author: MOORE, J.

text:
    HOFFMAN v. WILLITS.
    Landlord and Tenant — Holding Over — Presumption—Intent.
    Where a tenant under a yearly tenancy holds over after the expiration of his term, the law presumes an intention by the tenant to continue the yearly tenancy, but such presumption may be rebutted by showing an agreement that such holding over should not be so regarded.

    Error to Kent; Perkins, J.
    Submitted October 24, 1916.
    (Docket No. 50.)
    Decided December 22, 1916.
    Rehearing denied April 19, 1917
    Assumpsit in justice’s court by Clayton Hoffman and others against John C. Willits for use and occupation. There was judgment for plaintiffs and defendant appealed to the circuit court*. From a judgment for an insufficient amount, plaintiffs bring error.
    Affirmed.

      A. C. Hindman, for appellants.

      Swarthout & Master, for appellee.

       On whether holding over by tenant after expiration of a term for years constitutes a new and separate term, distinct from that which preceded or followed, see note in 25 L. R. A. (N. S.) 847.

   MOORE, J.

This case was tried before a jury. The charge of the court was somewhat long. We quote sufficiently from it to indicate the issues involved:

“This action is brought to recover from the defendant certain rents which it is claimed to be due the plaintiffs by reason of the defendant holding over, after the expiration of his lease, the premises in controversy. It is claimed by the plaintiffs that a lease was entered into with the defendant for these premises to be occupied by him for one year, terminating September 1, 1914, at an agreed rental of $45 per month, with the additional payment for services rendered by way of electricity and ice, bills for which' were to be separately rendered.
_ “It is claimed by the plaintiffs that on the expiration of that term, the defendant, without any right or authority, held over and did not vacate the premises until the 30th day of October, whereby under the law a new lease was created at the option of the plaintiff, the landlord, for another period of like duration and like terms as the lease first entered into between the parties. On the other hand, the defendant claims that the lease entered into was to begin October 15, 1913, and was to terminate October 15, 1914, and that about a month prior to the termination of the lease, he entered into an arrangement or agreement by which he was to be permitted to hold over after the termination of the lease and pending the completion and fitting for occupancy of another dwelling which he expected to occupy, and that the holding over under these conditions did not constitute the creation of a new tenancy for a like period and under like terms as contended for by the plaintiff. ■1= * * The defendant claims by this talk with one of the plaintiffs, about September 10, 1914, the plaintiff agreed with him, or led him to believe that he might hold over until November 1st, without obligation to remain longer. Both parties, therefore, claim that the lease, which was verbal, was for one year, the difference between them being as to the date the tenancy was to begin and terminate. It follows, therefore, and I so instruct you as a question of law, that in either event, whether the tenancy began October 15, 1913, or October 1, 1913, the defendant held over beyond the term of his tenancy; the undisputed evidence being that he did not vacate the premises until October 30, 1914.
“I also instruct you as a matter of law that one holding over may be held liable as a tenant for a further period without reference to his actual wishes on the subject. The landlord has the option to treat him as a tenant for a further term, or as a trespasser. The rule is when a tenant holds over after the end of his term, without any new agreement with the landlord, he may be treated in all other respects as holding under the terms of the original lease; the landlord has the election to treat him either as a trespasser or as a tenant. * * * The tenant has no such election as belongs to the landlord. If he holds over, though for a very short period, that unequivocal act at the time would give his holding the character of a trespasser, and he is not afterwards at liberty to deny that he is in as a tenant, if the landlord chooses to hold him in_ that relation. * * * Now this situation gives rise substantially to the only questions of fact which you are to consider in this case. * * *
“The first question, then, for you to consider under the evidence in this case is whether a new arrangement, between the defendant and the plaintiff Hoffman, that the defendant might remain over after the expiration of the term of his lease was made as the defendant claims. The plaintiff denies any such agreement or understanding. * * * You have the facts and circumstances before you, the testimony of the witnesses upon this subject, and you must determine from these facts and circumstances and the evidence given by the witnesses as to where the truth lies upon that question. Now, if you fail to find that any such agreement was had between Mr. Hoffman and the defendant, that will end your consideration of this case, for your verdict must be for the plaintiff. On the other hand, if you should find that such an agreement or understanding was had, then you will consider whether or not the defendant relied upon that agreement and formed his plans in reliance thereon in such a way as to result in his injury should that agreement not be carried out by the plaintiff. That raises the question of what, in the law, is termed estoppel. * * * Estoppel arises when something is said or done which was intended to lead, and did lead, the person with whom the party is dealing into a line of conduct which must be prejudicial to his interest unless, the party estopped be cut off from the power of retraction. * * *
“The plaintiff contends that, even though you should find that such an agreement was made, still the letter by Mr. Hoffman to the defendant, dated September 26,1914, was a revocation of any such license or agreement as is now contended for by the defendant. I instruct you that if you find the agreement as claimed by the defendant, and in reliance thereon, the defendant was led to act in such a manner as to change his condition for the worse, unless the agreement should be carried out, the plaintiff would be estopped from claiming that an agreement was made, and could not retract the authority given to the defendant. * * * And so I say in the first place was such an agreement or understanding had as the defendant claims, and if it was, then you will consider the next question, wheth- or not he was led to rely, and did rely, upon that agreement in such a way that its revocation would result to his injury. * * * On the other hand, if you should find that he had not relied upon the agreement and had made his plans notwithstanding such agreement, just as he would have made it without it, * * * then the doctrine of estoppel would have no application, and the plaintiff would have the right to revoke any such agreement. * * *
“I have stated to you that the holding over, without any understanding or agreement between the' landlord and the tenant for a short period of time, at the. option of the landlord, would create a new tenancy. That is the law, and you are to follow it as the law in this c$se. On the other hand, I have told you that if it is true, as the defendant claims, that this understanding or agreement was had, that he might hold over without creating a new tenancy, that would be binding upon the plaintiff in this case, unless it was revoked — the question of revocation and the right to revoke will depend upon what you find the facts to be as to the defendant’s reliance on such agreement as to whether or not the revocation would leave him in the same situation substantially as he was before the agreement was made. * * * But I have told you that if you should find there was no such agreement made, then that ends the matter, and the plaintiff is entitled to recover, because the doctrine of estoppel rests upon the claim of the defendant that such an understanding and agreement was had. * * *
“If you find for the plaintiff under the instructions, of course your verdict will be for the sum of $339.40, which includes the interest. There is no dispute as to the amount, if you find for the plaintiff on the claim set forth by the plaintiff in this case before you.
“If you should find for the defendant, it is admitted that the October rent was not paid, and it was not accepted; it was sent by check, and also the incidental expense of the occupancy was sent by check, but the checks were returned to the defendant, so that amount is still unpaid, and is due the plaintiff in any event. If you should find for the defendant, your verdict will be for $51.98, which is the amount of these two checks. In any event, therefore, your verdict must be for the plaintiffs, for either $389.40 as the plaintiffs claim, or for $51.98 as the defendant claims.”

From a verdict and judgment for the plaintiffs of $51.98, the case is brought here by writ of error.

The plaintiffs discuss the errors assigned under seven heads, and cite a number of authorities. The pivotal questions, however, are questions of fact. Did the defendant by reason of remaining in possession of the apartment after the expiration of the year become a tenant by the year as claimed by the plaintiffs, or was there an agreement made that defendant might occupy the premises until November 1st, which would relieve him of any liability after he vacated the premises October 30th, as he claims?

The testimony cannot be reconciled. The defendant testified in part as follows:

“I am the pastor of the First Methodist Church of this city. I arrived here September 27, 1913. I found that the church had no parsonage, but my predecessor had been living in a house standing on the ground where they proposed to build the new church that they are now constructing. * * * Up to that time I had not seen Mr. Hoffman. The next day, October 7th, I went through the apartment and met Mr. Hoffman for the first time. I told him who I was and what I wanted, and that I would be here in the apartment for a year, and I would like to rent it with the privilege of extending the lease of it two or three years if we wanted to stay that long, * * * and he said we could make out a lease subject to renewal, and he told me that the rental value would be $45 a month. * * * He said he would have the apartment put in order for me as soon as he could, and he did. We moved into the apartment October 15, 1913. * * * All the talk we had in regard to the lease and the amount of the rent was on October 7th. $540 was not mentioned, the rental value was fixed at $45 a month, and the total was never mentioned, and nothing was said in regard to the time when the lease should begin. * * * I asked him as to the contract, etc., and he said he would prepare a written lease, and would have it ready to sign when I moved in there. I paid the first rent by check November 3, 1913. * * * During the latter part of August, 1914, I found it was necessary for me to go on a business trip in northwestern Canada some time during the first part of October, and, knowing that my year would be out on the 15th of October, I was afraid I would not get back before the year would close, and so I went to see Mr. Hoffman as to what adjustment we might make, and also then I began to feel that the parsonage would not be ready for occupancy before the 1st of November, or perhaps the middle of it, as it proved to be, and some time between the 1st of September and the 10th of September I saw Mr. Hoffman and had this conversation with him, * * * and I then told Mr. Hoffman that the parsonage deal had gotten farther along than I supposed it would the year before, and yet not as far as I had hoped it would be, as they would not have completed it — the parsonage was not so we could move into it about the middle of October, when my lease expired, and that I would like the privilege of staying there until the 1st of November, or possibly the middle of November, and also that I was going away about the 1st of October to be gone on business in northwest Canada, and I wanted to know that my wife and daughter would not be troubled about the moving part, and Mr. Hoffman said to me: ‘That is all right, Mr. Willits. There will be no trouble about that.’ And I took it and understood that I could stay until the 1st of November. * * * In this conversation Mr. Hoffman did not say anything to me about the lease expiring on September 30th. He did not say that if I stayed by the 1st of October, he would hold me for another year’s rent. - He did not make any demand on me at any time up to the time I left the city, indicating that he intended to try to hold me after October 1st.”

