text:
    COLE v. DETROIT ELECTRIC RAILWAY.
    Street Railways — Negligence—Insufficient Evidence — New Trial.
    Where a judgment against a street-railway company had no other foundation than the testimony of a girl 10 years old that the plaintiff’s intestate, a child 2<t years old, was in front of the car, in plain view of the motorman, when the car started, while her testimony before the coroner’s jury was that the deceased was clinging to the side of the car near the wheels, and the motorman testified that the child was not in front of the car, a motion for a new trial should have been granted.
    Error to Wayne; Hosmer, J.
    Submitted October 16, 1902.
    (Docket No. 70.)
    Decided January 6, 1903.
    Case by George W. Cole, adininistrator of the estate of Winifred Cole, deceased, against the Detroit Electric Railway and the Detroit United Railway, for the alleged negligent killing of plaintiff’s intestate. From a judgment for plaintiff, defendants bring error.
    Reversed.
    Plaintiff’s daughter Winifred, 2£ years old, was run over and killed by the defendant’s car, which was running north on the easterly one of the two tracks on Fourteenth avenue at the intersection with Harper avenue. The declaration charges that the car had stopped at Harper avenue to let passengers off; that the deceased went upon the track and stood in front of the car while it was standing still, with her hands upon the fender; that she was in plain view of the motorman; and that the motorman, without any warning, started the car and ran over her. It charges gross “carelessness, recklessness, and wantonness ” on the part of the motorman in failing to see the child.
    The motorman testified that, before stopping his car, he saw the little girl standing at the northwest corner of these avenues, upon a grass plat between the curbstone and the sidewalk, with her hand against a tree. When the car stopped, she was out of the range of his vision. He swore positively that, when he started, she was not standing in front of the car. After the car had stopped, the deceased ran into the street, across the other track, to the car. No one upon the car saw her or knew of the accident until the car returned, a few minutes later. The car went only two blocks beyond, and then returned. The car was a closed one, with doors on the east side.
    The right of recovery is based upon the testimony of one witness for the plaintiff, Mabel Perry. She was eight years old at the time of the accident, and ten at the time of the trial in the court below. Upon the trial she testified that the deceased stood on the track, directly in front of the fender, where she was in plain sight of the motorman. Immediately after the accident an inquest was held before a coroner’s jury. Mabel was taken by her uncle before the jury to testify in regard to the accident. She was the sole witness to it, except a little girl five years old. A stenographer took her testimony at the inquest, and the coroner wrote out a statement, which she signed. She then testified positively that the deceased was not in front of the car; that she was on the side of the car, “right near the front wheels,” and had hold of something on the side of the car. When her signed statement and the stenographer’s minutes were read to her, she did not positively deny any of the statements read to her. To some she said, “I don’t remember so testifying;” to some, “I don’t think I said it.” The following question and answer were read to her from the stenographer’s minutes: “ Q. She tried or had hold of something that was on the side of the car, did she? A. Yes, sir.” In reply to the question whether she so testified, she said, “I would not say I did not say it.” Her written statement, read to and signed by her at the close, and the stenographer’s minutes, duly proved, were read in evidence. The coroner, some of the jurors, and a woman, — Mrs. Dibble, — who was present when she gave her testimony at the inquest, testified positively that she there testified as above. There were six of these witnesses.
    The case was submitted to the jury, who found a verdict for the plaintiff. ■ Defendant made a motion for a new trial on the ground that the verdict was against the clear preponderance of evidence. In support of the motion, it filed the affidavit of Mrs. Dibble that, about 20 minutes after the accident, the witness Mabel told her that the deceased “ran out and took hold of the side of the car just back of the fender, and when the car started she tumbled and rolled under the wheels.” The motion was denied, exception duly taken, and the ruling of the court is now before us for review, under Act No. 134, Pub. Acts 1893 (3 Comp. Laws, § 10504).

      Corliss, Andrus, Leete & Joslyn, for appellants.

      J. Walter Dohany, for appellee.
   Grant, J.

(after stating the facts). The verdict and judgment have no other foundation than the testimony of the witness Mabel Perry. If the testimony given by her at the inquest is true, the defendant is not liable. If her testimony given upon the trial be true, not .only is the defendant liable for damages, but the motorman is liable to indictment for manslaughter, • — ■ for conduct wholly regardless of human life. If the versions of this accident given by this witness on the two occasions are directly contrary to each other, and there is no reasonable explanation for her change of testimony upon the trial from that upon the inquest, she is unworthy of credence, and a verdict based thereon ought not to stand. To find a verdict for the plaintiff, the jury must have wholly disregarded the testimony of the six disinterested witnesses who testified to what Mabel said at the inquest, and the positive and unequivocal testimony of the motorman that the deceased was not upon the track in front of the car. It is important, therefore, to consider the character of the impeaching testimony. There is no room for holding that the six witnesses are mistaken in their testimony. The material part of Mabel’s testimony was written out by the coroner, and read to and signed by her. The stenographer wrote out his minutes by questions and answers, and swore to their correctness. Four other witnesses swore positively to the same effect.

The verdict cannot be sustained upon any other theory than that these seven witnesses testified falsely. I find it impossible to disbelieve them. They are unimpeached by anything in this record. The witness herself does not deny their statements. It is therefore established beyond controversy that she did so testify at the inquest, when, as she admitted upon the trial, the occurrence was fresh in her mind. Besides, the version given by her at the inquest is entirely natural, wliile that given upon the trial is not. It is unnatural and improbable that the motorman started his car with the girl standing within a few feet and directly in front of him, and in his plain sight. I cannot consent that persons be deprived of their property or liberty upon such a record. The declaration is based upon gross, wanton, and reckless negligence. It can be sustained upon no other theory. Yet the jury, by wholly disregarding the testimony of the seven witnesses, and adopting the version of a witness who two years before, and at the time of the accident, gave an entirely different version, and one which entirely exonerated the defendant from any negligence, found that the motorman was guilty of the grossest negligence. The two versions are utterly irreconcilable.

In a case where the liability of the defendant depended upon the testimony of only one witness, and he was contradicted by several other disinterested witnesses, and, as in this case, gross negligence was charged, and the court refused to set the verdict aside, we said:

“The refusal to grant a new trial upon a verdict ren- . dered upon such evidence is very close to an abuse of judicial discretion.” Brassel v. Railway Co., 101 Mich. 5, 13 (59 N. W. 426, 428).

We also there held that it was impossible to read the record without coming to the conclusion that the jury utterly ignored the clear weight of the evidence in the case.

So, also, in Whipple v. Railroad Co., 130 Mich. 460 (90 N. W. 287), we said:

“But if it should be held that it was not error to submit the case to the jury, their verdict was so palpably unjust and at variance with the great preponderance of evidence that the court should not have denied a motion for a new trial.”

The language in those cases is especially applicable to this.

The judgment is reversed, and new trial ordered.

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

Moore, J. I concur in the result reached by Grant, J.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    CENTRAL BITULITHIC PAVING CO. v. MANISTEE CIRCUIT JUDGE. COMMON COUNCIL OF CITY OF MANISTEE v. SAME.
    1. Mandamus — Injunction—Dissolution—Exigency.
    Where there is no exigency requiring immediate action, an order of a circuit judge refusing to dissolve an injunction will not be reviewed on mandamus, unless the question in dispute is one of law only, and such judge has acted without jurisdiction.
    3. Equity Jurisdiction — Municipal Corporations — Fraud— Paving Contract.
    Where, through the fraudulent conduct of city officers, a paving contract has been departed from in the construction of the work, to the damage of the municipality, equity has jurisdiction to restrain the work upon the complaint of taxpayers.

      Mandamus by the Central Bitulithic Paving Company, and the common council of the city of Manistee and others, to compel Aaron V. M'cAlvay, circuit judge of Manistee county, to dissolve a preliminary injunction.
    Submitted November 18, 1902.
    (Calendar Nos. 19,648, 19,649.)
    Writs denied January 6, 1903.
    On April 7, 1902, the electors of the city of Manistee authorized the issuance of bonds for $125,000 for the purpose of paving its streets. On July 19th following, a contract was made between the Central Bitulithic Paving Company and one of the relators in the other petition, the common council of the city of Manistee, for paving certain streets at a price of $106,000. The company entered upon the work. In August following, two taxpayers filed a bill of complaint against the relators, alleging fraud on the part of the mayor and some of the councilmen in the making of the contract, and fraudulent conduct on the part of certain others who were charged with the execution of the contract, and the company in executing it. It is charged that the contract has been departed from, to the detriment of the taxpayers of the city and to the benefit of the company, and that these departures have not been made in good faith, but fraudulently and corruptly. This departure from the work is alleged to have been made in the.face of the following provision of the contract:
    “It is mutually agreed between the parties that no deviations from the contract can be authorized by any inspector of the work, and that the city is in no way bound to accept work not in accordance with the specifications, although such work may not have been objected to by the inspector.”
    The respondent granted a preliminary injunction. The relators filed answers denying the material allegations of the bill, and moved to dissolve tbe injunction, which motion was heard September 2d. At this hearing the complainants in the chancery suit were permitted to file affidavits in opposition to those filed on. behalf of the relators. After full argument and due consideration, the respondent refused to dissolve the injunction. On November 3d, relators presented their petitions in this court, asking for the writ of mandamus to compel the respondent to vacate his order and to dissolve the injunction.

      Dovel & Smith and P. T. Glassmire {Humphrey & Grant, of counsel), for relators.

      Frank L. Fowler, for respondent.
   Grant, J.

(after stating the facts). Relators waited two months after the order of the respondent refusing to dissolve the injunction, before applying to this court for relief. The respondent returns that no work can be done during the winter, and until May next, and that during this time the case can be heard upon its merits and determined both in the circuit and supreme courts. There is therefore no exigency requiring immediate action.

Relators ask relief on two grounds: (1) Because the showing before the respondent was insufficient to justify the issuance of the injunction; (2) that the court had no jurisdiction to grant it, because the case made by the bill is not one of equitable cognizance.

