on the steamer Tunisian of the Allen line, due to sail from Liverpool on said return trip at a certain date. That she had arranged to take with her on said ship her trunk, with its contents, consisting of her wardrobe, steamer rugs, wraps, and all things necessary or convenient for her tour. That defendant undertook to deliver her trunk at the pier in time for the sailing of the ship. That she took with her from Pontiac, where she began her journey, a small traveling bag in which she had placed only such things as she would imperatively need in going to said boat from Pontiac, and staying over night on the night before the sailing of the ship, and only took with her to such ship such clothing as she absolutely needed to wear on her way to the ship, which clothing was of the plainest kind, and not suitable to wear on shipboard or on said tour. That the party going on said tour was made up of well and fashionably dressed ladies and gentlemen. That plaintiff is a refined woman who has a great taste for dress and for social intercourse, functions, and enjoyments, and for many years prior to said trip had been accustomed to travel, and to dress fashionably and well, and to take part in social functions, pleasures, and enjoyments whenever opportunity was offered therefor, and she planned for and engaged for said tour principally for the social diversion, recreation, and pleasure which said tour and the functions and social entertainments incident thereto would ordinarily give her, particularly while on shipboard. That to that end, and to forward such aim and purpose, she had purchased, at great expense, and so placed in said trunk, a fashionable wardrobe and a large amount of clothing suitable for such a tour, and steamer rugs, wraps, clothing, and other things necessary for her comfort and convenience while on shipboard and elsewhere on said tour, and many other articles that were of great personal value to her, which things in said trunk were worth over $1,000. That the trunk did not arrive at the pier in time, and that she had to sail without it, and was obliged to forego all the social functions, entertainments, and gatherings on said trip, and, because of her want of such necessary clothing, she was compelled to remain in her stateroom during said trip to Naples, and lost all the benefit, pleasure, and advantage of said trip to Naples. That at the time she was in delicate health, and of a proud, refined, and sensitive disposition and of a nervous temperament, and, because of being deprived of her trunk and contents, she was made unhappy, and disappointed, and discontented, and suffered great humiliation, mortification, chagrin, and worry, disappointment and unhappiness, and was rendered miserable, and her trip was made an utter failure, and she rendered miserable, and constantly worried from the great fear that the trunk and its contents, including said keepsakes which were precious to her, might be lost to her. and her health was undermined.

The defendant pleaded the general issue, and gave notice that it would show that when the trunk was received it gave a written receipt, which was accepted by the plaintiff, in which the liability of the defendant was limited to $50.

After the testimony was all in, the defendant requested a directed verdict. This was refused. At the request of the defendant the trial judge submitted to the jury two special questions:

“(1) Did defendant’s driver, Roy Farley, give plaintiff a receipt when he took the trunk at her rooms ?
“(2) Did defendant’s agent, Burgis, guarantee that the trunk would reach New York on or before noon of July 7, 1910?”

The jury answered the first question in the negative, and the second in the affirmative, and returned a verdict for the plaintiff for $558. Judgment was duly entered for that amount. A motion was made for a new trial, in overruling which the trial judge said the verdict was not against the weight of the evidence, nor was it excessive. The case is brought here by writ of error.

We quote from appellant’s brief:

“The following questions arise upon the present record:
“(1) Whether there was any evidence to go to the jury of an agreement on the part of the defendant to deliver plaintiff’s trunk before noon of July 7, 1910, and whether the finding of the jury that there was such an agreement was not unsupported by the evidence.
“(2) Whether the damages alleged to have been suffered by the plaintiff were the proximate result of the alleged breach of contract.
“(3) Whether the plaintiff is entitled to special damages caused by her being deprived of the contents of her trunk, in the absence of any showing that the special circumstances giving rise to such damages were brought, to the notice of the defendant at the time the defendant made the alleged agreement.
“(4) Whether the plaintiff is entitled to damages for disappointment, worry, and mental suffering.
“(5) Whether the instruction of the court that the jury might take into consideration any interest which the witnesses for the defendant might be shown to have in the result of the suit was not prejudicial to the defendant, in the absence of any evidence tending to show such interest.
“(6) Whether the verdict is not excessive.”

These questions are so interwoven that we shall not attempt to discuss them separately.

Mrs. McConnell was sworn as a witness. Her testimony indicated: She had lived in Pontiac 38 years. That she was the widow of Parke McConnell, who was the son of Willard McConnell. That her husband w;as a merchant in Pontiac some years. That she went to the defendant company’s office in Pontiac and told the agent she was going abroad, that she was to sail on the Cunard steamer Carpathia from Pier 54-56, New York, on Thursday, July 7th, at noon, and wanted his company to get her trunk there, and that she wanted to get of him traveler’s checks amounting to $500; that she wanted her trunk in New York early. That the agent said that because of the Fourth of July he could not send it on Sunday or Monday, and that it would go Tuesday at about 11 o’clock. That she asked him if it could not go earlier, and he said it- could go at half past 6 o’clock in the morning, but it must be ready at 6 o’clock, and she replied it would be ready; and he said it will only lie at the pier. That she replied, “Even so, I would rather it would do that;” if it did not get there, she would be “undone, as I had nothing besides;” and he said it was ample time. That they came after the trunk at 6 o’clock, and it was delivered to them, and that she never saw it again until about four weeks after her return to Pontiac. She testified she told the agent the name of the steamer she was to sail upon, the time it was to sail, and from what pier. That she joined á personally conducted touring party of upwards of 40 members, and that she paid $482 for her ticket from New York back to New York. She described in detail the clothing that went into the trunk, indicating an ample supply of gowns, waists, negligee, hosiery, underwear, and other articles suitable to be worn by a well-dressed woman off on an extended holiday. In the trunk also were a steamer rug and cap, veils, fans, umbrellas, a lace neck piece which cost $150, and a good long steamer coat. She testified it was difficult to say the total value, but that it would be $500 or more. She testified: That she was accustomed to going in society, to attending public functions, to traveling, and had been abroad before, and knew what to expect on shipboard, and had put into the trunk the articles necessary for her pleasure, comfort, and convenience. That she was then recovering from an attack of nervous prostration. That her cousin met her in New York, and went with her to the pier early to be sure that her trunk would be put in her stateroom; that they were unable to find it, and that she was obliged to sail without it, as she had made her plans, engaged her passage, and bought her tickets. She testified that, as she was to be in New York but one night, she wore a plain traveling suit, and took no change of clothing with her. That, in addition to what she wore, she had only a nightgown and a few toilet articles which she carried in her handbag. That there were several hundred first-class passengers on board ship, well-dressed, intelligent people, many of whom were going over to the Passion Play.

“Q. State what inconvenience and discomfort, if any, you suffered because of not having those things in your trunk.
“A. Well, I was cold, and I had to stay in my stateroom a good share of the time when I required out doors air, and wished it, and I could not attend the services and society and entertainments. * * *
“Q. You say you have traveled before; now state whether or not there were the ordinary entertainments on shipboard on that trip over there.
“A. Yes, sir; there was. There were concerts, cards, dancing, games of all sorts, and social visiting. I was not able to take part in those events because of not being able to make a fairly respectable appearance; neither as to receiving persons who wanted to be introduced.
“Q. State what loss on account of your not having the contents of your trunk on your way over there— state what your loss was.
“A. I lost all .pleasure on my trip.
“Mr. Hofelich: I object to it, and ask that the answer be stricken out. (Objection overruled, and answer allowed to stand. Exception duly taken by defendant.)
“A. And it certainly was an injury to my health and an annoyance, and the captain came to me and talked to me, because he knew I was having such a miserable time.
“Q. State whether you did suffer on account of that annoyance.
“A. I did, certainly, in every way.
“Q. You say it affected your health; now to what extent?
“A. I can’t tell [witness crying].
“Q. State what the effect was upon your mind on account of the anxiety that you mention, as to whether you would ever get your trunk or not.
“A. Well, they cabled me it would be sent.
“Q. But what was the effect on your mind?
“Mr. Hofelich: I object to it.
“A. It was distressing, and kept me ill.”

So far the testimony was brought out on direct examination. The cross-examination brought out many details:

“Q. Now, Mrs. McConnell, would you have used all of these articles in your trunk that you have mentioned in your direct examination while you were on shipboard ?
“A. Why, I didn’t intend to; but I expected to use them. I would probably have used all of those articles, various dresses, and suits, and everything. I knew I would require more. I did other times when traveling.
“Q. Did you say anything to Mr. Burgis respecting the state of your health at that time?
“A. Well, I don’t know that I did; but every one in town knew that I was ill and had nervous— •
“Q. But there was nothing expressly said to him about it?
“A. No, sir; I left Pontiac about 11 o’clock that same day. I had very few things to look after, and had no other matters to attend to at the time the teamster called for my trunk. I had everything attended to before I started. I am somewhat nervous; but P remember distinctly that the driver did not give me a receipt. At the time this trunk was taken up the driver did not ask me a word about the value of the trunk. He never offered me a receipt in my room. I have a distinct recollection that there was none given when I went down to pay for the sending of the trunk, and I went down to the express office about 10 o’clock, and there was a girl in charge of the office, and there was a little confusion about my making change, and I thought when I paid for my trunk I would ask for a receipt, and it was not offered me, and when I came back to the bank I spoke—
“Q. Just a moment. Do you remember how much you paid for it?
“A. I can’t exactly tell; but I think it was somewhere near $1.40, or something, but I can’t swear to that, for I don’t just remember, but that is about what it usually is. I was not seasick at all on the trip across.”