On the cross-examination he said:

“A. I had no other conversation with Mr. Hoffman or Mr. Hindman other than the conversation on the street some time in the morning between the 1st of September and September 10th, in which he gave me to understand clearly that I had a right to stay.”

Mr. Hoffman denies that any such agreement was made in September as stated by defendant. The following appears in his cross-examination:

“The first indication I had that Dr. Willits expected to move out was when he overtook me one day on the street near the flats some time in the middle of September, as I remember it, and as I remember it he said that it looked as if they were going to have the parsonage ready for him sooner than he had anticipated, and that he, no doubt, would move some time in October. I do not remember of his asking me anything. I said but very little. I was kind of surprised, and I told him that I would think it over and see about it, or something of that sort. After that I wrote him a letter on the 26th. In this conversation I did not say anything to him in regard to the time when the lease began. That subject was not canvassed in the conversation. In that conversation I did not tell him that the lease expired September 30th, and he did not say anything about the lease expiring at that time. Nothing was said in the conversation as to the time when the lease began or when it expired. He did tell me that the church was getting the parsonage ready, and that he would get in it sooner than he had planned, something to that effect. He said nothing definite as to-the date when he would move out of the apartment.
“Q. Did he ask you whether he might stay in over the term?
“A. Why he inferred that in his conversation as to whether—
“Q. That was the purpose of the conversation, to get your consent?
“A. I suppose so. He met me in the building, and I walked up the street with him.
“Q. And he did not ask you if he might stay in after the lease expired?
“A. No; he did not put it that strong.
“Q. And didn’t you reply or say to him that that would be all right, or words to that effect; you would be glad to have him stay?
“A. I did not.
“Q. Did you not give him to understand at that time, in that conversation, that he might stay after the lease expired for a short time until they got the parsonage ready, without renewing his lease?
“A. I did not.
“Q. Did he not so understand from the conversation?
“A. I don’t know what he understood. * * * I wrote this letter of September 26th, because I previously had that talk with him on the street. I knew from that conversation along in the middle of September that he did intend to move some time, and that the reason was that the church was getting the parsonage ready.”

In Scott v. Beecher, 91 Mich. 590 (52 N. W. 20), the following appears:

“No notice was necessary to terminate the tenancy which had existed prior to May, 1890, on the part of either landlord or tenant. The law presumes an intention by the tenant to continue the yearly tenancy from the holding over. An agreement that such holding over should not be so regarded might be shown to rebut the presumption, or there might be such clear indications of an intention to vacate that a holding over for a day would not support the presumption.”

In Campau v. Michell, 103 Mich. 617 (61 N. W. 890), the above language is quoted with approval. Justice LONG, speaking for the court, further said:

“It remains to be seen, therefore, whether the holding over of the subtenant in the present case, and under the circumstances shown by the facts found, can be construed as an election by the tenant to continue the time for another term. His term expired on April 30th. On March 28th, the tenant wrote the subtenant that the term would expire on May 1st, and that he did not desire to renew the lease. April 23d or 24th the subtenant commenced packing and shipping his goods, intending to vacate May 1st. April 30th was Saturday. On Monday, May 2d, he prepared to move the goods from-the store. On the morning of that day, plaintiffs agent entered, and took down the sign: ‘To-rent. Apply to Alexander M. Campan.’ He saw that the subtenant was about to move out. The subtenant aske.d him why he removed the sign, and he said the store had been rented to Michell; and the subtenant, relying upon this, and thinking that Michell did not want immediate possession, delayed the removal for' several days. Defendant knew nothing of this until May 5th, when plaintiff called upon him for rent. Defendant at once notified the subtenant, who moved out. It is evident that, had the subtenant moved out on Monday, it would have been in time to save any question of holding over. That he did not move at that-time appears to have been due to the action of the plaintiff’s agent, who led the subtenant to believe that Michell had renewed the lease. * * * We think in this case the facts found by the court below show very clearly the intent of the subtenant to vacate, and that he would have vacated but for the interposition of plaintiff’s agent. If the landlord should be permitted to prevail under these circumstances, it would be permitting him to have advantage of the wrongful acts of his own agent. Adler v. Mendelson, 74 Wis. 464 (43 N. W. 505).”

See, also, Landsberg v. Brewing Co., 132 Mich. 651 (94 N. W. 197).

In Luger v. Goerke, 18 App. Div. 291 (45 N. Y. Supp. 839), it is said:

“The suggestion that the defendant should remain after the year expired appears to have proceeded from the plaintiff himself when he asked for the $500 in June; for that sum represented the rent for five months, a period which would not terminate until the end of September. The defendant’s holding over under such circumstances was in no sense tortious. His situation was merely that of a tenant who, before the expiration of his original lease, had hired the leased property for an additional month, and had paid the rent for it, and had thereby become entitled to occupy it. His continued occupation was thus izi pursuance of a contract with his landlord, and was not of a character which gave the latter any option to treat him as otherwise than rightfully in possession. The rule of law which makes a lessee liable for an additional year where he holds over after the expiration of his term is based upon the assumption that the holding over is wrongful, so that the landlord may either treat him as a trespasser or take him as a tenant. Schuyler v. Smith, 51 N. Y. 309 (10 Am. Rep. 609); Adams v. City of Cohoes, 127 N. Y. 175, 182 (28 N. E. 25); Wood v. Gordon (Com. Pl.), 18 N. Y. Supp. 109. It has no application where, as in the case of Pickett v. Bartlett, 107 N. Y. 277 (14 N. E. 301), the parties anticipated a holding by the tenant beyond the term, and provided for it by agreement. In the case at bar the parties manifested such an agreement by accepting and paying the September rent in June. At least the trial court was authorized so to find, even if the proof did not demand the conclusion that the holding over was with the landlord’s consent.”

See, also, Montgomery v. Willis, 45 Neb. 434 (63 N. W. 794); Puckett v. Scott, 45 Tex. Civ. App. 392 (100 S. W. 969); Leggett v. Exposition Co., 157 Mo. App. 108 (137 S. W. 893).

If the facts are as stated by the defendant and the jury by their verdict have so found, the case, under these authorities, should be affirmed.

Judgment is affirmed, with costs to defendant.

Stone, C. J., and Kuhn, Ostrander, Bird, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    JACKSON v. HAVERFORD CYCLE CO.
    1. Appeal and Error — Rescission—Review.
    Where the question as to whether plaintiff, an infant, or defendant rescinded a contract was in issue in the court below, and the jury found that rescission was by the defendant, this court will not consider assignments of error based upon the theory that the rescission was by plaintiff..-
    2. Trial — Argument oe Counsel — Curing Error.
    Reference by counsel for plaintiff, in his closing argument to the jury, to the fact that defendant had appealed from a judgment in justice’s court, where the trial court at once admonished counsel and instructed the jury that they should give no consideration to the statement, was not reversible error.
    3. Assumpsit — Special Questions — Demand—General Verdict.
    A special finding of the jury that money paid only was demanded by plaintiff can be reconciled with the finding that the property also was demanded, if the jury believed, as submitted to them in the charge of the court, that the money demand was made after the property demand had been refused, and a general verdict for plaintiff was not inconsistent therewith.’
    4. Trial — Instructions—Special Questions.
    Where the court, in submitting special questions, Instructed the jury that “it will be necessary for you to agree upon each answer to these questions the same as you agree in your general verdict,” held, not error when read in connection with the context.
    Error to Wayne; McDonald, J., presiding.
    Submitted October 3, 1916.
    (Docket No. 10.)
    Decided December 22, 1916.
    Assumpsit in justice’s court by Loren Jackson, an infant, by his next friend, against the Haverford Cycle Company for money had and received. There was judgment for plaintiff and defendant appealed to the circuit court. ‘ Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Harry J. Lippman, for appellant.

      Harry M. Stone (Frank J. Riggs, of counsel), for appellee.
   Moore, J.

This is an action in assumpsit brought in justice’s court. The plaintiff declared on all the common counts and especially for money had and received. Defendant’s plea was the general issue and notice of set-off, counterclaim, and recoupment. From judgment in the justice’s court defendant appealed to the circuit court, where the case was tried before a jury. From a judgment for $75 in favor of the plaintiff the case is brought here by writ of error.

The plaintiff, a minor, purchased a motorcycle from the defendant company. The price was $255, and $50 was paid at the time. Later plaintiff paid $30 more. At the same time additional equipment was purchased by the plaintiff for $37.50. The plaintiff took the motorcycle away. He met with an accident and returned the motorcycle for repairs. He claims they were not made, and that he repeatedly demanded his motorcycle and the parts, and when this demand was refused he demanded his money back. It is the claim of defendant that plaintiff was a minor when he made the purchase, and that, after bringing the motorcycle to the defendant company, plaintiff returned and informed defendant that he could not pay for repairs and wanted his money back, saying he was a minor when he made the purchase.