As to the first ground, no exigency existing, an appeal from the decree, made after hearing and upon the merits, is the proper remedy. Even an abuse of discretion by a circuit judge in granting and maintaining a preliminary injunction will not be reviewed on mandamus, when, without injury to the rights of the defendant, the case can be heard upon its merits. Where, however, the court acts entirely without jurisdiction, and the question in dispute is one of law merely, the court will dispose of it in a mandamus case. Ionia, etc., Ins. Co. v. Ionia Circuit Judge, 100 Mich. 606 (59 N. W. 250, 32 L. R. A. 481).

Elaborate and lengthy briefs are filed by the learned counsel for both sides upon this question. Many of the cases cited by the relators/were decided upon an appeal from a decree after a hearing and upon the merits. Where fraud is alleged, either in the procuring of a contract or in its execution on the part of the officers of a municipality and the contractors, in consequence of which damage, it is alleged, will result to the municipality, courts of equity may interfere by injunction to restrain the execution of the contract, if fraudulent, or, if valid, to restrain the fraudulent execution of it. Corrupt conduct is charged on the part of the mayor and other officers in making this contract. No complicity appears to be charged against the company. Were this the only question presented by the pleadings, we are not prepared to say that the bill presents a case for equitable cognizance. But direct charges are made and verified of unwarranted departures from this contract, by which, if true, the city will be defrauded and the contractor benefited. We think the allegations are sufficient to give the court jurisdiction of a case of this character. Dixon v. City of Detroit, 86 Mich. 516 (49 N. W. 628).

We do not deem it essential to state the several departures from the contract which are alleged to be fraudulently made. It is sufficient to say that if corruptly made, and if the taxpayers of the city will suffer loss thereby, equity may and ought to interfere seasonably to restrain the illegal action. The truth of these allegations can be determined only upon the hearing. The cause was noticed for hearing upon pleadings and proofs at the November term of the circuit court. It can be speedily disposed of in sufficient season for the renewal of the work in the spring. Should the complainants neglect to move promptly, the relators can renew their application to the circuit court, in which case a bond should be given to indemnify the contractor, or the injunction dissolved. Private parties should not be permitted to interfere, even by injunction, with the carrying on of public works, upon charges of corruption, which will depend entirely upon the proof, in cases whei'e the public and the contractor may suffer great and irreparable damages, and where the charges are denied under oath.

Complaint is made that the proper practice was ignored in permitting the complainants in the chancery suit to file additional affidavits upon the hearing of the motion to dissolve the injunction. This is contrary to the usual practice, but it has its exception. 2 High. Inj. (3d Ed.) § 1603.

The writs are denied.

The other Justices concurred.


author: Carpenter, J. Grant, J.

text:
    CITY OF MARQUETTE v. MICHIGAN IRON & LAND CO.
    1. Taxation — Land Contracts — Credits.
    A contract for the sale of standing timber, which contains a provision that the title to the timber and manufactured products thereof shall remain in the vendor until paid for, that the vendee shall pay all taxes assessed upon the land, the usual forfeiture clause, and places the risk of damage to the timber upon the vendee, should be taxed as a credit to the vendor, under 1 Comp. Laws, § 3831, subd. 6.
    2. Same.
    A contract for the sale of land at a specified price, with the usual forfeiture clauses, and an agreement that the vendee shall pay all taxes assessed upon the land, should be assessed as personal property.
    3. Land Contracts — Ownership.
    Under such contracts the purchaser is the equitable owner of the property.
    4. Double Taxation — Land Contracts.
    The taxation of a land contract as personal property does not constitute such double taxation as to violate the constitutional requirement of uniformity in taxation, where the contract provides that the vendee shall pay the taxes on the land.
    Case made from Marquette; Stone, J.
    Submitted November 18, 1902.
    (Docket No. 39.)
    Decided January 6, 1903.

      Stipulated case between the city of Marquette and the Michigan Iron & Land Company, Limited, to determine the latter’s liability for taxes. There was a judgment for plaintiff, and defendant assigns error.
    Affirmed.

      Ball & Ball, for appellant.

      George B. Brown, for appellee.
   Carpenter, J.

The court below held that defendant must pay taxes upon the sum of $59,733.34, the balance unpaid on contracts for the sale of standing timber, and upon the sum of $30,384, the balance unpaid upon contracts for the sale of land. By the terms of the contracts for the sale of timber, defendant agreed to sell to the vendee “all the merchantable timber, now fit for saw-logs, growing, standing, or being upon-the following described lands,” and “that the title to the said timber and the manufactured products thereof shall be and remain in the party of the first part [the defendant] unless and until paid for and removed as hereinafter mentioned.” The vendee agreed to pay a certain specified price for this timber, and to pay to the vendor ‘ ‘ all taxes and charges, general and special, of every kind whatsoever, that shall be assessed upon or against the above-described lands subsequent to the date hereof.” The contract contained the usual clause of forfeiture, and expressly placed upon the vendee the risk of damages to the timber from “fires, storms, trespasses, or any or all causes whatsoever.” The land contracts contained an agreement on the part of the defendant to sell a particular description of land upon the payment of a specified sum,' which the vendee expressly agreed to pay. They contained the usual clauses of forfeiture, and an agreement that the vendee “should pay all taxes or assessments upon said premises * * * whenever and as soon as they shall become due and payable,” and provided for a deed to the vendee when all his ■“agreements and undertakings ” were performed.

1 Comp. Laws, § 3831, subd. 6, makes taxable “all credits, of every kind, belonging to inhabitants of this State.” Defendant’s counsel insists that the obligations in question are not credits. He argues that they should be classed with obligations to pay future rent upon existing leases, obligations to pay salary under contracts for future services, and with obligations to pay for the future delivery of the products of a farm, of a shop, or of a mine. If the obligations in question are indistinguishable from those above instanced, we think that it should be decided that they are not taxable; but, in our j udgment, they are clearly distinguishable. In the instances supposed, the landlord will receive rent for the future use of his own -property, the employé will receive wages in payment for his future services, and the farmer, manufacturer, and miner will receive pay for the sale of products which, until the sale is consummated, belong to them. In none of these cases is a credit contemplated. On the other hand, by the contracts under consideration (and this is as true of the timber as of the land contracts) the equitable title to the property therein..described is at oncéHráñsferrecTTo~the vendee. From the time these '..contracts'"are made, the vendor holds the legal title only as trustee for the vendee. Walker v. Casgrain, 101 Mich. 604 (60 N. W. 291); Fitzhugh v. Maxwell, 34 Mich. 138; Wing v. McDowell, Walk. Ch. 175; Bowen v. Lansing, 129 Mich. 117 (88 N. W. 384, 57 L. R. A. 643). The__v.endor has, in effect, exchanged his property-for the'unconditional obligation of the vendee, the performance of which is secured by the retention of the legal title. The fact that the vendee, in the case of the land contract, may, when making his filial pay menf7Méitíand~ar conveyance, does not "distinguish the obligation from that of a credit secured by a mortgage, as the mortgagor may, when making his final payment, demand a discharge of the mortgage. The obligations under consideration, therefore, resemble, not agreements to pay future rent, or salary to be earned in the future, or promises to buy merchandise and products to be delivered in the future, but credits secured by mortgages. The resemblance between these obligations and credits secured by purchase-money mortgages may best be described by stating that they differ only in t.his: That the vendor has a remedy to.enforce his rights which is... npt. given to the mortgagee, namely, he may take immediate possession of his securty. Such an inconsequential .difference affords no ground for a legal distinction.. The decisions of this court which hold all credit's secured by mortgages taxable are therefore, in our judgment, decisive of the proposition under discussion. Attorney General v. Supervisors of Sanilac Co., 71 Mich. 16 (38 N. W. 639); City of Detroit v. Lewis, 109 Mich. 155 (66 N. W. 958, 32 L. R. A. 439). This precise question has been decided by the courts of other States in conformity with these views. Cooley, Tax’n (2d Ed.), p. 78; People v. Trustees of Ogdensburgh, 48 N. Y. 390; County of Ouachita v. Rumph, 43 Ark. 525; State v. Rand, 39 Minn. 502 (40 N. W. 835); Perrine v. Jacobs, 64 Iowa, 79 (19 N. W. 861); People v. Rhodes, 15 Ill. 304; People v. Worthington, 21 Ill. 171 (74 Am. Dec. 86); Griffin v. Board of Review, 184 Ill. 275 (56 N. E. 397); Adams v. Clarke, (Miss.) 31 South. 216.

Aside from the dissenting opinions in two of the above cases, the only authority referred to by counsel for defendant in support of his position is Brown v. Thomas, 37 Kan. 282 (15 Pac. 211). In that case it was decided that the interest of the vendor, arising out of a contract to sell land similar to the land contract under consideration in this case, was not taxable. The court reasons as follows:

“ The agreement for the sale of the real estate described in the petition confers neither the legal nor the equitable title upon Davidson [the vendee]. It is simply an agreement to sell real estate upon conditiops precedent, and sets forth a conditional sale only. * * * The legal title has not passed to him, because no deed or other conveyance has yet been made; and the equitable title has not passed, because the land has not been paid for, and , because, on account of the provisions 'for forfeiture, it is clearly the intention of the parties, as indicated in the contract, that such title shall not pass until the land is paid for. * * * If we could consider the'agreement a mortgage merely, then, as personal property, it would be taxable. As the agreement cannot be construed into a mortgage, nor as creating a debt, but being a conditional sale only, we must 'hold that it is not subject to taxation. If it be claimed that the agreement is a ‘credit,’ and therefore taxable, the claim is defeated by the definition given to ‘ credit ’ by the tax law, as follows:
“‘The term “credit,” when used in this a.ct, shall mean and include every demand for money, labor, or other valuable thing, whether due or to become due, but not secured by lien on real estate.’
“We do not think the agreement creates a debt, but, if any demand for money is created thereby, it is secured on real estate, and therefore not a ‘ credit,’ within the statute.”

