text:
    KIRBY v. SOULE.
    1. Libel and Slander —Joinder of Parties — Contribution — Notice to Joint Wrong Doers.
    Act No. 233, Pub. Acts 1911 (5 How. Stat. [2d Ed.] § 13140), provides that in an action for libel the defendant may recover contribution from all persons who were originally jointly liable with defendant and may, within 15 days after service of process upon him, notify such persons who are jointly responsible with defendant of the pendency of the suit, that judgment rendered therein shall be conclusive on one so notified in an action for contribution. Plaintiff's capias ad respondendum was quashed because his affidavit was in part based upon information; defendant conceding that the writ was good as commencement of the action, the proceeding was not dismissed. Twelve parties whom the defendant had notified to defend, pursuant to the statute, moved to dismiss the case as to them because notice was given too late. Held, that the action was commenced when the capias issued and hence in an action for libel, notice served more than 15 days after defendant was taken into custody, was too late.
    2. Same — Motions—Appeal and Error.
    The service of notice on joint tort feasors to appear and defend a libel suit must be made within 15 days after the writ is served; statutes in derogation of the common law being strictly construed: and the motions of defendants who were served too late were properly heard together and granted.
    3. Same — Dismissal and Nonsuit.
    And it was proper practice to raise the point by motion.
    Error to Ottawa; Cross, J.
    Submitted November 13, 1913.
    (Docket No. 95.)
    Decided January 5, 1914.
    Case by Edward P. Kirby against Charles E. Soule and others for libel. From an order dismissing the cause as to several defendants, joined under a notice pursuant to Act No. 233, Pub. Acts 1911, defendant Soule brings error.
    Affirmed.

      Coburn & Misner, for appellant.

      Diekema, Kollen & Ten Cate (Walter I. Lillie, of counsel), for appellees.
   Stone, J.

On July 13, 1912, appellant, Soule, was arrested, on a capias ad respondendum issued out of the Ottawa circuit court on the same day; the affidavit attached thereto charging him, at the suit of plaintiff, with having written, uttered, and published certain claimed libelous letters of and concerning the plaintiff. An order to hold to bail was made by the circuit judge before arrest. Defendant Soule, after giving appearance bail, moved the court to dismiss the capias, and discharge his bail for want of jurisdiction, and his motion was denied August 16, 1912, by the circuit judge; there having been a stipulation made by the attorneys of the respective parties that “all further proceedings be stayed in said matter until said motion has been disposed of.”

Mandamus proceedings were had in this court upon ' the petition of defendant as relator. In his petition, said relator stated that he had been—

“Arrested by the sheriff of Ottawa county on a capias ad respondendum writ issued out of the circuit court for said county at the suit of Edward P. Kirby, plaintiff, and held to bail,” etc. -

He prayed for the writ of mandamus, commanding the circuit judge—

“To set aside said order denying said motion, and commanding him to dismiss said capias ad respondendum writ, and discharge the appearance bail of your petitioner thereunder, and release his sureties thereon.”

This court, on April 8, 1913, held that the affidavit for the writ was fatally defective, and the order to hold to bail was set aside, and the writ of mandamus was issued. In his brief in that proceeding, the relator concluded as follows:

“The foregoing completes relator’s argument for mandamus to compel the circuit judge to set aside the capias, and discharge his bail for want of jurisdiction shown in the affidavit; but it is conceded the writ will stand as a summons, and relator asks the Supreme Court to so rule.”

Upon this last-named subject, this court said:

“In view of this concession, we will not consider the question of whether the writ performs the office of a summons in this case.” Soule v. Ottawa Circuit Judge, 175 Mich. 127 (140 N. W. 990).

The writ of mandamus- was served on the circuit judge, and on April 21, 1913, he made an order in the cause as follows:

“In obedience to the writ of mandamus hereto attached, it is ordered that the order denying the motion to dismiss thé capias ad respondendum, heretofore and on the 16th day of August, 1912, entered in the above-entitled cause, be vacated and set aside, and that said capias ad respondendum issued in the above-entitled cause be dismissed, and that the said appearance bail of the said relator thereunder be discharged, and that the sureties thereon be released.
“It is further ordered and adjudged that said writ of capias ad respondendum stand as a writ of summons as of this date, and that defendant have fifteen days hereafter to appear in said cause.”

So far as the record shows, the plaintiff had no notice of this order. On April 26, 1913, defendant Soule appeared generally by Coburn & Misner, his attorneys. On April 28, 1913, plaintiff’s declaration was filed. On May 1, 1913, a notice was made and served upon the various parties named therein, as follows, after the title of the court and cause:

“To Millard Durham, Joseph O’Brien, Edward P. Kirby, Walter I. Lillie, Holland Sentinel Publishing Company, Cornelius Van Loo, Fred McEachron, Isaac Marsilje, Zeeland Record Company, Benjamin Mulder, John Mulder, C. D. Vos, William Van Koevering, and Ed. Van Koevering, all of Ottawa county, Michigan.
“You will please take notice that on the 13th day of July, 1912, a capias ad respondendum was issued, by virtue of which the defendant in the above-entitled cause was arrested, and held to bail in the sum of ten thousand dollars ($10,000), and on the 8th day of April, 1913, a mandamus was granted by the Supreme Court, compelling the Honorable O. S. Cross, circuit judge, in and for said county of Ottawa, to set aside the writ of capias ad respondendum, and discharge the bail, which order was granted by the said circuit court on the 21st day of April, 1913.
“You will further’ take notice that all proceedings in said cause were stayed by stipulation, and that the order setting aside the capias ad respondendum and discharging the bail also ordered that the said writ of capias ad respondendum stand as a summons as of April 21, 1913.
“You will further take notice that it is claimed that the alleged letters upon which said capias were based were published by each of you, and that therefore this notice is served upon you under the provisions of Act No. 233 of the Public Acts of the State of Michigan of 1911.
“You will further take notice that the name of the plaintiff in said case is Edward P. Kirby, and that the name of the defendant is Charles E. Soule, and that said suit is pending in the circuit court for the county of Ottawa and State of Michigan, and that a copy of the declaration filed in said cause is hereto attached and marked ‘Exhibit A.’
“You will further take notice that, under the provisions of said Act No. 233 of the Public Acts of 1911, you have the right to appear in said cause, and intervene in said cause, and defend the same.
“Respectfully yours,
“Coburn & Misner, “Attorneys for Defendant.”