The express agent was a witness. The substance of his testimony is:

“I was in their employ in July, 1910, and remember having a conversation with Mrs. McConnell respecting the shipment of her trunk about July 1st. About July 1st she came into the office and spoke to me about sending a trunk, and also about buying checks, and asked me when I thought the trunk ought to go; that is, she told me when the boat was due to leave New York. I told her the trunk could not leave on the 3rd or 4th, as one was Sunday, and the other a holiday, and we had no cars out, and I could not handle it on those days. Then she asked me if, leaving the first thing on the 5th, it ought not to get there, and I no doubt told her it should, and then we made an agreement that she would have the trunk ready at 6 or 6:30 in the morning, and I agreed to have the driver there and pick up the trunk on the morning of the 5th. I made no agreement as to the time the trunk would reach New York. I did not guarantee to get it there by noon of the 7th.
“Q. Did she say anything about the contents of the trunk?
“A. She did not that I know of.
“Q. Did she say anything as to whether that trunk was the only one she would have?
“A. I don’t think she made' any such remark at all.
“Q. Did she say that she had packed or would pack her entire wardrobe in that trunk?
“A. No; she didn’t.
“Q. Did she say anything about any inconvenience to which she would be subjected if the trunk did not reach there by that time?
“A. I don’t remember of her making any remark in regard to that at all.”

The cross-examination brought out more in detail that he was informed by Mrs. McConnell that she was going to take a Cook personally conducted tour, the steamer she proposed to sail on, the time when and the place from where it would sail, and that he expected the trunk would get to the pier in time for that steamer, and that Mrs. McConnell bought traveler’s checks of him.

Counsel for appellant contend:

“No damages are ever recoverable in actions ex contractu, unless they are shown by the party claiming them to be the natural and proximate consequence of the breach complained of. Of course each of the circumstances which concurred with the breach in producing the damage, and without which it would not have happened, is a part of its cause, and if any of these concurring circumstances are so far out of the ordinary course of nature, or of human affairs, that they cannot fairly be presumed to have been contemplated by the parties at the time of making the contract, then the damage is not the natural result of the breach, and is therefore not recoverable” — and cite many cases.

They claim this line of cases ought to control the instant case.

Counsel for plaintiff contend:

“We take the position that special damages can be recovered for breach of a contract made under special circumstances, although they may not be the natural result of an ordinary breach. We call attention to the following cases and authorities illustrative of the principle involved, and what special damages can be regarded as fairly within the contemplation of the parties :
“Page says ‘that, where special circumstances have been communicated to a party at the time of the making of the contract, which go to show that its breach will involve special damages, such damages may be recovered, although not the natural result of an ordinary breach.’ 3 Page on Contracts, § 1578; 13 Cyc. p. 34, and note 87. That principle has been fully adopted in Michigan.
“In Howe v. North, 69 Mich. 281 [37 N. W. 213], this court said: ‘Upon breach of a contract, the damages could be such as fairly and reasonably arise therefrom, or such as may reasonably be supposed to have been in the contemplation of both parties at the time the contract was made, as the probable result of the breach of it.’
“We also call attention to the recent case of Hayes v. Railroad Co. [163 Mich. 174, 128 N. W. 217, 31 L. R. A. (N. S.) 229]. That suit was brought to recover certain special damages claimed to have been sustained by plaintiff on account of the failure of defendant to perform a certain contract of carriage by rail, made and entered into between the plaintiff and the defendant’s agent, in Detroit. The plaintiff had urgent business before one of the departments at Washington, which required his presence in that city at a certain time, and, desiring to use the least time possible in making the trip, stated the circumstances to the defendant’s agent, and desired to know of him if the defendant company, whose train left Detroit at a certain time, would, without fail, furnish transportation and carry the party from Detroit to arrive at Washington before the required time. It was understood by both parties that the making of a certain connection at Buffalo was essential to make the trip within the time specified. The plaintiff alleged that the defendant guaranteed, and agreed to make that connection. The damages'which the plaintiff sought to recover were for hiring a special train or car for a portion of the distance. The court, among other things, said:
“ ‘It is contended that the damages recovered are special, and could not have been within the contemplation of the parties at the time of the making of the contract. It appears from the record that defendant’s agent was fully and repeatedly informed of the exigency that plaintiff and his attorneys must be in attendance before one of the departments at Washington on July 20th, in the forenoon, on a matter of importance, and the agent so testified. It is true the department and the case were not mentioned. The notice, however, was sufficiently explicit for the purpose of this case.’
“The court refused to reverse the judgment for such special damages. Hayes v. Railroad Co., 163 Mich. 174 [128 N. W. 217, 31 L. R. A. (N. S.) 229].
“This court has also held that the depreciation of value of certain wheat was the proximate result of shutting off water from a mill contrary to the provisions of a contract. Gordon v. Hydraulic Co., 117 Mich. 620 [76 N. W. 142].
“In a case in this State where an express company neglected to collect of a consignee of goods who was insolvent, it was held that the express company was liable for the amount to be so collected. Hutchings v. Ladd, 16 Mich. 493.
“This court also held that, in case of a breach of a contract for towing a vessel, the plaintiff could recover for loss of profit on his shipping contract. Loud v. Campbell, 26 Mich. 239.
“The Supreme Court of Maine also held that, where an express company failed to deliver an insurance premium in time to save the policy, and the policy lapsed, that the company would be liable for the special damages resulting. Grindle v. Express Co., 67 Me. 317 (24 Am. Rep. 31).
“The Supreme Court of Massachusetts, under the peculiar circumstances of a particular case, decided that a railway was responsible for the freezing of goods resulting from delayed shipment. Fox v. Railroad Co., 148 Mass. 220 (19 N. E. 222, 1 L. R. A. 702).
“In a New York case the plaintiff, having contracted to sell and deliver to a railway company 400 tons of rails, made of iron, with steel caps, contracted with the defendant to.furnish the caps; it being informed for what purposes they were wanted. Plaintiff was unable to perform his contract because of the failure of the defendant to furnish the caps. The court decided that the plaintiff was entitled to recover the profits he would have realized, and the fact that the price was not communicated to the defendant did not change the rule of damages. The court, among other things, said:
“ ‘It is presumed that the parties contemplate the usual and natural consequences of a breach when the contract is made, and if the contract is made with reference to special circumstances, fixing or affecting the amount of damages, such special circumstances are regarded within the contemplation of the parties, and damages may he assessed accordingly.’ Booth v. Rolling Mill Co., 60 N. Y. 487.”

The cases support' the contention of counsel.

In Hamilton v. Railroad Co., 96 N. C. 398 (3 S. E. 164), it was held:

“It is not error in such case to charge the jury that, if a certain day in question was a sale day, and the best sale day, and the shipper wished his cattle to be at their destination on that day, and this was known to the railroad company, and was in view of both parties when the contract was made, the shipper would be entitled to such special damages as actually resulted from the circumstances.”

See Richner v. Live Stock Co., 44 Colo. 302 (98 Pac. 178).

In Weston v. Railroad, 190 Mass. 298 (76 N. E. 1050, 4 L. R. A. [N. S.] 569, 112 Am. St. Rep. 330, 5 Am. & Eng. Ann. Cas. 825), the court, among other things, said:

“We assume for the purposes of this decision that this shipping receipt, or at any rate the shipping order and this receipt together, constitute a written contract. But it is always competent to show knowledge by the contracting parties to a written contract of the circumstances on the basis of which it is made, for the purpose of showing what was within the contemplation of the parties in making it. Knowledge of the circumstances which formed the basis on which the contract was made is competent on the question of what damages were in the contemplation of the parties to it, whether a party seeks to recover ordinary or special damages. That has been laid down in all the cases on the subject.”

In another Massachusetts case the court decided that, where the purchaser of pipe notifies the seller that, if it is not delivered at once, there is danger of the caving in of the- ditch, and the latter agrees to deliver the pipe at once, without notifying the purchaser that he will not be liable in any event for damages to the ditch, it is an implied agreement to assume the special liability which will render the seller liable for damages to' the ditch caused by his negligence in failing to deliver the pipe. Lonergan v. Waldo, 179 Mass. 135 (60 N. E. 479, 88 Am. St. Rep. 365).

See, also, Pittsburgh, etc., R. Co. v. Morton, 61 Ind. 539 (28 Am. Rep. 682); Hammer v. Schoenfelder, 47 Wis. 455 (2 N. W. 1129); 3 Elliott on Contracts, p. 366; 3 Elliott on Contracts, § 2131.

It is very clear, we think, that the defendant knew of the special circumstances making the presence of the trunk necessary, and that special damages would follow if it was not there.

We now approach the question: Can plaintiff recover for such mental as well as physical suffering, discomfort, and inconveniences as resulted to her directly because of the alleged breach of contract? It will be remembered that Mrs. McConnell testified that she suffered from the cold, that her health was injured, and she was made ill.

In 1 Sutherland on Damages' (1882 Ed.), p. 156, appears the following:

“May damages for breach of contract include other than pecuniary elements ? . In actions upon contract, the losses sustained do not, by reason of the nature of the transactions which they involve, embrace, ordinarily, any other than pecuniary elements. There is, however, no reason why other natural and direct injuries might not justify and require compensation. Contracts are not often made for a purpose, the defeating or impairing of which can, in a legal sense, inflict a direct and natural injury to the feelings of the injured party. A breach of promise of marriage is an instance of such a contract, and such considerations enter into the estimate of the damages. The action for such a cause is often referred to as an exceptional action. In a certain sense it is so; but in the particular under consideration, it is only peculiar. It is an action upon contract, and the damages allowed are such as, considering the nature and benefits of the thing promised, will be an adequate compensation. They being of a personal nature, cannot be wholly measured by a pecuniary standard; the cause of action, for the same reason, does not survive; it dies with the person, as all demands for personal injuries do. They are recoverable by the injured party because they proceed directly and naturally frpm the breach. Other actions upon contract may embrace like damages. * * *
“While it is true that if the breach causes no actual injury beyond vexation and annoyance, as all breaches of contract do more or less, they are not subjects of compensation, unless to the extent that the contract was made specially to procure exemption from them. To that extent, that is, where a contract is made to secure relief from a particular inconvenience or annoyance, or to confer a particular enjoyment, the breach, so far as it disappoints in respect of that purpose, may give a right to damages appropriate to the objects of the contract.”