This reasoning has no application to the case at bar. The contracts under consideration, construed according to the laws of Michigan, as they must be, do not “set forth a conditional sale only,” but do, as we have already shown, transfer an equitable title to the vendee. Under the laws of Michigan, credits are taxable, though they are secured by a lien on real estate.

" It is also insisted by defendant’s counsel that to tax both the property contracted to be sold and the credit in question is such a double taxation as to violate the constitutional provision requiring uniformity. It is to be noted that in this case the obligation to pay the taxes upon the property rests not upon the vendor (the defendant), but upon the vendees. Therefore the argument advanced in support of this contention is precisely the argument which has been advanced to prove that the taxation of credits secured by mortgage and of the land covered by the mortgage is unconstitutional. The decision of this court upholding the constitutionality of such taxation (Attorney General v. Supervisors of Sanilac Co., 71 Mich. 10 [38 N. W. 639]) is controlling and decisive of this question.

The judgment of the court below will be affirmed, with costs.

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

Grant, J.

I concur in the opinion of my Brother Carpenter, for the reason that the defendant had relieved itself from the payment of taxes upon its lands, specified in .the land and timber contracts, and had imposed that duty upon its vendees. This is not a case where the landowner contracts to sell his land, which must still be taxed to him, and from the payment of taxes upon which he has not relieved himself by transferring that obligation to another. In such case I am not prepared to hold that the^ taxation to the landowner of’ both his land and the contract to sell it would not be double taxation and void.


text:
    JUNE v. LABADIE.
    1. Lost Letters — Parol Evidence.
    Where defendant gave plaintiff notice to produce all letters written by her to plaintiff between certain dates, evidence that she had written letters not produced, and destroyed some of those received by her at plaintiff’s request, sufficiently accounts for the loss of the letters to justify parol evidence of their contents.
    2. -Contracts — Married Women — Separate Estate.
    A contract by a married woman to pay for the board of an adult sister and her children does not relate to her separate estate, and is void.
    3. Instructions to Jury — Promissory Notes — Maker and Indorser.
    In an action on a promissory note against the maker and indorser, an instruction which assumes that the defendants are sued as joint makers is erroneous.

      4. Same — Want op Evidence.
    An instruction that a certain agreement to pay for the board of a third person would constitute a set-off against a promissory note should not be given where there is no evidence to support such an agreement.
    Error to Wayne; Rohnert, J.
    Submitted November 21, 1902.
    (Docket No. 113.)
    Decided January 6, 1903.

      Assumpsit by Mary J. June against Sophie E. Labadie and Joseph A. Labadie on a promissory note. From a judgment for defendants, plaintiff brings error.
    Reversed.
    Plaintiff and defendant Sophie are sisters. The suit »was commenced in justice’s court upon a promissory note, which reads as follows:
    “$142.04. Detroit, Mich., January 2d, 1893.
    “ One year after date I promise to pay to the order of Mary J. June one hundred and forty-two and 04/100 dollars, at 74 Buchanan street, Detroit, Mich., with interest at six per cent, per annum. Value received.
    [ Signed], “ Sophie E. Labadie.”
    It was indorsed, “This note is to replace one of like purpose and amount that has been lost.” It was also indorsed by the defendant Joseph, Sophie’s husband. Under an appeal to the circuit court, a jury rendered a verdict for defendants.

      A. G. Pitts, for appellant.

      John W. McGrath, for appellees.
   Grant, J.

(after stating the facts). Plaintiff lived in New York and defendants in Detroit. The main defense is a set-off for the board of a Mrs. Kelly, their sister, and her children. Defendants claim an agreement made by letters between Sophie and the plaintiff, by which the plaintiff agreed to pay $5 a week for the board of Mrs. Kelly and her children, and that they boarded with her 84 weeks. Defendants gave plaintiff notice to produce all letters written by defendants, or either of them, to her between September 1, 1895, and May 8, 1897. In obedience to such notice certain letters were produced. Defendants also produced certain letters written by plaintiff to defendant Sophie. These letters are not of themselves sufficient to establish the contract claimed. Defendant Sophie was then permitted, under objection, to state the contents of other letters written by her to the plaintiff and those received by her from the plaintiff. She testified that she destroyed most of the letters received from the plaintiff because plaintiff requested her to do so. She stated the contents of one of them as follows:

“In the letter she said that they [meaning Mrs. Kelly and her children] could stay with me, and make a visit, and it would not cost me any more for rent, and she would pay $5 a week for whatever they would eat, so that my husband would not be any money out of pocket.”

Witness then continued:

“I replied, under those conditions they could come; and they came, and remained a year and nine months.”

Plaintiff denied writing such a letter or receiving such a letter from the defendant. While such testimony of written documents is very unsatisfactory, yet we,think their loss was sufficiently accounted for to justify parol evidence of their contents. It is also urged that there was no proof that these letters were mailed, and that, therefore, the testimony was incompetent. As the case will be reversed upon other points, we need not determine this.

The court should have instructed the jury that the plaintiff, being a married woman, had no powder to make the contract which defendants claim. It had no reference to her separate estate. It did not provide any consideration moving to her. She was to receive nothing. The married woman’s act does not remove from her all disability to make contracts. It removes only the disability to make iihose which relate to her separate estate. She may make a valid contract with a physician for medical services to be rendered to herself and her daughter by a former marriage. Such contract is for her benefit. Goodman v. Shipley, 105 Mich. 441 (63 N. W. 412). She may bind herself and her- estate by the purchase of goods for her minor children (Hirshfield v. Waldron, 83 Mich. 116 [47 N. W. 239]), and for necessaries purchased for family use (Campbell v. White, 22 Mich. 178). In these cases the title to the goods passed to her, and became her separate property.

“ Her promise to pay must be based on a consideration in the shape of property. She has no power to make contracts except concerning her separate estate, which must be either by making agreements concerning property already possessed, and referring to it, or else concerning property acquired by the contract, or in consideration of it.” Johnson v. Sutherland, 39 Mich. 579, 580.

In this case no property passed. Her estate was not to' be benefited. She was under no legal obligation to take care of her sister. The contract, by no possibility, could benefit her or her estate. It was a contract simply to pay out money for another to the depletion of her estate. Such contracts are not within the married woman’s act.

The court instructed the jury as follows:

“If you should not be satisfied from the evidence that this is a loan made by Mary June to Sophie Labadie individually— If you are satisfied that it was individual, that the consideration was to her individually, then the plaintiff is entitled to recover; but if you determine that the loan was made to Sophie E. Labadie and Joseph Labadie for the benefit of both of them, then there cannot be a recovery on this note, because, it being sued against them jointly, there is a joint obligation, which can only be sustained in case you find that the obligation, so far as Labadie is concerned, was simply that of an additional guarantor ; that is, by finding that the consideration passed to Sophie Labadie for herself. ”

The principle of law involved in this instruction may be correctly stated. The vice of the instruction lies in the facts assumed. I find no evidence in the record that this loan was made to the two jointly, or that the defendants were sued as joint makers, or that they were in fact joint makers. Prima facie one was maker and the other indorser. The only reference in- the record to the declaration is found in the justice’s return in the following language :

‘ ‘ The plaintiff declares in assumpsit on all the common counts, and especially on a promissory note filed.”

This is not a declaration against the defendants as joint makers, but as maker and indorser.

The alleged contract for board was not made with the two defendants jointly. The contents of the lost letters, as testified to by Sophie, which it is claimed established the contract, contain no reference whatever to any promise on the part of plaintiff to Joseph. They refer solely to a personal transaction between the two sisters. The only defense interposed is, Was there a contract for the board of Mrs. Kelly, made between plaintiff and defendant Sophie ? If there was, and it was valid, the offset was. sufficient to defeat a judgment. Any defense found valid against the maker of course releases the indorser. Under the present record defendant Sophie is maker of the note and defendant Joseph is liable as indorser.

The court instructed the jury that if Mrs. Kelly, Mrs. June, and Mrs. Labadie made .an arrangement by which Mrs. Kelly was to board with Mrs. Labadie, and Mrs. June agreed to pay $5 a week for it, such a contract would be binding, and sustain the defendants’ set-off. Plaintiff’s counsel conceded that, if this were the arrangement, it would be binding. The objection to the instruction is that there is no evidence upon which to base it, and we find none in the record.

Judgment reversed, and new trial ordered.

The other Justices concurred.


author: Carpenter, J.

text:
      MORLEY v. QUIMBY.
    Real Estate — Fixtures—Mortgage.
    A mill and milling machinery placed upon land by one occupying under a contract of purchase become part of the real estate, and are covered by a subsequent mortgage of the land.
    Appeal from Kent; Wolcott, J.
    Submitted December 2, 1902.
    (Docket No. 135.)
    Decided January 6, 1903.
    Bill by Clara S. Morley, administratrix de bonis non of the estate of George I. Quimby, deceased, against Rmeline K. Quimby, Alice F. Uhl, executrix of the last will and testament of Edwin F. Uhl, deceased, John T. Byrne, and others, for the foreclosure of a mortgage. From a decree for complainant, defendant Uhl appeals.
    Affirmed.

      Taggart, Denison & Wilson, ¥or complainant.

      Burlingame, Bélden & Orton, for appellant.

      T. J. O'Brien and J. H. Campbell, for defendant Byrne.
   Carpenter, J.

This suit was commenced in the circuit court for the county of. Kent, in chancery, for the foreclosure of a mortgage covering lots 82, 83, 84, and 85 of the Coit & Curtis partition plat in the city of Grand Rapids. The only question in controversy is whether or not said mortgage covers the mill and milling machinery therein, standing upon said property.

This mortgage was given by George I. Quimby, complainant’s intestate, on the 10th day of May, 1888, to George B. Warren and John A. Manning, executors of the estate of George B. Warren, deceased. It was given to pay a part of the purchase price of'said property, which, on said 10th day of May, 1888, was conveyed to said George I. Quimby by Evelyn L. Hatheway, as executrix of the will of, and universal legatee of, James S. P. Hatheway, deceased. On September 10, 1894, complainant purchased said mortgage with funds of the estate of said George I. Quimby, deceased.

