text:
    KYSELKA v. NORTHERN ASSURANCE CO. OF MICHIGAN.
    Action — Splitting Cause of Action — Insurance—Recovery of Renewal Commissions Before Accrual.
    The Supreme Court in a former decision (194 Mich. 430) having limited plaintiff’s recovery of commissions on renewals of life insurance, under his contract with defendant, to such commissions as had accrued and were payable at the time he started such suit, since the amount was uncertain and could only be determined after the. expiration of the period, defendant’s contention in this suit for commissions accruing subsequent to the former suit, that plaintiff should have included this demand in the former suit, and that the law will not allow him to split his cause of action into two or more suits, held, untenable.
    Error to Grand Traverse; Mayne (Frederick W.), J.
    Submitted October 17, 1919.
    (Docket No. 78.)
    Decided December 22, 1919.
    Assumpsit by Albert G. Kyselka against the Northern Assurance Company of Michigan for breach of an agency contract. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Fred H. Aldrich, for appellant.

      Patchin & Duncan, for appellee.
   Bird, C. J.

Plaintiff sued defendant and recovered in the trial court a judgment for $1,328.11 for certain commissions on renewals of life insurance which he had theretofore solicited for defendant while in its employ. The defense made by defendant is that this claim for commissions was disposed of by a former adjudication between the parties, and that the trial court was in error in refusing to so instruct the jury. It appears that plaintiff entered into a written contract with defendant on April 6, 1910, whereby he was to become its agent for the purpose of soliciting insurance; that he continued .to work under this contract until September 1, 1914, when he was discharged by the president of defendant on a charge of insubordination. His contract contained the following provision :

“After three consecutive years’ service in the employ of the company under this contract, should the said second party resign his connection with the company under this contract, he shall receive renewal commissions as above for as many years thereafter as he has been in the employ of the company hereunder, provided that paid-for insurance of at least $800,000 has been written by the agency during the first three years of this contract, beginning April 6, 1910.”

Following his discharge he brought suit and recovered his renewal commissions up to August 3, 1915. That case came to this court and is reported in 194 Mich. 430, where a very full statement of the controversy is made. The present suit was begun to recover his renewal commissions from August 3, 1915, to April 19, 1917. It is argued by defendant that the former suit disposed of the claims made in this suit; that plaintiff should have included in the former suit a count for prospective commissions, but having failed to do so, the loss is his, as the law will not permit him to split his cause of action into two or more suits.

Defendant’s counsel is inclined to discuss the case from the standpoint of the ordinary case of hiring followed by a wrongful discharge. Of course, in such a case the servant may institute suit at once and recover for a breach of his contract, or he may wait until the end of the contract period and recover what he has lost by reason of the wrongful discharge. 1 R. C. L. p. 355. But this is not such a case. Plaintiff is not seeking to recover damages for a breach of his contract, nor is he seeking to recover wages which would have accrued had there been no breach of the contract, but he is seeking to recover certain commissions which the contract provides he shall be entitled to after the termination of his contract, or after the period of employment is passed. Under the contract, these commissions are due and payable quarterly, and until the end of the quarter the amount of the commissions is uncertain arid they are not demandable until the end of the period. In the former suit plaintiff was permitted to recover in the trial court commissions for the quarter period ending September 1, 1915. This court held that was error, saying:

“We think the court was in error in entering a judgment in favor of the plaintiff for a full year’s renewal. As before pointed out, the declaration was filed on August 3, 1915, and the last quarter was not payable under the terms of the contract until September 1, 1915. Under the declaration plaintiff could recover only such payments on account of renewals as were had at the time he started his suit.”

We are of the opinion that plaintiff’s present suit is not open to the objection that he should have included in the former suit a demand which was at the time uncertain in amount and one which was not due and payable until a later date. 23 Cyc. p. 443; 1 R. C. L. p. 351.

Taking this view of the matter the judgment of the trial court must be affirmed.

Sharpe, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Bird, C. J.

license: Public Domain

text:
    SPITZLEY v. GARRISON.
    1. Judgment — Issues Raised — Appeal—Entitled to Judgment of Appellate Court.
    Where plaintiffs appealed to the Supreme Court from the decision of the chancellor on several distinct issues adjudicated hy him, they were entitled tcf the judgment of this court upon each question raised.
    2. Same — Rehearing—Denial—Res Judicata.
    Where the decision of the Supreme Court was expressly confined to one of the questions raised, and plaintiffs moved for a rehearing, challenging the court’s attention to the undetermined questions, and the rehearing was denied, held, that such denial must he construed as settling said questions adversely to plaintiffs.
    Appeal from Wayne; Hosmer (George S.), J.
    Submitted October 7, 1919.
    (Docket No. 1.)
    Decided December 22, 1919.
    Bill by Henry Spitzley and another against Earl D. Garrison and others to set aside a sale on execution, and for an accounting. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      Prentis & Mulford, for plaintiffs.

      Walker & Spalding, for defendants.
   Bird, C. J.

This litigation had its beginning in a suit brought by plaintiffs in 1904 against John W. Garrison, the father of defendant Earl D. Garrison, and one Bivard, to recover on certain promissory notes made by Bivard and indorsed by Garrison. The litigation lasted for some time,' it finally being concluded in April, 1909, in favor of plaintiffs. In October, 1905, and while the foregoing suit was pending, Frances Nolan, the mother of John W. Garrison, brought suit against her son to obtain a reconveyance of lots 4 and 5, situate at the northwest corner of Woodward and Baltimore avenues, in the city of Detroit, on the ground that they belonged to her, she claiming that they were conveyed to her son as a matter of convenience in managing her property interests while she was absent from the State. At the conclusion of this litigation she was declared to be the owner thereof and a decree was made ordering a reconveyance. It was also decreed that she was entitled to recover from the said John W. Garrison the sum of $23,611.11, on account of the rents therefrom which he had collected and failed to turn over. This decree was afterwards ■ reviewed by this court and affirmed. Nolan v. Garrison, 151 Mich. 138. After the last-mentioned case was decided but before its conclusion in this court, Frances Nolan caused a levy to be made on an estate in remainder which John W. Garrison owned in certain property at the corner of Cass and Jefferson avenues, and in which she had a life estate, for the purpose of satisfying her money decree. The same was sold at execution sale and bid in by her for the sum of $8,000. After the sale, she sold one-half of the fee thereof to defendants Lasiers and Hubbard and they subsequently mortgaged the same to defendant Harper Hospital, incorporated.

In June, 1911, the plaintiffs filed a bill against Frances Nolan and made the other defendants herein parties defendant, alleging in substance:

(1) That the title to lots 4 and 5 at the corner of Baltimore and Woodward avenues was in John W. Garrison, that he was the real owner thereof, and that the decree which the mother obtained ordering a re-conveyance of these lots was fraudulently obtained.

(2) That even if said lots 4 and 5 did not actually belong to John W. Garrison, the mother permitted^ the title thereof to stand in his name, and he obtained credit on the strength thereof, and that she should be estopped, as against the creditors of John W. Garrison, in claiming that the property was hers.

(3) That the execution sale to satisfy the money decree of Mrs. Nolan on the Cass and Jefferson avenue property was invalid for the reason that John W. Garrison was, at the time, mentally incompetent to manage and care for his property, and was under guardianship.

(4) That defendant trust company had funds which it held in trust belonging to the estate of John W. Garrison, which should be applied to plaintiffs’ judgment.

The defendants in this suit answered and the foregoing claims were made contested issues in the case. The case was heard by Honorable George S. Hosmer of the Wayne circuit court, and he made a holding upon each one of these propositions. His conclusions will be found in the opinion of Mr. Justice Kuhn, which is reported as Spitzley v. Garrison, 201 Mich, at page 363. The conclusion of the chancellor was that plaintiffs were not entitled to recover, and he, therefore, dismissed their bill. .The matter was then presented to this court and was affirmed, the affirmance being placed upon one ground only. In this connection the opinion says:

“After an exhaustive examination of this very voluminous record, we are well satisfied that a decision of the case may very well rest upon the second point, to wit: That there is no evidence upon which the court might properly conclude that the decree in the case of Nolan v. Garrison, 151 Mich. 138, which was affirmed by this court, was obtained by fraud and collusion.”

Following the affirmance of the decision by this court an application for a rehearing was made by plaintiffs in which the attention of this court was called to the fact that while it had disposed of propositions (one) and (two), involving the fraud as to the Woodward and Baltimore avenue lots, it had not determined the other questions, namely: The validity of the execution sale and the determination as to whether the Detroit Trust Company had trust funds in its hands belonging to John W. Garrison. This application was subsequently denied.