To understand the questions presented by appellant we think it best to quote from the charge of the court. He said in part:

“Before the plaintiff can recover in this case, he must show you by a preponderance of the evidence: First, that there was a demand and a refusal for the return of this motorcycle and for the amount for which the plaintiff is suing; and, second, that plaintiff has been damaged by that refusal in the amount claimed. Now, before the plaintiff can recover, he must establish this demand and refusal by a fair preponderance of the evidence. I' haven’t said anything about the contract, because that isn’t in dispute; the disputed question of fact relates to the amount due and to the question as to whether or not there was a demand or refusal. If the demand was made upon the defendant for the return of the motorcycle or for the payment of this money and he refused it, the plaintiff can recover whatever you find under my instructions his damages were. If you find there was no demand or no refusal, then you need not consider any other question, for if you so find then your verdict will be no cause of action. * * *
“Now, it appears that, while this motorcycle was in the possession of the plaintiff, he had a collision or an accident of some kind, and that it was damaged, and the defendant claims that it cost to repair that damage $62.55. You should allow the defendant whatever you find from the evidence the cost of these repairs were. If you find that it cost $62.55 for the repairs and that they were reasonably worth that amount, you should deduct it from this $117.50, if you find that to be the amount that plaintiff would be entitled to, you should deduct the $62.55, for the defendant would be entitled to recover the damages that the machine suffered while in the plaintiff’s hands.
“Now, a great deal has been said to you and there has been some testimony in regard to a set-off and recoupment, and something has been said to you about depreciation and the value of the machine. The defendant cannot recover for that. The plaintiff in_ this case is a minor. A man cannot contract with a minor. Such a contract is voidable at the option of the minor when he becomes of age; he cannot be sued. The defendant in this case could not sue this minor for any depreciation in the value of the motorcycle. * * *
“The minor himself cannot maintain this suit or begin the suit unless the contract was canceled or repudiated by the defendant, and that is why you must find in this case that when the motorcycle was returned to the defendant he kept it and refused to deliver it again to the plaintiff. That is what gives the plaintiff right to recover, and, if you find that he did not refuse to give over the motorcycle or pay back the money, plaintiff cannot recover, and that is the reason for it. So you are not considering anything in regard to the depreciation in the value of the motorcycle, but you are to give defendant credit for what it cost to repair that motorcycle. * * *
“You are to allow the defendant company whatever it was reasonably worth to repair it. but you are not to consider the question of depreciation at all. Then another thing that I think the defendant is entitled to in this case would be whatever you find from the evidence is a reasonable rental value of that machine, what it was reasonably worth to the plaintiff while it was in his possession. * * *
“The defendant has passed up some questions, special questions which he asks me to submit to the jury. * * * These questions must be answered, and they must be answered by ‘Yes’ or ‘No.’ When, answered and returned, they will be a part of your verdict, and it is necessary that you should exercise a great deal of care in considering these questions.. It will be necessary for you to agree upon each answer to these questions the same as you agree in your general verdict.”

The questions and answers were as follows:

“(1) Was any demand ever made of the defendant company through its manager E. C. Kicherer, or any person acting in authority for said company, for. the return of the motorcycle here in question? A. Yes.
“(2) Was any demand ever made of the defendant company through its manager, E. C. Kicherer, or any person acting in authority for said company, for the return of the parts belonging to the plaintiff? A. Yes.
“ (3) Was the demand made by the said plaintiff for the return of the moneys only? A. Yes.”

Defendant groups and discusses his assignments of error under the following heads:

(1) Defendant was entitled to recover under counterelaim for depreciation in the value of the motorcycle during the period that same was in possession of infant plaintiff.

(2) Contract in dispute is voidable, not void.

(3) Failure of the court to charge the jury as requested in defendant’s requests to charge 1, 3, 4, 6.

(4) Statement by plaintiff’s attorney in closing argument to the jury that judgment had been taken against defendant when cause was tried in justice’s court from which judgment defendant appealed to the circuit court is prejudicial to defendant and is error.

(5) Answers to special questions submitted inconsistent with each other and the general verdict.

(6) Court erred in reading special questions, as submitted to the jury and stating to the jury in his charge, "It will be necessary for you to agree upon each answer to these questions the same as you agree in your general verdict.”

(7) Verdict of the jury palpably unjust and in variance with great preponderance of the evidence.

The first three of these groups are based upon the theory that the minor rescinded the contract as claimed by defendant, but the jury found the rescission was by the defendant.

The fourth group relates to the argument of counsel. The trial court said of this in disposing of the motion for a new trial.:

“It is true that counsel used the language substantially as defendant claims, but it is also true that the court at once admonished counsel and instructed the jury that they should give no consideration to the results of the trial in any other court.”

In view of this, we are not inclined to reverse the case because of the argument.

Were the answers to the special questions so inconsistent with each other and with the general verdict that the latter should be set aside?

In Foster v. Gaffield, 34 Mich. 356, Justice Campbell, speaking for the court, said:

“As this provision is one which very seriously affects the principle of trial by jury, in which a general verdict has always been regarded as within the right of the jurors, and not to be inquired into in its elements if the panel is unanimous in the result, the change, which determines in favor of the special as .against the general finding, can only be made operative where the two cannot be reconciled. All presumptions must be made in favor of harmony, where harmony is possible, because both findings are under the same oath. * » *
“If the second and third answers are claimed to be inconsistent with each other, then one would neutralize the other, and so leave the general finding to stand. In either view the verdict could not be disturbed. But we do not think there is any difficulty in reconciling them all.”

In view of the charge of the court, a careful reading of the special questions in connection with the general verdict will indicate that the jury were of the belief that, not only was there a demand made for the motorcycle and the equipment parts, but that when these demands were refused there was then a demand for the money. See Burke v. Electric Co., 147 Mich. 172 (110 N. W. 524).

We think assignment No. 6 is too narrow in the construction of the language of the court, as will readily appear by reading that part of the charge which we have quoted.

As to the last assignment of error, we agree with the trial judge that the verdict was not against the great preponderance of the evidence.

Judgment is affirmed, with costs to the plaintiff.

Stone, C. J., and Kuhn, Ostrander, Bird, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


text:
    JOHNSON v. FEDERAL UNION SURETY CO.
    1. Evidence — Depositions—Admissibility.
    Depositions taken while a case was pending in the Federal court were admissible in the circuit court, to which it was remanded for want of jurisdiction in the Federal court, where counsel had notice of the taking of the depositions and cross-examined the witnesses. 3 Comp. Laws 1915, § 12500.
    2. Appeal and Error — Principal and Agent — Res Judicata.
    The question of an agent’s authority to bind a principal is not debatable, where it was settled in a prior appeal.
    Error to Ingham; Wiest, J.
    Submitted October 5, 1916.
    (Docket No. 19.)
    Decided December 22, 1916.
    Assumpsit by P. Albín Johnson and Leo L. Wood, copartners as Johnson & Wood, assignees of the Title Guaranty & Surety Company, against the Federal Union Surety Company for contribution. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Moore & Moore, for appellant.

      Goodenough & Long, for appellees.
   Moore, J.

This, cause was originally brought in the Ingham county circuit court. The defendant transferred it to the Federal court at Detroit. While the case was pending in the Federal court depositions of Mr. Magee and several others were taken. Subsequently the Federal court held it had no jurisdiction, and remanded the case to the Ingham county circuit court, and a verdict directed for the defendant, which was reversed by this court and a new trial ordered. See 187 Mich. 454 (158 N. W. 788). The case was retried at the Ingham county circuit court when the plaintiffs obtained a judgment, and the defendant brings the case here by writ of error. The facts disclosed by the present record are substantially the same as when the case was here before, and a reference to the opinion in that case will make a long statement here unnecessary.

On the second trial the depositions of several witnesses taken while the case was in the Federal court were received; this is said to be error on the ground that the Federal court had no jurisdiction. After the case had been submitted the circuit judge instructed the jury that Mr. Abbott had authority as a matter of law to make an offer to pay $2,500, and that if the offer was made the plaintiffs had as a matter of law accepted it, and thereby made a binding contract, unless the jury should find that the offer was not accepted within a reasonable time.

Counsel for appellant say:

“When the court has no jurisdiction its action is a nullity, and that the admission of the depositions was error.”

The case was removed to the Federal court by the defendant. Its counsel had notice of the taking of the depositions and cross-examined the witnesses. It was the same case between the same parties for the same cause of action all the time. The admission of the depositions was not error. Section 10142, 3 Comp. Laws (3 Comp. Laws 1915, § 12500). See Woolenslagle v. Runals, 76 Mich. 545 (43 N. W. 454).

Counsel argue at great length the question of Mr. Abbott’s authority to' bind defendant. We think' that question is not debatable in view of what was said by Justice Stone when the case was here before (187 Mich., at pages 467 and 468 of the opinion [153 N. W. 792]).

Judgment is affirmed, with costs of the plaintiffs against the defendant.

Stone, C. J., and Ostrander, Steere, and Brooke, JJ., concurred. Kuhn, Bird, and Person, JJ., did not sit.


text:
    PONIATOWSKI v. STICKLEY BROS. CO.
    Master and Servant — Workmen’s Compensation Law — Evidence —Refusal of Treatment for Injury.
    In proceedings to review an award of compensation to claimant by tbe industrial accident board, under tbe workmen’s compensation law (Act No. 10, Extra Session 1912), for the loss of a toe, where it does not appear that claimant, who was a foreigner, understood when be was to come back to tbe doctor for treatment, or tbe importance of coming back for further treatment, or that if be bad received further treatment be would have escaped infection and tbe need of having the toe amputated, tbe award will not be reversed on tbe ground that be refused treatment provided by tbe master.

    Certiorari to Industrial Accident Board.
    Submitted October 12, 1916.
    (Docket No. 141.)
    Decided December 22, 1916.
    Jacob Poniatowski presented his claim against Stickley Bros. Company for compensation for injuries while in respondent’s employ. From an order awarding compensation, respondent brings certiorari.
    Affirmed.

      Francis X. Cam/pau, for appellant.

       On application and effect of workmen’s compensation act, generally, see note on tbe different phases of tbe question, in L. R. A. 1916A, 23.

   Moore, J.

This proceeding is brought to review an award made to the claimant of $5.40 a week for 10 weeks.

