author: Moore, J.

text:
    CHEBOYGAN PAPER CO. v. EICHBERG.
    1. Sales — Warranty—Breach—Condition Precedent — Quality.
    Where defendant contracted to buy paper from plaintiff, the material to be of standard quality in the trade, and acceptable to the defendant, permitting a variation of three per cent, in tensile strength, as a precedent condition the paper must conform to the specified quality and weight or the purchaser need not accept and pay for it.
    2. Same.
    In the sale of goods by description there is a warranty that they shall answer the description, if given by way of indicating the character or quality of the article sold, and not merely for purposes of identification; it is not an implied warranty, but is construed as constituting an express undertaking that the article shall be as it is described. It does not survive an acceptance after inspection.

    3. Same — Defects.
    When the buyer of paper discovered its failure to conform to the specifications in the contract, and, instead of rejecting the material, used it, notwithstanding its claimed defects, its acts amounted to an acceptance and defendant could not recoup for breach of the vendor’s duty to furnish paper in conformity to contract specifications.

    Error to Calhoun; North, J.
    Submitted October 8, 1914.
    (Docket No. 33.)
    Decided January 4, 1915.
    Assumpsit by the Cheboygan Paper Company against Morris Eichberg and another for goods sold and delivered. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Arthur & Beck and Burritt Hamilton, for appellants.

      Victor D. Sprague and G. S. Reilley, for appellee.

       As to the distinction between warranty of identity and warranty of quality, see note in 35 L. R. A. (N. S.) 265.

       For waiver by use of right to rescind contract of sale for breach of warranty or noncompliance with contract, see note in 36 L. R. A. (N. S.) 468.

   Moore, J.

The plaintiff is a Michigan corporation engaged in the manufacture of paper. Defendants are a copartnership engaged in the manufacture of bags at Baltimore, Md. This suit is brought for a balance claimed to be due it for the manufacture and delivery of paper made under the provisions of two contracts, one dated October 17, 1908, one dated July 6, 1909, and a supplemental contract of July 6, 1909.

There was delivered under these contracts paper of the approximate value of $120,000. Trouble arose between the parties and this litigation followed. Defendants pleaded the general issue, and gave notice of set-off and recoupment. The only item of these defenses involved in this review is a claim of damages for bréach of warranty amounting to $5,991.64, which defendants sought to recoup. From a verdict and judgment in favor of the plaintiff, the case is brought here by writ of error.

The appellants discuss their assignments of error under two heads, the first of which is that there was a mutual release of liability. This claim is based upon the following language contained in the contract of July 6, 1909:

“And it is further understood and agreed, by and between the parties hereto, that the contract under date of October seventeenth, nineteen hundred and eight, existing between the parties hereto, shall be henceforth and forever considered canceled and annulled, to all intents and purposes, as if the- same had never been entered into, the parties hereto releasing’ and discharging each other from all liability growing out of or arising therefrom.”

The first contract had this language in it:

“It is further agreed that party of the first part shall carry 100 tons of bag paper of the above-mentioned grades in the warehouse of party of the second part, and shall keep same insured, but will be at no further expense in regard to such stock. Specifications for the 100 tons to be furnished party of the first part by party of the second part thirty days before this contract is to take effect.”

When the second contract was made there was in storage in Baltimore 350 tons of paper, placed there for defendants. The supplemental contract was made the same day the second contract was made. It reads:

“July 6, 1909.

“It is hereby agreed between the Cheboygan Paper Company, of the first part, and the Paper Mills Company, of the second part, that the paper now in store in Baltimore, amounting to 350 tons more or less, shall be reported by them weekly as provided under contract dated October 17, 1908, so that the total amount of paper now in storage there shall have been reported used within ninety' days from the date hereof. If at the end of ninety days there' should remain any portion of the said 350 tons not reported by the Paper Mills Company, such portion shall be settled for by note from the Paper Mills Company to the Cheboygan Paper Company, which note, or any part thereof, shall be extended from time to time at the option of the Paper Mills Company, and shall be exclusive of the settlement by note of an amount equal to 100 tons which has been provided for in contract of this date

“Cheboygan Paper Co.,

“By H. A. Frambach, President.

“Paper Mills Co.,

“M. H. Eichberg.”

In view of the language contained in the supplemental contract, and the conduct of the parties following the making of the contracts of July 6, 1909, we think there is no merit in the claim of a mutual release.