Plaintiffs then filed the bill in this case in which they set up substantially the same matters that were set up in the first bill, omitting the charges of fraud with reference to the Woodward and Baltimore avenue property, and insisting and asking for a determination of the questions as to whether the execution sale was a valid one and whether the defendant trust company held trust funds belonging to John W. Garrison estate. Defendants answered this bill claiming, among other things, that those questions had been determined by the former litigation, and when the case came on for hearing, upon motion of defendants’ counsel, a preliminary hearing was held under Circuit Court Buie No. 25, resulting in a holding by the chancellor that the former case was res judicata of the issues in the present one, and the bill was dismissed. Plaintiffs are in this court again insisting that the undetermined questions raised by the former case, and which are again raised in this case, should be determined by this court.

It is argued by defendants that these questions were all in issue in the former case, that they were contested and adjudicated in the trial court, and that while this court, on appeal, placed its decision upon only one ground, there was subsequently filed an application for a rehearing, and the court’s attention was challenged to the undetermined questions. That notwithstanding this the court denied the application and, therefore, the whole case was disposed of adversely to plaintiffs’ contentions.

The following rule has been laid down for testing the question as to whether a matter of law or fact was res judicata:

“A matter or question, either of law or fact, is res judicata, or set at rest, as to adverse parties and their respective privies, if it was a material issue in the proceeding, directly involved, and not merely incidentally cognizable nor collaterally in question, and was adjudicated after a contest, by final judgment on the merits.” 1 Van Fleet’s Former Adjudication, p. 2, approved in LeRoy v. Collins, 165 Mich. 380.

It appears to be conceded that the questions of the validity of the execution sale and the question affecting the trust company were in issue and were material issues in the trial court, and that they were adjudicated after a contest by a final judgment on the merits. Therefore, we must conclude that the adjudication in the trial court was full and final upon all of the material questions raised. But can it be said that there was an adjudication of these undetermined questions in this court? The decision in this court was expressly confined to the one question, and that was the question of fraud. The questions of fraud were distinct, having no such relation to the other questions as that a decision thereon would affect the remaining questions. The questions were squarely raised and plaintiffs were entitled to the judgment of this court on each one of them. Thus far we think plaintiffs’ contention is right. But following this an application for a rehearing was made and this court’s attention was expressly challenged to those undetermined questions, and after a consideration thereof the application for rehearing was denied. This can be construed in no other reasonable way than that this court refused to give plaintiffs any relief upon those undetermined questions. It is quite possible that it would have been better had we written something upon the denial of the application for rehearing, but in the hurry of the work it was not done. We think the" denial of the application for rehearing must be construed as settling the two questions in controversy adversely to plaintiffs’ contention.

The view taken by the chancellor must be sustained and the decree affirmed. No question of practice is involved.

Sharpe, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    ZIMMERMAN v. MAY.
    Process — Summary Proceedings — Substituted Service — Time— Circuit Court Commissioner — Jurisdiction.
    A summons in summary proceedings issued by a circuit court commissioner and served by tbe officer by substituted service on defendant tbe day before tbe time of appearance, did not confer jurisdiction upon tbe commissioner, since tbe statute (3 Comp. Laws 1915, § 13243) requiring tbe service to be made two days before tbe time' of appearance applies as well to substituted as to personal service.
    Certiorari by Fred C. Zimmerman and another against Samuel L. May, circuit court commissioner of Wayne county, to review an order denying a motion to dismiss summary proceedings for want of proper service.
    Submitted October 9, 1919.
    (Docket No. 22.)
    Decided December 22, 1919.

      Rood & Visscher, for plaintiffs.
   Bird, C. J.

Plaintiffs applied to and obtained from this court a writ of certiorari to review certain summary proceedings pending before defendant commissioner in the county of Wayne, in which they were made defendants. The questions raised are directed at the jurisdiction of the commissioner. The summons was issued by the commissioner on February 6, 1919, and made returnable February 11th. The return of the officer discloses the manner and time of service:

“I was not able to find the within named defendant in Wayne county, after diligent search and inquiry. I served the within summons on defendant on the 10th day of February, A. D. 1919, in the city of Detroit, in said county, by leaving a copy thereof entitled as such by me at the defendant’s usual place of abode, with Charles C. Wirth, a person of suitable age and discretion, to whom I read the same and explained the contents thereof.”

The principal point made against the service is that the summons was not served within the time provided by law. The statute which directs the manner of service in such cases is as follows:

“The officer to whom such summons shall be delivered shall serve the same at least two days before the time of appearance mentioned therein, by delivering to the defendant, if to be found within the county, a copy thereof, but if the defendant shall not be found, it shall be served by leaving such copy at the usual place of abode of such defendant, in the presence of some person of suitable age who shall be informed of its contents.” 3 Comp. Laws 1915, § 13243.

Upon motion of plaintiffs the commissioner refused to dismiss the writ. It was his opinion that that part of the section which provides for a substituted service is not qualified by the portion which commands the service to be made at least two days before the time of the appearance.

We are of the opinion that the commissioner was in error in so interpreting the statute. The language of the section clearly indicates that it was the intention of the legislature that parties defendant who were personally served should have two full days’ notice to prepare before the day of appearance, and we think it is equally clear from the wording of the statute that the legislature intended that a person-upon whom substituted service was had should have the same notice before the time of appearance. It would, indeed, be an unreasonable conclusion to reach that the legislature intended a defendant upon whom personal service was had should be entitled to two days’ notice in which to prepare to attend court, and that one who might be temporarily absent from his home should be entitled to less notice, especially since the latter would need more time ordinarily than a person to whose attention the summons was directly called. This service did not confer jurisdiction on the commissioner and should have been dismissed in response to plaintiffs’ motion.

The judgment will be vacated, with costs of both courts to plaintiffs in this suit to be taxed against the plaintiffs in the summary proceedings.

Sharpe, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


author: Sharpe, J.

text:
    PEOPLE, for Use of RYAN, v. BOYES.
    1. Evidence — Oral Testimony — Written Contracts.
    Oral testimony, held, admissible to show the intent of the parties to a subcontract in writing, where uncertainty ■ existed as to whether a certain item of work specified in the original contract was covered by the subcontract, the latter referring to the original contract, incorporating part thereof, but omitting other important parts.
    2. Trial — Proof—Instructions.
    Where defendant submitted no proof as to the' cost of a certain item of work which he had a right to charge to plaintiff’s account, the trial court was not in error in withdrawing same from the consideration of the jury.
    3. New Trial — Appeal and Error — Practice.
    Reasons which might have been presented to the trial court on a motion for a new trial cannot be considered by this court, on error, where no such motion was made.
    On admissibility of parol evidence to show intention of parties to written contract, see note in 17 L. R. A. 273.
    Error to Kent; Perkins (Willis B.), J.
    Submitted October 28, 1919.
    (Docket No. 51.)
    Decided December 22, 1919.
    Assumpsit by the people of the State of Michigan, for the use and benefit of Otis H. Ryan, against David W. Boyes and others on a contract for excavating for a water main. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Charles A. Walt, Ganson Taggart, and Henry T. Heald, for appellants.

      Smedley & Linsey, for appellee.
   Sharpe, J.

On May 10, 1915, the defendant Boyes entered into a contract with the city of Grand Rapids, in which he agreed to install a water main in said city for a distance of about two miles. Bids had been asked for this work, which was to be done in conformity with plans, specifications and blue prints, made a part of the contract.' While a lump sum in payment was fixed in the contract, it was arrived at by computing a number of items which comprised the bids on the labor and material required in executing the work contemplated in the contract. In this contract Boyes agreed “to do all work and furnish all materials for laying a high pressure water main from water works pumping station, to Michigan street,” according to the plans, specifications and drawings theretofore adopted by the board of public works of said city, which were made a part of the contract. The work included the digging of a trench for a 80-inch pipe and installing the pipe therein from Michigan street to a point designated as “Zero” on the drawings. From this point to the pumping station, a 48-inch pipe was to be installed. This particular work was described in the proposal as follows:

“Item 10-A. — For building and installing complete all cast iron pipe and specials, valves and brick masonry necessary to connect the 30-inch pipe to the discharge line at the pumping station, including excavation and back .filling, replacing gravel and brick roadways, removing, replacing and cutting existing pipe lines and all incidental labor and materials, the sum of seven hundred dollars and no cents ($700.00) lump sum.”

For this item, 109 feet in length, a lump sum of $700 had been bid by Boyes. For excavating for the trenches along the rest of the line, he was to receive 69 cents per lineal foot, except where rock was encountered, for which his agreed compensation was $4 per cubic yard. There was a provision for extra excavating, which will be hereafter referred to. The work was to be’ commenced within ten days after the signing of the contract and to be completed on or before December 1, 1915; the time of beginning, rate of progress and time of completion being essential conditions of the contract. The board of public works was given the right, in case it appeared that the contractor was dilatory or did not employ sufficient force, to place additional men and teams on the work and render such assistance as it deemed advisable for the completion of the contract within the time fixed therefor, and charge the expenses thereof to the contractor.