See Hayes v. Railroad Co., 163 Mich. 174 (128 N. W. 217, 31 L. R. A. [N. S.] 229).

In Wadsworth v. Telegraph Co., 86 Tenn. 695 (8 S. W. 574, 6 Am. St. Rep. 864), occurs the following:

“There is a large class of actions for tort in which substantial recoveries are authorized and sustained for injury to the feelings of the person suing, when the other damage is nominal merely. As instances of such actions, we mention the case of a husband suing for an injury to his wife, or for seducing or enticing her away from him, and that of a parent suing for the seduction of a daughter. In all these cases the main element of damage, the real injury sustained, is the wound to the feelings — the loss of service upon which the actions are technically based being but a legal fiction, and more imaginary than real. Love v. Masoner, 6 Baxt. (Tenn.) 27 [32 Am. Rep. 522]; Parker v. Meek, 3 Sneed (Tenn.), 30; Maguinay v. Saudek, 5 Sneed (Tenn.), 147; Cooley on Torts, 224, 226, 231; 3 Suth. on Dam. 744.”

The writer then quotes what we have quoted from Sutherland, and proceeds:

“These are but illustrations and applications of the general rule, which we have already stated, for the estimation of damages in actions for breach of contract. They serve the purpose of showing that in the ordinary contract only pecuniary benefits are contemplated by the contracting parties, and that therefore the damages resulting from the breach of such a contract must be measured by pecuniary standards; and that where other than pecuniary benefits are contracted for, other than pecuniary standards will be applied in the ascertainment of the damages flowing from the breach.
“The case before us (so far as it is an action for breach of contract) is subject to the same general rule, and the defendant is answerable in damages for the breach according to the nature of the contract, and the character and extent of the injury suffered by reason of its nonperformance.
“The messages were sent for a particular purpose, which was disclosed upon their faces, and of which the defendant had full notice. That purpose was not of a pecuniary nature. There was no offer or instruction to buy or sell anything — no proposition or promise with respect to any business transaction.
“The messages were of far greater importance to the receiver than any of these. Her brother was lying at the point of death in easy reach of her. It was information of this fact that the defendant first undertook to convey to her for a stipulated sum, and which, if conveyed promptly, would have enabled her to be with him in his last moments, and would have saved her the injury of which she complains.
“Then.her brother died away from her; his body1 needed her attention, and would have received it, as averred, if the defendant had done its duty. It was intelligence of the death which the defendant agreed, in the second place, to communicate to her.
“The messages were proper in language, and lawful in purpose. She was entitled to the information they contained, and to whatever benefits that information would have conferred upon her, even though such benefits be mainly or altogether to the feelings and affections. The defendant contracted that she should have those benefits, and that she should be spared whatever pain and anguish such information, promptly conveyed, would prevent.
“By all the authorities, including our Code, it was the duty of the defendant to transmit and deliver these messages ‘correctly and without unreasonable delay,’ and in failing to do so it became responsible for all loss or injury occasioned thereby. Code (M. & V.) §§1541, 1542; Marr v. Telegraph Co., 85 Tenn. 529 (3 S. W. 496); Gray’s Com. by Tel. §§ 81, 82, et seq.; Cooley on Torts, 646, 647; Wharton on Neg. § 767; 3 Suth. on Dam. 298-300; Sher. & Red. on Neg. § 605.
“In addition to this, it is but reasonable to presume that such a flagrant breach of plain obligation with respect to matters so near the heart and so accustomed to the respect of all mankind as is here averred, has but seldom occurred, and, therefore, has but seldom been brought to the attention of the courts of the country.
“To hold that the defendant is not liable in this case for the wrong and injury done to the feelings and affections of Mrs. VCadsworth by its default, would be to disregard the purpose of the telegrams altogether, and to violate that rule of law which authorizes a recovery of damages appropriate to the objects of the contract broken; and, furthermore, such a holding would justify the conclusion that the defendant might, with impunity, have refused to receive and transmit such messages at all; and that it has the right in the future to do as it has done in this case, or, at least, that it cannot be required to respond in damages for doing so.”

See Barnes v. Telegraph Co., 27 Nev. 438 (76 Pac. 931, 65 L. R. A. 666, 103 Am. St. Rep. 776, 1 Am; & Eng. Ann. Cas. 346).

In Browning v. Fies, 4 Ala. App. 580 (58 South. 931), the following language is used:

“The evidence without conflict showed that the plaintiff, on the day of the evening upon which he was to be married, went to the defendants’ place of business in Birmingham, Ala., and entered into a contract with, the defendants, who were engaged in conducting a public livery business, to furnish the plaintiff, for the use of himself, friends, and family, a carriage and team which was to be sent to the plaintiff’s residence at or near Rising Station at 7:30 o’clock p. m. on that day to carry plaintiff and his wedding party to the church in Birmingham, three miles distant, where the plaintiff was to be married at 8 o’clock on that evening. The defendants made a charge of $5 for the specified use of the carriage and team, which amount was paid to the defendants by the plaintiff, who at the time of making the contract informed the defendants of the purpose for which the same was to be used and the hour appointed for the ceremony, and the defendants agreed'and contracted to furnish the carriage and team to be used by the plaintiff for this specific purpose. It was also shown without conflict in the evidence that the defendants made default and breached the contract, and failed to send the carriage at the time and place as they contracted to do, and no excuse whatever was offered upon the part of the defendants for having failed to perform the contract. The plaintiff, on account of the defendants’ breach of the contract, was compelled, in order to reach the church where his prospective bride and friends were awaiting his .coming, to resort to a public street car in which plaintiff and his family and friends, at the expenditure of 30 cents for street car fare, attended the wedding appareled in ‘dress’ or ‘evening’ clothes. The plaintiff and the lady members of his family, unsuitably attired for riding in a street car and for walking along the public streets, had to walk for several squares from the place necessary to leave the car line in going to the church, and the wedding ceremony was delayed for 45 or 50 minutes on account of the failure of the plaintiff to reach the church on time. During this period of delay, the bride, family, minister, and friends in attendance at the church were kept waiting upon the delayed arrival of the prospective groom.
“On the trial the plaintiff offered in varying forms questions to elicit evidence going to show that he suffered mental and physical pain, mortification, and humiliation, but on objection of the defendants he was not allowed to make such proof or to show any elements of damage of this nature. * * *
“The plaintiffs special or ulterior purpose in making the contract was disclosed at the time it was entered into and thereby became incorporated into it and thus afforded a substantial basis for the assessment of special damages. The special circumstances having been known and assented to by each of the contracting parties, each is deemed to have contracted with reference to them, and the party who breaches the contract may be justly held to make good to the other whatever damages, general or special, he has sustained which are the reasonable and natural consequences of the breach under the known circumstances with reference to which the parties acted in making the contract.
“When a contract is entered into under special circumstances within the knowledge of both parties, the natural and proximate consequences of a breach of which will entail special damages upon the party not iri default, the larger amount of damages may be recovered as having been in the contemplation of both parties. Bixby-Theirson Lumber Co. v. Evans, 167 Ala. 431 (52 South. 843, 29 L. R. A. [N. S.] 194, 140 Am. St. Rep. 47). This was also the English rule and the rule at common law. Damages recoverable for the breach of a contract are measured, not only by the actuál loss sustained that naturally results as the ordinary consequence of the breach, but extend to consequences which may, under the circumstances of entering into the contract, be presumed to have been in the contemplation of both parties as the probable result of a breach. 6 Eng. Rul. Cas. 617. And, if the special circumstances are communicated, they become an element of the contract. Daugherty v. Telegraph Co., 75 Ala. 168 (51 Am. Rep. 435).
“But are damages for mental suffering an element of the special damages recoverable?
“ ‘Injury to the feelings — mental harassment — is an element of actual damages. “Wounding a man’s feelings is as much an element of actual damages as breaking his limb.” Head v. Railway Co., 79 Ga. 358 (7 S. E. 217, 11 Am. St. Rep. 434).’ Birmingham Water Works Co. v. Martini, 2 Ala. App. 652 (56 South. 833).
“The right to recover special damages for mental anguish growing out of a breach of contract to send and deliver a telegram, as said in the recent case of Western Union Telegraph Co. v. Cleveland, 169 Ala. 131, 135 (53 South. 80, 82 [Ann. Cas. 1912B, 534]), has been settled in this court’ — citing the cases sustaining this proposition.
“If damages for mental suffering are actual damages and recoverable as compensatory damages when proximately resulting from a breach of the contract, because of the nature of a telegram and the relationship disclosed bringing this consequence of the breach within the contemplation of the parties, as was held in Western Union Telegraph Co. v. Haley, 143 Ala. 586 (39 South. 386), we cannot perceive under what rule or by what sound reason such actual damages can be excluded as a proper measure of recovery in connection with the pecuniary loss sustained * * * as a direct consequence from the infraction of a contract entered into under special circumstances known to both parties, and with reference to which they contracted. * * *
“In this particular case, considering the subject-matter of the contract, the special purpose and exceptional use to which plaintiff intended to put the carriage, which was communicated and well known to the defendants, and with reference to which they contracted, it would seem that it was in the reasonable contemplation of the parties, when the contract was entered into under the special known circumstances, that the immediate effect and proximate result ensuing from a breach of the contract by the defendants would cause the plaintiff inconvenience, annoyance, mental harassment, or distress, and make him to suffer physical delay with the attendant discomfort, as well as mental pain in consequence thereof. Certainly it is but common knowledge that some distress of mind must be the natural and proximate consequence of being delayed and not having proper conveyance to meet an appointment of such delicate nature.”