Jacob Poniatowski, while employed by the Stickley Bros. Company, April 8, 1913, had his foot crushed by a lever on the machine he was operating. At the direction of the Stickley Bros. Company Poniatowski went to Dr. Smith’s office, where he was treated by Dr. Hodgen. The foot was dressed by Dr. Hodgen, and the man was directed to return to the doctor’s office, the doctor testified, on the following day. The plaintiff says on the following Monday. The claimant did not return to the doctor’s office. On May 3, 1913, he was called to claimant’s house. After treating] the toe for about a week the doctor found it necessary] to remove the toe. We quote from the brief of appellant’s counsel:

“It is the respondent’s intention to present to the court a simple case of a man slightly injured who has been offered reasonable adequate medical aid, which would beyond a reasonable doubt have resulted in a cure, without pain or suffering to the injured man, which aid the claimant has refused for no good or sufficient reason. This refusal brought upon the claimant a serious injury. The facts are beyond dispute. The employment, the wage, and the fact that the toe in the first instance was bruised in the course of his duty and in an accident arising out of the employment are admitted. It is also admitted that the amputation was a reasonable and necessary remedy after the infection had developed. The respondent contends that the injury, that is to say the infection, the amputation, and the consequent disability are disassociated from the accident by . a break in the causal connection, and that therefore the injury and the consequent disability did not result from an accident which occurred in the course of the employment of the applicant, and which did not arise out of such employment; but that the injury was rather the result of the applicant’s own unreasonable conduct, for which the respondent should not be held responsible.”

Counsel cite Donnelly v. Baird & Co., 45 Scottish Law Rep. 394, 1 B. W. C. C. 95; Warncken v. Moreland & Son, 100 Law Times, 12, 2 B. W. C. C. 350; Jendrus v. Detroit Steel Products Co., 178 Mich. 265 (144 N. W. 563, L. R. A. 1916A, 381, Am. & Eng. Ann. Cas. 1915D, 476). We are not favored by a brief on the part of the appellee. We do not think the case is as simple as counsel indicate. The plaintiff testified through an interpreter,. After he described the injury and his visit to the doctor the following appears in his testimony:

“Q. When did you go back to work after you saw the doctor?
“A. He went to work on Monday after he had seen the doctor.
“Q. MTien did he see the doctor?
“A. On Friday following the accident.
“Q. Did the doctor tell you to go home and get some ' liniment or some medicine of any kind for that toe?
“A. No; he did not, he only told him to wash it with soap and water.
“Q. Did the doctor ask you to come again?
“A. The doctor told him to come again, but the family was in need, and he went back to work.
“Q. When did the doctor tell him to come back?
“A. He told him to come on the third day, three days, later.
“Q. Would that be Monday?
"A. Monday.
“Q. How long did you work when you started to work Monday, how many days?
“A. He worked about a week or a week and a half.
“Q. Did you do anything for the toe, for the injured toe, while you were working?
“A. He washed it in the morning and in the evening with soap and water and bandaged it, and that was all he did.”

The doctor was sworn as a witness. This appears in his testimony:

“Q. If a daily treatment thereafter, a treatment as you recommended had been given, you could not say it would positively and assuredly have prevented an infection? What I mean to say is, if you had the care of the foot from the time of this abrasion, could you have prevented an external infection by antiseptics and bandages? ’ s
“A. Nearly all the time, yes; in 99 cases out of 100,j yes.” j

But the following also appears in his testimony:

“Q. Now I want to ask you as an expert your opinion of the condition of this foot when you first saw it, when he first brought it to you on April 9th, as to how serious it was; in other words, I note on the card you have marked injury, on Exhibit A, not serious, and followed that with a question mark. Explain that?
“A. I will explain the question mark by saying it might turn out to be serious if not taken care of properly.
“Q. Was the condition of the toe — in your experience as a surgeon you would have considered it a simple matter to treat had you had ample opportunity?
“A. If he had returned the following day and followed the treatment up, it would have been a simple matter!
“Q. Are you sure he understood your instruction that he was to return, did you make that instruction sufficiently explicit, or did he express an understanding that he was to return?
“A. I gave him the same instruction I give to all of them. I have a big calendar with large numbers for the days, and I told him to come back, and gave him the number of the following day, and he said, ‘Yes, tomorrow,’ so I understand from that he would return.
“Q. (By Mr. Reeves)'. Do you know whether he understood you or not?
"A. No, I don’t. Of course, mentally I did not know, except he shook his head and said, ‘Yes,’ and said, ‘tomorrow.’
“Q. You say with proper treatment he would have got along all right?
“A. So far as I know.
/“Q. You have no assurance of that?
“A. No.
“Q. His toe was in bad condition on that day?
“A. It was as marked on that card, not serious with, a question mark.
í “Q. The question mark you said that it stood a ¡chance to become serious?
“A. It might, yes.
“Q. You could not say to us that there was any assurance that would have been a success even though he had come back the next day?
“A. I could not state it as a fact, but my experience is it would have been; I think it would have been.
,t “Q. Dr. Hodgen, isn’t it equally true- any abrasion or any scratch or any cut would stand in precisely ¡che same relation; if not taken care of, might result jin practically anything?
“A. The same condition comes every time there is an abrasion of the skin. In that condition you might get an infection and you might not. He got an infection ; how he got that infection. I don’t know.”

We think this testimony discloses three things: First, that it is not established that the doctor and claimant understood each other as to when he was to come back for treatment; that it cannot be said he refused treatment; second, that claimant was not made to understand the importance of coming back for further treatment; and, third, that it cannot be said if he had received further treatment, he would have escaped infection and the need of having his toe amputated. We have the opinion of but one doctor, , and he is not at all confident that amputation could have been avoided if his directions had been followed. It is clear that if there had been no accident, there would have been no infection and no amputation, but it is not equally clear that, the accident having occurred, amputation would have been avoided if claimant had returned to the doctor as requested.

The cases cited by counsel have been examined. We think they are not controlling of the instant case. While not on all fours, the recent cases handed down by this court of Hills v. Oval Wood Dish Co., 191 Mich. 411 (158 N. W. 214); Bruce v. Taylor & Maliskey, 192 Mich. 34 (158 N. W. 153); and Ramlow v. Moon Lake Ice Co., 192 Mich. 505 (158 N. W. 1027), may well be consulted.

The award is affirmed, with costs in favor of the claimant.

Stone, C. J., and Kuhn, Ostrander, Bird, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


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    GRUND v. FIRST NATIONAL BANK OF PETOSKEY.
    Equity — Pleading—Trust—Accounting.
    Averments in a bill of complaint against a bank and its president alleging that they were complainant’s agents and trustees, that the facts are peculiarly within the knowledge of defendants, that discovery is necessary to complainant, that defendants were guilty of positive fraud, and that the interests and liabilities of defendants are so identical as to be inseparable, state a case cognizable by a court of equity.
    Appeal from Charlevoix; Mayne, J.
    Submitted October 6, 1916.
    (Docket No. 70.)
    Decided December 22, 1916.

      Bill by William Grand against the First National Bank of Petoskey and Chalmers Curtis for an accounting. From an order overruling a motion to dismiss, defendants appeal.
    Affirmed.

      Mesiclc & Miller, for complainant.

      Halstead & Halstead for defendants.
   Moore, J.

This is an appeal from an order of the circuit court for the county of Charlevoix, in chancery, overruling defendants’ motion to dismiss the bill of complaint; leave to appeal having been first obtained.

The bill of complaint was filed January 17, 1916. The separate answers of defendants were filed February 1, 1916. Each answer contained a motion to dismiss the bill of complaint under section 4 of chapter 14 of the judicature act (Act No. 314, Pub. Acts 1915 [3 Comp. Laws 1915, § 12456]). In disposing of the motion the court said he thought it advisable to hold the case for a decision on the merits after hearing the testimony. The motion to dismiss was brought on for determination in advance of the hearing of the cause, under the provisions of said judicature act, on notice given by each of the parties to the suit, and was overruled by the circuit judge after argument.

It is claimed: (1) There is no equity in the bill; (2) there is an adequate remedy at law. These claims make it necessary to know some of the averments of the bill, which are as follows:

“* * That the said defendant Chalmers Curtis now is, and has been since prior to the year 1908, a resident of the county of Emmet; that during the years 1908 and 1909 he was a director of and vice president and cashier of the defendant the First National Bank of Petoskey; that at the time of the filing of this bill he is president of said bank; that during'all the time since prior to the year 1908 and up to and including the time of filing this bill said Curtis has been a director of said bank, and has held either the office of' vice president and cashier or that of president during all that period.
“ (4) In the fall of the year 1908 said William Grund desired to purchase the following described lands with the saw timber standing and growing thereon: * * * Said Grund having been informed that title to said lands and timber could be acquired through one Roy A. French, of Pittsburgh, Pa., for the sum of $3,500, he then went to said Curtis for the purpose of securing the money with which to make such purchase.
“(5) After some negotiations between plaintiff and Chalmers Curtis and on, to wit, the 17th day of December, 1908, William Grund, at the instance of said Curtis, made and delivered to defendant bank a promissory note for the sum of $3,750, one John Grund signing the note with him and for his accommodation, and then and there it was agreed between plaintiff and said Curtis that the proceeds of said note as paid by said bank should remain in said bank and be subject to the order of said Curtis; that said Curtis should receive the title to said lands and timber in trust for said plaintiff and to secure the payment of said note to defendant bank; that upon receipt by Curtis, of a deed or deeds, together with an abstract, showing a good and merchantable title in fee simple to said lands and timber, the said Curtis should pay over to said Roy A. French the sum of $3,500 above mentioned.
“(6) In January or February, 1909, said Curtis assured plaintiff that he had acquired the title to said lands and timber, and in reliance upon this assurance plaintiff started to lumber the same. From time to time after the last-mentioned date said Curtis assured plaintiff that he held a good and merchantable title to said lands and timber, and that he had an abstract showing such title, in reliance upon which assurances plaintiff during the winter of 1909 and succeeding winters took the saw timber from said lands and manufactured the same into lumber.”