Boyes subsequently associated the defendant Fitzpatrick with him as a partner, and they sublet a part of this work to the plaintiff by a contract entered into on May 17, 1915. This contract reads as follows:

“These articles of agreement, made this 17th day of May, A. D. 1915, by and between D. W. Boyes and James R. Fitzpatrick, of Grand Rapids, Michigan, party of the first part, and O. H. Ryan of Grand Rapids, Michigan, party of the second part,
“Witnesseth: In connection with the installation of that contract known as the East End Water Main contract extending from the city pumping station, at Coldbrook, Monroe and Ottawa streets to the intersection at Michigan avenue and Diamond street.
“The party of the second part agrees to perform the following work: Do all excavating, leaving ditch in a suitable condition to install pipe, valves, fittings, etc., excepting as hereinafter noted; all back filling, removing surplus excavation, removing all gravel where directed, carefully, and place to one side.
“The party of the second part agrees to remove dirt from ditch to subgrade after ditch has been refilled and leave same for replacing of gravel. Party of the second part agrees to put gravel back in the ditch if same can be put back with teams and scrapers, excess excavation to be loaded and hauled away.
“Party of the second part will put all pipe, valves and fittings into the ditch and handle same until bell and spigot ends are properly placed together (by party of the first part), remove all surplus material from streets after job is completed, excavate all rock.
“At creek crossing excavation will be done up to the walls of the bridges, pipe, etc., handled and swung over the sides of the bridge. The excavation in the creek and other work necessary will not be done by the party of the second part. At railroad crossings where tracks are removed, excavation, back filling, etc., will be done as heretofore mentioned. Where tracks are not removed excavating and loading will be done by parties of the first part, but the excavated material will be hauled and re-hauled by party of the second part. This provision applies to all work at street crossings.
“All underground work, if any, in the line of the( ditch or within the four feet in the nature of water pipe, gas pipe, laterals, telephone service, or any underground wiring will be taken care of by the party of the first part (without expense to the party of the second part), unless damaged by the party of the second part. If anything is disturbed outside of line of ditch or outside of the four feet by the party'of the second part, same will be taken care of by the party of the second part.
“All gravel excavated will be saved and stored if desired by the party of the first part.
“The party of the second part agrees to begin work within fifteen (15) days and have same completed not later than November 1st, A. D. 1915.
“The party of the first part agrees to pay the party of the second part at the rate of fifty-five (55) cents per lineal foot of ditch for all material excavated.
“For rock excavation the party of the first part agrees to pay to party of the second part four dollars ($4.00) per cubic yard.
“The party of the second part in performing his work agrees to do so in entire accordance with plans and specifications and under the direction of the engineer.
“The party of the second part can shore ditch at his discretion, unless shoring is required by the engineer.
“The party of the second part agrees to furnish to the party of the first part satisfactory surety bonds, the same as the first party furnished the city of Grand Rapids, namely, the sum of 25% of value of the contract. These bonds to be by a surety company or by two acceptable individuals.
“The terms of payment are as follows:
“Party of the second part to be paid 85% of work performed up to the time of the preparation of each estimate and to be paid his pro rata share out of each estimate received by the party of the first part.”

The meritorious question presented is whether or not plaintiffs contract included the excavation work between the point designated as “Zero” on the drawings and the pumping station, a distance, as before stated, of 109 feet, and particularly described in “Item 10-A.” The plaintiff was somewhat delayed in his work, and the defendants Boyes and Fitzpatrick did all of the work under this item and also in extending the 30-inch main from “Zero” easterly for 361 feet. They seek to charge the plaintiff with the expense of this work, and, while he admits a liability for the 361 feet easterly of “Zero,” he denies that any part of the work required to be done in “Item 10-A” was included in his contract. The defendants kept no separate account of the cost of the work done by them under “Item 10-A” from that done easterly of point “Zero.”

The trial judge admitted, over defendants’ objection, parol evidence tending to show the intent of the parties with reference to this item, and submitted the matter to the jury to determine whether the work in dispute was intended to be included in plaintiff’s contract. He also' instructed the jury that if they did not so find they should not consider the cost incurred by defendants for the work done easterly from point “Zero” as there was no proof submitted on which they could in any way base a division of the entire cost of the work by defendants at the west end of the job. The plaintiff had verdict and judgment for $3,709.69, and defendants appeal.

There are many assignments of error, but the defendants discuss them all under two heads:

First. Whether it should have been left to the jury to construe this contract on account of its ambiguity or uncertainty, and,

Second. Should the defendants lose their entire set-off (or practically all of it) through the confusion of the accounts.

1. Counsel insist that the words used in the written contract defining the work to be done by plaintiff are in no sense ambiguous or uncertain, and that the intent of the parties as expressed therein must govern. It thus becomes necessary to determine the undertaking of plaintiff in his contract, of which, as before stated, the contract of Boyes with the city and the proposal, plans, specifications and drawings form a part.

Boyes’ contract with the city, under the heading, “Work Contemplated,” provided:

“First. The contractor agrees to do all work and furnish all materials for laying a high pressure water main from water works pumping station, to Michigan streets, — Contract No. 1, — and do all the incidental work connected therewith and furnish all tools and materials for such work and such incidental work in the manner and under the conditions and requirements as described in the foregoing specifications and the accompanying drawings; which specifications and drawings have been approved and adopted by the board of public works of said city, and, together with all drawings and regulations referred to in such specifications and this contract as illustrating or describing any device used in the work, or details thereof, are hereby made a part of this contract.”

The first paragraph of the general specifications prepared by the city officials, and under the heading, “Work Contemplated,” provides:

“The work contemplated under this contract in the following specifications and plans accompanying same consists in excavating for and installing a 30-inch, high pressure, trunk-line water main from the water works pumping station * * * to Michigan street.”

This in itself is somewhat contradictory of that part of the contract just quoted and of other portions of the specifications in that the 30-inch main was only to extend to the point marked “Zero” on the drawings. The main, as before stated, west of that point to the water works pumping station, was to be 48 inches. Sixty paragraphs in the specifications are employed to point out with particularity the work to be done in laying this 30-inch main. Then follows “Item 10-A,” under the heading, “Installation at the Pumping Station,” and there are seven paragraphs in which the manner of doing this work is particularly stated.

Turning now to plaintiff’s contract with defendants, we find that the first paragraph thereof discloses the fact that the allusion therein to defendant Boyes’ contract with the city may well be said to have been inserted for the purpose of thereafter defining the work to be done by plaintiff as a subcontractor thereunder; that, in effect, this paragraph provides that the plaintiff agrees to do a part of the work which Boyes contracted to do in “the installation of that contract known as the East End Water Main contract, extending from the city pumping station * * * to the intersection of Michigan avenue and Diamond street.”

In the succeeding paragraphs, so far as material to the matter now being considered, plaintiff agrees:

1. To do all the excavating of a ditch for the installation of the pipes.

2. To replace the earth removed after the pipes are installed.

3. To place the pipes, etc., in the ditch and handle the same until connected.

As bearing on defendants’ claim that plaintiff agreed to do all the excavating required by defendants’ contract with the city, let us examine “Item 3-A” of defendants’ proposal. It reads as follows:

“Item 3-A. — For excavating one hundred (100) cubic yards, more or less, and back filling with suitable material as specified, including transporting, placing and removing cofferdams, bracing, sheathing, pumping and all other incidental work, the sum of two dollars and no cents ($2.00) per cubic yard.”

In the specifications, this item is explained at length:

“Item No. 3-A. — Extra Excavation and Back Filling. Extent.—
“25. Whenever it is necessary in the judgment of the engineer to excavate to an extra depth below the elevations indicated on the plans such excavations shall be made. It is the intention to excavate to such depth as found necessary to obtain suitable foundations for the structure.
“Refilling.—
“26. When such excavations are made by the order of the engineer refilling shall be made with good earth or gravel placed in thin layers and thoroughly tamped with the same quality of earth or gravel and placed in the same manner as was specified under Item No. 1-A.
“Measurement and Compensation.—
“27. Extra excavation will be measured by the cubic yard for the volume actually placed as required. The price bid per cubic yard under this item shall cover all labor, tools, and appurtenances, including draining and bracing required to excavate materials and refilling with gravel.”

There is no such provision in plaintiff’s contract. Could it be fairly claimed that if such extra excavation and back filling had been required to be done as is provided for in this item, and for which Boyes was to be paid by the cubic yard, plaintiff must do it under his contract, for which he was paid by the lineal foot? A consideration of the several provisions of the contracts' to which attention has been called leads us to the conclusion that there is uncertainty as to whether or not plaintiff’s contract covered the excavating to be done by Boyes under “Item 10-A.” The reasons therefor may be thus summarized:

(a) The language employed in the first paragraph of plaintiff’s contract may well be claimed to have been used only for the purpose of describing the particular contract of Boyes with the city, of which plaintiff was agreeing to do a part of the work.