The second group of assigned errors.grows out of the failure of the court to allow defendants to recover for a breach of an express warranty, in that the paper was overweight. We cannot present this claim better than to quote from the brief:

“The second contract contained the following express warranty: 'And the said party hereto of the first part, vendor, further agrees that all. the paper delivered under the terms and provisions of this contract shall be of the standard quality, which is considered by the customs of the trade as a good delivery, and acceptable in all respects to the said parties hereto of the second part, vendees, with the allowance of a variation of 3 per cent, in the tensile strength as shown by a Mullen tester, or in weight over the designated or ordered basis weight/ That the foregoing clause falls squarely within the definition of an express warranty is fully supported by the authorities: ‘A warranty in a sale of personal property is a statement or representation made by the seller, contemporaneously with and as a part of the contract of sale, though collateral to the express object of it, having reference to the' character of, or the title to, the goods or article sold, and by which the seller promises or undertakes that certain facts are, or shall be, as he represents them. The warranty is express when created by apt and explicit statements of the seller/ 30 Am. & Eng. Enc. Law, p. 129.

“Language strikingly similar to that employed in the second contract, and under parallel circumstances, was held to constitute a warranty in the case of American Glue Co. v. Rayburn, 150 Mich. 616 [114 N. W. 395]. The objection to overweight paper in the manufacture of bags is that it will produce fewer bags per pound than paper of lighter weight.”

It is claimed the last-named case rules the instant case.

As to the alleged breach of an express warranty, counsel for appellee say:

“First. There was no express warranty in either of the contracts sued on in this case; the provision in the second contract as to the qualities was not a warranty, but a description — a condition; that it constituted a sale by description, which placed upon the buyers the duty to inspect, and accept or reject, the paper tendered thereunder.

“Second. That by the very terms of the second contract the purchasers, defendants, were obligated to seasonably accept or reject paper tendered by plaintiff thereunder; it being provided therein that the paper ‘shall be * * * acceptable in all respects to the said parties hereto of the second part, vendees.’

“Third. That on Fébruary 23, 1910, in writing, defendants acknowledged they had no' existing claim for alleged overweights of paper, and completed an agreement, in writing, signed by both parties to the so-called ‘second contract,’ that defendants should thereafter lay aside all paper received by them from plaintiff that was not up to standard in weight, quality, and finish, and that all paper thereafter shipped defendants was shipped under said agreement completed February 23, 1910, and that by its terms defendants were required to accept or reject all paper seasonably on its receipt, and therein and thereby any express warranty in the second contract, if any ever existed, was abrogated.

“Fourth. That, under the admissions of the defendants made in open court, defendants neither offered, nor can offer, any competent proof of damages in any event, so that the ruling complained of, being based upon this incompetent testimony, was not erroneous, and moreover, if erroneous, which we strongly deny, is harmless.”

The record shows there were occasional complaints made that the paper was running overweight, and was not making the requisite number of bags. The plaintiff claimed the weight was, as a rule, all right, and suggested that the paper was cut larger than necessary for the bags. The interpretation of the contracts made by the parties thereto is indicated by extracts from the correspondence as follows:

Mr. H. A. Frambach, president of plaintiff company, went to Baltimore, and while there dictated a letter to his son in which appeared the following:

“Oct. 22d, 1909.

“Mr. J. H. Frambach, Cheboygan Paper Co., “Cheboygan, Mich.

“Dear Harry:

“I herewith inclose note and letter just dictated in my presence by Mr. Hirsch. Please hand this to Mr. Jolly.

“I have also gone over some weights and will bring with me cards of the rolls and samples of the paper showing that some of it is running overweight, although the majority of the paper is running very accurate to weight. Now, Harry, see that no more of the paper runs overweight. While we have a margin of three per cent, that does not mean of course three per cent, over or three per cent, under, but it should average.

“I have handed Mr. Hirsch your last estimate of car loads shipped, which he will check up as soon as it arrives, and I hope that we have our weights down so that they will average up all right. Mr. Hirsch has notified me that if the paper runs over in future that he will charge back the overweight.”

“Feb. 21, ’10.