The bill avers certain conveyances of portions of said land by Mr. Grund.

“* * * (12) In the last days of December, 1914, or the first days of January, 1915, plaintiff heard a rumor that one Currie, an attorney from Midland, Mich., had been in Petoskey claiming to represent certain parties in Pennsylvania who claimed title to some portion of the lands described in paragraph 4 of this bilk As soon as these rumors reached- the ears of plaintiff he went at once to Chalmers Curtis for information regarding the same, and was told by said Curtis that the title was good; that Currie was making some kind of a bluff on behalf of the Pennsylvania parties; that Grund was perfectly safe, and had no reason to worry over the rumors or pay any attention to them.”

The bill avers:

“That he later learned the title was defective, and has undertaken, as he was obliged to do, to perfect the same; that “he has expended and incurred liabilities necessarily connected with the securing of title to said lands in excess of the sum of $2,500.
“And plaintiff is informed and believes and charges the fact to be that of the proceeds of the note described in paragraph 5 of this bill neither said Curtis nor said bank paid over or caused to be paid over to said Roy A. French any of said money. * * *
“And plaintiff is informed and believes and charges the fact to be that the balance of the proceeds of the note described in paragraph 5 of this bill remains in the hands of said bank or of said Curtis, either or both of them;. that it has been converted by them to their own uses and in violation of the rights of this plaintiff; that the facts attending upon the actual disposition of the said moneys are peculiarly within the knowledge of the defendants and without the knowledge of the plaintiff.
“And the plaintiff avers that the facts upon which this cause of action is based were fraudulently concealed from the plaintiff by the said Curtis and the said bank until within one year of the time of filing this, his bill of complaint; that the said Curtis and said bank fraudulently concealed from plaintiff that the title to the lands described in paragraph 4 was defective ; that fact that they had never paid over the $3,500 to Roy A. French; and the fact that they had paid out a portion of the proceeds of the said note without any right, until within a period of one year of the time of filing this bill of complaint.”

Complainant prayed for several things, among them:

*'(3) That said defendants be required to make a true discovery unto plaintiff touching the disposition of any and all funds which arose out of the proceeds of the $3,750 note described in this bill.
“(4) That the said defendants be required to come to a fair and just account with the plaintiff touching the proceeds of said note.
“(5) That the defendants be required to reimburse plaintiff for any and all sums arising from said note which they have paid out wrongfully and without authority.”

Then follows a prayer for general relief.

We have quoted sufficiently from the bill of complaint to show that it is claimed that plaintiff is proceeding against the two defendants in support of a single general fight; that defendants have been acting as the agents and trustees of the plaintiff; that the facts are peculiarly within the knowledge of the defendants, and that a discovery is necessary to plaintiff, and that defendants are shown to have been guilty of positive fraud toward plaintiff while they were in a fiduciary relation to him; that the interests and liabilities of the defendants are so identical and inseparable that they cannot properly be heard separately.

The averments of the bill of complaint state a case cognizable by a court of equity. See Excelsior Wrapper Co. v. Yund, 176 Mich. 372 (142 N. W. 353).

The case is remanded to the trial court for further proceedings, with costs to complainant.

Stone, C. J., and Kuhn, Ostrander, Bird, Steere, and Brooke, 33., concurred. Person, J., did not sit.


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    COXE v. CARSON.
    1. Municipal Corporations — Qualifications of Elective Officers —Powers—State Legislature — Constitutional Law.
    The State legislature has the power to confer upon cities the right to determine the qualifications of elective officers.
    2. Quo Warranto — Municipal Corporations — Qualifications of Appointive Officers — Aliens—Traverse City Charter.
    On error to review quo warranto proceedings to test respondent’s right to hold the office of police marshal of the city of Traverse City, an appointive office, where the charter of said city, incorporated under Act No. 279, Pub. Acts 1909, provided that only citizens should be eligible to hold elective offices, and no such limitation was placed upon appointive officers, held, respondent was eligible to hold the office, although he was an alien.
    Error to Grand Traverse; Mayne, J.
    Submitted October 4, 1916.
    (Docket No. 34.)
    Decided December 22, 1916.
    Quo warranto proceedings by Thomas H. Coxe and another against Benjamin F. Carson to determine the title to the office of police marshal of the city of Traverse City. Judgment dismissing the information. Relators bring error.
    Affirmed.

      William H. Umlor, for appellants.

      Coveil & Cross, for appellee.
   Moore, J.

This is a proceeding to review the action of the trial judge in dismissing the information filed by the relator. The respondent is police marshal of the city of Traverse City, which city is incorporated under the provisions of Act No. 279 of the Public Acts of 1909, and the amendments thereto. The provisions of the charter relative to the qualifications of officers are:

“Sec. 34. No person shall be eligible as a candidate for any elective office in said city, unless he shall be twenty-five years of age, a citizen of the United States and of the State of Michigan, and shall have resided in said city, and shall have been a taxpayer therein for a period of not less than five years immediately prior to his nomination; and no person shall be eligible to any office in said city unless he shall be able to read and write and speak the English language.”
“Sec. 37. No person shall be eligible to any office who has been a defaulter in the city or who has been convicted of any crime in any court.”

These proceedings were instituted on the 2d day of December, 1915. At that time the respondent was holding the office under an appointment made on the 11th day of January, 1915, for a term of office expiring on the second Monday in January, 1916. The information alleges that the respondent is not a citizen of the United States, nor of the State of Michigan, and that he is not entitled, for that reason, to hold the office of police marshal of the city of Traverse City.

Upon the hearing the relator called the respondent as a witness under the statute. From his testimony it developed that he was born in Canada and came to Michigan with his father in 1876 when he was 16 years old. The respondent knew that his father had made application for citizenship and always supposed his father was fully naturalized before respondent reached the age of 21 years. A copy of the certificate of citizenship issued to the father was introduced in evidence by relator, from which it appeared that respondent’s father became an American citizen on the 1st day of March, 1883, at which time the respondent was more than 21 years of age; and it is now admitted the respondent was not an American citizen at the time he was appointed to the office. It is stated in the brief of counsel that he is now an American citizen.

In his brief the relator says the paramount question in the case is: “Can an alien legally hold the office of police marshal of the city of Traverse City?” and argues that he cannot.

We think the legislature has the power to confer upon cities the right to determine the qualifications of elective officers. Traverse City undertook to exercise that right, and while it required a candidate for an elective office to be a citizen it made no such limitation upon the eligibility of an appointive officer.

The judgment of the court below is affirmed, with costs.

Stone, C. J., and Kuhn, Ostrander, Bird, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


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    DRAJICEVIC v. CHAMPION COPPER CO.
    Master and Servant — Personae Injuries — Assumption oe Risk.
    Where plaintiff, an experienced timberman, was injured by falling rock while engaged in repairing a mine shaft compartment to make it safer for defendant’s miners who had occasion to use it, plaintiff was not entitled to recover under the doctrines of safe place, fellow servant, and assumed risk
      Andrews v. Mining Co., 180 Mich. 72.
    Error to Houghton; O’Brien, J.
    Submitted October 18, 1916.
    (Docket No. 135.)
    Decided December 22, 1916.

      Case by John Drajicevic against the Champion Copper Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      Stone & Weider, for appellant.

       On the question of servant’s assumption of risk from changing condition of the working place during progress of work, see notes in 19 L. R. A. (N. S.) 340; 25 L. R. A. (N. S.) 321; 28 L. R. A. (N. S.) 1267.

   Moore, J.

This is an action by the plaintiff to recover damages for personal injuries received by him August 5, 1911. The case was tried in October, 1912, before a jury. From a verdict and judgment in favor of the plaintiff, the case is brought here by writ of error.

The case was submitted to this court October 18, 1916. The attorneys for the appellee were given 15 days in which to file a brief. No brief for the appellee has been filed, and we are advised none will be. The attorneys for the appellant contend a verdict should have been directed in their behalf for the following reasons':

(1) The plaintiff’s injuries resulted from a risk assumed by him in his employment.

(2) The doctrine of safe place does not apply.

(3) The negligence of plaintiff’s fellow servants was the proximate cause of his injury.

(4) The cause of the accident is left in conjecture by the declaration and proofs.

In the defendant’s mine there was a shaft with three compartments, two hoisting compartments side by side, and at the south end of the shaft a ladder road or way was partitioned off by means of timbers running at intervals of six or eight feet, on which timbers planks were spiked. In the ladderway there was a continuous ladder on the foot wall side. Where this ladder passes each level, there is a platform, which is kept closed. To pass through this platform, a man has to shove a sliding door, making an aperture large enough for a miner to pass through. Between the levels there are intermediate platforms, called “sollars.” Between the eighth and ninth levels, where the accident happened, there were three sollars. The ladderway in this shaft was 7 feet from foot wall to hanging wall and 5 feet wide. The purpose of the sollars is to stop anything falling through the ladderway, or to catch a man’s body. If a man should fall through the ladder road, he could not fall more than 20 or 30 feet. These sollars were being repaired, using concrete. To continue the work of concreting above the point where it had been left off (5 or 6 feet above the first sollar above the ninth level), it was necessary to rig a bucket in the ladderway to carry the stuff for concreting up and down. This bucket was to run upon a cable or trolley. For this purpose the lagging, some days before, had been taken down in the shaft between the eighth and ninth levels. The plaintiff helped take it down, and all working in the shaft knew that a cable was to be put in.