When said George I. Quimby obtained said deed and made said mortgage, the mill and milling machinery in question were standing on the mortgaged property, and being operated by Edwin F. Uhl (testator of defendant and appellant Uhl), as assignee of Ichabod L. Quimby (the father of George I. Quimby). Said James S. P. Hatheway acquired the property August 30, 1881, by purchase at the foreclosure sale of a mortgage given by said Ichabod L. Quimby. When this foreclosure sale occurred, said Uhl, as assignee aforesaid, was in possession of the mortgaged property, operating a mill belonging to the assigned estate. After the foreclosure he continued his occupancy, and carried on business as theretofore. On the 21st of October, 1881, the mill took fire, and was partially destroyed. In 1882, the mill and milling machinery in controversy were constructed by Uhl, at a cost of about $15,000, out of funds of the assigned estate, and by the use of some of the machinery formerly used in the burned mill.

It was decided by this court in the case of Quimby v. Uhl, 130 Mich. 198 (89 N. W. 722), that after the 1st of July, 188?, when the last of the debts of Ichabod L. Quimby was paid, the title of the assigned property vested in the assignor, said Ichabod L. Quimby.

The court below found that, after said James S. P. Hatheway acquired title to said premises at said foreclosure sale, “the said Edwin F. Uhl, assignee as aforesaid, remained in possession of said premises and continued the business on said premises * * ' * under an arrangement with said Hatheway by which the said premises were to be occupied by said Edwin F. Uhl, assignee, and conveyed to him, or to said Ichabod L. Quimby, or to such person as the said Ichabod L, Quimby or Edwin F. Uhl, assignee,, should direct;” and “that it was the intention of the parties to said $5,000 mortgage, and of said Edwin F. Uhl, assignee, and of said Ichabod L. Quimby, that said $5,000 mortgage should cover said premises, including all buildings thereon, and including the boiler, engine, and machinery contained in said factory or mill;” and, in accordance with these findings, it was decreed that “the lien of said mortgage extends to all of the buildings and improvements on said premises, including said mill or factory, and the engine, boiler, and all machinery in and about said mill or factory, and all fixtures and appliances designed for use in said factory building.” From this decree defendant Uhl appeals, contending that neither of said findings is warranted by the testimony in the case.

As Edwin F. Uhl, Ichabod L. Quimby, George I. Quimby, and James S. P. Hatheway all died before this suit was commenced, we have no direct testimony to prove the arrangement under ‘ which said Uhl continued his occupancy of the premises in suit after the foreclosure sale in August, 1881. That arrangement is, however, sufficiently proved by the circumstances of the case, and the answer of said Uhl in the case of Quimby v. Uhl, heretofore referred to. In that answer, Mr. Uhl said:

‘ ‘ I deny that, after the destruction of the mill standing on the property, I, without leave, caused to be erected on the said premises another mill; but I insist that such mill ’was reconstructed in pursuance of a valid agreement with the parties in interest, and that said mill has, since its reconstruction, been continuously and profitably operated for the benefit of the said Ichabod L. Quimby and the parties in interest, and that said transaction of the repurchase, after foreclosure, in the name of the said George I. Quimby, was in pursuance of an arrangement between him and the said Ichabod L. Quimby. * * * I say that the negotiations for perfecting the title to the said Grand Rapids mill property were conducted by the said Ichabod L. Quimby, assisted by the said George I. Quimby ; that said Grand Rapids mill was, and ever since has been, essential to the purposes of said business, without which the same could not successfully have gone forward; that the title thereto was taken in accordance with an arrangement between the said Ichabod L. Quimby and the said George I. Quimby; and, in my opinion, the title was taken in the name of the said George I. Quimby in the expectation, entertained by both, that some time in the future, on just and equitable terms, the said George I. Quimby would become the owner of the Quimby property and business. His death intervening, there was no consummation in that regard. * * * It was always my understanding that the said Ichabod L. Quimby was the real, substantial owner, but that, by some arrangement between himself and George, the title was held by th¿ latter. ”

And:

“ That the property * * . * was purchased for the benefit of the assigned estate, and paid for out of the proceeds of the business.”

The agreement under which said Uhl continued his occupancy must have been, and therefore was,' either a contract of sale or a lease. The circumstances are inconsistent with a lease. It is hardly conceivable that Mr. Uhl should have expended $15,000 of trust funds in constructing and equipping a mill, so “essential to the purposes of the business,” without being assured of a right to continue its use, or that he made such expenditure with the intention of such a partial destruction as would result from its being detached and removed.

The conduct of Mr. Hatheway, and, after his death, of his personal representative, is equally inconsistent with the theory of a lease. During the seven years intervening between Hatheway’s purchase at the foreclosure sale and the conveyance to George I. Quimby, said Uhl, though he paid the taxes on said property, paid almost nothing else which could have been applied for its use. That Mr. Hatheway or the Hatheway estate should have permitted the i’ent to go uncollected until this time, if there had been, as appellant contends, only a lease, or a lease with the privilege of purchase (which gave the owner no interest in the improvements made by the tenant, — Osborn v. Potter, 101 Mich. 301 [59 N. W. 606] ), is inconceivable. If, on the other hand, the occupancy was under a contract of sale, and the purchaser had put upon the property improvements to the value of $15,000, there was no risk in letting this account run.

These circumstances, together with the statement of Mr. Uhl in his answer, contained in the above quotation, that such mill was constructed “in pursuance of a valid agreement,” and his reference to the negotiations for taking the title in the name of George I. Quimby as “ perfecting ” the title, convince us of the correctness of the finding of the circuit judge that the occupancy was based on an agreement for a subsequent conveyance. The improvements 'in question, having been made by one in possession under a contract of purchase, became part of the real estate. Michigan Mut. Life-Ins. Co. v. Cronk, 93 Mich. 49 (52 N. W. 1035); Cutter v. Wait, 131 Mich. 508 (91 N. W. 753). A title in them, therefore, passed by the conveyance to George I. Quimby of May 10, 1888, which was covered by the mortgage in suit. It is unnecessary to determine whether or not the conveyance of May 10, 1888, to George I. Quimby merged the interests in said land theretofore separately held by the Hatheway estate and Ichabod L. Quimby. It is sufficient that George I. Quimby thereby acquired the title of the Hatheway estate to the land and improvements thereon to secure the balance unpaid (part of which is represented by the mortgage in suit) on said contract of sale.

Appellant’s counsel insist that said occupancy was not under a contract of purchase, because it is not to be presumed that Mr. Uhl, as assignee, intended the title to these improvements to pass out of the assigned estate into Mr. Hatheway. We do not impute to Mr. Uhl any such intention, nor does it result from our conclusion that these improvements at once became the property of Mr. Hatheway. These improvements became part of the real estate. They enhanced the value of Mr. Hatheway’s security. They belonged, however, to the vendee in the contract, as the equitable owner of the entire property. If the contract was fulfilled, according to its terms, the vendor obtained no benefit whatever from the enhanced value of his security. If the vendee failed to perform his contract, the improvements returned, with the land, to the vendor. It was not so much a violation of Mr. Uhl’s trust to make these improvements upon land which he had contracted to buy for the trust as it would have been to make them upon land in which the trust had only a leasehold interest. In the one case the trust could secure the entire benefit of the improvements, while, in the other, it must lose a part or all of that benefit. Even if it be true that, technically speaking, Mr. Uhl had no authority, as assignee, to contract for the purchase of land, it is more likely that he assumed such power than that he voluntarily took a step which inevitably led to a waste of-trust assets. We attribute to him a regard for the best interests of his trust in concluding that these improvements were made on land which he had contracted to buy for said trust.

It results from this reasoning that the mortgage in suit covers the property in controversy, and that we have, therefore, no occasion to determine the intent with which it was given.

The decree of the court below is affirmed.

The other Justices concurred.


text:
    ALTHOUSE v. McMILLAN.
    1. Contracts — Parol Evidence.
    The testimony of a party to a written contract of sale of certain heading, that the place of delivery was Liverpool, there being no doubtful phrases in the contract, is inadmissible.
    2. Sale — Delivery to Public Carrier.
    Under a contract for the sale of heading at “$6.35 per 100 sets, delivered, less New York rates of freight; terms net 30 days from date of shipment,” the title passes to the purchaser upon delivery of the heading to a public carrier, and the transmission of bill of lading, with invoice attached, to the purchase!’, in compliance with the terms of the contract.
    Error to Saginaw; Snow, J.
    Submitted December 4, 1902.
    (Docket No. 195.)
    Decided January 6, 1903.
    Replevin by Clarence W. Althouse against John G. McMillan and Charles E. Eord. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Reversed.

      T. A. E & J. C. Weadock, for appellants.

      Weadock & Purcell, for appellee.
   Carpenter, J.

Plaintiff brought this action of replevin to recover a car load of heading which defendants had seized under a writ of attachment against one M. S. Daniels. The heading, when attached, was in transit from Clare, Mich., to Liverpool, England, in pursuance of a contract of sale between said plaintiff and said Daniels. The only question in this case is whether, under said contract, the title to said heading had or had not passed to Daniels.

The contract was made by correspondence. Plaintiff agreed to sell and Daniels agreed to buy the heading at “$6.35 per 100 sets, delivered, less New York rates of freight. * * * Terms net thirty days from date of shipment.” The correspondence stated, “Rate to New York is 23 cents per cwt.,” and that plaintiff should “send invoice, with original bill of lading attached, to this [Daniels’] office immediately after shipment. ” When the heading was shipped, plaintiff obtained a bill of lading, and forwarded the same, with the invoice, to Daniels. On the trial the plaintiff was permitted to testify that the language in the correspondence, “less New York rates of freight,” meant that he should “pay the freight at the rate of the New York rates, whatever it may be, and any excess of freight, or anything less than that, is a matter for his [Daniels’] consideration, and not mine. If you please, he might ship a car to Boston, which would take a two cent higher rate of freight than the New York rate. He would simply charge me with the rate at New York, and the excess he would have,to pay; and if he was shipping to a point having a less rate of freight, I would have to pay the New York rate.” He was also permitted to testify, under objection and exception, that the place of delivery was the place designated by the buyer, which in this case was Liverpool, England. The court below decided, as a matter of law, that the title to the goods had not passed, and directed a verdict for the plaintiff.