“Mr. M. L. Hirsch, Paper Mills Co.,-

“Dear Sir:

“I have your esteemed favor of the 17th inst., which I find upon my desk this morning. Since I returned from New York I have been quite ill with a cold and have been in the house considerable of the time.. * * _ * Then there has been considerable fault found with our weights. Our records reveal exactly to us the condition of the weights and if you were here and saw our system you would quite agree with us that we know what we are talking about. While there was some of the paper that ran a trifle heavy, but nothing serious, there was considerable of the paper that ran a little under the specified weight which would even up the car load shipment, and give no cause for complaint. However, this was not so serious as you have never, made any specific claim against us, but have intimated lately that you would do so. Whenever our paper is not right, the only way to do is to lay it aside and have it returned. Then we will investigate at this end of the line as to whether you were justified in doing so or not.” * * *

“Very truly yours,

“H. A. Feambach.”

“Baltimore, Md., Feb. 23d, TO.

“Col. H. A. Feambach,

“Cheboygan, Mich.

“Dear Colonel:

“ * * * Regarding basis weights, writer showed you while you were here that the basis weights were over, and while we have never made any deductions on account of this error in basis weight, we feel we would have been fully justified and would have done so except for the strong friendship which exists between yourself and the writer.

“We shall follow your instructions hereafter as to laying such paper aside that is not up to the standard in weight, quality and finish, although we think you will change your position the first time this condition comes up. We have always tried to use your paper at a loss to ourselves, yet you are fully aware that the paper has not been up to the basis weight as ordered and consequently entailed a loss on us which we have always suffered. * * *

“Yours very truly,

“M. L. Hirsch.”

On March 14, 1910, a letter was written in which it was said:

“In the meantime, we want to call your attention to the fact that we cannot use the five or six cars which we have in the house and must be given immediate disposition of same, as we have no room to store it, unless there is a disposition on your part to allow us the privilege of using it and charge you back with such loss as we sustain. This is fair and we should think would be reasonable with you and be of little loss to each of us.”

Later the following telegram was sent:

“Baltimore, Md., March 16, 1910.

“Cheboygan Paper Co.,

“Cheboygan, Yiich.

“Reject shipment March first entire car wet torn not up to quality or weight. Suggest Colonel Frambach coming to Baltimore immediately.

“Paper Mills Co.”

Col. Frambach was unable to go to Baltimore, and his son went on, and a settlement was reached upon the basis of allowing defendants $1,101.60, to be paid in paper. This is the only time any paper was rejected. There'was much other correspondence which we have not quoted. Taken in its entirety it shows that, while there were occasional complaints by defendants, and statements made by plaintiff of a desire to fulfill the terms of the contract, and a willingness to have defendants reject any paper which did not meet their requirements, at no time was there a suggestion that defendants might accept and use the paper and then present a claim for damages upon the theory that the contract contained a warranty.

It must be remembered that at the time the second contract was made the paper was not in existence, but was to be manufactured and so it was provided in the contract:

“That all paper delivered under the terms and provisions of this contract shall be of the standard quality, which is considered by the customs of the trade as a good delivery, and acceptable in all respects to the said parties hereto of the second part, vendees, with the allowance of a variation of 3 per cent, in the tensile strength as shown by the Mullen tester or in weight over the designated or ordered basis weight.”

By the terms of the provision quoted it was a condition precedent that the paper tendered thereunder should be of standard quality, and should not vary more than 3 per cent, in tensile strength and weight over the ordered basis, and should be acceptable to the purchasers. Paper that was not of standard quality and that varied more than 3 per cent, in tensile strength or weight over the ordered basis did not comply with the terms of the contract of sale, and imposed no obligation on the vendees to receive and pay therefor.

A consideration of the language in the contract in connection with an examination of the case of American Glue Co. v. Rayburn, 150 Mich. 616 (114 N. W. 395), cited by counsel for appellants, will show that the case is easily distinguishable from the instant case.

It must be conceded that there is a lack of uniformity in the authorities. The rule has been stated as follows:

“When the subject-matter of a sale is not in existence, or not ascertained at the time of the contract, an undertaking that it shall, when existing or ascertained, possess certain qualities is not a mere warranty, but a condition the performance of which is precedent to any obligation upon the vendee under the contract, because the existence of those qualities, being part of the description of the things sold, becomes essential to its identity, and the vendee cannot be obliged to receive and pay for a thing different from that for which he contracted.” Pope v. Allis, 115 U. S. 363, 371 (6 Sup. Ct. 69); 2 Mechem on Sales, §§ 1208-1212.