(5) In the proposal of defendant Boyes for excavating for the 80-inch main, he bid a fixed sum per lineal foot, and an inference may be drawn therefrom that plaintiff, whose compensation for excavating was for a less sum per lineal foot than that bid by Boyes, was only intended to do like excavating.

(c) No provision was made for extra payment to plaintiff should he be required to do the extra excavating required by “Item 3-A,” thereby inferentially leading to the conclusion that the excavating to be done by him was only that for which Boyes was to be paid by the linead foot.

(d) The word “ditch” used in plaintiff’s contract may- have been intended to be used in the same sense as the word “trench” in Boyes’ contract, and not intended to cover the wide excavation required under the work in “Item 10-A.”

(e) The work to be done under “Item 10-A” is specifically described and not included in the specifications relative to excavating, and the bid therefor was a lump sum.

The claim of the defendants that it is the duty of the court, and not the jury, to construe a written contract is elemental. But, having concluded, as did the trial judge, that the obligation of the plaintiff to do the excavating under “Item 10-A” was doubtful, the right to admit oral proof tending to show the construction the parties themselves put on their several obligations and also to show the real intent of the parties as to the matter in dispute is not open to question under the decisions of this court. In Brown v. A. F. Bartlett & Co., 201 Mich. 268, the authorities are collected and discussed at length. At page 277, it is said:

“For plaintiff it is denied that the testimony complained of is an attempt to contradict the plain provisions of the written agreement, but its legitimate purpose is to supplement the same, make clear apparent inconsistencies and show in what sense the parties themselves understood and used uncertain and ambiguous words or phrases. The rule invoked upon that proposition is thus well stated in 17 Cyc. p. 682:
“ ‘Where any doubt arises as to the true sense and meaning of the words themselves, or any difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and ascertained by evidence dehors the instrument, for both reason and common sense agree that by no other means can the language of the instrument be made to speak the real mind of the party. In this case parol evidence is admissible ex necessitate.’ ”

2. It was exceedingly unfortunate that the defendants did not offer any proof as to the cost of the excavating done by them east of point “Zero,” a distance of 361 feet. Plaintiff concedes this would have been, a proper item of set-off. We cannot consider the claim of surprise or mistake on defendants’ part relative to it. We can only determine whether or not there was error committed by the trial court. There was no proof offered from which the jury could determine the cost of this work. This was conceded by defendants’ counsel when the matter was under discussion on the trial when he said: “There is no earthly way of telling about the different work done.” There was consequently no error in the withdrawal of this item from the consideration of the jury. The reasons now urged might have been presented on a motion for a new trial, but none was made and they cannot be considered by us.

The judgment will be affirmed, with costs to plaintiff.

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


text:
    SULLIVAN v. FIDELITY & CASUALTY CO. OF NEW YORK.
    1. Principal and Surety — Liability of Subcontractor’s Surety to Principals for Liens Under Their Contract.
    The surety on two separate bonds of a subcontractor, given to indemnify the principals for any loss accruing to them under their contracts, is liable for the amount of a judgment secured against them jointly on their bonds for labor liens by an employee of said subcontractor; no separate account of the work done under each subcontract having been kept.
    2. Same — Action—Joining Separate Claims — Separate Proof.
    In an action by one of the principals on his own account and as assignee of the claim of the other to recover the amount of said judgment, which they had apportioned between themselves, from the surety of the subcontractor, he had the right, under 3 Comp. Laws 1915, § 12309, to join both claims, nor was it necessary for him to make proof under each claim as though separate suits had been brought.
    3. Same — Miscarriage of Justice — Statute.
    Even if proof of damages in each claim should have been made separately, it is not reversible error under 3 Comp. Laws 1915, § 13763, since it in no way increased defendant surety’s liability, and therefore cannot be said co have resulted in a miscarriage of justice.
    4. Same — Release of Surety — Weight of Evidence.
    Testimony supporting defendant surety’s contention that it was released because defendant subcontractor was paid more than 80 per cent, on completed work in violation of the terms of his contract, held, not so conclusive as to justify setting aside the verdict of the jury.
    Error to Shiawassee; Collins (Joseph H.), J.
    Submitted October 30, 1919.
    (Docket No. 59.)
    Decided December 22, 1919.
    Affirmed on rehearing June 7, 1920.
    See 210 Mich. 625.
    Assumpsit by James Sullivan against the Fidelity & Casualty Company of New York, surety, and Arthur L. Waldorf, principal, on a bond. Judgment for plaintiff. Defendant surety brings error. Affirmed.

      Cummins & Nichols, for appellant.

      Pulver & Bush, for appellee.
   Sharpe, J.

On February 8, 1917, plaintiff entered into a contract with the Shiawassee county board of road commissioners to construct 3% miles of gravel road in that county. Under it the contractor agreed to build a gravel road “in strict conformity with the specifications hereto attached and the plans herein referred to, all of which are made a part of this agreement.” The specifications provided that the contractor “shall furnish all materials, tools, machinery and labor necessary for * * * finishing the roadway complete in every respect.” They also provided that bids for the work must be made on blanks furnished by the board and must be accompanied by a certified check for $100, payable to the board,—

“conditioned that if the contract shall be awarded to the bidder he will when required by said board execute an agreement in writing to perform the work according to the specifications therefor, accompanied by good and sufficient bonds, one guaranteeing the faithful performance of the work in accordance with the terms of the contract, and the other guaranteeing the payment of all indebtedness incurred for labor, materials, or any cause whatsoever on account of this contract. It being expressly understood that the bond given to guarantee the payment of indebtedness is also to include any liability of the said party of the second part arising from the provisions of Act No. 10 of the Public Acts of Michigan, 1912 (Extra Session), as passed, or thereafter amended and occurring through the execution of the work under this contract.”

On February 19,1917, Warren W. Doan entered into a similar contract with, the board for the construction of 31/2 miles of road, one mile north of that to be constructed by plaintiff. Both Sullivan and Doan furnished the bonds required by the provision above quoted, one known as the “construction bond,” conditioned for the due performance of the contract, and the other known as the “lien bond,” conditioned for the payment of all indebtedness which might arise to any subcontractor or laborer or material man in the performance of the work.

Sullivan and Doan, by separate instruments in writing, assigned to the defendant Waldorf their said contracts so far as they related to the graveling of the roads, and Waldorf in such assignments agreed “to give a bond in the sum of $5,000.00 * * * as security to them of the proper performances of the within contract conditions.”

The consent of the county board to such assignments was given on May 21, 1917. In pursuance of the assignments, Waldorf furnished to Sullivan and Doan respectively the bonds required thereby, with the defendant surety company as surety. These bonds were similar in form, both being conditioned:

“Whereas, the principal and the obligee have entered into a written contract, hereinafter called the contract, for furnishing and hauling gravel and level-ling same on a certain road in the township of New Haven, county of Shiawassee, and State of Michigan, dated the 19th day of February, 1917, a copy of which is attached hereto;
“Now, therefore, the condition of the foregoing obligation is such that if the principal shall indemnify the obligee for all loss that the obligee may sustain by reason of the principal’s failure to comply with any of the terms of the contract, then this obligation shall be void; otherwise it shall remain in force.”

It appears that Waldorf hired one William C. Saeman to haul gravel for him and that the work he thus did was not kept separate so far as the two jobs were concerned. On Waldorf’s failure to pay for this work, Saeman sued him and made both Sullivan and Doan and the sureties in their lien bonds parties. Waldorf was not served, and the others did not defend. The defendant surety company was notified of the pend-ency of this suit by both Sullivan and Doan and requested to defend the same and thereby save them harmless on their bonds. Mr. Ruttle, a representative of the defendant company, came to Corunna and looked the matter up. He talked with both Sullivan and Doan about it, but declined to defend the suit. A judgment on default was rendered against all of the defendants for $737.14 and costs.

Sullivan and Doan estimated their several liability on such judgment, Sullivan assuming $271 and Doan $466.14, and paid the same. Doan then assigned to Sullivan all right of action he might have, by reason of such payment, on the bond given by Waldorf to him and in which the defendant company was his surety, and Sullivan brought this suit against Waldorf and the surety company to recover the amount of the Saeman claim. Waldorf was not served. The declaration counts on the contract and bonds separately and as to the Doan claim alleges an assignment of his right of action to Sullivan. The plaintiff had verdict and judgment, and the defendant surety company appeals.