The testimony of the plaintiff that, under this contract, the place of delivery was Liverpool, was clearly incompetent. This was simply his construction of the contract. The admission of this testimony is not warranted by Christopher v. Hechheimer, 127 Mich. 451 (86 N. W. 959), and similar authorities, which hold that ambiguous phrases in contracts may be shown to have a definite and fixed meaning in trade. The testimony in, question was not based upon any usage of trade.

Without this testimony, we have a contract of sale at “$6.35 per 100 sets of heading, delivered, less New York rates of freight; terms net thirty days from date of shipment. ” This language compels us to reach a conclusion contrary to that of the trial judge. It contains nothing to indicate that a delivery to the carrier was not a delivery to the purchaser, and this court has held that “delivery to a public carrier for transportation to the purchaser is, in the absence of circumstances showing a contrary agreement, usually held to be a delivery to the purchaser through his agent, the carrier:” Kuppenheimer v. Wertheimer, 107 Mich. 77 (64 N. W. 952, 61 Am. St. Rep. 317). The same case is an authority negativing plaintiff’s claim that, because the purchaser had a right to inspect and reject at New York if the heading did not conform to description, the title did not pass on delivery to the carrier at Clare. This case is not, as contended by the plaintiff, governed by the principles of Lingham v. Eggleston, 27 Mich. 324, where it is stated:

“Where anything is to be done by the vendor, or by the mutual concurrence of both parties, for the purpose of ascertaining the price of the goods, as by weighing, testing, or measuring them, where the price is to depend upon the quantity or quality of the goods, the performance of these things is to be deemed presumptively a condition precedent to the transfer of the property, although the individual goods be ascertained, and they are in a state in which they may and ought to be accepted.”

In the case at bar the vendee may reject if the goods do not conform to description, but nothing is “to be done by the vendor, or by the mutual concurrence of both parties, for the purpose of ascertaining the price of the goods.”

Plaintiff relies upon the case of Miller v. Lumber Co., 51 S. W. 615, decided by the court of appeals of Kentucky. This case was like the one at bar in this: That an attachment was levied upon a car load of staves in transit to M. S. Daniels, and the 'case turned upon the question of whether the title passed to- Daniels at the beginning or at the end of the transit. The conclusion Was. reached that “ the evidence [which is not set forth] shows that the-staves were to be delivered to Daniels at Newark, New Jersey,” the end of the transit. Without knowing the evidence which led the court to this conclusion, we can make no use of this authority.

But, in our judgment, this case is not determined by the language of the correspondence respecting delivery. The correspondence contemplated, and there actually was in this case in accordance therewith, a bill of lading procured, which, with the invoice attached, was immediately transmitted to the purchaser. This transfer of the bill of lading passed the title to the property in controversy. Pease v. Gloahec, L. R. 1 P. C. 219; Hooper v. Robinson, 98 U. S., at page 538; Dodge v. Meyer, 61 Cal. 405; Western Union R. Co. v. Wagner, 65 Ill. 197; Benj. Sales, § 399, .subcl. 7; 1 Mecbem, Sales, § 787, subd. 7. It results from these authorities that the title to the goods in question was in Daniels, and therefore that the court should have directed a verdict for the defendants, and not for the plaintiff.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Hooker, C. J.

text:
    CRAMPTON v. NEWTON’S ESTATE.
    1. Evidence — Admissions—Promissory Notes.
    The uncontradicted testimony of a witness that defendant’s testatrix told her that she had purchased notes of claimant, and given her own notes in payment, is sufficient to establish such fact.
    2. Same — Married Women — Contracts.
    The undisputed testimony that a married woman received money to the full amount of notes given for it establishes the fact that the contract was one a married woman has power to make.
    3. Contracts oe Married Women — Purchase of Property.
    Promissory notes given by a married woman in payment of the purchase price of notes, though the maker of the latter notes was insolvent, being given for the purchase of property, relate to her separate estate, and are valid.
    4. Evidence — Claims Against Estates — Legacy.
    The fact that testatrix left a legacy to her mother is inadmissible to show that the deceased had not purchased notes given by the mother.
    5. Same — Married Women —Notes —Consideration—Question for Jury.
    ■Where the uncontradicted testimony shows that a deceased person (a married woman) gave her notes in payment for notes purchased of claimant, the question of a valid consideration for her notes need not be submitted to the jury.

      Error to Genesee; Wisner, J.
    Submitted October 9, 1902.
    (Docket No. 28.)
    Decided January 27, 1903.
    La vina O. Orampton presented a claim against the estate of Grace H. Newton, deceased, based on certain promissory notes. Claimant prevailed before the commissioners and in the circuit court, and William Newton, administrator with the will annexed, brings error.
    Affirmed.

      William Newton, Black & Roberts, and George R. Gold (Gilbert R. Lyon, of counsel), for appellant.

      Brennan & Cook (John J. Carton, of counsel), for appellee.
   Hooker, C. J.

William Newton, administrator, has appealed from the allowance of a claim against the estate of his deceased wife, Grace H. Newton, of whom he and their infant son were the only heirs. The claim consisted of two promissory notes bearing the signature of Grace H. Newton, produced by the claimant, a maternal aunt of the deceased. The validity of the consideration for these notes was questioned, it being claimed that they were void, for the reason that they were given by a married woman without authority of law.

The claimant’s attorney called a sister of the deceased, one Jessie Hughes, who testified that Mrs. Frances Hughes, the mother of herself and deceased, executed and delivered to the claimant and her husband, respectively, three promissory notes for money which she borrowed from the claimant. One was dated March 8, 1892, for $328.28, and one for $397.51, dated February 1, 1892, and another for $100, dated December M, 1887. Grace Hughes married William Newton on December 27, 1892, in accordance with an ante-nuptial contract, whereby he promised to pay her $10,000 at his death if she were then his wife. Jessie Hughes testified further that, after the marriage of Grace, she was told by her that she had purchased from the claimant the aforesaid notes of her mother, and had given her own note or notes for them. It was also shown that the Frances Hughes notes were in her possession, and they were found among her papers after her death. The claimant also testified that she loaned money to Frances Hughes, and that she took her notes, before mentioned, therefor. There is evidence tending to show that Grace Newton was an infant at the time her notes were dated, and that was the only question left to the jury. A verdict being found for the claimant, the administrator appealed.

The following errors are assigned as a reason for reversing the order of the circuit court:

1. That there was no evidence that Grace purchased the notes given by her mother.
2. That it does not appear that those notes were valid, for the reason that Frances was a married woman, and it is* not shown that she gave them for a lawful consideration, and, if not valid, the notes given by Grace were without consideration.
3. That Grace Newton’s notes are not shown to have been given for a lawful consideration, her mother’s notes being worthless, and it not appearing that she had any separate estate at that time.
4. That the court should have permitted the introduction of Grace Newton’s will, wherein she provided for a legacy of $2,000 to her mother, Frances Hughes.
5. That the court should have permitted the jury to find that no valid consideration was given to Grace Newton for her notes.

The undisputed admission of Grace, that she had purchased the notes of Frances Hughes, established that fact, and justified the judge in so stating to the jury.

The same may be said as to the consideration for the notes of Frances Hughes, it being undisputed that she received the full amount of their, face for them from her sister, the claimant. Mrs. Crampton was competent to testify to this, as it does not appear that Grace was present. Even if she were shown to have been present, the testimony of Jessie Hughes establishes the fact, and it is uncontradicted.

It is settled that the purchase of property is a valid consideration for a married woman’s note. A promissory note is property. The fact that the maker may be irresponsible does not change the rule that one buying a note buys property.

The offer of the will to show that Grace had not bought her mother’s notes was properly refused. We do not see that the fact that she left her a legacy of $2,000 throws any light upon the subject.

We have already shown that, in view of the uncontradicted testimony that Grace said she bought her mother’s notes, giving her notes therefor, the jury'should not have been permitted to find that she received no consideration for her notes.

The order of the circuit court is affirmed.

Moore, Grant, and Montgomery, JJ., concurred. •


author: Grant, J. Per Curiam. Grant, J.

text:
    CORLISS v. VILLAGE OF HIGHLAND PARK.
    1. Municipal Corporations — Special Assessments — Councilmen — Disqualification.
    A member of the common, council of a village incorporated under chapter 87, 1 Comp. Laws, who is the owner of land within a special assessment district, is not thereby disqualified from acting with the council in establishing the district and ordering the assessment.
    2. Same — Excessive Assessment.
    A village sewer assessment, levied under 1 Comp. Laws, § 2856, amounting to 12£ per cent, of the assessed value oi the property in the district, is void as to the excess over 5 per cent., which should have been assessed upon the village at large.
    3. Same — Invalid Assessment — New Assessment.
    Where a village council imposed the entire tax upon the property of a special assessment sewer district, in excess of the amount permitted by statute, it might correct the irregularity by making a new assessment for the same purpose. Section 2843, 1 Comp. Laws.
    4. Same — Power of Court to Compel New Assessment.
    Where sewers have been constructed in a village, and the special assessment therefor is invalid because exceeding 5 per cent, of the value of the property in the sewer district, the court will compel the village council to make a new assessment, and to levy the excess upon the village at large.
    5. Same — Village Council — Power to Borrow.
    Under section 2872, 1 Comp. Laws, a village council may borrow money in anticipation of a special assessment, but not to exceed the amount of such assessment.
    6. Same — Special Assessments — Sewers—Paving.
    Where under 1 Comp. Laws, § 2856, providing that no assessment for more than 5 per cent, of the valuation of the property in any special assessment district shall be made in any one year for sewers, paving, grading, etc., a small portion of the land included in a sewer assessment district had been also included in a paving assessment district, but the owners of such lands made no objection to the assessment, the court, in ordering a new assessment, refused to deduct the amount of the paving assessment from such per cent, of the value of the property in the sewer district in determining the amount chargeable to the lands of complainant, which were not included in the paving district.
    7. Same — Assessment for Period of Years.
    A village organized under chapter 87, 1 Comp. Laws, has no power to extend a special assessment over a period of years.
    Appeal from Wayne; Brooke, J.
    Submitted October 14, 1902.
    (Docket No. 6.)
    Opinion filed January 27, 1903.
    Supplemental opinion February 25, 1903. Rehearing granted April 28, 1903. Reargued May 12, 1903. Former decision affirmed June 15, 1903.
    Bill by John B. Corliss against the village of Highland Park and William H. Davison, village treasurer, to restrain the collection of a special assessment. The Detroit Savings Bank intervened as the owner of a warrant payable from said assessment. From the decree rendered, all parties appeal.
    Modified.