Again:

“In. the sale of goods by description, there is a warranty that they shall answer the description, where it is given by way of indicating the character or quality of the article sold, and not for the purpose of identifying it merely, and when the buyer relies upon it as a warranty. It is not an implied warranty, but is construed, under such circumstances, as constituting an express undertaking that the article shall be as described. Such a warranty will not survive an acceptance after inspection.” 30 Am. & Eng. Enc. Law, p. 154, and cases cited.

The record shows that, after knowledge of conditions in the paper which defendants claimed amounted to defects, they accepted the paper and used it.

The principles of law involved have recently been the subject of discussion in this court in the cases of Columbus & Hocking Coal & Iron Co. v. See, 169 Mich. 661 (135 N. W. 920); Gill & Co. v. Gaslight Co., 172 Mich. 295 (137 N. W. 690). It is not necessary to restate what is said in the opinions in those cases. We think they are controlling of the instant case. Judgment is affirmed.

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


source: Caselaw Access Project

author: Moore, J. McAlvay, J.

license: Public Domain

text:
    HAYES v. AUDITOR GENERAL.
    Constitutional Law — Statutes — Local Acts — Classification According to Population — County Agents — Salary.
    Under the provisions of section 30, Art. 5, of the Constitution, prohibiting the passage of local or special acts, except upon the approval of the electors in the district affected, the statute (Act No. 115, Pub. Acts 1913), providing for a county agent and fixing the salary of the agent in counties having a population of upwards of 150,000 at $1,800 per annum, is constitutional and valid, and is not open to the objection that the classification could not be made upon the basis of difference in population. Brooke, C. J., and McAlvay, J., dissenting.
    Mandamus by John P. Hayes against Oramel B. Fuller, auditor general of the State of Michigan, to require the respondent to issue a warrant upon the State treasurer for the salary of said Hayes as county agent of Kent county.
    Submitted October 12, 1914.
    (Calendar No. 26,300.)
    Writ granted January 4, 1915.

      Leonard D. Verdier, for relator.

      Grant Fellows, Attorney General, for respondent.
   Moore, J.

The question involved is admirably stated in the brief of the attorney general as follows:

“The relator is the county agent of the State board of corrections and charities for the county of Kent. He seeks by this proceeding to compel the auditor general to pay him the salary fixed by Act 115 of the Public Acts of 1913, being ‘An act to fix the salaries of the county agents of the State board of corrections and charities appointed in and for counties having a population of one hundred fifty thousand or more, and to repeal all acts or parts of acts contravening the provisions' of this act.’

“The respondent, upon the advice of the legal department of the State, declined to make such payment upon the ground that Act 115 of 1913 is in conflict with the provisions of section 30 of article 5 of the Constitution, which reads as follows:

“ ‘The legislature shall pass no local or special act in any case where a general act can be made applicable, and. whether a general act can be made applicable shall be a judicial question. No local or special act shall tahe effect until approved by a majority of the electors voting thereon in the district to be affected.’

“It is insisted upon the part of the State that the act in question is a special act and that a general act can be made applicable.

“It is conceded that there are but two persons holding the office of county agent in the State of Michigan to whom this act applies. The 81 other county agents of the State are not within its provisions. It is therefore the claim of the respondent that the act is a special one, within the provisions of the section of the Constitution above quoted, and is therefore void. There are but two counties in the State having a population of 150,000, and we take it as settled by the case of Attorney General, ex rel. Dingeman, v. Lacy, 180 Mich. 329 (146 N. W. 871), that the language of the act cannot give it a general character by the use of words general in their nature, but which limit its operation to special persons or special territory.”

The attorney general cites many cases; among them is Henderson v. Koenig, 168 Mo. 356 (68 S. W. 72, 57 L. R. A. 659), and insists that the last-named case and the case of Attorney General, ex rel. Dingeman, v. Lacy, supra, are controlling and justify the refusal of the auditor general.

There is langfiage used in the opinions cited which afford a basis for this contention. The cases, however, are distinguishable. In Henderson v. Koenig, supra, it is said at page 369 of 168 Mo., at page 75 of 68 S. W. (57 L. R. A. 659) :

“The Constitution has pointed out -the precise and specific method by which county officers are to be paid, which is by fees; and if the legislature desires to classify counties by population, and thus proportion the amounts of fees the various judges of probate may retain according to such ratio, then this must be done by appropriate legislative enactments. It cannot be done by making one or more judges of probate salaried officers, and compelling them to account for the fees they may receive, and leaving the' other judges of probate throughout the whole State unhampered by any such conditions, for this would not be ‘a law uniform in its operation,’ and therefore not a compliance with section 12 of article 9.”