In a Texas case it was held:

“The plaintiff purchased tickets over defendant’s road for himself, his wife and two children, and obtained checks for his baggage. The defendant carried them only a part of the distance, and they were compelled to buy tickets over another road, and reached their destination after several days’ delay, where they were detained some time waiting for their baggage. The extra expense incurred was $90. Held, that damages for mental suffering were recoverable, and that a verdict for $500 was not excessive.” St. Louis, etc., R. Co. v. Berry, 4 Willson, Civ. Cas. Ct. App. § 166 (15 S. W. 48).

In Lewis v. Holmes, 109 La. 1030 (34 South. 66, 61 L. R. A. 274), it was said:

“Although the general rule is that damages are the amount of the loss the contractor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain, to the party. When the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality, or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach. A contract for a religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fine arts, are objects and examples of this rule. * * *
“In computing the damages, the allowance must be restricted to what may reasonably be held to have been within the contemplation of the parties in entering into the contract. The contract was to furnish dresses in time for the wedding on the 19th. D. H. Holmes must be held to have known that, if the dresses were not finished by that day, the bride would be keenly disappointed. Also that the bride would need the dresses for the festivities incident to her wedding and immediately following, for which it is customary for brides to provide themselves with a trousseau.
“In gauging this disappointment of the bride, the surrounding circumstances must, as a matter of course, be considered. And one of these is the fact that entertainments were planned, and that for want of the dresses these entertainments would have to be given up; and another is her humiliation in going to her husband unprovided with a suitable trousseau. We do not think that the amount of $575, fixed by the district judge, is excessive.”

In Central of Georgia R. Co. v. Knight, 3 Ala. App. 436 (57 South. 253), plaintiff’s husband had purchased a ticket for plaintiff from B. by way of S. to N., induing transportation by rail to S. and by steamship from S. to N. The agent agreed to telegraph for stateroom accommodations on the boat, which he failed to do. Held, that the jury, in determining damages, were properly permitted to take into consideration the fact that, to the knowledge of defendant’s agent, the trip was part of plaintiff’s bridal trip, and the delay incident to going by way of S., in order to take the trip by water. The court said:

“A woman regards her bridal tour among the important events of her life, and the mental distress and worry she might undergo on such an occasion because of being prevented or delayed in securing stateroom accommodations for a voyage by water on which she had set her heart would no doubt be greater than if the denial or delay and attendant annoyance and disappointment came to her at some other time, and this was a proper matter for the jury to consider in the imposition of damages for mental distress and worry under the pleadings and evidence in this case.”

The headnote in Barnes v. Telegraph Co., 27 Nev. 438 (76 Pac. 931, 65 L. R. A. 666, 103 Am. St. Rep. 776, 1 Am. & Eng. Ann. Cas. 346), reads:

“Where, by reason of a telegraph company’s failure to deliver a message, the sender was placed in a strange city, 400 miles from home, with only $1.25 in his pocket, and in trying to reach home suffered cold and hunger, and mental worry and distress, $400 damages was not excessive.”

This statement is justified by the opinion.

In Aaron v. Ward, 203 N. Y. 351 (96 N. E. 736, 38 L. R. A. [N. S.] 204), occurs the following:

“Cullen, C. J. The defendant was the proprietor of a bathing establishment on the beach at Coney Island. The plaintiff, intending to take a bath in the surf, purchased a ticket from the defendant’s employees for the sum of 25 cents, and took her position in a line of the defendant’s patrons leading to a window at which the ticket entitled her to receive, upon its surrender, a key admitting her to a bathhouse. When she approached the window a dispute arose between her and the defendant’s employees as to right of another person not in the line to have a key given to him in advance of the plaintiff. As a result of this dispute plaintiff was ejected from the defendant’s premises, the agents of the latter refusing to furnish her with the accommodations for which she had contracted. It is not necessary to discuss the merits of the dispute, or narrate its details, as the questions of fact involved in that matter have been decided in plaintiff’s favor by the municipal court, in which she subsequently brought suit, and that judgment has been unanimously affirmed by the appellate division. The plaintiff was awarded $250 damages against the defendant’s contention that she was not entitled to any recovery in excess of the sum paid for the ticket, and the correctness of the defendant’s contention is the only question presented on this appeal.
“The action is for a breach of the defendant’s contract, and not for a tortious expulsion. It is so denominated in the complaint and was necessarily so brought as the municipal court has no jurisdiction over an action for an assault. It is contended for the defendant that as the action was on contract, the plaintiff was not entitled to any damages for the indignity of her expulsion from the defendant’s establishment. It may be admitted that, as a general rule, mental suffering resulting from a breach of contract is not a subject of compensation, but the rule is not universal.”

After a full discussion and citation of authorities the judgment was affirmed.

In Schroeder v. Railway Co., 174 Mich. 684 (140 N. W. 968), this court, in a case where a female passenger was carried past her destination, and found it necessary to go back over the track in the rain and darkness, held fright was a proper subject of compensation. We quote from the opinion:

“In 3 Sutherland on Damages (3d Ed.), p. 2774, appears the following:
“‘Damages for Physical and Mental Suffering. — The carrier must make compensation according to the nature of the injury, when the proper auction is brought; such injury may consist of personal inconvenience, sickness, loss of time, bodily and mental suffering, loss of capacity to earn money from personal injury, pecuniary expenses, disfigurement, or permanent physical or mental impairment. There is no precise rule by which the extent of recovery for pain and suffering can be measured; but it is well established they are to be compensated when they result from injuries received by the party suing from the wrongful acts or culpable negligence of the defendant. The determination of the amount is committed to the judgment and good sense of jurors, subject to practical revision by the court to correct and relieve from manifest excess; and it is now established that not only bodily pain, but, connected with it, mental suffering — anxiety, suspense, fright, sense of wrong from insult or indignity — may be treated, when the facts will justify it, as an element of the injury for which compensation should be allowed’ — citing a large number of cases.
“See, also, 3 Thompson on Negligence (2d Ed.), § 2782; Pennsylvania Co. v. Hoagland, 78 Ind. 203; Louisville, etc., R. Co. v. Quick, 125 Ala. 553 (28 South. 14)

The court declined to set aside a verdict of $425 on the ground that it was excessive. See, also, 12 Mich. Law Rev. p. 232.

It should go without saying that a traveling suit which would be comfortable for a railway journey from Pontiac to New York in hot July weather would not be adequate equipment for a ten days’ journey across the middle Atlantic, and that there are no shopping places on the way over.

It is also a matter of common knowledge with those who are familiar with the conditions that there is no certainty of securing a comfortable stateroom upon a desirable ship in July for a trip across the Atlantic, unless' application has been made weeks in advance. It also may be asserted that, for people who are good sailors, one of the chief advantages of the journey is the ability to be comfortably clothed and reclining in an easy chair, or walking about the deck, be able to fill ithe lungs with ozone, and to feel the tang of the salt sea in the nostrils and throat, and to watch the ever changing procession of the waves, and the clouds, and the wonderful color effects upon the sea and sky. It would add, also, to the enjoyment of a cultivated, normal person to be able to exchange greetings and, social amenities with other normal cultivated people, who are sure to be present upon a Cunarder. The pleasure and value of the evenings’ entertainments are not to be ignored. It was not a business trip that was planned by Mrs. McConnell, in the expectation that it would bring returns that could be counted in dollars. The results expected were restored health, entertainment, and pleasure, laudable objects for which people are willing to spend time and money, and when attained are usually worth all they cost.

We have, then, the situation of an intelligent woman past middle life, just recovering from an illness, who had planned long in advance an ocean voyage, knowing from previous experience the advantages she might reasonably expect from it, planning in great detail for a wardrobe and other articles which would supply her necessities and provide for her comfort and pleasure, making an expenditure therefor of approximately $500. She had also made a like expenditure for tickets that would enable her to go with a party of congenial people, under favorable conditions, at a good time of the year, upon a desirable ship, and had made a contract with the defendant company which required— if we simply draw fair inferences from conditions made known to the agent of defendant — that her trunk should be delivered upon the pier in New York, so as to accompany her. Without fault of hers, and because of the failure of defendant company to carry out its contract, Mrs. McConnell, at the. outset of her ocean trip, found her plans all put aside, and herself in a condition where she necessarily was practically a prisoner in her stateroom for ten days, and was deprived of her wardrobe until after her return home. It is not surprising that she should say she was disappointed and ill.

We do not think it can be said, as a matter of law, that there should be no recovery, or that the damages are excessive.

The judgment is affirmed.

Kuhn, Bird, and Steere, JJ., concurred with Moore, J.

Brooke, J.

We are of opinion that an improper measure of damages was submitted to the jury. The plaintiff is entitled to recover only for the physical suffering and discomfort occasioned by defendant’s breach of contract. Damages to the feelings and mental suffering occasioned by the loss of social enjoyment were not within the contemplation of the parties when the contract was made. The judgment should be reversed, and a new trial granted.