      In 1899 the common council of the village of Highland Park took proceedings to establish sewer district No. 17, and to construct a sewer in the district. The expenses of the sewer were fixed at the sum of $14,531.44, all of -which was assessed upon land in the district. Complainant owned property in this district, which was assessed for the construction of this sewer in the total sum of $1,483. The land in this district which fronted on Woodward avenue was also assessed during the year 1899, prior the proceedings to establish the sewer district, for the sum of $4,475.85, for paving Woodward avenue. The assessed valuation of the property in district No. 17 on the assessment roll of the village of Highland Park for the year 1899 amounted to the sum of $169,003. The lateral sewers in district No. 17 were actually constructed and completed, and the contract for the building of the same was let to George E. Currie. The assessment roll for the paving of Woodward avenue was confined to the lots immediately fronting on Woodward avenue, and it is claimed by the defendants that the sewer assessments were limited to the lots upon the side streets. The assessment roll and the warrant for the collection of such special assessment were duly placed in the hands of the village treasurer, and at the time this bill was filed he was taking proceedings to' collect the same. Advertisements asking for bids for the construction of the sewer were published in the Free Press and Detroit Tribune, published in the City of Detroit, Mich. Notices of review of assessments were posted in the village of Highland Park in pursuance of the resolutions adopted by the common council of the village.
    About the middle of April, 1900, complainant received a letter from the treasurer of the' village of Highland Park, stating that his lots had been assessed for the sum of $1,483.80. He then brought this suit against the village of Highland Park and William H. Davison, treasurer, to restrain the collection of these taxes. After suit was brought, about the 29th of June, 1901, the Detroit Savings Bank filed a petition in the circuit court for the county of Wayne, asking leave to intervene in the case, claiming that it was the owner of an order or warrant dated January 27, 1900, issued by the village of Highland Park, to be paid out of the fund to be raised in this assessment district, and on the 29th day of June, 1901, an order was made permitting the bank to intervene as a defendant. The case was tried, and on the 3d of July, 1901, a decree was rendered, which decreed that $1,083 of the said tax was excessive, and it was set aside, and that the complainant should pay into court the sum of $400, with interest at 5 per cent, from the 12th of April, 1900, and that upon such payment the land should be released and discharged from all liability for the cost and expense of the construction of the sewer, and that the defendants be perpetually restrained from collecting said tax. The complainant paid the $400 into court as required by the decree. The defendants appealed from this decree. Complainant is willing to abide by the decree, but, for-the purpose of protecting his rights in the case, has also appealed.

      Bacon & Yerkes and O. I). Joslyn, for complainant.

      Wilkinson & Younglove {James Oosslett Smith, of counsel), for defendant village of Highland Park.

      Sidney T. Miller and James Oosslett Smith {Wilkinson & Younglove, of counsel), for defendant Detroit Savings Bank.
   Grant, J.

{after stating the facts). Is the assessment void because two of the members of the common council were owners of land in the assessment district? The law under which the defendant village is incorporated provides that no tax or assessment shall be imposed, or any public improvement ordered, unless by a concurring vote of two-thirds of the trustees-elect. 1 Comp. Laws, § 2752. The council, by appropriate resolution, fixed the assessment district, which included lands belonging to these two councilmen. Then the board of assessors, provided for by section 2832, 1 Comp. Laws, met, made the assessment, and reported the same to the common council. The council and the board of assessors met as a board of review. No objection was made to the assessment, and it was unanimously confirmed by the council. If these two councilmen were disqualified, then the assessment is void, because their votes are essential to make the necessary two-thirds. Counsel for complainant insist that they were disqualified, within the principle of the following decisions of this court: Peninsular R. Co. v. Howard, 20 Mich. 18; Stockwell v. Township Board of White Lake, 22 Mich. 341; Wilson v. Township Board of Burr Oak, 87 Mich. 240 (49 N. W. 572); Locke v. Wyoming Township Highway Commissioner, 107 Mich. 631 (65 N. W. 558); Lewick v. Glazier, 116 Mich. 493 (74 N. W. 717). They also cite cases from other courts.

None of these cases involve this question. In Peninsular R. Co. v. Howard, two of the jurors were stockholders of the plaintiff company. In Stockwell v Township Board of White Lake, a member of the township board was interested in one of the orders involved in the litigation. In Wilson v. Township Board of Burr Oak, it was held that two members of the board were disqualified because they were interested in laying out the highway in dispute, and had already prejudged the case by expressing - their opinions. In Locke v. Wyoming Township Highway Commissioner, two members of the township board were held disqualified because one had made an affidavit that the highway was a public necessity, and the other had stated that he would decide it as he had done before. In Lewick v. Glazier, three of the village trustees were stockholders of the electric-light company, which made a contract with the village through the common council.

There is no more reason why the councilmen in this case were disqualified than they would be if the assessment district included the entire territory of the village. Supervisors and assessors of all municipalities are generally taxpayers, and have it in their power to favor themselves in assessing their owh property; bnt this does not disqualify them. Ex necessitate, municipal officers must thus be more or less pecuniarily interested. If members of village boards, generally few in number, are disqualified to act in establishing assessment districts because they own land to be affected by an assessment, it would be necessary to make some other provision for determining when and how they should be established. The legislature has never made any other provision, and it is fair to assume that it never contemplated that such officers would be thus disqualified. There is no claim that any member of the board of assessors was interested, or that that board acted improperly in any respect. These two conn oilmen would naturally be interested in keeping their lands out of the assessing district, but they were placed within it. They had nothing to do with making the assessment. They voted to confirm the report of the board of assessors, whose action is not in any wise attacked. We think they were not disqualified.

Section 2856, 1 Comp. Laws, provides that the assessments in sewer districts, etc., “shall not exceed in any one year five per cent, of the assessed value of the property in the district chargeable with such expense. ” The assessment amounted to 12]- per cent. The court held it void as to the excess of 5 per cent. Section 2835 of the same act provides that “in no case shall the whole amount to-be levied by special assessment upon any lot or premises .for any one improvement exceed 25 per cent, of the value of such lot or land as valued and assessed in the last preceding tax roll. Any cost exceeding that per cent., which would otherwise be chargeable on such lot or premises, shall be paid from the general funds of the village. ” These two sections must be construed together. So construed, one fixes the limit to the amount of the assessment; the other fixes the limit which shall be assessed in any one year. No attempt was made to spread it over various years, as was done in Boehme v. City of Monroe, 106 Mich. 401 (64 N. W. 204). The assessment in that case was made under the act for the organization of cities, and it contained a provision that any special assessment might be divided into not more than five annual installments. That provision is not found in the village law. Whether the same result would be reached as in that case, if the common council had provided for annual assessments, is not before us for determination. If the common council desired to raise the money in one year, the only way open to them was to assess 5 per cent, against the landowners, and to assess the balance upon the property of the municipality at large.

Section 2833, 1 Comp. Laws, authorizes the council to determine what proportion of the cost of such improvements shall be assessed by special assessment, and what shall be paid from the general funds of the village, or from street district funds. Section 2843 authorizes the common council, in case, in its judgment, any such tax is invalid by reason of irregularity or informality in the proceedings, or if any court of competent jurisdiction shall adjudge such assessment to be illegal, to make a new assessment for the same purpose for which the former assessment was made. The only irregularity consists in attempting to impose the entire tax upon the property of the special district in one year, contrary to the law. _ We think this is clearly a case where the council is authorized to proceed under ■ this statute to correct the irregularity.

The law expressly authorizes the common council to borrow money to make the improvements in anticipation of the special assessment, but not to exceed the amount of such assessment. 1 Comp. Laws, § 2872. The loan from the intervener, the Detroit Savings Bank, is therefore valid.

A very small portion of the land in this special assessment district No. 17, fronting on Woodward avenue, was included in the assessment for the pavement of that street, and the cost of that pavement was deducted by the court from the total amount of this special assessment in order to arrive at the amount held to be a proper charge against complainant. In this we think the court was in error. Complainant’s land was not included in that assessment district. He is therefore not concerned in raising that question. The owners of the land so included are the only ones injured thereby, and they are not here complaining.

Decree will be entered in this court in accordance with this opinion. The case will then be remanded to the court below, with instructions to see that the provisions of the decree are carried out. . 5

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

SUPPLEMENTAL OPINION.

Per Curiam.

After the opinion in this case was handed down, counsel for all the parties interested filed a stipulation requesting the court to determine whether the assessment might be extended over a period of years, as was done in Boehme v. City of Monroe, 106 Mich. 401 (64 N. W. 204). This stipulation was complied with, and oral arguments were submitted. We are all of the opinion that the power to extend the taxes for various years is not conferred by the statute. As we said in the former opinion, Boehme v. City of Monroe was based upon an express statute authorizing such extension. No such provision is found in the village act, and we are not at liberty to infer that it was omitted by mistake. It follows, as stated in the former opinion, that the village council must proceed to assess the excess above 5 per cent, upon the village at large.