1. Do the bonds given by the defendant company as surety for Waldorf cover labor claims? The rights and liabilities of Waldorf accrued under the assignments made to him by Sullivan and Doan. These were annexed to the contracts made with the county board which, including the specifications annexed thereto and forming a part thereof, thus became a part of Waldorf’s contract, and he became chargeable with the performance of every obligation assumed by Sullivan and Doan thereunder, relative to the graveling of the roads. Waldorf thus had notice that the lien bonds had been given and that Sullivan and Doan were liable thereunder to pay for all labor performed whether hired by them or by himself. The bonds sued on were given to indemnify the obligees for all losses sustained by reason of Waldorf’s failure to comply with any of the terms of his contract. As before stated, his obligation under his assignment must be held to include every obligation of Sullivan and Doan under their respective contracts. There seems no escape from the conclusion that as the obligees in the respective bonds suffered loss by reason of their liability to Saeman for the work done by him, the principal and surety must, under the conditions of the bonds, indemnify them for such loss.

2. There would seem to be no question but that plaintiff might join his right of action on the bond given him by Waldorf with that accruing to him under the assignment from Doan. Such right of action is clearly, provided for in the judicature act of 1915, 3 Comp. Laws 1915, § 12309, and was doubtless permissible before that act was passed. Randall v. Wayne Circuit Judge, 96 Mich. 284. Defendant’s counsel apparently so concedes, but he insists that, when so joined, the right to recover under each must have been as clearly proven as though separate suits had been brought therefor. There was proof offered which showed a liability under each bond. It is undisputed that a part of the gravel hauled by Saeman was put on the road which Sullivan was under contract to build and a part on that which Doan had contracted for. The amount due Saeman, and for which he recovered judgment, was not in dispute. There was evidence from which the jury could have determined this amount independent of the judgment. Had separate suits been brought, plaintiff would have been required to prove the amount due Saeman from Waldorf on the respective jobs. Waldorf owed the amount for which judgment was recovered in this case to Saeman, and the plaintiff and Doan under their bonds were liable to Saeman therefor. The defendant company in its undertakings agreed in effect to make good the default of Waldorf in failing to make payment thereof. The fact that the damages on account of Waldorf’s default were not proven in separate items has in no way increased its liability.

If it be conceded that the admission of evidence of the damage sustained in a lump sum was error, how can it be said that it affirmatively appears that such error has resulted in a miscarriage of justice? This we must say in order to reverse the judgment rendered, under the provisions of the judicature act of 1915, 3 Comp. Laws 1915, § 13763.

3. It is claimed that Waldorf was overpaid on his contracts in violation of their terms and of the conditions in the bonds and that the surety is thereby released. The contracts made by Sullivan and Doan respectively provide that payment should be made every two weeks on estimates of the engineer when approved by the board and that 20 per cent, should be retained until the work was fully completed and accepted by the state highway commissioner. In defendant’s bonds the obligees agreed to “retain such proportion as the contract specifies * * * but not less in any event than ten per cent.,” until the contract was fully completed. The work was being performed by Waldorf under his assignments from Sullivan and Doan, assented to by the county board. He thus assumed their duties and liabilities and, in effect, became a party to the original contracts. The amounts he should be paid under the estimates was a matter between him and the county board. Mr. Bailey, the chairman of the board, and who, it appears, was also acting as engineer, testified that he made written estimates but was unable to produce them. He further said:

“I did not at any time, according to these estimates, pay this man Waldorf more than eighty per cent, of the amount of any of the written estimates that I made.”

He testified at considerable length as to the manner in which the estimates were made and the allowance for work done in uncovering the gravel in the pit. He also stated that Mr. Ruttle, a representative of the' defendant company, was there several times examining the papers on file and “he claimed we were not paying Mr. Waldorf enough on our estimates, so he could pay his help.”

Defendant’s counsel submits a computation of the gravel put on by Waldorf on the respective jobs from estimates afterwards found by Bailey and by comparison with the amount paid him claims an overpayment after making the deduction provided for in the contract. Some of the estimates on which he relies were made the following spring and after the road had been used during the winter.

In view of the positive testimony of Mr. Bailey and the fact that, as stated by him, an allowance was made for uncovering the gravel in the pit, we do not feel so convinced of the correctness of counsel’s conclusions as to justify us in setting aside the verdict of the jury on this question. The court instructed them:

“I charge you that if you should find that Arthur L. Waldorf received from the board of road commissioners more than .80% of the value of the completed work and materials furnished in place as the work progressed as estimated by the officer or engineer in charge, then and in such case your verdict would be no cause of action as to the Fidelity and Casualty Company of New York.”

We are asked to strike from the files defendant’s brief wherein counsel criticise the conduct of plaintiff’s attorneys, charging that they advised Sullivan and Doan about their defending the Saeman suit. In the rural parts of the State, local attorneys are usually well known and it is not infrequent for parties when sued to call on and talk with the attorney for the plaintiff about the suit brought. This is apparently what happened, and of itself does not warrant a charge of unprofessional conduct against such attorneys. We have examined the record with care, and feel constrained to say that we find the criticism uncalled for.

The judgment is affirmed

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


text:
    BENJAMIN v. McGRAW.
    1. Appeal and Error — Directed Verdict.
    On review of a directed verdict for defendant the Supreme Court will view the testimony in the light most favorable to plaintiff.
    2. Negligence — Pedestrians—Contributory Negligence — Crossing Accident — Reasonable Care.
    There is no imperative rule of law requiring a pedestrian, when approaching a street crossing, to look both ways before stepping off the curb; reasonable- care under the surrounding circumstances being all that is required.
    3. Same — Automobiles.
    The driver of an automobile approaching a crossing on a city street is required to exercise such reasonable care as the case requires.

      On the question of reciprocal duty of operator of automobile and pedestrian to use care, see notes in 3 L. R. A. (N. S.) 345; 20 L. K. A. (N. S.) 232; 38 L. R. A. (N. S.) 488; 42 L. R. A. (N. S.) 1179; 51 L. R. A. (N. S.) 992.

      4. Same — Evidence—Question eor Jury.
    In an action for personal injuries to a pedestrian who attempted to cross a city street at a public crossing, where he turned back to avoid defendant’s automobile and was struck by it after he regained the curb, questions of negligence and contributory negligence, held, for the jury.
    Error to Wayne; Mandell (Henry A.), J.
    Submitted October 17, 1919.
    (Docket No. 79.)
    Decided December 22, 1919.
    Case by DeWitt C. Benjamin against William E. McGraw for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Dohany & Dohany, for appellant.

      William E. Tarsney, for appellee.
   Sharpe, J.

The plaintiff sued to recover damages for injuries sustained by him by being struck by an automobile, driven by defendant, at the intersection of Baldwin and Kercheval avenues in the city of Detroit, on the 27th day of March, 1917. At the conclusion of plaintiff’s proofs, a motion was made by defendant’s counsel for a directed verdict, which was denied. After both parties had rested, such motion was renewed and a verdict for defendant directed by the trial judge for the reason that the plaintiff was guilty of contributory negligence. A motion for a new trial was subsequently made by plaintiff, which was denied, and he now seeks a review of the action! of the trial court by a writ of error.

The plaintiff, accompanied by one Clarence Jackson, while walking on the west side of Baldwin avenue, having reached the intersection above named, started to cross Kercheval avenue from the south to the north side. The defendant was driving a car on the right side of Kercheval, toward the east. On direct examination, plaintiff testified:

“As we attempted to cross Kercheval, I stepped about two steps off the curb and glanced at the left and saw a red automobile coming, I should judge 60 or 70 feet away. It was coming east on the south side of Kercheval, approaching us.
“As I stepped down off the curb, I turned to the left to see if anything was coming and I saw the machine and I turned at once to get into the safety zone. I had stepped about four or five feet away from the southerly curb of Kercheval. I then advanced to the left, toward the west, and saw a machine coming and I turned as quickly as possible to regain the sidewalk. I stepped back to the curb, onto the grass. It was a crosswalk. I stepped to the south of the curb. I should judge I was two or three feet on the crosswalk or the curb when the automobile was slammed into my right side. I think possibly it was the bumper that struck me right here on the knee. * * When I stepped off the southerly curb of Kercheval and saw it, I should judge it was going at the rate of 30 or 35 miles per hour. I immediately concluded to turn back and step upon the sidewalk. I did not stop and deliberate very long qither. I could not say whether the automobile slackened its speed, before it struck me. It went in the neighborhood of 100 to 150 feet after it struck me, before stopping. It stopped on Kercheval at least one-third of the way over from Seyburn. "When it finally came to a stop it was headed west toward the direction from which it had been coming. There is a double track on Kercheval and the cars run east and west. When this automobile was going east just before the accident, it was between the south, track,and the south curb of Kercheval. That was where it was when I first saw it. After it stopped it was standing about in the middle of the street. In the middle of the street car tracks, headed westerly. I saw the automobile just before it hit me. The left wheel of the auto was below the curb. There was one wheel, as I can remember, that was on the curb and the other, the hind wheel, was dragging right alongside the curb, the rear wheel of the right side was dragging right along by the side of the curb and the right front wheel was up on the curb and the two left wheels would be off from the curb. The' curb is the division between the street and the grass plot, and the left wheel ran up over the curb or the right wheel. The right wheel ran up over the curb on the grass plot between the curb and the sidewalk. The left wheels were down in the street on the pavement. That is the position it was in when it hit me.”