We may now quote from the testimony of the plaintiff:

“The second time I come back to America was five years ago. I worked in one of the shafts of the Champion Copper Company, the defendant, on the 5th day of August, 1911. I was working in the B shaft on the ninth level. I think the ninth level is about 900 feet from the surface. When I was hurt, I was working as a timberman. At that time I was. working at the south end of the shaft on the ladder way. There are two skipways in that shaft, the north and south.
“Mr. Kerr: Is it conceded this shaft goes down about at an angle of 70-degrees?
“Mr. Rees: Yes.
“This ladderway is about 5 feet wide. It is about 7 feet high from the foot wall to the hanging wall in the ladderway. It is between 25 and 30 feet above the ninth level in the ladderway where I was working at the time I was injured. At the time I was hurt we were making a stage. We call it ladder stage where we climb a ladder. I think a stage is put there, if a man falls down the ladder, it stops him. He falls on the stage. At that time we were also putting concrete in above. Below the eighth level there was no timbering done in this ladderway.
“Q. Had there been timber there before?
“A. There was, but it was taken off. At the time I was hurt, I had just brought a plank up from the lower stage. I was then standing right by the ladder-way and turned towards the hanging. The rock came from above, and struck me on the head, and I fell down, and the others picked me up.
“Q. I want to ask you, Mr. Drajicevic, whether at that time, just before you were struck, you knew of the fact that other men were working in the ladderway above you?
“A. I don’t know there was. I went to work in this way that morning between 7 and 8 o’clock. That’s where I began in the morning. In that particular ladderway we were working from morning till about noon. Before that day I had been working in that ladderway there four years. I had been working as a timberman in the ladderway before I was hurt almost four years. I had worked, before the day I was hurt, about two months in that shaft.”

One of the witnesses, whose testimony is uncontradicted, testified in part as follows:

“The purpose of the sollar is to stop anything falling through the ladderway, or catch a man’s body. If he should fall through the ladder road, he couldn’t fall more than 20 or 30 feet. The arrangement with relation to the ladderway or the rest of the situation between the eighth and ninth levels of B shaft at the time of the accident was substantially the same as I have just described. The only difference is that part of the shaft had been completed some eight or nine years previously, and of course some of the timber had decayed, and the rock at the' ends of the shaft was somewhat weathered, and it became loose in places, and as it was continually doing it, this particular party started to repair that particular level, through the eighth to the ninth. By this particular party, I mean the men who were working at the time of this accident, at both the eighth and ninth. That was the job in progress, to simply renew what timbers were necessary to renew in the shaft, and repair the, weakened underpart of the shaft. It was concreted; but, instead of putting in a continuous lining, a layer of concrete was used, which is supposed, of course, to be more permanent and make a better job than the timber. The object of that work was to prevent any loose falling into the ladder road, and to that end simply to make the ladder road safer and a better highway.”

We have quoted enough of the testimony to show that plaintiff, who was 32 years of age and an experienced timberman, was engaged in repairing that part of the compartment, which because of age was in need of repair, so as to make it a safer place for the miners who had occasion to use the ladderway. The doctrines of safe place, of fellow servants, and of assumed risk have so recently had the consideration of this court that we shall not attempt to restate them. The cases of Andrews v. Mining Co., 180 Mich. 72 (146 N. W. 394), Juntunen v. Mining Co., 184 Mich. 341 (151 N. W. 571), and Kangas v. Iron Co., 188 Mich. 255 (154 N. W. 41), are controlling of the instant case. A verdict should have been directed for defendant.

The judgment is reversed, with costs to defendant. No new trial will be awarded herein.

'Kuhn, Ostrander, Bird, Steere, and Brooke, JJ., concurred. Stone, C. J., and Person, J., did not sit.


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    RASOR v. MOTT.
    Appeal and Error — Extension op Time — Statutes.
    Where a writ of error was sued out more than ten days after the hill of exceptions was signed, and the showing made on motion to dismiss indicates very clearly that appellant was not in fault, this court, in construing section 6 of the judicature act (Act No. 314, Pub. Acts 1915) authorizing this court to extend the time beyond ten days, will allow said writ to stand as if showing had been made before the writ was taken out, and the motion to dismiss is therefore denied.
    Ejectment by King Rasor and another against Cassius M. Mott. Judgment for defendant. Plaintiffs bring error. On motion to dismiss.
    Submitted October 3, 1916.
    (Calendar No. 27,506.)
    Denied December 22, 1916.
    O. G. Tuttle, for the motion.

      Carl H. McLean, contra.

   Moore, J.

Judgment in this case was entered June 2, 1916. The bill of exceptions was signed August 11th, and writ of error was issued August 24, 1916. This is a motion to dismiss the writ of error, because it was not obtained within 10 days after the bill of exceptions was signed. The motion to dismiss is opposed for the reason that the plaintiffs were in no way responsible for the delay in suing out the writ of error. The motion involves a construction of section 6, chap. 50, of the new judicature act (3 Comp. Laws 1915, § 13741). The showing made indicates very clearly that the delay in suing out the writ of error beyond ten days is a delay for Which the appellants are in no wise responsible. The act authorizes this court, upon a proper showing made, to extend the time beyond ten days after the bill of exceptions has been signed. On the 10th of April, 1916, in the unreported case of Blake v. Insurance Co., we construed this act and granted an extension of the time beyond the ten days. In the instant case the bill of exceptions has been signed and the writ of error has been sued out. If the showing made upon this motion had been made to this court before the writ of error was sued out, we should have felt bound to extend the time in which to take out the writ of error. Inasmuch as the writ of error has been taken out, it may stand the same as though an extension of time had been granted upon a proper showing.

The appellee will be granted costs.

Stone, C. J., and Kuhn, Ostrander, Bird, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


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    TULLER v. MICHIGAN CENTRAL RAILROAD CO.
    Landlord and Tenant — Summary Proceedings — Notice—Holding Over — Evidence.
    Id summary proceedings to obtain possession of premises beld over by defendant as subtenant after expiration of tbe lease, defendant was not entitled to three months’ notice, as provided by 3 Comp. Laws 1915, § 11812, but where plaintiff had not assented to the tenancy of defendant the provisions of section 13240, 3 Comp. Laws 1915, were applicable.
    Error to Wayne; Hosmer, J.
    Submitted -October 17, 1916.
    (Docket No. 162.)
    Decided December 22, 1916.

      Summary proceedings by Elizabeth Tuller against the Michigan Central Railroad Company for the possession of land. From an order of restitution, defendant appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      J. W. Dohany (Henry Russel and Frank E. Robson, of counsel), for appellant.

      A. B. Hall, for appellee.
   Moore, J.

This is an action brought to recover possession of a strip of land 20 feet wide in the city of Detroit lying between the right of way of the Lake Shore & Michigan Southern Railroad Company on the north, and Piquette avenue on the south, and Russell street on the east and the west line of lot 2 on the west. Complaint to recover possession was made before a circuit court commissioner for Wayne county. Summons was issued and served upon the defendant. The case was tried, the defendant was found guilty, and appealed the case to the circuit court. No regular statutory notice to quit was given by plaintiff to defendant before making the complaint to recover possession in the circuit court commissioner’s office.

The trial judge stated the case now before us so clearly in his charge to the jury that we quote from it:

“Gentlemen of the jury, under the evidence which has been given in this case I think that plaintiff is entitled to recover. The evidence shows that originally the old Peninsular Car Company entered into possession under a lease from the complainant of the property in question, and, having entered into possession, gave a sublease to the Michigan Central Railroad Company. To that lease executed by the plaintiff to the Peninsular Car Company the American Car & Foundry Company afterwards succeeded. The testimony shows that there were various leases and re-leases of causes of action entered into between the American Car & Foundry Company and complainant with., reference to the balance of this property from which this 20-foot strip was originally taken, and that the leases to the American Car & Foundry Company and Peninsular Car Company and the sublease to the Michigan Central Railroad Company expired by limitation in January, 1914. The question before the court at the present time is, not the title to the property, because the title to the property in the complainant is conceded, but is whether the complainant is entitled to the possession of the premises without giving three months’ notice to the Michigan Central Railroad Company. It is provided, by section 13684, 5 How. Stat. (2d Ed.), 3 Comp. Laws 1915, § 13240, that when a person shall hold over any lands or tenements after the time for which they were demised or let to him or to the person under whom he holds, that recovery may be had in the manner pointed out by the act, of the premises, and unless the evidence shows that there was a distinct assent on the part of the complainant to the holding over of the Michigan Central Railroad Company as subtenant of the American Car & Foundry Company that complainant would be entitled to the premises. There is no evidence from which an inference can be drawn that there was any assent on the part of Elizabeth Tuller to the holding over of the Michigan Central Railroad Company. The testimony as I recall it — I may be in error, for Miss Tuller spoke in a rather low voice, but I think that the conference shows that she desired, in the negotiations with respect to the property, that she desired the property or a satisfactory lease, and the last testimony I recall that she gave was that she told Mr. Russell that she would have to serve papers upon him. Now, I think there is no evidence from which assent can be implied; if from the mere lapse of time^ something like two years, assent can be implied, it is error on my part to take it away from you; but, where the evidence is given of nonassent as is given here, I do not think the mere lapse of time can be held to give assent.”

The trial judge directed a verdict in favor of the plaintiff. The case is brought here by writ of error.

We quote from the brief of counsel:

“There is no dispute as to the ownership of the property, the only question in the case being whether or not the defendant is a tenant at will or by sufferance, and, if so, then the complaint was prematurely-filed, as it is admitted no notice was given to the railroad company to vacate.”

It is argued that by reason of section 10952, 4 How. Stat. (2d Ed.), 3 Comp. Laws 1915, § 11812, it was necessary to give a three months’ notice before complaint could be made. It is the claim of plaintiff that defendant never obtained any inore rights than her lessee had, and that by the terms of the lease it ended January 18, 1914, and that plaintiff has never consented either expressly or impliedly to any extension of the lease, and that by the provisions of subdivision 1, § 13684, 5 How. Stat. (2d Ed.), 3 Comp. Laws 1915, § 13240, she is entitled to maintain this action. .