It is the claim of defendant Soule that copies of said notice, with copy of plaintiff’s declaration thereto attached, were served on each of said persons named in said notice personally or by registered letter on or before May 6, 1913, save that the same were not served upon Cornelius Van Loo until May 16, 1913, and that no notice and declaration were served on either William Van Koevering or Edward Van Koevering.

On May 16, 1913, 12 separate motions were entered in said cause entitled Edward P. Kirby, Plaintiff, v. Charles E. Soule, et al., Defendants, being one by each of the persons upon whom said notice was served. The notices of said motions and the motions in each of said 12 matters were practically alike, save as to the names, except as to Cornelius Van Loo, whose notice and declaration were not served until more than 15 days after the circuit court’s order of April 21, 1913. There was a notice that said motions would be brought on to be heard on the 9th day of June, 1913. A sample copy of said notice is in part, as follows:

“State of Michigan,
“The Circuit Court for the County of Ottawa.
“Edward P. Kirby,
“Plaintiff,
v.
“Charles E. Soule, et al.,
“Defendants.
“Now comes Millard Durham, by Diekema, Kollen & Ten Cate, his attorneys, appearing specially for this motion, and Walter I. Lillie, of counsel, and moves the court now here for an order dismissing said cause as against him, the said Durham, for the following reasons:
“(1) That said cause was commenced by capias ad respondendum on the 12th day of July, 1912, and the notice and copy of the declaration served on the defendant by registered letter was received by him on or about the 6th day of May, 1913, and more than fifteen days after the commencement of said suit.
“(2) That the order made by the circuit court of Ottawa county April 21, 1913, was ex parte, without notice to the attorneys for the plaintiff in said cause, and not binding and of any force upon this defendant.
“(7) This motion is based upon the files and records in said cause upon the notice and declaration hereto attached and the affidavit of Millard Durham, hereto attached, and the affidavits of all the others who were served with like notice and declaration.
“Dated this 16th day of May, A. D. 1913. [Signed by Attorneys.”]

To which motion was attached a lengthy affidavit of Millard Durham in support thereof.

The written order of the court granting the motion of said Millard Durham, a copy of which had been served on counsel for defendant Soule, with 11 other proposed identical orders, with exception as to the name of the mover thereof, were on the 9th day of June signed by the court and filed on that day. In each of said orders, as in the order on motion of said Millard Durham, a $5 attorney fee was allowed to the mover of the motion, making $60 attorney fees allowed on said 12 motions heard and decided. The order made in the case on motion of Millard Durham was as follows:

“[Title of Court and Cause.]
“At a session of said court held at the courthouse in the city of Grand Haven on the 9 th day of June, 1913.
“Present: Honorable Orien S. Cross, Circuit Judge.
“On reading and filing the notice given by Charles E. Soule, defendant herein, to Millard Durham, under Act 233 of the Public Acts of 1911, requiring him to appear and defend the said suit, and contribute to any judgment which might be obtained against the said defendant Soule, and on reading and filing the motion of said defendant Durham, and the affidavit attached thereto, requesting this court to dismiss the said cause as against him, the said Durham, and, after hearing the arguments of George Kollen and Walter I. Lillie, appearing specially as counsel for the said Durham, and of Corie C. Coburn, attorney for the defendant Charles E. Soule, and it appearing to this court that the notice given by the said defendant Charles E. Soule to the said Millard Durham under and pursuant to Act 238 of the Public Acts of 1911 was not given within fifteen days from the date that process issued in said cause, and that the said Durham was therefore improperly brought into court in this action:
“It is therefore ordered, adjudged, and decreed, and this court, by virtue of the authority therein vested, doth order, adjudge, and decree that the said proceedings be dismissed as to the said defendant Durham, and that he recover of and from the said defendant Charles E. Soule $5 attorney fee, and that execution issue therefor.
“Crien S. Cross,
“Circuit Judge.”

The defendant Soule excepted to the order of the circuit judge, and has brought the case here on writ of error, and has assigned error upon the entry of the order of the circuit judge; and he contends as follows in this court:

(1) That this suit was not commenced by the issuing of the capias July 13,1912, for the reason that the affidavit on which the order to hold to bail was. based was on hearsay, and not “on probable cause, supported by oath or affirmation,” as required by the Constitution protecting personal liberty, and gave no jurisdiction.
(2) Appellant contends that the court erred in entertaining jurisdiction to hear the 12 motions, there-being nothing in Act No. 233 of 1911 (5 How. Stat. [2d Ed.] §13140), that makes the persons notified defendants, unless they elect to appear, interplead,, and defend; and that they cannot thrust themselves; into the case and become defendants except by conforming with the terms of the act.

The remaining objections and assignments of error relate to the practice of permitting such matters to be disposed of upon motion.