McAlvay, C. J., and Stone and Ostrander, JJ., concurred with Brooke, J.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    MALEY-THOMPSON & MOFFETT CO. v. THOMAS FORMAN CO.
    1. Saees — Deiiyery—Payment—Selmr’s Lien.
    If the seller lies by, making no complaint in a reasonable time after delivery of goods sold, he consents to the absolute transfer of the property and waives any right to retake the subject-matter for failure to make payment on the part of the buyer.
    2. Same.

      Held, that the seller could not reclaim property a year after delivery and after having refused to permit rejection of the goods, although the purchaser became insolvent.
    Error to Wayne; Van Zile, J.
    Submitted November 25, 1913.
    (Docket No. 153.)
    Decided March 27, 1914.
    Rehearing denied June 4, 1914.
    Trover by Maley-Thompson & Moffett Company against Thomas Forman Company for the conversion of a carload of lumber. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      William Van Dyke and Standish Backus, for appellant.

      Charles S. Hampton, for appellee.
   Moore, J.

This suit was commenced by declaration August 22, 1908. The declaration is in the usual form of trover, to recover for lumber which, it is agreed, was of the value of $878.41. The case was tried before the circuit judge; the facts being evidenced by a voluminous correspondence, and by stipulation between the attorneys.

The circuit judge filed elaborate findings of fact, and rendered judgment in favor of the defendant. The case is brought here by writ of error.

Counsel for appellant argue the case under the following heads:

(1) There was no sale by Turner Company.

(2) There was acceptance back by plaintiff before any innocent parties’ rights intervened, without notice for value.

(3) Demand was unnecessary, as there was conversion before plaintiff brought trover.

We shall not attempt to follow this grouping in the disposition of the case. The order for the lumber in controversy was placed by Turner Lumber Company, a Pittsburgh, Pa., corporation, with the plaintiff, a Cincinnati, Ohio, corporation, in March, 1907, the same to be shipped to Alliance, Ohio. The order was a rush order, and was an acceptance of plaintiff’s proposition to sell. There was delay in filling this order; Turner Lumber Company urging haste, and the Maley-Thompson & Moffett Company making excuses. On November 7, 1907, the lumber was shipped, and on the same day the plaintiff’s bill for 19,035 feet of lumber, amounting to $956.75, was sent to the pur-. chaser, the statement ending: “Settlement in 10 days by cash less 2% of 60-day acceptance.”

November 27, 1907, the Turner Lumber Company acknowledged the arrival of the lumber at Alliance, Ohio, and stated that their customer there had refused to take it on account of the delay, and asking for suggestions, and closing with the inquiry:

“Have you any market in Cincinnati for stock of this thickness and grade?”

An answer was sent to this letter November 29th, expressing regret that there was trouble with the customer, and saying:

“But we do not see wherein we are responsible, as we shipped this car at your request and having received no intimation of cancellation, in fact received a request from you to hurry shipment of same just a short time before the car was shipped, we must ask you to accept the stock.”

The following was wired to Turner Lumber Company:

“Railroad advises car oak at Alliance unclaimed we look to you for disposition.
“The Maley-Thompson & Moffett Co.”

A reply was sent:

“December 4th, 1907.
“Maley-Thompson & Moffett Co.,
“Cincinnati, Ohio.
“Gentlemen:
“We are in receipt of your telegram reading as follows: ‘Railroad advises car oak at Alliance unclaimed we look to you for disposition.’ We are endeavoring to make disposition of this car and hope to be successful in doing so in the next few days.”

In the meantime the Turner Lumber Company offered to sell the lumber to R. J. Darnell, Incorporated, of Memphis, Tenn., who in turn offered to sell it to Thomas Forman Company of Detroit. On January 11, 1908, Turner Lumber Company offered to sell at a stated price the lumber to Darnell, Incorporated, and this offer was accepted, with instructions to “ship to us Detroit advise name of delivering line at destination.” Thomas Forman Company accepted the offer of Darnell, Incorporated, and on January 15th Darnell, Incorporated, forwarded the invoice of the lumber, and the former, upon the arrival of the lumber, paid charges amounting to $210.35, and unloaded the lumber, and found it not up to the quality that had been ordered by the Turner Lumber Company and sold by them to Darnell, Incorporated, and by them in turn to the defendant.

The defendant wrote Darnell stating the situation, saying:

“We can use the 1st and 2nd at $50.00 as agreed, and the No. 1 Com at $36.50 per M. ft. f. o. b. Detroit, these being the prices at which we have just bought a very nice car of stock.”

A copy of this letter was at once sent to A. M. Turner Lumber Company, who at once wrote as follows:

“Jan. 29, 1908.
“Maley, Thompson & Moffett Co.,
“Cincinnati, Ohio.
“Gentlemen:
“Referring to ■ the carload of % in. quartered white oak which we purchased from you some time ago, beg to advise we succeeded in selling this car some time ago and had it diverted to Detroit.
“We sold this stock for a straight grade of 1st and 2nds but the stock had been turned down on account of quality as the report on this would indicate that about three-fifths of the stock is under grade. We will have to under the circumstances ask you to make other disposition of the car. '
“Yours very truly,
“O. H. Rectanus, Secretary.”
The answer to this letter was as follows:
“Feb. 4/08.
“The A. M. Turner Lumber Co.,
“Pittsburgh, Pa.
“Gentlemen:
“We are in receipt of your favor of January 29th, and are certainly very much surprised at same.
“We beg to state that this stock was shipped several months ago and settlement is long past due and if there was any complaint you had to make, it should have been made long since. We will acknowledge no complaint, nor will we agree to take possession of the stock and we insist upon settlement of same without further delay. This matter has been dragging as long as we propose to permit it and unless we receive your settlement promptly, we will take steps to collect same.
“Very truly yours,
“The Maley-Thompson & Moffett Co.”

The Turner Lumber Company replied to this, calling attention to the situation. A reply was sent as follows:

“Feb. 11/08.
“A. M. Turner Lumber Co.,
“Pittsburgh, Pa.
‘gentlemen:
“We are in receipt of your favor of the 5th again referring to the car of % in. quartered white oak, and we can only repeat what we stated in our former letter and that is, that it was not our fault that this report was not sent to you earlier and we certainly could not consider a proposition of this kind after you have held the stock for months and we will not take possession of the stock nor will we make any allowance, but must insist upon payment of same, or we will take steps to collect it if we do not receive your cheque promptly.
“This matter has now been dragging as long as we will permit it, and we shall expect to hear from you with settlement immediately.”

On the 18th, the same position was repeated by the plaintiff. The letter closing:

“We.have nothing further to add to our former correspondence regarding this matter and will now proceed to take steps to collect same, as the account is long past due.”

On April 15, 1908, Darnell, Incorporated, wrote Turner Lumber Company:

“We purchased this lumber from you in good faith and shipped it to our customer who after his inspection found it unsatisfactory. It was again inspected by an inspector of the National Hardwood Lumber Association on which inspection we are prepared to settle with you. * * *
“We must insist that this matter be closed up without further delay, and we may say to you in advance that we do not propose to surrender this lumber to either you or your shipper.”

On April 18, 1908, Thomas Forman Company wrote Darnell, Incorporated, substantially the same.

The following appears in the stipulation:.

“Subject to the objection of the plaintiff that the same is irrelevant, incompetent, and immaterial, it is admitted that in the spring of the year 1908 the said A. M. Turner Lumber Company of Pittsburgh, Pa., became involved in financial difficulties, and was, some time during the month of July, 1908, forced into bankruptcy.”

On May 6, 1908, the plaintiff company wrote defendant :

“We have further notified R. J. Darnell that we only recognize the A. M. Turner Lumber Company in this transaction and as the A. M. Turner Lumber Company has turned the car back to us, that we will take possession of same.”

On May 8th, Darnell, Incorporated, wrote defendant they should insist upon payment to them, as they had made the sale to the defendant, and they would assume any burden. Defendant shortly after paid Darnell, Incorporated, and, as before stated, this suit was brought August 22, 1908.

In Frech v. Lewis, 218 Pa. 141 (67 Atl. 45, 11 L. R. A. [N. S.] 948, 120 Am. St. Rep. 864, 11 Am. & Eng. Ann. Cas. 545), in disposing of the case the court said:

“The settled doctrine of our cases is to the effect that, where the contract of sale provides for payment of the purchase price on delivery of the articles sold, and the seller delivers the goods but the buyer fails to pay, the right of property does not pass to the buyer with the possession, but remains with the seller, who may at his option reclaim the goods. In some jurisdictions the right of property is held to pass with the delivery, unless at the time the right to retake is expressly declared by the seller. We have not gone so far. Our cases proceed on the theory that until payment has been made, or waived, the contract remains executory, and that delivery in such case is not a completion of the contract, except as an intention to so regard it is expressly declared or can fairly be inferred from the circumstances attending. Possession, however, having passed, and the buyer by the act of the seller having been invested with the indicia of ownership, the policy of our law requires that this situation — the possession in one and the right of property in another — shall continue no longer than is necessary to enable the seller to recover the goods with which he has parted. The law gives the seller the right in such case to reclaim his goods, but he must do so promptly, otherwise he will be held to have waived his right, and can only thereafter look to the buyer for the price. The question the present case suggests is: When does this inference of waiver arise? Our authorities admit of but one answer: Except when delayed by trick or artifice, the assertion of the right to reclaim the property must follow immediately upon the buyer’s default. This does not mean that the seller must eo instante begin legal proceedings to recover the goods; but it does mean that the seller, when he discovers that his delivery is not followed by payment, as he had the right to expect, is at once put to his election whether he will waive the condition as to payment and allow the delivery to become absolute, or retake property, and that he is to allow no unnecessary delay in making his choice. The object of the law is not to multiply his remedies because of his disappointment. He may not continue to hold his right to the goods, and at the same time hold the buyer as his creditor; one or the other he must relinquish, and do it promptly, or the law will forfeit his right to elect. Continued acquiescence in the buyer’s possession of the goods will be taken as a choice on his part to regard the delivery as absolute, notwithstanding the buyer’s default. The policy of the law, in requiring promptitude in the assertion of continued ownership of the goods, could easily be vindicated, were it necessary. It answers every purpose here to show that the law requires it. In Leedom v. Phillips, 1 Yeates, 527, it is said:
“ ‘When the parties specially agree, it is obvious that the vendor may, by his contract, renounce the benefit of the conditions stipulated, and trust to the good faith of the vendee for a future performance on his part. If one sells goods for cash, and the vendee takes them away without payment of the money, the vendor should immediately reclaim them by pursuing the party, and he may justify the retaking of them by force.’
“This was quoted approvingly in Bowen v. Burk, 13 Pa. 146; and it was there added that, ‘where he (the seller) lies by, and makes no' complaint in a reasonable time, he consents to the absolute transfer of the property, and the contract is consequently complete against all the world.’ In Backentoss v. Speicher, 31 Pa. 324, reference is made, to the case last above cited. What we have quoted from it was there approved, and the necessity for an immediate reclamation of the goods was emphasized. It is there said:
“ ‘This is the principle that is decisive against the present plaintiff. A sale of goods for cash is, strictly speaking, a sale on condition. The contract is. do ut des. The condition is more imperative than such as was in this case, but for that reason less easily waived; and yet if the vendor acquiesced in a possession obtained in disregard of the condition, he waives it; and though he may recover the price by action, he cannot recover the goods in specie. * * * When the plaintiff found his condition disregarded, he should have promptly reclaimed the goods.’
“Mackaness v. Long, 85 Pa. 158, is another recognition of the same doctrine, that unless reclamation of the property be made immediately, the title passes to the buyer. These cases and others that might be cited, following the lead of Leedom v. Phillips, 1 Yeates, 527, all hold that the duty is upon the seller, if he would retain his right to the property, to proceed promptly, and we know of no case in which a contrary doctrine is asserted. In some cases the expression ‘within a reasonable time’ is used where the right to reclaim is ’ referred to; but this expression suggests no departure from the rule as declared in Leedom v. Phillips, supra. By reasonable time is to be understood such promptitude as the situation of the parties and the circumstances of the case will allow. It never means an indulgence in unnecessary delay, or in a delay occasioned by the vain hope and fruitless effort to obtain the money from the defaulting buyer. When the delay is to be accounted for by the latter consideration, it is accepted as an acquiescence in the delivery and the acceptance of the buyer as a debtor.”

Applying these principles of law, we think it clear that plaintiff did not act within reasonable time under any of the decisions, and therefore had no right of recovery against defendant.

Judgment is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.


author: Steere, J.

text:
    AXE v. TOLBERT.
    1. Brokers’ Options — Consideration—Vendor and Purchaser.
    While a mere option to sell land, -without the payment of any consideration at the time of executing the contract, is a nullity, the rule is not applicable to an arrangement with real estate brokers to advertise and sell a farm at a stated price, securing to them hy its terms an option to purchase the land within a year, and stipulating for the payment of damages of the amount of commissions fixed by the terms of the writing.
    2. Same — -Definition of Option.
    An option of purchase, sometimes called a unilateral contract, is an unaccepted offer hy one person to sell to another the property described at a stated price, within a certain time, held open and made binding upon the proposed seller for a time specified, by mutual agreement, for a valid consideration, that the offer will not be revoked during the time stated.
    3. Same — Consideration.
    A substantial, not merely nominal, consideration is required to support an option.
    4. Same — Seal—Deeds.
    Absence of consideration may be shown, notwithstanding the instrument evidencing the option is under seal. Mere time or money expended in an effort to - sell property under option cannot be construed as consideration to the party from whom the option was taken.
    5. Evidence — Parol Evidence — Written Instrument — Brokers —Option.
    The written option or contract between brokers and the owner of property placed in their hands, controls in so far as the agreement has been put in written form, having been accepted and acted upon by the parties.
    6. Brokers- — Commissions—Services.
    Advertising expenses, services performed, and time employed by brokers in a bona fide effort to sell a farm, and before notice of conveyance by the owner, sufficiently support a written contract giving exclusive rights of sale to the real estate agents, during a specified period, and fixing their fees at one-half the sale commission if the owner should otherwise dispose of his realty.
    7. Same — Stipulated Damages — Reasonableness.
    Such provision to pay half the commission of 5 per cent., fixed by the contract, if the owner should .previously dispose of the farm, was not so unreasonable as to amount to a penalty, where the plaintiffs had advertised and negotiated for a purchaser during six months, and were in touch with possible buyers.
    8. Same — Principal and Agent — Option.
    Where the circumstances surrounding the taking of an option on real property showed that both parties intended to create the relation of broker and principal, and both understood and treated it as such, their undisputed intent should be held to control.
    9. Partnerships — Fictitious Names — Names.
    The name William Axe and Son, was not a fictitious or assumed name so as to require registration and filing a certificate with the county clerk under Act No. 101, Pub. Acts 1907 (2 How. Stat. [2d Ed.] § 2626 et seq.), where the firm contained two members described in the title.
    Error to Tuscola; Beach, J.
    Submitted November 25, 1913.
    (Docket No. 102.)
    Decided March 27, 1914.

      Assumpsit by William Axe and another, doing business as William Axe & Son, against Catherine Tolbert and Dorr McGlocklin, for brokers’ commissions. Judgment for defendant on a directed verdict. Plaintiffs bring error.
    Reversed.

      Hail, De Foe & Hall, for appellants.

      W. J. Spears, for appellees.
   Steere, J.

Defendants resided upon and owned a farm consisting of about 300 acres, located in Tuscola county, Mich. Plaintiffs were a real estate firm located in Bay City, Mich., selling as agents and handling mostly farm lands. Their practice was to obtain what they called “options,” on farms largely in Tuscola, Bay, Saginaw, and Midland counties and then secure purchasers by a system of advertising and soliciting, the larger part of their customers being from the States of Ohio, Indiana, Illinois, and Iowa, in which States they particularly advertised and solicited.

On June 26, 1912, William Axe, the senior member of the firm, went to defendants’ home “to talk with them about getting their farm to sell.” As a result, after the matter had been talked over with both defendants, they signed and delivered to him the following'instrument which was first read over in full aloud by defendant McGlocklin to defendant Tolbert:

“This agreement, entered into by and between Catherine Tolbert & Dorr McGlocklin of Vassar, as party of the first part, and Wm. Axe & Son, as party of the second part, witnesseth, that for a valuable consideration, the receipt of which is hereby acknowledged, said party of the first part has this day optioned unto said party of the second part the following real estate in Tuscola county, Mich., to wit: 304 acres more or less all in section 11, town 11 north, range, 7 east.
“Said party of the second part shall have the right to give option of sale to purchaser and to close the option hereby created at any time within twelve months from the date hereof, or a continuation of 90 days, if at the expiration of this agreement there is a deal pending, and said party of the first part hereby agrees that he will at any time before the expiration of said option, execute and deliver to said party of the second part, * * * a good and sufficient warranty deed to said real estate, free from all liens and incumbrances, and to furnish said party of the second part an abstract of title showing perfect title.
“It is hereby agreed by the parties hereto that upon such demand being made and said deed executed and delivered as aforesaid that said party of the second part is to pay to said party of the first part the sum of $30,000, which sum the party of the first part agrees to accept as full payment of the purchase price for said real estate.
“It is further agreed by the parties hereto that the above amount shall be paid as follows: $15,000 cash on date of purchase (less a commission of 5% of the total purchase price above, to be paid to the party of the second part as their fee out of the first payment on purchase price) $15,000, the remainder of the purchase price to be paid as follows: To suit at 6% annual interest.
“Said party of the first part hereby agrees not to sell, or in any way to incumber said real estate during the term of the option hereby created, and that should he do so he will forfeit and pay to said party of the second part, as liquidated damages, the sum of $750.
“It is further understood and agreed by the parties hereto that should the party of the first part fail, neglect or refuse to execute and deliver said deed when demanded as aforesaid, that said party of the first part will forfeit and pay to the party of the second part, as liquidated damages, the sum of $1,500.
“The failure, neglect or refusal of said party of the second part to close the option hereby created shall in no manner render him liable to said party of the first part, and he shall not become indebted thereby in any amount whatever. •
“The present title to above described property is in Catherine Tolbert & Dorr McGlocklin. Incumbrance -payable-interest —-per cent.
“In witness whereof said parties have hereunto set their hands and seals this 26th day of June, 1912.
“Catherine Tolbert. [L. S.]
“Dorr McGlocklin. [L. S.]
“P. 0. Vassar, Mich.”

Axe testified that he paid defendants nothing for this option, but took it to plaintiffs’ office in Bay City and kept it, and endeavored by their usual methods to find a buyer, spending time and money to effect a sale of the farm; that prospective purchasers from Ohio, Illinois, and Indiana were, on five different occasions, taken to the farm to look it over, the last party being taken there in November, but nothing had yet resulted from it, which he explained as meaning “it hadn't materialized as yet;” that they continued their efforts until Defendant McGlocklin notified them in January, 1913, that the farm was sold; that plaintiffs did not surrender or withdraw from the contract, and were not asked to do so, but McGlocklin met witness in Bay City in January, 1913, and told him that he had sold the farm and came over to see if it would be satisfactory, and if he had a right to sell it himself by paying plaintiffs the stipulated $750; upon being assured that he had, he said that as soon as the sale was closed up fully and they got their money, he would pay it; that the farm was sold, but defendants neglected or refused to pay plaintiffs the amount stated, or any other sum. Witness also testified that about a week or 10 days later they received inquiries regarding the farm from Illinois parties, and, thinking possibly the sale might not have been consummated, they wrote McGlocklin that if the farm was not sold to let them know, and they would take their prospective buyers out there, but the letter was answered by defendants’ attorney, to what effect is not stated, but left to inference.