ON REHEARING.

Grant, J.

After the former decisions in this case had been rendered, the defendant village applied for a rehearing, claiming that its views as to the legality of the proceedings had not been properly presented to the court, and that the village, under the belief that it was not interested, but that the contest was one virtually between the complainant, the contractor, and the defendant bank, had intrusted its defense mainly to the counsel for the other parties. Rehearing was granted, and the case has been again fully argued. We see no occasion to change our former opinion. Neither the contractor nor the bank had any contractual relations with the assessment district. The contracts with the contractor and with the bank were both made with the municipal corporation through its trustees. The trustees were clothed with power to order the sewer, to make contracts for its construction, and to borrow the money to build it. The trustees did not exceed their authority. They had power to fix a district, and apportion 5 per cent, upon the assessed valuation in payment thereof, and to assess the balance upon the village at large, or pay it out of its general fund. It must be presumed that the trustees intended to construct this sewer. It was their duty to find out how much they could assess upon the district, and to assess the balance upon the village at large. Those dealing with the municipality'Under such circumstances had the right to assume that its trustees had acted legally, and had done what the charter authorized them to do. The statute contemplates that a sewer is not alone for the benefit of a locality, but is essential to protect the health of all the inhabitants; else it would not provide that a portion of the expense may be placed upon the village at large.

Under the contention of the complainant, both the district and the defendant village have secured the construction of a sewer without any cost to them. Courts can only sanction such a result when compelled to do so by the inexorable rules of law. It is no new doctrine that municipalities will be compelled to do that which their charters give them power to do. Where the law provided that the board of supervisors of a county owing debts which its current revenue was not sufficient to pay “may, if deemed advisable, levy a special tax not to exceed in any one year one per cent, upon the taxable property,” etc., it was held that the law was mandatory, although permissive in form; that it was the legal duty of the corporation to levy the tax; and that, whenever the public interest or individual rights called for the exercise of this power, courts would compel action. Supervisors v. United States, 4 Wall. 435. It was also held in a case very similar to the one now before us that it was the duty of the city to proceed with a new assessment. The court said:

“It is true that, under the contract, petitioner was to be paid from and out of the money to be raised by the assessment, and it is also true that the city did not personally assume the payment for the improvement; but the city did assume the obligation to collect the assessment imposed to pay for the improvement, and that obligation, in connection with the other facts and circumstances in the case, required the city to use all reasonable efforts within its power to make and collect a new assessment to pay petitioner for the labor and materials used in the construction of the improvement, as provided in the contract.” People v. City of Pontiac, 185 Ill. 437, 445 (50 N. E. 1114).

It is also said that, “where a city agrees to pay for certain improvements out of a fund to be raised by assessments upon abutting property, and which the property owners refused to pay, and the city was without authority to enforce, the city is primarily liable.” 2 Smith, Mod. Law Mun. Corp. § 1275, and cases there cited; Commercial Nat. Bank v. City of Portland, 24 Or. 188 (33 Pac. 532, 41 Am. St. Rep. 854); City of Chicago v. People, 56 Ill. 327.

The principle governing this case was enunciated in East Jordan Lumber Co. v. Village of East Jordan, 100 Mich. 201 (58 N. W. 1012), where this court, speaking through Mr. Justice Montgomery, said:

“The village has had the benefit of a full performance by the relator; it has ratified, by auditing these bills, a contract which, as we have said, it had the original power to make; and we think, within settled rules, the village is bound to respond to relator.”

So in this case the defendant village entered into contracts with the contractor and with the bank, which it had full authority under the law to make. It has received the full benefit of said contracts. It made a mistake in attempting to assess the whole cost of the public improvement upon a local district. It had power to assess a portion upon the district and the rest upon the village at large. It was a mistake or irregularity which the law authorizes it to correct. Having received the benefits, the law will compel it to do what it has the power to do.

Our former decision is affirmed.

The other Justices concurred.


text:
    F. H. WOLF BRICK CO. v. LONYO.
    1. Equity Jurisdiction — Bill to Quiet Title — Boundaries.
    Where a party' is in possession of a tract of land, claiming title, to a line which has been recognized and acquiesced in for the statutory period, equity has jurisdiction to enjoin the owner of the adjoining premises from moving the boundary fence upon the premises so occupied.
    2. Same — Ejectment.
    Where a bill to quiet title alleged that defendant moved a portion of the line fence upon the premises, which complainant had occupied under claim of title for upwards of 20 years, and that defendant disputed’ complainant’s title, and defendant, without demurring, answered and took proofs, he could not insist upon the final hearing that he was entitled to have the issue tried in an action of ejectment.
    3. Boundaries — Acquiescence.
    Where a fence has been ■ established and recognized by the adjoining proprietors as on the true line for more than 20 years, such boundary will not be disturbed, although it may not have been originally placed on the true line.
    Appeal from Wayne; Hosmer, J.
    Submitted October 14, 1902.
    (Docket No. 47.)
    Decided January 27, 1903.

      Bill by the F. II. Wolf Brick Company against Andrew Lonyo to enjoin the removal of a line fence. From a decree dismissing the bill, complainant appeals.
    Reversed.
    Complainant and defendant own adjoining lands. The bill of complaint alleges that the line fence between them has been established for more than 20 years; that complainant purchased its land in 1886; that the line fence was then worn out-and broken down in some places, and it erected another fence in place thereof; that such fence*has remained, ever since, and been recognized by the parties as the true line; that on July 17, 1901, defendant attempted to tear down this fence, and did in fact tear down about 100 feet thereof, with the intention of erecting a new line fence 6 feet easterly of the old fence; that complainant is informed that defendant claims that the true line commences at a point 6 feet east of the present line fence; that complainant immediately notified defendant of its rights, and not to interfere with or move the fence. The prayer is for a perpetual injunction against the defendant, prohibiting the removal of the fence. The bill was filed July 18, 1901.
    Defendant answered, denying all tbe material allegations of the bill; alleging that said fence was not on the line; that it had been moved, removed, shifted, and rebuilt a number of'times; that some of the ground (removed for the purpose of making brick) had been taken away, and the fence rebuilt, “but not upon any line that had been established by survey, agreement, or otherwise.” The answer further admits that the defendant did, on July 17th, tear down a part of said fence near the south end, and erect the same upon what he claimed to be the true line, and that he intended to take up all the old fence, and place it upon the line which he claimed to be the true one.
    Replication was duly filed, and proofs taken in open court. The court did not pass upon the merits of the controversy, but dismissed complainant’s bill upon the sole ground that the jurisdiction of a court of equity had not been properly invoked by the complainant.

      Edtvin F. Conely and Orla B. Taylor, for complainant.

      Richard I. Lawson, for defendant.
   Grant, J.

(after stating the facts). The court did not find that complainant was not in possession, but dismissed the bill upon the sole ground that there was a dispute as to the boundary line, which should be tried in a suit at law. That complainant was in possession on the 17th day of July, when defendant commenced to remove the fence, is clearly established by the evidence. It, being in possession, could not bring an action of ejectment; the defendant could. It was his clear duty to do so, rather than to attempt by force to remove this old fence to the line which he claimed. Wilmarth v. Woodcock, 66 Mich. 331, 336 (33 N. W. 400). Complainant was under no obligation to stand by, see the defendant build the fence upon another line, and then bring an action of ejectment. Defendant could not prevent complainant from maintaining this action by the removal of a small portion of the fence. It invoked the aid of the court to restrain this unjustifiable action on the part of. the defendant as soon as it learned that he had commenced such removal. It moved seasonably. The right to maintain this action is clearly sustained by the following decisions of this court: Stewart v. Carleton, 31 Mich. 270; Wilmarth v. Woodcock, 58 Mich. 482 (25 N. W. 475); Vier v. City of Detroit, 111 Mich. 646 (70 N. W. 139); Campbell v. Kent Circuit Judge, 111 Mich. 575 (70 N. W. 141). In Campbell v. Kent Circuit Judge, in an opinion by my Brother Montgomery, the cases relied upon by the defendant to sustain his contention are distinguished from cases like this.

Counsel for defendant cites and relies upon Bresler v. Pitts, 58 Mich. 347 (25 N. W. 311), and Anclries v. Railway Co., 105 Mich. 557 (63 N. W. 526). In Bresler v. Pitts the express object and prayer of the bill were to settle the boundary lines of complainants’ estate. The bill alleged that “the location of the 40-feet line [the line in dispute, described in the deed as “ a line 40 feet above the border of the river at high-water mark ”] is uncertain, and difficult of determination, and that the parties dispute their boundaries.” It was properly held that a bill in equity will not lie for the sole purpose of settling disputed boundaries.

Andries v. Railway Co. is a similar case. The main object of the bill was “to establish the line where the fence is as the true line.” No doubt in fact existed as to the location of the true line. Two former suits brought to this court involving the issue had settled the true boundary line against the contention of the complainant. City of Detroit v. Railroad Co., 23 Mich. 173; Tapert v. Railway Co., 50 Mich. 267 (15 N. W. 450). The other lot owners had built their fences in accordance with those decisions. The railway company not only had not acquiesced in this fence as the boundary line, but had always disputed it.

The language of those cases applies where a boundary line is sought to be established, and not where a party is in possession, claiming as owner, with the line surveyed as the original line recognized and acquiesced in as the true line for from 20 to 30 years. The rule of those cases applies where there is a well-recognized dispute as to the true boundary line, and the purpose of the bill is to ascertain and establish it. Under the allegations of this bill, as well as the proofs, there never was any such dispute until the defendant undertook to remove this fence' by force, and thus compel the complainant to resort to the law when he himself was in position to bring a suit at law in an orderly and proper way if he chose to do it. To give defendant such a right would be a reproach to the law. This case comes clearly within the statute.