On cross-examination, he testified:

“Q. Just before you stepped off, just before you stepped off the curb or as you were coming to the curb did you look to the west?
“A. No.
“Q. You did?
“A. I don’t think so.
“Q. You did not look to the west at all?
“A. Not sure whether I did or not. (Continuing.) I don’t know whether Mr. Jackson did or not. We were busily engaged in conversation. We had got through talking about the house. I presume we were engaged in conversation.
“Q. You two gentlemen walked along on Baldwin avenue right across Kercheval?
“A. Yes, sir.
“Q. When you came to the curb line you just stepped down out into Kercheval avenue?
“A. Yes, sir.
“Q. Is that right?
“A. That is right.
“Q. You had no occasion to look to the west, your street car would not come from that direction?
“A. No, sir.
“Q. Your street car would come from the east?
“A. Yes, sir.
“Q. You had no occasion to look to the west as you stepped off the curb?
“A. Just as a matter of course.
“Q. Did you look?
“A. Yes, sir, that is what I did do.
“Q. What did you do?
“A. I saw a red car coming.
“Q. Where was the red car?
“A. In the street.
“Q. How far away from you?
“A. I presume it was — anything coming toward you it is hard to tell the distance of; it was just 60 to 70 feet. (Continuing.) It was about half way between the track and the curb. It kept the same position — it occupied the same position as any other vehicle generally occupies, coming in the same direction this was coming. There was just one in the machine.
“Q. How far had you gotten off the curb?
“A. About two paces, about five feet.
"Q. What did you do?
“A. Returned and went back to the sidewalk.
“Q. What did the automobile do?
“A. Jumped the curb and knocked me in the middle of Baldwin avenue.
“Q. Did you keep your eyes on the automobile as it approached you?
“A. I saw it as it was right there onto me.
“Q. As a matter of fact you did not see the machine until it was right on you, did you?
“A. It might have been pretty close to me when I saw it, it was coming pretty fast.
“Q. Your position — your observation of the automobile and being struck by the automobile was in the same instant?
“A. No, I knew the automobile was to strike me, it seemed impossible for me to move at that moment.
“Q. Seemed impossible to move?
“A. Yes, sir, coming right up on the curb—
“Q. You were out in the middle of the street when you saw the automobile?
“A. No, the street is 41 feet wide and I was about 5 feet out.
“Q. Isn’t it true, taking your testimony, that from the curb line on Kercheval avenue to the first street car track that you come to as you go north is a distance of 13 feet?
“A. Yes, sir.
*‘Q. You had stepped off the curb and you had gone 5 feet of the 13?
“A. Yes, sir.
“Q. Pretty near in the center?
“A. Yes, sir.
“Q. That is the position you occupied when you first saw the automobile?
"A. Yes sir
“Q. What did you do?
“A. Turned around and went back onto the grass.
“Q. What next did the automobile do?
‘‘A. Jumped the curb and hit me.
“Q. Where did it jump the curb?
“A. 30 to 35 feet back from the crossing.
“Q. Do you mean west of Baldwin avenue?
“A. West of Baldwin avenue.
“Q. How much of the car got over the curb?
“A. The front right wheel. * * *
“Q. Why didn’t you continue across the street?
"A. Caution, safety first.
“Q. There was no vehicle coming?
“A. No.
“Q. No vehicle coming in the other direction, coming west?
“A. No. (Continuing.) I was only five feet into the 41 feet. Traffic going east in the direction in which this automobile was traveling would be on the south side of Kercheval avenue. That is where the automobile was. The south side of Kercheval avenue is paved. Thirteen feet in width. I was out and the automobile when I first saw it was 60 or 70 feet away, was in the usual line of travel of automobiles or other automobiles going east. I at that time was five feet out into the highway. There was no traffic west bound.
“Q. Why didn’t you continue across the street?
“A. Caution. If it had been an ordinary vehicle we would have continued across, but we generally get away for fire apparatus.”

Clarence Jackson, who was with plaintiff at the time, testified:

“As we approached Kercheval avenue we came up to the curb and stepped off about two paces, say 5 feet, at a glance I saw the machine coming and receded back to the sidewalk. It was a fire engine or machine, coming from the west on the south side of Kercheval. When I saw this machine coming, at first glance, it was 50 or 60 feet away.
“I have driven and ridden in automobiles many times. I have owned an automobile at least twelve years. I am able to judge the speed at which an automobile goes. This automobile was approaching at 30 or 35 miles an hour, I should say 35 miles an hour. I instantly went back to the sidewalk, to the nearest point we had just left — the nearest point to get back to public safety. We went south on the southerly curb about three feet. That was on the west side of Baldwin avenue, the spot we had just left. The moment we had been' — >we had not had time to turn around before the machine hit us and then there — we had stepped to the sidewalk and missed the sidewalk and took one step further away, away from the edge of the curb onto the sidewalk, and we were just going to turn around when the machine hit us. We were going to face the same way the machine was coming. We had no particular^ reason only expected the machine to pass by to go on its way. The machine hit us right at that point. As near as I can tell it was the fender must have hit me. The right front fender. After I was struck I was knocked 45 feet.”

We have quoted from the testimony of plaintiff and his witness at length. Under the familiar rule relative to directing a verdict on the ground of contributory negligence, we must view the testimony in the light most favorable to plaintiff. From this testimony the jury could have found that the defendant was driving the car at a speed of from 30 to 35 miles per hour, that he gave no notice of his approaching the crossing, that the car was distant 60 feet when plaintiff first saw it, that he was then about 5 feet from the curb, that it was a car used by the fire department of the city.

Since this case was disposed of in the circuit, this court has had occasion to consider the relative rights and duties of drivers and pedestrians on the streets under a somewhat similar state of facts. In Patterson v. Wagner, 204 Mich. 593, the plaintiff was killed by having been run into by an automobile at the intersection of two streets in the city of Jackson. The deceased had stepped off the curb a distance of about 5 feet when struck by defendant’s car. The defense of contributory negligence was interposed. Mr. Justice Steere, who'wrote the opinion, calls attention to the fundamental rule laid down in Babbitt on Motor Vehicles (2d Ed.), § 385, that:

“Motor vehicles must be driven slowiy on approaching a crossing. The test seems to be whether the driver has control of the situation, whether he is so driving that he can stop' if necessary soon enough to avoid an accident.”

He further says on page 599, et seq.:

“Relative to the mutual rights and duties of those using the highway at such points it is said in Babbitt on Motor Vehicles (2d Ed.), § 1295:
“ ‘At crossings on city streets the right of passage is common to all and both pedestrians and drivers of motor vehicles are bound to exercise reasonable care for their own safety and the safety of others upon the street. The footman is not required as matter of law to look both ways and listen but only to exercise such reasonable care as the case requires. Both pedestrians and drivers are required to exercise that degree of care and prudence which the conditions demand. It is impossible to formulate any more precise definition of these relative rights and duties.’
“Unlike street cars or railroad trains, which in their noisy progress are confined to the narrow line of their rail tracks, automobiles with practically equal capacity for speed can range the road in substantial silence. They can and do traverse the streets at much greater speed, with much less noise, than other highway vehicles in common use, and on the other hand can be more surely and easily controlled by those experienced in their use. The duty and responsibility of those driving them should be, and is, proportioned to the possibilities and dangers attending the use upon the public highways of such an instrumentality of travel and transportation. It is but a rational rule which emphasizes the driver’s duty of special vigilance at crossing points on city streets where the right of passage is not only free and common to all, but in common and frequent use both by pedestrians and vehicles. While the duties of reasonable care for their own safety and that of others are imposed upon both pedestrian and driver, the driver’s comparative personal safety in case of collision with a pedestrian is not to be overlooked in measuring his duty to exercise commensurate care for the safety of others.”

The views expressed in this case seem to be in harmony ,with those of appellate courts in other jurisdictions. In Baker v. Close, 204 N. Y. 92 (97 N. E. 501, 38 L. R. A. [N. S.] 487), it is said:

“The rigorous rule applicable to steam railroad crossings is necessarily relaxed at the usual street crossings, and the footman is not required, as matter of law, to look both ways and listen; but only to exercise such reasonable care as the case requires, for he has the right to assume that a driver will also exercise due care and approach the crossing with his vehicle under proper control.”

See, also, Lynch v. Fisk Rubber Co., 209 Mass. 16 (95 N. E. 400).