No testimony was introduced or offered by the defendants. At the conclusion of plaintiffs’ testimony a motion was made for a directed verdict in defendants’ favor on the ground that the alleged contract was without consideration and void. After argument this motion was granted, the court construing the instrument upon which plaintiffs relied as a mere option, given without consideration, not accepted in writing by the plaintiffs, and which could be revoked by defendants at any time before acceptance, demand for deed and tender of price, and therefore not binding under the undisputed facts; that the provision for stipulated damages in case sale was made by defendants, being without consideration and a part of the invalid instrument, was also void and unenforceable. The court also said:

“It is urged that plaintiffs incurred expense in trying to sell the farm, and testimony was received, subject to objection and exception, tending to show such facts. This testimony would have been applicable to an action for services as agents or factors, but the reasons given for taking the option form of contract were that it was done to avoid the necessity of proof of the production of a real purchaser and tender of the purchase price; but it seems to the court that the substance of the contract still requires such proof, before the stipulated damages can be recovered, or at least an unequivocal acceptance, which would have given the defendants some rights other than the right of withdrawal.”

The court rightly held that, viewed merely as an option, .the alleged contract was a nullity. An option of purchase, sometimes called a unilateral contract, is an unaccepted offer by one person to sell to another designated property, at a stated price, within a certain time, held open and made binding upon the proposed seller for the time specified by a mutual agreement between the parties, for a valid consideration, that the offer will not be revoked and the privilege of accepting shall continue to the proposed purchaser during the stated time. It is a preliminary contract for the privilege of purchase, not a contract of purchase. As such, to be binding, it must to that extent not only be mutual, but based upon a substantial, and not nominal, consideration. Rude v. Levy, 43 Colo. 482 (98 Pac. 560, 24 L. R. A. [N. S.] 91, 127 Am. St. Rep. 123). In this State the absence of consideration may be shown notwithstanding the instrument is under seal. Hobbs v. Electric Light Co., 75 Mich. 550 (42 N. W. 965). Plaintiffs’ own testimony is that they paid nothing for the option, and their only claim of consideration is based upon subsequent efforts to sell the farm. Time and money spent by a party in trying to sell property for which he holds an option cannot be construed as a consideration to the party from whom he has secured the option.

In this case the terms of the instrument negative enforcing specific performance by which title to the property could be obtained. If defendants refused to sell, the only penalty was to pay the contemplated commission to plaintiffs. It is plain, both from the relations and vocations of the parties, the circumstances of the making and delivery of this instrument, its subject-matter, and what they subsequently did and said in regard to it, that the real thought, intent, and purpose of the parties was not a sale of the farm to plaintiffs, but to give them an exclusive and special brokerage agency to find a purchaser, for defendants and negotiate a sale of their farm within one year upon specified terms. Being a contract for services to be performed within a year, it was not required to be in writing to be valid, but so far as the terms of agency were in writing and accepted and acted upon by the parties, the writing would control.

Eliminating the attempt to make it more binding by confusing and befogging the instrument with the phraseology and name of an option, the writing by its essence falls clearly within the law of that special class of agency known as real estate agency, or brokerage. When William Axe, representing a real estate agency, in the line of his business, went to defendants to talk with them about “getting their farm to sell,” he talked it over with both of them. He obtained from them their price, terms, the commission' they were willing to pay, and the length of time they would give the firm the exclusive- right to handle the property, with the provision, in effect, that if the owners found a purchaser and effected a sale during the continuance of plaintiffs’ agency, the commission should be divided between them, and if, during the year, they changed their minds arid refused to sell to a purchaser plaintiffs had procured, they would nevertheless pay the full 5 per cent, commission. Just how seriously defendants regarded the option effort with which the instrument was elaborated is of no importance. It was a matter of indifference to them who bought the farm if their terms were, met, for the instrument provided in plain language that they must pay the stated commission if a purchaser was produced, unless they negotiated a sale themselves, in which event they would only pay plaintiffs one-half of such commission. That they clearly understood this is evident from Mc-Glocklin’s interview with Axe in Bay City to make certain both parties understood it alike. The business of selling real estate involves employment on the part of the agent or broker of such instrumentalities and methods as often render it difficult to determine to what extent a sale by others may be attributed to his efforts, and a special contract of brokerage recognizing this, and providing exclusive agency for a definite time and a division of commission in case of sale by the owner, is not unreasonable or unlawful. A broker may be entitled to a commission on a sale made by the owner without the broker’s co-operation, if they see fit to so provide in the contract of agency. Such contracts are not to be confused with the ordinary and general contract of brokerage where compensation is entirely contingent on the broker finding and producing a purchaser.

The testimony in this case shows that the written authority to sell was accepted, retained, and acted upon by plaintiffs. They rendered services under it and incurred expenses in an honest effort to find a purchaser, continuing the same until notified that the property was sold. Services of this nature performed by a broker are a sufficient consideration for a special contract of agency. Goward v. Waters, 98 Mass. 596; Kimmell v. Skelly, 130 Cal. 555 (62 Pac. 1067). In the latter case the owner employed real estate- brokers to endeavor to find a purchaser for her property, agreeing to pay them $2,250 commission in case they succeeded during the existence of the contract, and also to pay them the same consideration in case she made the sale during that time. The court there said:

“The consideration for her promise to pay the money if the sale was made by her was the performance of services by. the brokers in seeking a purchaser.”

The case of Hoskins v. Fogg, 60 N. H. 402, is well in point upon the real contract of agency upon which the minds of the parties met in the instant case. Hos-kins was a real estate agent in whose hands. Fogg placed his farm for sale, signing a proposal as follows:

“If you procure a purchaser for the property described above, I will pay you, or to your order, $150; if I sell it outside your influence, I will pay you one-half that sum; if I withdraw the property before the sale is consummated, I will pay you whatever you have paid out for advertising. I further agree that no other party shall have the selling of the same. You are to have this place in your hands for sale one year from date above.
[Signed] “Joseph Fogg.”

Plaintiff did not find a purchaser, but made efforts and rendered services in seeking for one. Within the year defendant sold the farm outside plaintiff’s influence. The court held plaintiff was entitled, under proper pleadings, to recover the stipulated amount for such a. contingency, saying:

“The agreement to pay one-half that sum if the defendant sold his farm himself, was not an independent stipulation promising to pay the plaintiff for what he was not to do, nor for what the defendant was to do and did do himself, but a provision for paying the plaintiff for such services as he might render in the performance of the contract, and for any damages suffered by reason of being prevented from completing the performance. It was liquidated damages, intended to include the value of any services that might be rendered by the plaintiff under the contract, his expenses, and the damage from the defendant’s preventing a full performance by selling his farm himself.”

In the instant action the liquidated damages provided for in case of sale by the owner are just one-half the commission which plaintiffs would have received had they sold the property; they had been advertising the farm and endeavoring to work up a sale for six months. They yet had half of the contract time remaining in which to find a purchaser, and were in touch with inquiring parties. It cannot be said, in the light of the cases already cited and the circumstances shown, that the stipulated sum as a basis of compensation is so out of all proportion to any damages which could arise that the court must treat the stipulation as in the nature of a penalty, when applied to a sale made by defendants.

In the final analysis the intention of the parties must govern in the construction of a contract. Not only is the intention of the parties as above construed deducible from the language of the instrument, taken as a whole, in the light of the surrounding and contemporaneous facts, but as to the particular clause relative to the damages sought to be recovered here the undisputed testimony is that the parties subsequently made clear to each other what the intention and understanding of each was, and agreed upon such construction.

It is urged as a defense that plaintiffs have no standing in court for the reason they do not show that they had filed with the county clerk a proper certificate setting forth the names of the members of their firm, in compliance with Act No. 101, Pub. Acts 1907. No mention is made of this defense in the plea and notice filed; but, aside from that question, we are not inclined to hold that the firm name of William Axe & Son was an assumed or fictitious name in contemplation of the statute. There is nothing fictitious or misleading or uncertain in the name. It gives the full name of the head of the firm, and plainly discloses the identity of the other member. Persons doing business with the firm would be advised who the members were and whom to hold responsible. In States having similar statutes such has been the test applied to firm names where there is a correct designation by name of the members of a firm, though the Christian names do not appear. Castle Bros. v. Graham, 87 App. Div. (N. Y.) 97 (84 N. Y. Supp. 120), s. c., 180 N. Y. 553 (73 N. E. 1120); Pendleton v. Cline, 85 Cal. 142 (24 Pac. 659); Carlock v. Cagnacci, 88 Cal. 600 (26 Pac. 597); Bovee v. De Jong, 22 S. D. 163 (116 N. W. 83); Guiterman v. Wishon, 21 Mont. 458 (54 Pac. 566); Patterson v. Byers, 17 Okl. 633 (89 Pac. 1114, 10 Am. & Eng. Ann. Cas. 810).