The plaintiff is an aged woman and was not a witness. Her daughter was a witness and was examined and cross-examined at length. Correspondence was in evidence passing between the attorney for the plaintiff and the defendant. No testimony was offered on the part of defendant. It would’ profit no one to recite this evidence or reproduce the correspondence. We shall content ourselves with saying that, after a careful examination of it, we think the trial judge was right in his conclusion that it shows nonassent to the tenancy of defendant.

The judgment is affirmed, with costs to the plaintiff.

Stone, C. J., and Kuhn, Ostrander, Bird, Steere, and Brooke, JJ., concurred. Person, J., did not sit. .


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    VINCENT v. HEENAN.
    1. New Trial — Misconduct of Counsel — Jurors.
    Where plaintiff’s attorney, during the trial, sat in the dining room of a public hotel where he was a boarder, and the waitress seated a juror at the same table with him, and some conversation passed between them in the presence of others, but nothing improper was shown to have occurred, the showing was insufficient to require a new trial.
    2. Trial — Instructions—Excerpts from Charge.
    Where excerpts from the charge to the jury, standing alone, may form a basis for adverse criticism, but when read with the context the ground for criticism disappears, this court will not disturb the judgment.
    3. Appeal and Error — Conflicting Testimony — Question of Fact —Excessive Verdict.
    Where the important questions were purely ones of fact, and the testimony was conflicting, the finding of the jury, where the verdict was not excessive, will not be disturbed by this court, on error.
    Error to Macomb; Tucker, J.
    Submitted October 17, 1916.
    (Docket No. 71.)
    Decided December 22, 1916.
    Assumpsit in justice’s court by Leonard Vincent against Martin J. Heenan for rent. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Benjamin & Betzoldt, for appellant.

      W. T. Hosner, for appellee.
   MOORE, J.

This case was commenced in justice’s court. The plaintiff declared orally upon all matters provable under the common counts in assumpsit. He filed a bill of particulars of his demand in writing showing a claim for pasturing 62 head of cattle and damage to crops, claiming $149.20. Defendant pleaded the general issue. The case was tried by a jury. Judgment was rendered against defendant for $59.50 damages and $9.88 costs. The case was appealed to the circuit court, where it was tried before a jury.

The circuit judge in his charge to the jury stated the following:

“The plaintiff Leonard Vincent brings this suit, as I understand it, against Mr. Heenan to-recover what he claims is due him for the pasturage of a bunch of cattle on the farm he was occupying under Mr. Hosner and also for damage which he claims those cattle did to crops that were on his place at the time and not in the barn, in addition to the pasture which he claims is due.
“The defendant claims there is no pasturage due because of the fact that a specific bargain was made between the parties at the time as to the total amount that was to be paid by Heenan to Vincent for the pasture and that it was to cover all the pasture that Heenan cared to use the balance of the season or any length of time he cared to use it, and that no damage was done to the crops to amount to anything, and if any was done it was incidental to the fact that there were no proper fences on the place and the cattle had to be taken care of by keeping them herded, so to speak, to prevent any damage being done by them. As a matter of fact none was done of any moment.
“The plaintiff claims, as I understand it, that the bargain was that Heenan was to have the privilege of placing a number of cattle, the number not being specified, and I believe it is understood by both parties that no number of cattle was mentioned at the time the bargain, whatever it was, was made.
“The plaintiff claims that the bargain was that Heenan was to have the privilege of putting whatever cattle he had on this 80-acre farm for a short time until he could dispose of them, and that the understanding was that it was to be but a few days, a week or two at the outside. * * *
“As I have told you in other cases, the burden is upon the plaintiff to establish his theory of the case and every element of it necessary to entitle him to recover, by a fair preponderance of the proofs. * * *
“I have been asked to charge you if the conditions on the farm of plaintiff in regard to fences were such as one would naturally expect that some damage to the crops there would result from the pasturing of the cattle as was testified to were there pastured, plaintiff would not be entitled to recover for such incidental damages as actually did result therefrom.
“If it was understood and agreed between the plaintiff and defendant that the cattle pastured on plaintiff’s farm were at times to be pastured in a field which was not inclosed by fences, and that by reason thereof some damage was done to the crops in fields adjoining such pasturage, plaintiff could not recover for such damages to such crops if the damage thereto was such as one would naturally expect, unless you also find that defendant agreed to pay for the damaged crops, and that is another disputed question of fact.
“On one side it is claimed there is a specific understanding whatever damage to the crops on the farm to be done by the cattle was to be paid for, and on the other side it is denied that any such arrangement was made, and there is a serious question of how much crops were there and what the value was, and whether or not any damage was done. Now I can’t say anything more than that to you. You take this case and fairly determine it from the evidence given you by the witnesses here in court and come to just such conclusion as you think the actual truth of this matter warrants whatever way it is.”

The charge was much longer than we have quoted. The jury returned a verdict, upon which judgment was entered, for $140 in favor of the plaintiff.

A motion for a new trial for several reasons, the important ones of which will sufficiently appear in what the trial judge said in overruling the motion as follows:

“The verdict of the jury in my opinion is neither excessive in amount nor contrary to the testimony in the case. The reasons urged upon the argument for the granting of a new trial were: (1) Because it is claimed that William T. Hosner, attorney for the plaintiff, was guilty of misconduct in connection with one of the jurymen, Charles Evans, on the 28th of December, 1915, during the trial of said cause. (2) Because it is claimed the testimony in the case showed that the plaintiff’s attorney, William T. Hosner, had a then existing interest in the crops on the place, and that the jury were not instructed that the plaintiff could recover, if anything, no more than one-half of the damage done, if any.
“As to the matter of misconduct of plaintiff’s attorney I am satisfied the facts were that Mr. Hosner was a boarder at the Sherman House in the city during the trial and had been for some days prior to the commencement of the trial, while engaged here in other cases. That he sat at the same table in the dining room and at the same place during the time he was here. That he went into the dining room on the day in question with no knowledge of. the fact that Mr. Evans, the juryman in question, was to dine there. He was in company with another gentleman.
“It appears that Mr. Evans was brought into the dining room by the head waitress and seated at the same table with Mr. Hosner, where he remained during the dinner and possibly had some conversation back and forth; there being three or four people present and seated in the immediate vicinity of each other. This is the incident which is claimed-to have been the misconduct of plaintiff’s attorney.
“It does not strike me that there is anything to the claim. If the juryman had been invited to Mr. Hosner’s home, partaking of hospitality there, or if he had been invited to dinner by Mr. Hosner or taken into dinner by him and intentionally sat in conversation with him during the dinner, it would have been sufficient reason for granting a new trial, but there was nothing shown that there was any improper conduct or conversation between them. * * *
“It was stated by counsel for the defendant at the time of the argument of this motion that Mr. Hosner had treated this juryman in question at the bar of the Sherman House, but absolutely no proof of that kind was submitted indicating an occurrence of that kind. If there had been I would have considered it grounds for granting the motion made.
“On the other question, the testimony showed that Mr. Hosner had transferred his interest, whatever he had prior to the commencement of this suit, to the plaintiff in the case.”

The case is brought here by writ of error.

Counsel urge a reversal here for the same reasons urged before the trial court, upon the motion for a new trial and for the additional reason that the court erred in his charge to the jury. We agree with the judge, after careful examination of the record, that the verdict is not excessive. We agree with him that the plaintiff had acquired before suit all the claim there was against Mr. Heenan for the matters, litigated. We agree with him that the charge of misconduct of Mr. Hosner with the juror utterly failed.

As to the alleged errors in the charge: Excerpts from the charge standing alone may form a basis for adverse criticism, but when read in connection with what precedes and follows them the ground for criticism disappears.

The important questions were purely ones of fact. The testimony was as conflicting as it could well be. The jury accepted the version of the plaintiff. We are not inclined to disturb the verdict.

Judgment is affirmed, with costs to the plaintiff.

Stone, C. J., and Kuhn, Ostrander, Bird, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


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    CULLEN v. BAMMEL.
    Principal and Surety — Construction op Bond — Liability op Surety.
    In an action on a bond given by a contractor to protect the owner against any loss said owner might sustain through suit or otherwise of the subcontractor, the bond was broad enough to cover the amount of a judgment secured against the owner and his wife by the subcontractor.
    Error to St. Clair; Tappan, J.
    Submitted October 9, 1916.
    (Docket No. 86.)
    Decided December 22, 1916.
    Assumpsit by Thomas J. Cullen against Andrew Bammel, principal, and Edward Sadler, surety, on a contract of guaranty. Judgment for plaintiff on a directed verdict. Defendants bring error. .
    Affirmed.

      John W. Breining (Elmer E. Stockwell, of counsel), for appellants.

      Baird & Stewart, for appellee.
   Moore, J.