And it was held that, as the Constitution provided that the officer should be paid by fees, the legislature could not provide he should be paid a salary.

In Attorney General, ex rel. Dingeman, v. Lacy, supra, it appears the legislature undertook to call into existence in Wayne county a judicial officer unknown to all the rest of the State. It was held invalid for several reasons, which appear in the opinion. In the instant case mo new office is created different from those existing in all the other counties of the State. These officers are appointed by the governor, paid by the State, and are performing State functions as the agents of a State board. Why should it not be said that the entire State is ‘the district affected’ by the act? County agents, under the provisions of Act No. 6 of the Public Acts of 1907 (Extra Session) (2 How. Stat. [2d Ed.] §3458), are charged with numerous duties relating to the care, investigation, and supervision of dependent, neglected, and delinquent children. It is a well-known fact that the problem of dependency, neglect, and delinquency of children is practically limited to communities with congested population. Counties having 150,000 inhabitants or more must have congestion of population, and must, by virtue of that fact, have numerous cases of children requiring the services of a county agent. Clearly the county agent in a county containing a large urban population will have much more to do, and should therefore be paid more, than in a small rural community, where the problem of delinquency is almost unknown. But it is said that the previous act, being based upon a per diem of service, gave ample recognition to the difference in the amount of work done, and that, if a county agent devoted his entire time to the work, he received $939 per annum under the old act, but that the agent in Kent or Wayne, who can devote no more than his entire time, will receive $1,800 under the act in question. Is not that a matter of legislative discretion rather than of judicial determination? The legislature undoubtedly had in mind the fact that, on account of the number of cases, their complexity, and the added responsibility entailed thereby, the. counties with congested population demanded the services and therefore the pay of an efficient, high-grade officer with more or less expert knowledge and training, and that the amount of time devoted to the work was not necessarily the only criterion to measure the compensation.

We all know it costs much more to live in a large town than in the smaller counties, and it is very likely the legislature also took this fact into consideration in passing the law. It is not a new thing in this State to base the salary of an officer upon the population of the county where the service is to be rendered. The amount of the salaries paid the judges of probate depends upon the» population of the counties. The more populous the county the larger the salary. 2 Comp. Laws, § 2552. Section 14454, 5 How. Stat. (2d Ed.), and notes thereto. A case not on all fours, but involving the same principle, is the case of the People v. Brazee, 183 Mich. 259 (149 N. W. 1053). Justice Brooke, speaking for the court, said:

“The contention of the respondent that the act in question violates article 5, § 30, of the State Constitution, in that, under the guise of a general act, it is really local legislation, is, in our opinion, untenable. It is true that it provides for a license fee of $100 in cities containing over 200,000 population, and but $25 in other cities, and it is likewise true that at the present time there is but one city in the State of Michigan which haSi a population of more than 200,000. This fact, however, is not necessarily controlling. The act operates upon all citizens alike, except that a larger sum is charged for the license in larger cities than in smaller ones. Wherever the fee for the license is charged primarily for the purpose of regulation and not for the purpose of revenue, a variable sum may be fixed to meet the varying conditions under which the licensee operates. 25 Cyc. p. 608, and cases cited in note 74. It may well be that the legislature appreciated the fact that inspection for the purpose of proper regulation in large cities would be much more expensive than such inspection in smaller cities, and that the larger sum was fixed for the purpose of meeting such added expense of administration.”

See, also, State v. Sullivan, 72 Minn. 126 (75 N. W. 8). The legislation was within the legislative discretion.

The writ will issue as prayed, but without costs.

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

McAlvay, J.

I cannot agree with the foregoing opinion. The act in question does not make a constitutional classification.