No question has been raised by counsel whether or not this case is properly here on writ of error, yet we have some doubt as to the correctness of the practice. But, the order made by the circuit judge having dismissed the proceedings, and it being a final determination of the right to bring the parties into the case under the statute, and there being a final judgment for costs against appellant in each case, we have concluded to dispose of the questions raised upon their merits, treating them as properly reviewable by writ of error. Jewell v. Lamoreaux, 30 Mich. 155; Dages v. Sanilac Circuit Judge, 122 Mich. 490 (81 N. W. 355); Recor v. St. Clair Circuit Judge, 139 Mich. 156 (102 N. W. 643); City of Flint v. Genesee Circuit Judge, 146 Mich. 439 (109 N. W. 769).

The statute involved (Act No. 233, Pub. Acts 1911; 5 How. Stat. [2d Ed.] § 13140) is before us for the first time. Its validity is not discussed.

By the first section of the statute it is provided that:

“Whenever a judgment shall be recovered against one or more defendants for damages arising out of the authorship or the publication of a libel, such defendant or defendants, as the case may be, shall be entitled to recover contribution, in an action on the case; from all persons who were originally jointly liable for such libel with such defendant or defendants, to the same extent as and with the like effect that joint sureties are liable to contribute to each other in cases where they are sureties on the same contract.”

Section 2 reads as follows:

“Any defendant or defendants against whom any suit shall be begun for the purpose of recovering damages arising from the publication of any libel, and on whom a declaration or other process in such suit shall have been served, may, at any time within fifteen days after such service, serve on any other person liable to contribute to such defendant under the provisions of this act, a notice of the pendency of such suit; which notice shall state the name of the plaintiff or plaintiffs therein, the name of the court in which the same is pending, and shall be accompanied by a true copy of the declaration filed in said suit, if such declaration shall have been filed prior to the service of such notice. And such person on whom such notice shall have been so served shall have the right to appear within fifteen days from the time of the service on him of such notice, and intervene in such suit and defend the same. Such person, if he so appears, shall have the same rights and liabilities in respect to pleadings and process as if he were an original party defendant in such suit, and such suit shall not be considered at issue until the same is at issue as to such intervening party. And in case he shall fail after such notice to so appear in and defend such suit the final judgment rendered therein shall be conclusive against him in any action for contribution under the provisions of this act.”

In our opinion the question whether the parties here named are “originally jointly liable” is not before us, and cannot be determined, depending upon what the evidence may disclose at the trial.

Coming to the first proposition of the appellant, the question is raised: When was this suit begun? it being the contention of appellant that it was not begun by the issuing of the capias on July 13, 1912. We are not able to agree with appellant in this contention. Section 9989, 3 Comp. Laws (5 How. Stat. [2d Ed.] §12652), provides that all original writs in personal actions shall be a summons or a capias ad respondendum according to such form as shall be fixed by the general rule of court. The form of the writ has been fixed by Circuit Court Rule 1. The rule provides, among other things, that original writs for the commencement of suit shall notify the defendant to appear in person, or by attorney, within 15 days after service upon him of the writ, to answer to the suit of the plaintiff according to the rules and practice of the court, with such additional command as shall be appropriate to the action of replevin and to actions commenced by attachment or a capias ad respondendum. Subdivision (c) of the rule prescribes the form of the notice of summons. By subdivision (f) it is provided that, in actions commenced by capias ad respondendum, there shall be added to the foregoing form a clause substantially as follows:

“To the Sheriff of Said County:
“You are- hereby commanded to take said defendant, if he may be found in your bailiwick, and keep him in your custody until he shall be discharged according to law.”

In H. J. Cheney & Co. v. Allgeo, 165 Mich. 384 (130 N. W. 593), we held that an action begun by capias should not be dismissed for insufficiency of the affidavit, but that plaintiff should be allowed to proceed on the summons clause of the writ.

There is nothing in Soule v. Ottawa Circuit Judge, supra, that would indicate any change in this practice ; but, in view of the concession there made by the relator, who conceded that the writ should stand as a summons, the question was not passed upon, but he was taken at his word. We must hold, therefore, that the capias stands as a summons, and that this suit was begun on July 13, 1912, notwithstanding the order of the circuit judge of April 21, 1913. There was nothing in the stipulation of counsel referred to by appellant that would be binding upon these several parties. The question as to their liability had not been raised, and they were all strangers to the record, except possibly Edward P. Kirby, whose counsel did not represent him upon this question at that time by anything shown in this record.

Appellant contends that the court erred in entertaining jurisdiction to hear the 12 motions. If the circuit judge could hear one motion, we see no reason why he might not hear 12. There might be some doubt whether appellant can join all these parties in one writ of error. We have concluded, however, to treat the writ of error as properly here to review the action of the circuit judge as to all the parties.

It is the claim of each of these parties that he has been improperly and irregularly brought into this case because service was not had on him within 15 days after service of process, as provided by section 2 of the act. This statute being in derogation of the common law should, in our opinion, receive a strict construction, and it should be held that appellant could not defer the bringing in of the parties beyond the statutory period of 15 days.

It is the contention of appellant that these matters could not be disposed of upon motion. The questions so far discussed arise upon the conceded facts in the case and of record relating to the time when the suit was begun, when service was had upon the several parties, and the manner in which the question was disposed of by the circuit judge. If these parties were irregularly and improperly brought before the court, we think they had the right to have the proceeding against them dismissed. We do not find it necessary to discuss any other questions raised in the case.

We find no error in the action of the circuit judge as to the order of June 9, 1913, dismissing the proceeding as to each of the parties named; and the order and judgment will stand affirmed.