During the summer of 1914 defendant Bammel built a house for the plaintiff upon land owned by him and Mrs. Cullen jointly. Later the plaintiff decided to have a cobblestone chimney built, and under an agreement made defendant Bammel was to build it for $175. The defendant Bammel sublet the construction of the cobblestone chimney to C. A. Westrick & Son. After the chimney was completed both Bammel and C. A. Westrick & Son sent plaintiff a bill for the building of the chimney. Mr. Cullen was willing to pay, but wanted to pay but once. Defendant Bammel gave a bond to Mr. Cullen, signed by himself as principal and Edward Sadler as surety, and Mr. Cullen paid Mr. Bammel in full for the construction of the house and chimney and took his receipt therefor. December 14, 1914, Charles A. Westrick brought suit against Thomas J. Cullen and' Cecilia S. Cullen in justice’s court. The summons by direction of Mr. Bammel was delivered to an attorney, and Mr. Bammel assured Mr. Cullen that the attorney would look after the case. The attorney advised Mr. Cullen not to go near the justice’s court, but that after judgment an appeal would be taken. December 29, 1914, judgment was rendered in favor of Charles A. Westrick and against Mr. and Mrs. Thomas J. Cullen. No appeal was taken, and later Mr. Cullen paid the judgment. Mr. Cullen then commenced this suit. The defendants put in no proofs in the circuit court, and thereupon the court directed the jury to return a verdict in favor of the plaintiff and against Andrew Bammel and Edward Sadler in the sum of $175. The case is brought here by writ of error.

Counsel rely upon the fact that the trial judge erred in overruling defendants’ motion for a directed verdict, and also in directing the jury to return a verdict for plaintiff. It is the claim of the defendants that the proofs in this cause do not show a breach of the conditions of the bond. The claim is that the obligation of the surety is strictissimi juris; that he has the right to stand on its precise terms, and his liability cannot be extended by construction or implication, citing 27 Am. & Eng. Enc. Law (2d Ed.), p. 451, Grasser & Brand Brewing Co. v. Rogers, 112 Mich. 112 (70 N. W. 445, 67 Am. St. Rep. 389), and other cases. In the case where the judgment was obtained against Mr. and Mrs.- Cullen the suit was brought by Charles A. Westrick. The following appeared in the record:

“Plaintiff declared orally in assumpsit on all common counts, and especially for the construction of one cobblestone chimney built at the residence of defendants on Main street, Marine City, Mich., at defendant’s ■request. Plaintiff claiming damages,” etc.

The material condition in the bond was as follows:

“The condition of this obligation is such that said Andrew Bammel agrees to protect said Thomas Cullen against any loss he, the said Cullen, may be put to through suit or otherwise of Chas. A. Westrick and Son for any claim or claims for the construction of a chimney in a house of the said Cullen, on N. Main street, Marine City, Michigan, which said chimney was built by said Charles A. Westrick and Son, upon a contract from the said Andrew Bammel, the general contractor, for the construction of said house.”

It is argued that, as the suit was commenced by Charles A. Westrick and against Mr. and Mrs. Cullen, the surety cannot be held. In Sather Banking Co. v. Briggs Co., 138 Cal. 724 (72 Pac. 352), the court said in part:

“While it is true that a surety cannot be held beyon'd the express terms of his contract, yet, in interpreting the terms of a contract of suretyship, the same rules are to be observed as in the case of other contracts. Such construction does not mean that words are to be distorted out of their natural meaning, or that, by-implication, something can be read into the contract; that it will not reasonably bear; but it means that; the contract shall be fairly construed, with a view to effect the object for which it was given, and to accomplish the purpose for which it was designed. The old rule of strictissimi juris applies only to the extent that no implication shall be indulged in to impose a burden not clearly inferable from the language of the contract, but does not apply so as to hold that the contract shall not be reasonably interpreted as other contracts are.”

To the same effect is Locke v. McVean, 33 Mich. 473; Morris & Co. v. Lucker, 158 Mich. 518 (123 N. W. 21).

In the instant case there was a dispute as to who was entitled to receive the pay for building a chimney. Mr. Cullen was willing to pay, but he wanted to pay but once. The bond was given to secure him against loss if he paid Mr. Bammel. This he did. Mr. Cullen was to be protected against any loss “by suit or otherwise of Charles A. Westrick and son for the construction of a chimney,” etc. We think the language of the contract is sufficiently broad to meet the situation disclosed by the record.

Judgment is affirmed, with costs to the plaintiff.

Stone, C. J., and Kuhn, Ostrander, Bird, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


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    MINK v. GRAND RAPIDS, GRAND HAVEN & MUSKEGON RAILWAY CO.
    1. Appeal and Error — Conflicting Testimony — Overwhelming Weight of Evidence.
    Where the testimony was very conflicting, and the court below refused to grant a new trial on the ground that the verdict was contrary to the overwhelming weight' of the evidence, this court will not reverse the judgment, on error, for the same reason.
    2. Fires — Railroads—Double Damages — Statutes.
    Where the jury, by its answers to special questions, found that defendant railway company set a fire on its right of way and carelessly and negligently allowed it to spread to plaintiff’s premises; the action of the trial court in doubling the verdict under the provisions of section 11653, 3 Comp. Laws (3 Comp. Laws 1915, § 15424) was justified.

      Error to Ottawa; Cross, J.
    Submitted October 25, 1916.
    (Docket No. 110.)
    Decided December 22, 1916.
    Case by Ralph Mink against the Grand Rapids, Grand Haven & Muskegon Railway Company for the negligent setting of fires which spread upon plaintiff’s land. Judgment for plaintiff. Defendant brings error.
    Affirmed.
    Carroll, Kirwin & Hollway, for appellant.

      Smedley & Linsey, for appellee.

       On the question of liability of railroad for setting fires which spread to property of others, see note in 21 L. R. A. 262; 36 L. R. A. (N. S.) 194; 45 L. R. A. (N. S.) 216.

   Moore, J.

Plaintiff is the owner ox 80 acres of land through which defendant’s railway runs. This suit is brought to recover damages for injury done to the plaintiff’s land and other property by reason of a fire. From a judgment in favor of the plaintiff the ca,se is brought here by writ of error.

Plaintiff claims that section men employed by defendant were burning brush and other rubbish upon defendant’s right of way; that near the place where the men were burning the brush the land adjoining was covered with a tall, dry marsh grass which was very inflammable and was within a very few feet of where said section men were burning said brush; that said fire spread into this long marsh grass which almost immediately ran upon plaintiff’s land, and burned large holes in his muck ground, about 2 acres of his meadow, about 5 acres of his wood lot, a portion of his fences and other property, and as a result he suffered substantial damages. Plaintiff asserts that at the time of the setting of the fire there had been a long dry spell; that after the starting of the fire the section men took no reasonable precaution to prevent its spreading to the adjoining premises and from there to plaintiff’s land; that because of the conditions it was negligence on the part of the section men to set a fire and thereby cause plaintiff to suffer damage; that said section men after setting the fire carelessly and negligently allowed the fire to spread to the adjoining premises which communicated from there to plaintiff’s premises.

The defendant claims that its men did not set the fire that burned over the. land of the plaintiff. Defendant claims that the fire originated in a swamp north of their right of way, and that the fire spread upon the lands of Mr. Falls, upon the plaintiff’s land, and upon the right of way of the defendant from there.

Defendant claims that, as soon as it discovered that the fire was spreading from the swamp north of its right of way towards the right of way of the defendant, its section men did all they could to protect the right of way of the defendant and the property of others. Defendant claims that its section men went to the home of the plaintiff and tried to get him to assist them in stopping the fire by taking his team and assisting in stopping the spread of the fire; that had the plaintiff assisted them they could have prevented the fire from spreading upon plaintiff’s land. They claim that plaintiff was guilty of negligence in not assisting the section men to prevent the spread of the fire, and that any damage suffered by the plaintiff was due to his own negligence and not to any negligence of the defendant.

The following special questions which were answered were submitted to the jury:

“(1) Did the defendant carelessly and negligently set a fire on its right of way on the afternoon of August 26th as claimed by plaintiff?
“A. Yes.
“(2) Did the plaintiff carelessly and negligently allow said fire to spread and pass from its right of way as claimed by the plaintiff?
“A. Yes.”

The jury returned a verdict of $570 in favor of the plaintiff. The court upon motion doubled the amount thereof under the statute upon which suit was brought. The judgment amounts to $1,140.

Error is assigned upon the admission of certain testimony. We shall content ourselves with saying of this assignment that we think it not well taken. We quote from the brief of counsel:

“One of the grounds of the defendant’s motion for a new. trial was that the verdict is against the weight of the evidence, and was not supported by a fair preponderance of the evidence in the cause, and it is upon this assignment of error that chief reliance is had in asking for a reversal of this cause.”

This assignment of error involves an examination of the entire record. The trial judge in overruling the motion for a new trial expressed himself as of the opinion that the verdict was not against the weight of the evidence.

The testimony was very conflicting. The question of fact was submitted in a fair charge. We are not able to say, after a careful reading of the testimony, that the verdict should be set aside because of the weight of testimony. ■ Especially should we hesitate to do this when the trial judge who saw and heard the witnesses declined to grant a new trial for that reason.

In Krouse v. Railway, 170 Mich. 438 (136 N. W. 434), the following language was used:

“The court will only interfere when a verdict is so manifestly contrary to the overwhelming weight of evidence and so palpably wrong as to force the conviction that it was the result of either passion or prejudice or a dense incapacity to analyze testimony and discern the truth.”

This language was quoted with approval in Silverstone v. Assurance Corp., 187 Mich. 333 (153 N. W. 802). See the many cases cited in the above opinions.

The only remaining question of importance is, Was there error in doubling the verdict? Counsel for appellee assert that this motion was not objected to. The record does not disclose any objection. It was, not stated to the circuit judge, as one of the reasons why a new trial should be granted. The defendant did not give any evidence upon the question of damages. The plaintiff gave some evidence that it reached upwards of $1,500. The answers to the special questions and the language of section 11653, 3 Comp. Laws (3 Comp. Laws 1915, § 15424), justify the action of the circuit judge. See Allen v. Bainbridge, 145 Mich. 366 (108 N. W. 732), and the cases cited therein.

Judgment is affirmed, with costs to the plaintiff.

Stone, C. J., and Kuhn; Ostrander, Bird, Steere, and Brooke, JJ., concurred. Person, J., did not sit.