Complainant’s bill showed that defendant disputed complainant’s title. If he denied the jurisdiction of the court to test the question, it was his duty to demur to the bill. By answering, he voluntarily submitted this question to the court, and cannot now be heard to deny its jurisdiction. Stockton v. Williams, Walk. Ch. 120, 127. Where possession is alleged, and is denied by the answer, a question of fact as to possession is presented, and we do not hold that in such a case, if the evidence should disclose that complainant was out of possession, a suit in equity could be maintained.

It is unnecessary to go into details upon the merits. We are entirely satisfied that complainant has proved by a clear'preponderance of evidence that the fence had been established and recognized by both parties as on the true line for a period of more than 20 years. Whether this fence was originally established upon the true line is a question foreclosed by the acquiescence of the parties.

“ A long-established fence is better evidence of actual boundaries settled by practical location than any survey made after the monuments of the original survey have disappeared.”
“ Long practical acquiescence in a boundary between the parties concerned may constitute such an agreement on it as to be conclusive, even if it had been erroneously located.”
Diehl v. Zanger, 39 Mich. 601.

See, also, Husted v. Willoughby, 117 Mich. 56 (75 N. W. 279), and authorities there cited.

The decree is reversed, with costs, and decree entered in this court for the complainant.

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

       1 Comp. Laws, § 448.


author: Montgomery, J.

text:
    PURVIS v. SEGAR.
    Intoxicating Liquors -Illegal Sales — Damages—Costs.
    Section 5399, 2 Comp. Laws, gives a plaintiff the right to recover costs in a civil action begun in the circuit court for , the illegal sale of intoxicating liquors, although the damages awarded are less than §100.
    Error to Gratiot; Stone, J.
    Submitted October 16, 1902.
    (Docket No. 78.)
    Decided January 27, 1903.
    Case by Charles E. Purvis against James A. Segar and others for the illegal sale of liquor to plaintiff’s minor son. Prom a judgment for plaintiff, but awarding costs to defendants, plaintiff brings error.
    Reversed.

      Searl & Kress, for appellant.

      John T. Mathews, for appellees.
   Montgomery, J.

The only question presented in this case is which party is entitled to costs in a suit under the civil-damage act, originally instituted in the circuit court, in a case where the recovery is for $100 or less. The circuit judge was of the opinion that the general statute as to costs governed the case, and awarded the costs to defendants. Plaintiff brings error.

In Dikeman v. Harrison, 38 Mich. 617, which was an action by the wife for damages^for sales made to her husband, the court held that, as there was no special statute relating to such a case, the general statute-governed, and, as the recovery was for precisely $100, costs were awarded to the defendant. The court said:

The case is a hard one, and we cannot but think the legislature would have exempted it from this rule if the matter had been brought to their attention.”

When the case of Dikeman v. Harrison arose, there was a statute (Act No. 92, Pub. Acts 1877) which contained the same provision as to actions for damages for sales to minors as-is now found in the general statute, hereinafter quoted; jrat this statute was, of course, not considered in that case. The present statute (2 Comp. Laws, § 5399) reads:

“The damages in all cases arising under this act, together with costs of suit, shall be recoverable in an action of trespass on the case before any court of competent jurisdiction.”

In Theisen v. Johns, 72 Mich. 285 (40 N. W. 727), Mr. Justice Long construed this statute to mean:

“Where the claim for damages alleged in the declaration shall bring the case within the jurisdiction of a court of record, if the plaintiff is entitled to recover at all, he shall at least recover a minimum amount fixed by the statute, and, in addition thereto, his costs of suit.”

It may be said that this language was not necessary to a decision of the case. Nevertheless, it was used in an interpretation of the statute, and evidently fully considered. Moreover, it has undoubtedly been since acted upon by the courts of the State. As this decision was handed down in 1888, we should hesitate to overrule it, even if it were of more doubtful accuracy; but, considering the state of the law when Dikeman v. Harrison was decided, and the expressions of the court with reference to it, we think the inference that this statute was designed to remedy a recognized evil is a fair one, and that Justice Long correctly interpreted the statute.

Judgment reversed, and judgment entered here for costs of both courts in favor of the plaintiff.

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


text:
    FLAWS v. WEST BAY CITY SHIPBUILDING CO.
    Negligence— Fellow-Servants— Defective. Tools — Evidence.
    Plaintiff, while working in defendant’s shop as a puncher, was injured by the fall of a sheet of steel. He claimed that the fall was due to a nut fitting loosely to a bolt, which the foreman of the gang in which plaintiff was working obtained from the foreman of another gang. The latter had picked it up from the floor of the shop, and used it for holding up light plates. Held, that there was no sufficient evidence that defendant had furnished the defective tool to plaintiff for use, and the negligence, if any, was that of a fellow-servant.
    Error to Bay; Shepard, J.
    Submitted November 19, 1902.
    (Docket No. 108.)
    Decided January 27, 1903.
    Case by William Flaws against the West Bay City Shipbuilding Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    Defendant is a shipbuilder, owner of a large plant, and employs a large number of men. It manufactures and uses steel plates weighing from 150 to 1,600 pounds. It is necessary to trim these plates. For this purpose they must be raised about three feet from the ground. This process is called “punching,” and those who do it are called “punchers.” A punch gang consists of five men, the chief of whom is known as the “chief puncher” or “boss,” or, as some of the witnesses called him, “foreman.” Various methods are employed for raising the plates. The one used in this case was to put a bolt through a hole near the center of the plate, screw a nut on the end of the bolt on the under side, attach the bolt to the crane, and raise the plate.. When raised, the men guide it, placing the appropriate part under the punching machine to accomplish the work. The plate in this case was one of the heaviest in use, weighing 1,500 to 1,600 pounds. The plate had been raised and partially trimmed, when, for some reason, the nut came off the bolt, and the plate fell, the end striking the plaintiff at his ankle, and seriously injuring him.
    The only charge of negligence relied upon was that the nut was too large for the bolt. The bolt was procured and identified. A nut was also produced, and claimed to be the nut then used. The eyebolt was three-fourths of an inch in diameter, and the nut produced was thirteen-sixteenths of an inch in diameter, — one-sixteenth of an inch .larger than the bolt.
    These punching machines, called “punches,” are situated in what is called the “punch shed.” There were 13 of the punches in this shed, and 3 shearing machines. The punch shed had its foreman, as also did the other shops.
    One Ribble was the boss or foreman of the plaintiff’s ' gang. When ready to raise the plate, Ribble went to one Dee, the boss or foreman of another gang, and asked for a bolt he had with a ring in it. Dee loaned him the bolt which was used. Dee had used this bolt twice to raise plates of only 150 pounds. Ribble took the bolt and nut, and, before fastening it to the plate, screwed the nut on and off, and testified that it fitted closely. Dee testified that he had had this bolt in his possession for about a month; that he had the ring put in it about two weeks before the accident; that he picked the bolt up from the floor; that he did not know how long it had been in the punch shed; and that he used it twice before the accident on very light plates. Mr. Ribble did not tell Dee how heavy a plate he was to raise. . Dee had the ring put in because the eye of the bolt would not go on the hook of the chain fall. It was customary to throw the bolts on the floor after they were used. Dee did not know how long this bolt had been in use.
    When the plaintiff rested his case, the court directed a verdict for the defendant on the ground that:

      “ There is no sufficient proof that the defendant furnished the particular tool to the plaintiff to use, or to his associates, in the condition in which it was when the injury happened. If there was any negligence, it was the act of a fellow-servant in using the tool. The foreman of the gang where the plaintiff worked went to a distant department, picked up a tool that he thought was sufficient for his purpose, such a one as had been used by the other employé for his purposes, which might be the handling of a lighter sheet of steel, but which seems to be inadequate and insufficient and unsafe for the purposes or use to which it was here put. There is some evidence also that more safety and more security could have been insured in the plaintiff and his co-employés in performing Eheir work; but they used the eyebolt in question, and the injury resulted under such circumstances that I do not think the defendant can be held liable for the injury, and therefore your verdict will be for the defendant.”

      Loranger & Flynn, for appellant.

      Simonson, Gillett & Clark, for appellee.
   Grant, J.

(after stating the facts). In my opinion, the record is barren of any evidence identifying the nut produced in court and screwed upon the bolt as the one used at the time of the accident. No witness even referred to the nut. They identified the bolt solely by the ring. The nut evidently came off with great force. Six or seven hours after the accident, some one brought the bolt to the plaintiff at his house, with a nut screwed upon it. Ribble, plaintiff’s own witness, and the foreman of the gang, testified that, in his opinion, the nut produced in court was not the one used, because he screwed the nut on and off, and it fitted perfectly tight, while the one produced in court was too large.

My Brethren, however, are of the opinion that the case should be affirmed for the reason given by the circuit judge in directing a verdict. We are all of the opinion that the instruction was correct. The declaration, besides alleging as negligence that a bolt of insufficient size was used, also alleges that the threads of the bolt were badly worn, were weakened by work and use, and that the defendant’s employé in charge of its toolhouse gave out to its workmen this bolt of 'insufficient size. Either defect might produce the'result, but that of insufficient size is alone relied upon. Bolts and nuts of different sizes were used in the defendant’s plant. The theory of the plaintiff is that this bolt was in good condition for use with a proper nut, and the nut was in good condition for use with a proper bolt; that some employé made a mistake in selecting the one or the other, and for this mistake the employer is liable. 'Dee had this bolt fixed to accommodate himself in raising light weights, and selected the nut. Mr. Ribble borrowed it to raise a weight nearly equal to the full tensile strength of a nut and bolt properly fitting each other. It required no great skill to determine whether the bolt and nut corresponded in size, and plaintiff’s foreman and fellow-servant made a caréful examination, and determined that they did. Defendant was under no^obligation to keep a man in each room of its establishment to see that its employes used the proper tools. It had furnished safe tools and competent workmen to select and use them, and had thus performed its full duty towards its employés. Wachsmuth v. Electric Crane Co., 118 Mich. 275 (76 N. W. 497). If there was negligence, it was that of a fellow-servant.

Judgment affirmed.

Hooker, .C. J., Carpenter and Montgomery, JJ., concurred with Grant, J. Moore, J., concurred in the result.