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


source: Caselaw Access Project

author: Steere, C. J.

license: Public Domain

text:
    MEYER v. SHAPTON.
    1. Frauds, Statute oe — Contracts—Memorandum.
    While a memorandum of the purchase and sale of a motor truck signed only by the buyer would not constitute a contract of sale, the payment of a part of the purchase price at the time of signing satisfies the statute of frauds.
    2. Appeal and Error — Findings oe Fact — Trial.
    On error, findings of fact made by the lower court sitting without a jury are taken as correct, if there is any testimony in the case to support them.
    3. Sales — Partnership—Names.
    Where defendants in an action for breach of a contract of sale of a motor truck claimed that the contract was made with plaintiff under a fictitious name, Meyer Bros., and it was shown that no such firm existed, that some time previously plaintiff had been connected with a firm or partnership of Meyer Bros., which had ceased to exist, and in taking a written order or memorandum of the deal, plaintiff had used a blank order of the old firm and omitted to erase the name, that he was not doing business or advertising under the name of Meyer Bros., the trial court was right in holding that a valid contract of purchase from plaintiff existed.
    4. Same — Evidence—Memorandum.
    Oral proof was also admissible to show who were the real parties to the sale, which was not evidenced by a written contract; and the apparent error was a latent ambiguity, subject to oral explanation, but if the contract had been reduced to writing and signed by purchaser and seller, oral proof of previous negotiations would have been incompetent.
    5. Same — Contracts.
    Parol evidence may be introduced to correct, identify or explain the name given and party intended in a written instrument, as grantee, devisee, or promisee, not to pervert the written instrument, but to prevent the written instrument from being perverted from the intent of the parties.

      6. Same — Executory Contract.
    . Tlie transaction being an executory agreement of sale, was not invalid because plaintiff did not own tbe motor truek negotiated for, but was obliged to order it.
    Error to Charlevoix; Mayne, J.
    Submitted November 13, 1913.
    (Docket No. 103.)
    Decided January 5, 1914.
    Assumpsit by Herman C. Meyer against William Shapton and Earl J. Shapton for breach of a contract of sale. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Halstead & Halstead, for appellants.

      Harris & Reugsegger, for appellee.
   Steere, C. J.

This is an action brought by plaintiff to recover from defendants damages for breach of an alleged contract by which they purchased from him an automobile delivery wagon. It was begun and first tried in justice’s court, and an appeal was taken, from a judgment there rendered, to the circuit court of Charlevoix county, where the case was retried before the court without a jury. On demand therefor, special findings of fact, together with conclusions of law thereon, were made and filed by the court. These sufficiently state the case for an understanding of the controversy and are as follows:

“(1) On or about June 1, 1912, the plaintiff, a resident of Boyne Falls, Mich., met the defendants at the city of Charlevoix, Mich., and the parties conferred with reference to the selling by the plaintiff to the defendants of a certain type of automobile, known as a delivery wagon, and the parties agreed upon the price and terms, and, while sitting in the machine in the street in the city of Charlevoix, the defendants paid and the plaintiff accepted $10 in part payment of the machine, which was to be by the plaintiff ordered from the factory and delivered as soon as delivery could be had from the factory. The defendants were to pay $1,020 for the machine; $10 down, $90 cash June 3, 1912, $400 on delivery of the car, and $520 in the defendants’ notes divided in payments of three months, with interest at 6 per cent. The defendants paid the plaintiff at that time $10 and on June 3d paid to R. A. Emrey $75 on the purchase price.
“(2) At the time of making the agreement, the plaintiff took from his pocket a blank order formerly used by Meyer Bros., now out of business, which was in the following form:
• ‘“Meyer Bros. Hardware, Furniture and Implements.
“‘Boyne Falls, Mich.,.............,190..
“ ‘The undersigned hereby purchases of you to be delivered at Boyne Falls, Mich., .........., 190.., the following described articles: ..............
“ ‘Upon receipt of the above-named articles, the undersigned agrees to pay $........ cash, or execute and deliver to you approved note, .as follows: ...............Notes to draw interest at the rate of 7 per cent, per annum.’
“ (3) Upon this printed form the plaintiff then and there filled out an order for the machine with lead pencil and when filled out the paper then read as follows (lead pencil writing underscored) :
" ‘Meyer Bros. Hardware, Furniture and Implements.
“ ‘Boyne Falls, Mich., June 1, 1912.
“ ‘The undersigned hereby purchases of you to be delivered at Boyne Falls, Mich., as soon as possible the following described articles: 1 — No. 59 — Delivery wagon complete loitli top — tires 33x4 — also speedometer. Telephone 209 — 1 long 3 short.
“ ‘Upon receipt of the above-named articles, the undersigned agrees to pay $1020, or execute and deliver to you approved note, as follows: $10.00 — $90 cash June 3, 1912 — $400.00 on delivery of car — $520.00 on notes divided in payments of 3 months — with interest at 6 per cent. Notes to draw interest at the rate of 6 per cent, per annum.
[Signed] “ ‘Wm. Shapton.
“ ‘Earl J. Shapton.’
“(4) Plaintiff negligently omitted to erase the name ‘Meyer Bros.’
“(5) The memorandum of defendants’ telephone address was written across the face of the order, as appears above.
“(6) The above memorandum was signed by the defendants and by them delivered to the plaintiff.
“(7) At the time of the signing and delivery of the memorandum and the payment of the money, there was no such firm in existence known as ‘Meyer Bros.’ and had not been for four years preceding. Plaintiff was doing business in his own name. No reference was made to the firm of Meyer Bros. The name of Meyer Bros, was not erased, by mistake.
“(8) The defendants on or about the 5th day of June called the plaintiff over the phone and notified the plaintiff that they wanted to cancel the order, and plaintiff informed the defendants then and there that the machine had been ordered from the factory and that he could not cancel the order for it, and that he would expect them to take the machine.
“(9) On or about the 18th day of June following the plaintiff tendered to the defendants the kind and style of machine or delivery wagon ordered by them on the 1st day of June, and they refused to accept it and made no objection and gave no reasons for not accepting only that they did not want it and would have nothing to do with it.
“(10) Afterwards the plaintiff sold the machine to another party, receiving $800 therefor. His expenses in and about the making of the sale were $50. He had received from the defendants $85.
“(11) I find and conclude as a matter of law that the defendants entered into an agreement with the plaintiff to purchase from him a delivery wagon; that the plaintiff agreed then and there to sell a delivery wagon and tendered delivery of the wagon under the agreement, and that the wagon was refused, and that the plaintiff was thereby damaged by reason of the sale of the wagon in the sum of $220, and that he had received from the defendants on the purchase price of the machine $85, and that there is still due the plaintiff the sum of $185, which amount he is entitled to recover from the defendants.
“(12) Further that the omission to erase the name ‘Meyer Bros.’ did not render the contract void.”