There is no imperative rule of law requiring a pedestrian when approaching a street crossing to look both ways before stepping off the curb. He is only required to exercise such reasonable care as the surrounding circumstances require. In crowded centers where there is much traffic, the danger is greater and greater precaution must be taken to avoid collisions. The plaintiff at the time he was struck by the Car was on the curb, a place which should have beén to him one of safety. The defendant had no right to have his machine there. Whether he was justified in so running it, in his effort to avoid injury to plaintiff, as claimed by him, was a question for the jury.

The plaintiff’s injury may have been due to a mere accident, for which neither party was at fault. It may have been due to the negligence of the defendant. The negligence of the plaintiff himself may have been the cause of, or contributed to, his injury. These questions should have been submitted to the jury.

The judgment entered is reversed, and a new trial ordered with costs to appellant.

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


text:
    PHILLIPS v. FARMERS’ MUTUAL FIRE INSURANCE CO. OF KALAMAZOO COUNTY.
    1. Insurance — Change of Title — Voiding Policy — Mutual Insurance.
    The risk assumed by a mutual fire insurance company on plaintiff’s property was not terminated by a deed and assignment of a land contract of sale of the same by her to a broker for the purpose of securing a purchaser and with no intention of conveyance to him, although a clause in the policy provided that any change in the title of the property should terminate the risk.
    2. Same — Deeds—Delivery—Change of Title — Intent.
    There being no intention of presently passing the title to the broker, there was no such delivery as conveyed a present interest in the property.
    3. Appeal and Error — Estoppel—Consent to Directed Verdict.
    Defendant is foreclosed from claiming in this court that another issue should have been submitted to the jury, where, on the trial, it conceded that the only question for the jury was the one of plaintiff’s damages.
    Error to Kalamazoo; Weimer (George V.), J.
    Submitted October 14, 1919.
    (Docket No. 45.)
    Decided December 22, 1919.
    Assumpsit by Mary A. Phillips against the Farmers’ Mutual Fire Insurance Company of Kalamazoo County on a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      E. M. Irish, for appellant.

      Charles L. Dibble, for appellee.
   Sharpe, J.

The following statement of facts is taken from the brief of counsel for appellant:

“The defendant is a mutual fire insurance company. On the 17th day of January, 1916, the plaintiff took out a policy on some buildings in the amount of twenty-five hundred ($2,500.00) dollars. On the second of February, 1917, the buildings were burned. The loss was total.
“Defendant refused to pay the loss on the ground that plaintiff had violated the conditions of the policy by change of the title without consent of the company.
“The conditions of the policy contained this clause:
“ Tf the title to said property shall be in any way changed, or a failure of the assured to show ownership or interest, * * * the risk hereon shall cease and terminate and the policy be null and void.’
“The by-laws were a part of the policy, and by-law 11 repeated the above condition.
“On November 22d, 1916, the plaintiff executed and delivered to one Stephen Chilson, a Michigan warranty deed of the property in question, the warranty being subject to a mortgage, and took a promissory note from him for $2,500.00.
“The deed was not placed on record.
“This deed was absolute on its face. The. evidence in the record consists of a detail of the circumstances under which it was given.”

It also appears that plaintiff had theretofore entered into a land contract with one Lanning for the sale of the property to him. This contract was also assigned by her to Chilson. It is the claim of the defendant that the execution and delivery of the deed to Chilson was such a change of title, within the language of the policy and by-law, as rendered the policy void, and that a verdict should have been directed in, its favor. This claim is denied by the plaintiff, who claims the deed was executed and delivered under such circumstances as show that the parties did not intend it to operate as a conveyance. Plaintiff • also claims that, if defendant's contention stated above should be sustained, it then devolved on defendant to show that it had been injured by such breach, under section 9481, 2 Comp. Laws 1915, which reads as follows:

“(9481) Section 1. No policy of fire insurance shall hereafter be declared void by the insurer for the breach of any condition of the policy if the insurer has not been injured by such breach, or where a loss has not occurred during such breach, and by reason of such breach of condition.”

To this defendant replies that this statute was repealed by Act No. 256, Public Acts 1917.

At the close of the proofs, both parties moved for a directed verdict. It seems to have been conceded that there was no disputed question of fact to submit to the jury except the question of plaintiff’s damages. This question the court submitted, instructing the jury that there was no change of title such as- would affect the policy. The defendant afterwards, and before judgment was entered on the verdict, moved for a judgment for defendant non obstante veredicto, the right to do so having apparently been reserved under the provisions of Act No. 217, Public Acts 1915 (3 Comp. Laws 1915, § 14568 et seq.). In denying the motion, the trial judge said;

“If the court is to determine the intent with which the deed was executed and delivered, then it would seem possible to reach but one result. In my opinion under the undisputed testimony, it was clearly not the intention of either the plaintiff or Chilson to vest the latter with any right, title, or interest in or to the property or any ownership of the same. Certainly Mrs. Phillips had no thought of relinquishing proprietorship over the property to Chilson. She was dealing with him as a real estate broker; He'was acting as her agent in the transaction for the purpose of finding a purchaser, and that alone. She may have been, and probably was, improperly induced to execute and deliver a writing in such form that in the hands of an unscrupulous agent it might have caused her serious embarrassment, but that could in no way affect her intention in the matter. Whatever suspicion may have been aroused afterwards regarding Chilson’s conduct as shown by the bill in chancery, the record in this case fails to disclose that he entertained any other or different intention in the transaction than she. Everything in the testimony- of plaintiff, Chilson, and the attorney, Goembel, who drafted the deed, shows beyond doubt that it was the contemplation of the parties that Chilson was to act as the agent of plaintiff in handling, looking after, and negotiating a sale of her property.
“It is my conclusion, therefore, that the execution and delivery of the writing, in form of warranty deed, under the particular circumstances shown, did not constitute a transfer of the title within the meaning of the policy.”

Counsel for defendant relies on the case of Western Massachusetts Ins. Co. v. Riker, 10 Mich. 279, and kindred cases, in which it is held that a deed absolute on its face, though given as a security, avoids the policy. It also holds that a conveyance intended to create a secret trust in the grantee for the use of the grantor creates a change of title within the language of the policy.

The distinction between the Riker Case and the one at bar lies in the fact that, as found by the trial judge, there was no present intention on the part of the parties to pass any title to Chilson. While it was in his power, in fraud of his duty to plaintiff and her rights, to have conveyed this property independent of his agreement with her that it should only be done if he secured a purchaser thereof, such power on his part, not having been exercised, should not be held to have created such an interest in the property in him as in any way changed the title thereto. The arrangement was in effect the same as though plaintiff had given Chilson a power of attorney to convey the property for her when a purchaser was secured.

We are also of the opinion that the trial judge might well have found that there was no such delivery of the deed from plaintiff to Chilson as would pass title to him. The plaintiff testified that at the time the deed was prepared she said to Mr. Goembel, the attorney who drew it, “I am giving Mr. Chilson a deed of this property so he can sell it for me.” Mr. Goembel testified that at that time the plaintiff said to him, “Well, Mr. Chilson is going to sell this property.” Chilson testified: “The deed was simply held by me. The deed wasn’t mine.”

As was said by Mr. Justice Ostrander in Pollock v. McCarty, 198 Mich. 68:

“The test is whether it can be said that delivery of the deed was such as to convey a present interest in the land.”

Many Michigan cases are cited by him in its support, to which reference is here made. Applying this test, in view of the finding of the trial judge, in which we concur, that—

“It was clearly not the intention of either the plaintiff or Chilson to vest the latter with any right, title, or interest in or to the property or any ownership of the same,”

—it must be held that there was no such delivery of the deed to Chilson as conveyed “a present interest in the land.”

“The whole object of a delivery is to indicate an intent upon the part of the grantor to give effect to the instrument.” Thatcher v. St. Andrew’s Church, 37 Mich. 264, 269.

Counsel for defendant now insists that the intent with which the deed was executed and delivered should have been submitted to the jury. In view of the concession made by him at the time the motions to direct were argued, we think he is foreclosed from raising this question.

The conclusion reached renders it unnecessary to pass upon the effect of the repealing statute.

The judgment will stand affirmed.