For the reasons given we are of the opinion that the judgment of the trial court must be reversed and a new trial granted.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred.


author: Ostrander, J.

text:
      In re ERDMAN’S ESTATE. APPEAL OF KNACK.
    1. Estates op Decedents — Trusts — -Probate Courts — Appeal— Appointment op Trustees.
    Orders of the probate court under Act No. 253, Pub. Acts 1899 (4 How. Stat. [2d Ed.] §10710), appointing trustees to administer an estate in accordance with the will of decedent, and to take the place of the trustees named by him, they having failed to qualify, are not proceedings after the course of the common law, nor do they present issues subject to the common law rules of trial or appeal.
    2. Same — Certiorari—Jurisdiction—Equitable Issues.
    No remedy, except by certiorari, in such case, lies to review the determination of the circuit court on appeal from the orders of the probate court; on certiorari only questions of law are reviewable.
    3. Same — Appeal and Error — Dismissal.
    A writ of error does not lie to review such order.
    4. Same — Probate Courts — Trusts — Appointment op Trustees —Jurisdiction.
    Where the testator appointed by his will four trustees to take charge of, and administer his estate, of whom two neglected to give the required bond, refusing to accept the trust, and the others omitting to file their bonds in time, did so, however, before the filing of a petition by other interested parties to appoint a trustee to fill the vacancies, also presenting a separate petition with the bond, showing that they had overlooked the requirement of filing their bonds within thirty days, the probate court acted within its jurisdiction in making orders appointing a single trustee to have charge of the portion of decedent’s éstate in which the original petitioners were interested, and appointing the two petitioners named as trustees of the remainder of such estate.
    5. Same — Testamentary Trust — Executors and Administrators.
    It was proper, in closing up decedent’s estate, after discharging the executors, to assign the remaining property to tbe trustees, so appointed, nor was it an abuse of discretion to separate a fund from tbe body of tbe estate, by putting it in charge of a distinct trustee, wben tbe testator bad by bis will indicated «a purpose to set sucb fund aside from tbe estate.
    Error to Wayne; Mandell, J.
    Submitted January 12, 1914.
    (Docket No. 61.)
    Decided March 27, 1914.
    Petition by Carl Maser and another in probate court for the appointment of a trustee of the estate of Charles Erdman, deceased. Emma Erdman filed a petition for leave to file her bond and qualify as trustee after defaulting in necessary steps to be taken. From the order entered petitioners appealed to the circuit court which affirmed the decree. Petitioners bring error.
    Affirmed.

      Jasper C. Gates, for appellants.

      Bowen, Douglas, Daman & Barbour, for appellees.
   Ostrander, J.

Acting under authority of Act No. 253, Public Acts of 1899 (4 How. Stat. [2d Ed.] §10710), the probate court of Wayne county made two orders appointing trustees to administer the estate of Charles Erdman, deceased, in accordance with the last will and testament of said deceased. Two persons beneficially interested in the estate appealed from these Orders to the circuit court for the county of Wayne, where they were affirmed. The appellants thereupon sued .out a writ of error to the circuit court and have thus brought the record of the proceedings before us. No motion to dismiss the writ of error was made, but in the brief for the appellee it is, and at the hearing it was, urged that error does not lie to review the orders of the circuit court.

The statute (section 42) gives aggrieved parties the right to appeal to the circuit court from orders of the probate court. It gives no right of appeal to this court from the decisions of the circuit court. It is entitled “An act to establish and confirm the jurisdiction of probate courts over testamentary trusts and trustees, and to provide for the administration and control of such trusts in said courts.” It was necessary, to carry into effect the provisions of the will of Charles Erdman, that trustees be appointed. They were, four in number, appointed in the will, and, having filed and had allowed their final account as executors of the will, an order was made assigning the residue of the estate to them as trustees, and they were ordered to give a bond in the penal sum of $60,000. They neglected, or refused, to execute the bond. The giving of the bond is a statutory prerequisite to entering upon the performance of duties as trustees. The date of the last proceeding in the administration of the estate by the executors was September 13, 1912. The appellants petitioned the probate court December 30, 1912, to appoint Arthur E. Schreiter trustee. Emma Erdman, the widow, filed a petition March 7, 1913, in which she set up that two of the testamentary trustees had resigned, that by oversight she and the other consenting testamentary trustee did not file the required bond within 30 days, but had filed it before filing the said petition; that, to avoid any question as to the authority of herself and cotrustee in the premises, she prays that she and her cotrustee may be appointed by the court, trustees of the estate. On the 29th day of April, 1913, by orders made and entered that day, the Union Trust Company of Detroit was appointed trustee of that portion of the estate in which the appellants are interested, and Mrs. Erdman and William Hegge, two of those named in the will, were appointed trustees of the remainder of the estate and ordered to give a bond in the sum of $60,000. These are the orders appealed from.

It is manifest that the orders in question were made in proceedings to administer this estate, that the proceedings are not, and so far as they are involved here could not become, either in the probate or the circuit court, proceedings after the course of the common law, or present issues triable at common law or by common-law rules. The rule in such cases is, and it has been often repeated and applied, that if there is any review of the determination of the circuit court it is by certiorari, and that in certiorari proceedings questions of law only will be considered. Very recently, in Hartz v. Wayne Circuit Judge, 164 Mich. 231 (129 N. W. 25), a collection of decisions applying this rule was given, and still later, in Township of Custer v. Dawson, 178 Mich. 367 (144 N. W. 862), the subject is again considered. See, also, Brinsmade’s Appeal, 52 Mich. 537 (18 N. W. 346), and Mower’s Appeal, 48 Mich. 441 (12 N. W. 646), for discussion of the rule.

The writ of error should be and is dismissed, with costs to appellee; but, inasmuch as the cause has been heard, we express the opinion that the probate court acted within its jurisdiction, and regularly, in making the orders in question.

The probate court, in making the orders in question, did not vacate its own order previously made. Four trustees were named by the testator, first as executors, then as trustees. It was proper, upon closing the estate, to assign the residue to the persons so named, as trustees; but they could accept the trust and perform the duties of trustee only after filing the required bond. They did not file it. This was by all parties regarded as a resignation of the testamentary trusteeship. Thereupon appellants, as well as Mrs. Erdman, cbnceiving and in effect confessing that there were and had been no trustees, and that trustees ought to be appointed by the court, petitioned the court to make the appointment. The court, in its discretion, appointed Mrs. Erdman and Mr. Hegge trustees of all of the estate except a fund of $6,000. This had already been set aside, agreeably with the testator’s wishes and authority to his executors “to set aside the sum of t six thousand dollars, and the income thereof to be used for the care of,” etc. A considerable portion of the estate was involved in a business of which Mr. Erdman had been the manager. Evidently, it was his purpose to separate the fund of $6,000 from the rest of the estate — to set it aside.

Under the circumstances, it was not an abuse of discretion, especially when the attitude of appellants was considered, to give the management of this fund to a separate trustee.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere JJ., concurred.


text:
    STOLL v. HAWKS.
    1. Infants — Fraud—Contracts—Right to Rescind.
    An infant, like an adult, may reclaim money, on failure of consideration or because obtained by fraudulent representations; and be may at any time rescind bis contracts for valid reasons.
    2. Fraud — Rescission.
    Tbe rule that an infant may not finally rescind bis contract until bis majority applies to contracts voidable on tbe ground of infancy, not fraud.
    Error to St. Joseph; Knowlen, J.
    Submitted January 13, 1914.
    (Docket No. 66.)
    Decided March 27, 1914.
    Assumpsit in justice’s court by Amel Stoll, by next friend, against Arland Hawks for the recovery of money paid for a horse. From a judgment for plaintiff, defendant appealed to circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Alfred S. Frost and E. Frost, for appellant.

      B. E. & E. H. Andrews and David L. Akey, for appellee.
   Moore, J.

The plaintiff is an infant. It is his claim that he purchased of defendant, for $180, a horse, which was warranted to be sound and all right, when, in fact, it was blind. After he found out the situation, an effort to compromise having failed, he returned the horse to the defendant, and demanded a return of his money. The defendant claims he never represented the horse to be sound, and that he did not sell to the plaintiff, but to his father.

The testimony was in sharp conflict. Nearly all the questions involved are questions of fact, which were properly submitted to a jury, which found against the contention of defendant.

There is a question of law involved. It is stated by counsel as follows:

“If this contract had been made by the infant with the defendant, as the infant claims in his testimony, it would be a voidable contract only, and could be rescinded by the infant after he arrived at the age of 21 years, and not before; for an infant has no authority under the law of Michigan to affirm or rescind a voidable contract while the’ infancy continues. Armitage v. Widoe, 36 Mich. 124, 129; Dunton v. Brown, 31 Mich. 182; Lansing v. Railroad Co., 126 Mich. 666 [86 N. W. 147, 86 Am. St. Rep. 567]; Minock v. Shortridge, 21 Mich. 304.”

We think the principle of law that is attempted to he here stated is not applicable to the instant case. The plaintiff is seeking to rescind, not because he is an infant, but because a fraud has been perpetrated upon him.

1 Parsons on Contracts (9th Ed.), p. 368, states the rule to be:

“An infant stands on the same footing as an adult, in respect to his rights to reclaim money on failure of consideration, or because obtained by fraud, or to rescind contracts for good reasons.”

16 Am. & Eng. Enc. Law (2d Ed.), p. 298, reads:

“But in other transactions, especially where personal property or executory contracts are involved the infant may avoid at any time. This distinction is for the infant’s benefit to enable him to recover personal property before it is lost, or to avoid immediate consequences of his contracts, while land may be recovered at any time.”

If the rule was otherwise, it would be pretty safe to perpetrate fraud upon infants in relation to personal property; for, before there could be a disaffirmance after the infant had reached his majority, the fruits of the fraud would be beyond his reach.

Judgment is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.