Judgment was duly rendered and recorded in accordance with said findings. Various amendments proposed in behalf of the defense, both to the findings of fact and conclusions of law, were denied.

The principal points raised in defendants’ numerous assignments of error against these findings and sequential judgment are: There was no testimony to support the findings that plaintiff accepted the order and agreed, orally or in writing, to sell the car, or that “the name of Meyer Bros, was not erased (from the order), by mistake.” The court erroneously admitted, against objection, plaintiff’s testimony that he was doing business in his own name, and in the negotiations Meyer Bros, was not mentioned by either party, there being no such firm in existence, and in further allowing him to detail the circumstances and reasons for using such blank. That the order written upon said blank was no evidence of a valid contract and was erroneously admitted in evidence, because it was at most a mere offer to purchase, not signed by plaintiff nor naming him, and showed upon its face that the business, if done by and with him, was done under an assumed or fictitious name, in violation of Act No. 101, Pub. Acts 1907 (2 How. Stat. [2d Ed.] § 2626).

“The alleged contract was for the purchase of goods, wares, and merchandise for the price of more than $50, and, not being accepted in writing by the vendor, lacked mutuality and was void under the statute of frauds.
“The partial payments were of no legal efficacy in making a valid contract, for the reason that there never was any agreement, oral or otherwise, on the part of the plaintiff to sell, and consequently nothing upon which a part payment could operate.”

Counsel for defendants say in their brief—

“The court further found and held that the paper known as Exhibit 1 created a binding obligation upon defendants.”

We are impressed that this is a misapprehension upon which many of defendants’ contentions are based. The court, as we read and construe the findings, did not so determine, but found that there was an oral agreement entered into between the parties on June 1, 1912, for the sale and purchase of the car in question, on terms talked over and agreed upon; that, in connection with and at the time of making the agreement, the writing in question was made out by plaintiff, signed by defendants, and handed by them back to him; that it is shown to contain the terms on which the sale was made and is competent evidence as a memorandum to be considered in the case in connection with the oral testimony; that the evidence, taken in its entirety, shows a contract of sale and purchase as claimed by plaintiff, upon which earnest money was then and there paid, the transaction as a whole constituting a valid and binding agreement.

The writing, standing alone, unsigned and unaccepted by plaintiff, would not constitute a contract. The contract of sale did not depend upon the memorandum to relieve it from the statute of frauds. Section 9516, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 11400), provides:

“No contract for the sale of any goods, wares or merchandise, for the price of $50 ór more, shall be valid, unless the purchaser shall accept and receive part of the goods sold, or shall give something in earnest, to bind the bargain or in part payment, or unless some note or memorandum in writing of the bargain be made, and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized.”

No testimony was offered or introduced by defendants.

It has often been held that the findings of fact made by the court on trial without a jury will be taken as true if there is any testimony in the case to support them.

As to defendants’ claim there was no testimony to support the findings that plaintiff accepted the order and agreed to sell the car and that the name of Meyer Bros, was by mistake not erased, we find in the record that plaintiff testified he had been engaged in general merchandising in his own name for the last four years and was in the business of selling these machines ; that William Shapton knew he dealt in them, and they together on June 1, 1912, examined one belonging to a Mr. Hall, with the same chassis as the one ordered for defendants except the tires of the latter were larger; that “the deal was about an Overland delivery wagon,” and “at that time we came to an agreement, and a memorandum of the agreement was made in writing,” signed by defendants in the presence of himself and Mr. Hall, and “the paper (Exhibit 1) shows the price of the machine and the terms I was to give him as we agreed;” also that plaintiff was selling the machine to defendants in his own name and the name of Meyer Bros, was not mentioned; that $10 was then paid him by defendants upon the machine to “apply on the purchase price,” and later $75 was paid him by defendants through a Mr. Emrey “to apply on the contract;” that he at once ordered the car by telephone and confirmed it by letter dated and mailed June 1st, the same date as Exhibit 1. Being asked how he came to use that blank, he said it was practically the only piece of paper he had with him; that it was written,out on the street; that there-had been such a firm as Meyer Bros, some four years back, but at this time there was no such firm; that he was not connected with or agent of any such firm and had not been advertising business in such name and did not know of any one else who had; that, when Shapton called him up on June 5th to countermand the sale, he called for him by his own name of Herman C. Meyer.

In the light of such undisputed testimony it cannot be said there was no evidence to support the findings. We think the oral evidence of the agreement as made, and in explanation of the circumstances, showing who the real parties were and that the actual seller of the car did not appear by the memorandum, was competent.