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


text:
    JONESCU v. ORLICH.
    1. Evidence — Admissions of Agent — Admissibility.
    The declarations of an agent as to a past transaction are inadmissible to bind the principal.
    2. Same — Master and Servanov-Admissions of Foreman Aeter the Pact.
    In an action against the employer for the death of plaintiff’s decedent caused by a fall through a skylight while he was at work on a roof, admissions on the way to the hospital by defendant’s brother, who was in charge of the work as foreman, that he forgot to tell decedent about the skylight, which was covered with snow, held, inadmissible as after the fact.
    3. Same — Witnesses—Statutes—Adverse Party.
    Under 3 Comp. Laws 1915, § 12554, on plaintiff’s theory that defendant’s brother was his agent, the brother might have been called and questioned as to his knowledge of the existence of the skylight and that it was concealed by snow.
    4. Same — Adverse Party — Priviieok—Waiver — Further Examination — Scope—Master and Servant.
    While the representative of the deceased waived the privilege of the statute (3 Comp. Laws 1915, § 12553) prohibiting a party adverse in interest from testifying as to facts equally within the knowledge of the deceased, and compelled defendant to testify under 3 Comp. Laws 1915, § 12554, as to the contract of hiring, the door she thus opened to a further .examination of defendant was confined to said contract, and a question by his counsel as to whether he called deceased’s attention to the skylight, being no part of the contract of employment, was inadmissible.
    Error to Wayne; Murphy (Alfred J.), J.
    Submitted October 28, 1919.
    (Docket No. 20.)
    Decided December 22, 1919.
    Case by Letitia Jonescu, administratrix of the estate of Laker Jonescu, deceased, against John Orlich for the negligent killing of plaintiffs decedent. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Duncan C. Beath, for appellant.

      Benjamin & Betzoldt, for appellee.
   Sharpe, J.

Plaintiffs intestate, Laker Jonescu, met his death on January 29, 1917, by falling through a skylight on the roof of defendant’s building at 1192 Russell street, in the city of Detroit. He was a carpenter by trade, and had been engaged by defendant to make repairs on the premises. It is the claim of the plaintiff that the deceased was employed by the defendant as a day laborer. That on the day in question defendant’s brother Andrew, who, plaintiff claims, had charge of the work for defendant, asked the deceased to go with him to a platform which extended in the rear of the second story of the front part of said building, and around which defendant desired a railing constructed, to measure up the material needed therefor. That the roof of the back part of the first story of the building was but a few inches below the platform and was covered with several inches of snow, entirely concealing a glass skylight built in and forming a part of such roof. That, owing to a door having been left standing on said platform, it was necessary for deceased to step off therefrom, and on the roof, to make such measurements. That, as he did so, he stepped on the concealed skylight and fell through to the floor below, sustaining injuries from which he died a few hours afterwards.

The negligence of defendant is said to be:

1. In not furnishing deceased with a safe place to work.

2. In not warning him of the existence and location of the skylight, concealed as it was with the covering of snow.

The defendant claims that the deceased was an independent contractor in the work he was doing and that the danger from stepping on the skylight was apparent to him. He also denies that Andrew had charge of the work for him.

The plaintiff had verdict for $6,000, on which judgment was duly entered. The defendant moved for a new trial, which was denied, and he now appeals, alleging many errors in the trial as well as in the denial of his motion for a new trial.

The first assignment of error relates to permitting the witness, John Korkes, who, with defendant's brother Andrew, was taking the deceased to the hospital, to state what Andrew then said to him about the accident. After some preliminary questions, Korkes was asked:

“Q. What else did Andrew say to you?
“A. Andrew was asked, ‘What is the matter that you did not tell him about the skylight up there?’ He said, ‘By God, I forgot about it.’ He told me there was snow there, three inches of snow — ”

This was received under objection, and a motion was afterwards made to strike it out, which was denied. It is conceded that the defendant was not then present. The defendant insists that even if Andrew had charge of the work for him and was his agent, the declarations of an agent after the fact are not binding on the principal. The plaintiff claims that it was competent as tending to show that Andrew, as such agent, had knowledge of the existence of the skylight and was thus under obligation to the deceased to warn him of the hidden danger. The claim of the plaintiff is thus stated in his brief:

“We contend that this testimony was competent for one purpose to show that Andrew Orlich, the superintendent of the job, and the vice-principal of defendant, who ordered and accompanied Jonescu upstairs to measure the porch for the railing, knew at the time of the existence of this skylight, and that it was hidden and covered by snow. This testimony was admitted by the court for that purpose only. In order for plaintiff to recover it was necessary to show as one of the elements of her case, that Andrew Orlich, the alter ego of defendant, knew at the time of the existence of this skylight, and that it was covered with snow, thereby preventing Jonescu from seeing or appreciating the dangers. Therefore, the cases cited by appellant on res gestse have no application.”

Our own decisions have settled the law on this question adversely to the claim of the plaintiff. In Andrews v. Tamarack Mining Co., 114 Mich. 375, the court admitted, over defendant’s objection, the testimony given by the underground captain of defendant’s mine (having charge of all underground work) at the coroner’s inquest held over the body of plaintiff’s intestate, to the effect that he knew the mine was in a dangerous condition. It was offered, as was the testimony here, for the purpose of showing knowledge by him of the conditions surrounding the deceased while at the work he was instructed to do. This court, speaking by Mr. Chief Justice Long, said:

“The court was in error in permitting this deposition to be read. It was not offered for the purpose of impeaching Captain Maslin, but for the purpose of proving a substantive fact; that is, that Maslin knew the mine was in a dangerous condition when he ordered the men in there. It is conceded that it was no part of the res gestx. It has many times been held by this court that the declarations of an agent as to a past transaction are inadmissible to bind the principal. Michigan Cent. R. Co. v. Coleman, 28 Mich. 440; Mabley v. Kittleberger, 37 Mich. 360; Patterson v. Railway Co., 54 Mich. 91; Stebbins v. Township of Keene, 55 Mich. 552; Wormsdorf v. Railway Co., 75 Mich. 472 (13 Am. St. Rep. 453). It is true that, where the acts of the agent will bind the principal, then his representations, declarations, and admissions respecting the subject-matter will also bind him, if made at the same time, and constituting a part of the res gestx.
“But counsel for plaintiff contend that Captain Maslin was the alter ego of defendant, and that his agency continued at the time his testimony was given before the coroner; therefore, whatever Maslin said in reference to the occurrence at the mine would be binding upon the defendant, though said long after the occurrence. If he can be said to be the alter ego, he was not clothed with authority to make admissions.”

See, also, Beunk v. Valley City Desk Co., 128 Mich. 562; Dompier v. Lewis, 131 Mich. 144.

The reason for this rule is well exemplified in this case. In an affidavit, filed by defendant in support of his motion for a new trial, one Draga Popov deposed that she was looking out of the window which overlooked the platform in question when Andrew and the deceased were on it; that they engaged in a scuffle, and deceased was thrown or fell over on the skylight. If this be true, it would account for Andrew’s making such a statement, in answer to the question of Korkes, as would place the liability for the injury and death of deceased on some one other than himself.

On plaintiff’s theory that Andrew was in charge of the work as agent of the defendant, he might have been called as a witness under the statute (3 Comp. Laws 1915, § 12554) and questioned as to his knowledge of the existence of the skylight and the fact that it was concealed by the snow. That defendant was greatly prejudiced by the answer given is apparent. By it the plaintiff got before the jury an admission by the alter ego of the defendant, and therefore, under the court’s instruction, binding on him, of the fact that he knew that the skylight was concealed, that it was dangerous, and that he neglected a duty in not advising deceased concerning it. For this error, the case must be reversed.

In view of a new trial, the other errors claimed by defendant, and which may again arise, will be con-. sidered. The plaintiff called the defendant for cross-examination under the statute above referred to, and questioned him at considerable length as to whether the deceased was employed by him by the day or was doing the work under a contract. On examination of defendant by his own counsel, he was asked“Q. In your talk with him when he was upstairs, did you or did you not call Ms attention to the skylight?” An objection by plaintiff’s counsel was sustained, the trial judge holding that the question was within the prohibition of the statute prohibiting a party adverse in interest from testifying to, facts equally within the knowledge of the deceased. While this statute was designed to protect estates, the plaintiff, as representative of the deceased, was privileged to call the defendant and compel him to testify, and by thus doing she opened the door to a further examination by defendant’s own counsel as to all matters relative to which he had been interrogated. Fox v. Barrett’s Estate, 117 Mich. 162. Counsel for defendant concedes that he was thus confined in his examination, but insists that the question asked related to the contract of hiring. It does not appear that any work was to be done by plaintiff’s decedent on or around the skylight. There is some testimony that the purpose of erecting the railing was to keep boys who might be on the platform from interfering with the skylight. But it was not necessary for defendant to call plaintiff’s attention to it in directing him relative to the work that he was to do in building the railing, except to warn him of the danger, and this would be no part of the contract of employment. We find no error in this ruling.

Assignments 8, 9 and 10 allege error in the charge of the court in submitting to the jury the question as to whether or not deceased was an independent contractor. The concession made by defendant’s counsel when the case was presented in this court, that there was evidence tending to support the plaintiff’s claim which entitled it to be submitted to the jury, obviates any discussion of this question. The language complained of as to the preponderance of the evidence was unfortunate as it seemed to cast the burden on defendant of showing that the deceased was an independent contractor. That the court did riot intend to so instruct the jury is apparent from the charge taken as a whole.

For the reason stated, the verdict and judgment will be set aside, with costs to defendant, and a new trial granted.

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