Treating this as an oral contract, as it primarily was, and it being shown that in fact plaintiff did not conduct or transact the business under an assumed name, Act No. 101, Pub. Acts 1907 (2 How. Stat. [2d Ed.] §2626), has no application.

If the contract of sale depended upon and was created by the mutual adoption of a valid written agreement between the parties, it would be a contract in writing, precluding as a rule oral proof of negotiations leading up to it; but, if originally created and consummated without writing, it remained a verbal contract, though in connection with it or following it a written memorandum was made, which then became written, but not exclusive, evidence of the verbal contract. The parties could, of course, put an end to the verbal agreement by a completed written contract formally and understandingly entered into in its stead, but such was not the case here. In this case the oral testimony does not attempt to dispute the written memorandum as to price, description of property, or terms of delivery and payment. It is directed only to an error in designation of the seller, to a showing by extrinsic evidence that the “you” in Exhibit 1 was intended for and meant plaintiff, whose surname was Meyer, and did not nor could not mean Meyer Bros., as printed in the old blank of a firm or party which had been out of existence for four years, one of that class of mistakes in a writing sometimes designated latent ambiguities and open to oral explanation.

It is a general rule that parol evidence may be admitted to correct, identify, or explain the name given and party intended in a writing as grantee, devisee, or promisee, not to pervert the written instrument, but to prevent the written instrument being perverted from the true intent of the contracting parties. Cleveland v. Burnham, 64 Wis. 347 (25 N. W. 407); 17 Cyc. p. 712, and cases there cited. Even under this rule the parol evidence was admissible.

That a valid, verbal, executory contract of sale of personal property can be entered into between parties capable of contracting where its terms are mutually understood and agreed upon and earnest money is paid in case the purchase price exceeds $50 is not open to question.

The contention that the sale was not binding because at the time alleged plaintiff did not own the chattel negotiated for is not tenable. Technically considered, the transaction is not a bargain and sale but an executory agreement of sale. Under the general rule in such cases, even the nonexistence of the thing contracted for, at the time of an executory contract of sale, does not invalidate it. It becomes the duty of the vendor to produce or acquire it. Tiedeman on Sales, § 56; Benjamin on Sales, p. 113; Goddard v. Binney, 115 Mass. 450 (15 Am. Rep. 112), citing Spencer v. Cone, 1 Metc. (Mass.) 283, on this proposition.

We conclude that there was testimony to support the findings of fact made by the trial court and that a correct result was reached in the conclusions of law based thereon.

The judgment is affirmed.

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


author: STEERE, J. Ostrander, J.

text:
    TOLMIE v. WOODWARD TAXICAB CO.
    1. Automobiles — Highways and Streets — Municipal Corporations — Contributory Negligence — Personal Injuries.
    In an action for personal injuries to plaintiff by being hit in crossing a city street by a taxicab, the burden rests on him to establish that he was free from contributory negligence.
    2. Same — Use of Public Streets.
    Where plaintiff and others crossed a city street and his companions waited for a taxicab to pass, but plaintiff passed in front of the car and was struck by it, and plaintiff’s testimony did not show that the driver was on the wrong side of the street or that he was proceeding at excessive speed, but that the plaintiff looked twice and failed to perceive the taxicab, or to hear any warning signal although other witnesses testified  that the horn was sounded, he was negligent as matter of law for failing to exercise his faculties to protect himself.

    Kuhn, Ostrander, and Bird, JJ., dissenting.
    Error to Wayne; Hally, J.
    Submitted October 14, 1918.
    (Docket No. 43.)
    Decided January 5, 1914.
    Case by Frederick Tolmie against the Woodward Taxicab Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      E. T. Berger (E. R. Milburn, of counsel), for appellant.

      Florian, Moore & Wilson, for appellee.

       The authorities on the duty of pedestrians to look out for automobiles are collated in notes in 3 L. R. A. (N. S.) 345; 20 L. R. A. (N. S.) 232; 38 L. R. A. (N. S.) 488; and 42 L. R. A. (N. S.) 1179.

   STEERE, J.

This is an action in tort brought to recover damages for personal injuries claimed to have been sustained by plaintiff as a result of having been run against and knocked down by one of defendant’s taxicabs on May 7, 1911, while he was crossing Jefferson avenue in the city of Detroit.

The negligence charged in plaintiff’s declaration and relied upon as ground of recovery is failure to comply with the requirements of section 7, subd. 2, of Act No. 313, Pub. Acts 1909, in the particular that the driver of defendant’s taxicab did—

“Approach the plaintiff herein, who was then lawfully in the roadway of the public highway herein-before described, at a much higher rate of speed than ten miles per hour, and did not slow down to ten miles per hour before reaching him, and did not give any warning whatsoever of the approach of the motor vehicle or automobile aforesaid, and did not use any precaution whatever to insure the safety of the plaintiff herein.”

The undisputed testimony shows that on Sunday, May 7, 1911, plaintiff, a teamster 32 years of age, was walking with two companions across Jefferson avenue from the south side, going north on the Beaubien street crosswalk. They were walking abreast; plaintiff being farthest east. Just as they had passed beyond the north rail of the street car track running along Jefferson avenue, a taxicab of defendant’s approached them from the east. JPlaintiff continued forward towards the north curb; his two companions stepping back. He was struck by the front of the taxicab and fell. He at once arose to his feet and proceeded with his companions on their way. The car stopped at or about the time he fell, and the driver dismounted. Plaintiff testifies:

“The driver asked me if I was hurt and I said I was. There were three men in the automobile besides the driver, but I didn’t talk to them.”

He very soon was in communication with legal counsel and on the evening of that day was visited by a doctor sent by the attorneys in this case. The latter were authorized to commence proceedings on the following day, a contract being entered into giving them an interest in the suit, and on May 18th the action was begun. Otherwise than by commencement of .the suit, no notice of the injury or claim of plaintiff, or demand for settlement, was made upon defendant, except a letter from plaintiff’s attorneys notifying defendant of their interest in the suit. On the trial plaintiff introduced testimony that his hip, head, back, and knee were injured, confining him to his bed for some time, and that he lost the sight of one eye. At the conclusion of plaintiff’s testimony, and again at the close of all the evidence, counsel for defendant moved the court to direct a verdict in its favor on the ground that no actionable negligence on the part of defendant’s driver was shown and particularly plaintiff’s own testimony disclosed that he was guilty of gross carelessness and contributory negligence. These motions were denied and the case submitted to the jury, resulting in a verdict for plaintiff of $1,000. Defendant thereafter moved for a new trial on substantially the same grounds as the motions, and also that the verdict was against the weight of evidence and excessive, which was refused, and the case has been removed to this court for review, by writ of error.

Plaintiff’s evidence as to the accident consisted of his own testimony, with an added statement in the record that a witness named William Rowe was examined and cross-examined. His testimony is claimed to have been corroborative but is not contained in the record. The original bill of exceptions is indorsed “O. K.” by plaintiff’s counsel, and the trial judge certifies that it contains substantially all the testimony produced upon the trial bearing upon the questions raised for review.

Plaintiff gave no testimony as to the speed at which the car was running other than that he saw it 15 or 20 feet away and jumped, being struck by it as it swerved towards the curb. His testimony as to notice of approach is that he heard no warning. Of the accident he testifies on direct examination:

“I looked for any vehicles that might be passing as I crossed from the south side of the street to the north side. I looked again when I was about in the middle of the car track. I looked both east and west, and at the time I saw no vehicles approaching. I was not aware of the fact that an automobile was coming until it was right on top of me. The automobile was going west and was coming towards me from the east. When I saw the automobile I tried to make for the curb but was knocked down, being struck by the front of the car. After I was struck I was taken to the New Daily Hotel. After I was struck the car moved about 35 feet. I heard no warning or horn of any kind. On arriving at the hotel I was treated by Dr. Williams. I went to bed and was confined to my bed for about three months. My side was injured, and my sight; my right eye has failed me altogether. I was struck in right side and my back was injured.”

And on cross-examination:

“I did not have any drinks and was not drunk. My eyes were perfectly clear and I had my wits about me all the time, and there was nothing to interfere with my walking along the street safely and carefully. The streets were not busy on Jefferson avenue, and there were not many vehicles passing at the time I started to cross the street. It was a‘clear day, and a bright day, and the street was comparatively clear. I had a clear view either way. One can look up Jefferson avenue for about a half a mile, and when I got to the north rail of the car track on Jefferson avenue I looked east and could see for about a half a mile and I saw no vehicle coming. The distance from the north rail to the place where I was struck is about 15 feet. When I saw the machine was going to hit me I jumped forward toward the curb. I saw it was going to hit me when it was about 20 feet away; that was when I first saw the automobile. It was about 15 feet away and I tried to jump out of the way.
“Q. How far did you jump?
“A. I could not tell you; the automobile was any way right into me.
“Q. Right into you?
“A. Turned off and shot into me.
“Q. Turned off towards the curb?
“A. Shot into me.
“Q. Turned off this way (indicating) ?
“A. In the curb.
“Q. So you tried to get out of the way and turned around immediately?
“A. They could not get out of the way.
“Q. So .near the curb it could not get out of the way?
“A. When they shot into the curb they was—
“Q. Shot into the curb?
“A. Didn’t hit the curb.
“Q. Very close to it?
“A. Very close to the edge.
“Q. So that from the middle of the road to the point where you were actually struck by the automobile was about five feet?
“A. Yes, sir. * * *
“Q. Kept right on going?
“A. Yes, sir; could not stop it.
“Q. Pushed you along with it?
“A. Threw me over there. * * *
“Q. Where did it throw you?
“A. It throwed me into the middle of the road. He stopped the car about SO feet past where I was struck. The force of the automobile pushed me over into the middle of the road and stopped about five or six feet past me. * *• * I did not waste any time starting my suit. * * * I gave my lawyers the case day after I was hurt. I signed the paper giving my attorney an interest in the lawsuit. * * *
“Q. When you looked to the right or to the east, was the automobile that struck you in sight?
“A. No, sir; not the first time.
“Q. Were the three of you walking together?
“A. Yes, sir.
“Q. Which side were you on?
“A. I was on the right side.
“Q. Right side, outside of the two, to the east of the other two.
“A. To the east of the other two.
“Q. Were either of them hit by the automobile?
“A. No, they jumped the other way.
“Q. They jumped back?
“A. Yes, sir.”

Defendant produced three witnesses to the accident, occupants of the car; the testimony of one being printed in the record with the statement that the testimony of the others is substantially the same. The one testifies that they had been to Belle Isle and were running down Jefferson avenue at about ten miles an hour; that as they approached Beaubien street and first saw the three men on the crossing 45 or 50 feet away they were going not more than five or six miles an hour; that /the driver sounded his horn and two of the men stopped, the one in the middle endeavoring to check the one on the east of him, but that he threw his hands out and kept right on to a point in front of the car, the driver blowing his horn and slowing up all the time and trying to get out of his way until the man was struck; that the fellow just ran into him, and the automobile stopped right there, “maybe it went two or three feet after it hit him; that the one hit did not appear to be looking at the automobile but walked straight ahead with his head down.”

Plaintiff’s own testimony shows that he was a teamster by avocation, engaged in that calling before and after the accident; that he was a man of mature years, familiar with the use and dangers of highways, his sight good, and possessed of all his faculties; that in the afternoon of a bright, clear day he was crossing one of the main thoroughfares of the city, upon which there was at the time no rush or confusion of travel, with two companions, the three walking abreast, he being on the side next to an approaching automobile, coming on its proper side of the street, with a clear view in that direction for half a mile; that he looked in that direction and saw nothing, although his companions on the side farthest away did see the car and avoided it; that under those conditions he walked right on into the path of the approaching vehicle and was thrown down by it, after which he arose and walked to a hotel, although he testifies that his heart, kidneys, liver, stomach, and lungs had been misplaced, disordered, seriously and permanently injured, and the synovial membrane surrounding his knee joint was torn apart. This being true, the inference would be that he just then needed a physician rather than an attorney, but he says he lost no time in starting his suit, and the first physician who visited him, on the evening of the accident, testifies he was sent there by plaintiff’s attorney.

The extent and nature of plaintiff’s injuries, while matters of serious contention, are within the field of disputed facts to be decided by a jury, if plaintiff was shown to have been in the exercise of due care and free from contributory negligence. It was as essential to the right of recovery for plaintiff to affirmatively show freedom from negligence on his own part as to show negligence on the part of defendant.

Under the conditions described by himself, with good eyesight and his wits about him, it seems impossible that plaintiff could not have seen the danger in time to avoid it, had he been reasonably alert and used his eyes and ears as the average reasonably prudent and cautious man should and would under like circumstances, and as his companions did. Instead of showing absence of contributory negligence, his evidence shows its presence. His testimony shows that the taxicab was on the proper side of the street, and his only proof of negligence on the part of the driver (against the otherwise undisputed testimony of defendant that the speed was not excessive, that it was reduced on approaching the crossing, that the horn was repeatedly sounded, and when the three pedestrians separated and possibility of collision was indicated every effort was made to avoid plaintiff and stop the car) is that he saw and heard nothing of the car until it was “right on top of me,” “about 20 feet away,” “about 15 feet away,” “anyway right into me,” and struck him before he could jump out of the way.

Counsel for plaintiff cite Gerhard v. Motor Co., 155 Mich. 618 (119 N. W. 904, 20 L. R. A. [N. S.] 232), and Bouma v. Dubois, 169 Mich. 422 (135 N. W. 322), in support of their contention that plaintiff in crossing the street was not required to be constantly on the lookout, or to stop, look, and listen, as in case of crossing steam or electric railway tracks, and that both the question of defendant’s negligence and plaintiff’s contributory negligence were questions of fact for the jury. His claim that he heard no horn or other warning may be conceded to raise an issue, as against defendant’s testimony that the horn was timely and repeatedly sounded, on the question of the driver’s negligence in failing in that particular, and possibly an inference of his negligence arises from plaintiff’s testimony in other particulars, but plaintiff’s own testimony and the undisputed facts, taken in the most favorable light for him, show that he himself did not make such reasonable use of his senses as an ordinarily prudent and careful person would have exercised under like circumstances. While a traveler on foot passing along or crossing a public highway has the same right to use it as a vehicle of any kind, “pedestrians as well as all others are ‘bound to exercise care according to the circumstances, and especially bound to the alert and watchful performance of the duty of all travelers on all highways to look where they are going’ ” and not walk blindly into danger. Babbitt on Motor Vehicles, § 272. The standard of duty of the driver in cases of children, aged persons, and those under other disability, when discovered, requires a higher degree of care, according to the circumstances, but no such conditions are shown or claimed here.

In Gerhard v. Motor Co., supra, plaintiff was a boy 14 years old, a “jumper” on a delivery wagon, his work being to deliver merchandise from a delivery wagon to customers along the streets. An automobile of defendant’s passing close to the delivery wagon at an alleged excessive rate of speed struck him in the back and side, dragged him about 66 feet, and seriously injured him. The boy was within 1% feet of his wagon with his back toward the oncoming machine, attending to his duties, and claimed to have recently looked before getting down from his wagon but did not see the automobile which in its course came around a corner from Woodward avenue to the street on which the accident occurred. The driver knew the type of delivery wagon and knew it was the habit of some one with it to get down from it and run into houses to deliver packages. This was the case of a young boy, engaged in his work, obscured by a delivery wagon from which the driver knew deliveries were made, struck by a passing automobile going in the same direction at an excessive rate of speed, and the court held under the conflicting testimony the issues were for the jury.

In Bouma v. Dubois, supra, plaintiff, a woman weighing 225 pounds, was on her way to church in the evening, accompanied by her daughter. It was after nightfall and raining. While attempting to cross Granville avenue, an intersecting highway, she was struck by defendant’s automobile, thrown down, and dragged about 60 feet, receiving serious injuries. Her testimony and that of her daughter indicated that they had proceeded with caution, looking and listening, thát the car without sounding warning and without proper lights, driven at great speed, suddenly came upon them out of the obscurity. This court found that the very conflicting testimony was properly submitted to a jury. In both of the above cases the circumstances were entirely different from the one at bar, involving accidents in the evening, to persons under more or less disability, with the testimony in conflict as to controlling issues of fact.

Here, under the undisputed conditions surrounding the accident and eliminating all issues of fact which conflicting evidence raises, plaintiffs own testimony shows that he failed to use his senses and exercise that reasonable degree of care to avoid injury, proportionate to the circumstances which the law makes essential to recovery, and by his own carelessness and negligence contributed to the same.

The judgment is reversed, and a new trial granted.

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

Ostrander, J.

I think the question of plaintiffs contributory negligence was for the jury.

Kuhn and Bird, JJ., concurred with Ostrander, J.