Brooke, C. J., concurred with McAlvay, J.


text:
    SANFORD v. HOUGHTON.
    1. Trial — Examination of Party — Cross-Examination — Recalling Witness — Discretion of Trial Court.
    In the course of the trial of an action of slander, after plaintiff had been examined, and defendant had waived cross-examination, and following the testimony of another witness, it was within the discretion of the trial court to permit plaintiff’s attorney to recall and re-examine the plaintiff.
    2. Libel and Slander — Evidence—Damages—Feelings.
    Plaintiff, in a slander suit, who alleged damages to her feelings, was not improperly permitted to describe the effect of alleged slanderous statements upon her feelings.
    3. Same — Evidence—Malice.
    Counsel for plaintiff was also correctly permitted to offer in evidence other slanderous statements made about the time of the alleged wrongful acts, as tending to show the malice of the defendant.
    4. Same — Evidence—Testimony as to Wealth of Defendant.
    Where a witness for the plaintiff testified in relation to the reputed wealth of defendant, and his testimony tended to show what the reputation of defendant was in this particular, the objection that certain of the questions and answers, disconnected from the remaining testimony of the witness, related to the defendant’s actual wealth rather than his reputation therefor was not tenable as ground for reversal.
    5. Same — Dispute—Immaterial Evidence.
    nder a plea of the general issue, the defendant was not authorized, in attempting to show that the subject-matter of dispute between himself and plaintiff, at the time the alleged slanderous words were uttered, lay on his property and that it belonged to him; the evidence was also inadmissible for the purpose of mitigating damages, defendant having testified on his examination relative. to the ownership and status of the property.
    Error to Livingston; Miner, J.
    Submitted October 12, 1914.
    (Docket No. 72.)
    Decided January 4, 1915.
    Case by Mildred Sanford against James Houghton for slander. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      W. P. Van Winkle & Son and A. L. Chandler, for appellant.

      Louis E. Howlett and E. A. & L. E. Stowe, for appellee.
   Moore, J.

This is an action of trespass on the case to recover damages for slander. The case was tried by a jury, which returned a verdict in favor of the plaintiff for $325. A motion was made for a new trial, which motion was overruled; the trial court filing written reasons for so. doing. The case is brought here by writ of error.

The only errors relied upon which call for discussion are grouped by counsel for appellant as follows:

“(1) Error in permitting the plaintiff to be recalled for further direct examination after cross-ex-animation had been waived and in refusing to strike out this evidence.

“(2) Error in permitting the plaintiff to describe how the alleged slanderous words affected her feelings.

“(3) Error- in the admission of testimony relative to alleged statements of the defendant showing malice.

“(4) Error in the admission of evidence relative to the financial standing of the defendant.”

(5) Rulings in relation to testimony.

Taking these up in the order presented:

The plaintiff was a witness in her own behalf. She was examined in chief. Counsel for defendant waived cross-examination. Albert Tumser was next called as a witness. He gave his version of the conversation which is the basis of the suit. After he left the stand counsel for plaintiff recalled the plaintiff for further examination. This is said to be error. We think this well within the discretion of the trial judge. Green’s Michigan Practice, § 897.

This group of assignments of error is not well taken. Farrand v. Aldrich, 85 Mich. 593 (48 N. W. 628) ; Cribbs v. Yore, 119 Mich. 237 (77 N. W. 927); McArthur v. Sault News Co., 148 Mich. 556 (112 N. W. 126).

Relates to the testimony of witnesses Cole and Hoyt of prior statements made by defendant concerning plaintiff, bearing upon the question of malice. Counsel say:

“In the present case the words admitted to show malice were not a part of the res gestee; they were not a part of the same transaction; they did not lead up to the words charged in the declaration, and we maintain were incompetent in the case.”

The ruling of the court was justified by Randall v. News Association, 97 Mich. 136 (56 N. W. 361); 25 Cyc. p. 396, and notes; Newell on Slander and Libel, p. 331.

We quote from the brief of counsel' for appellant :

“The fifth, sixth, and seventh assignments of error are directed to questions and answers of plaintiff’s witness, Handy, regarding the financial standing of defendant. This court has repeatedly held that the defendant’s reputed wealth may be shown in slander suits, and we do not desire to question that rule. But we do maintain and argue that it was not reputed wealth that witness Handy was testifying^ to in this case. His whole knowledge, according to his own admissions, was what he knew himself and not what he had heard people say.”

This contention is not sustained, except by reading one or two questions and answers of the witness, isolated from the rest of this testimony. His testimony, read as an entirety, shows that it’ was within the rulings' of this court. See Botsford v. Chase, 108 Mich. 432 (66 N. W. 325); Loranger v. Loranger, 115 Mich. 681 (74 N. W. 228); Derham v. Derham, 125 Mich. 109 (83 N. W. 1005).

5. We again quote from the brief of counsel:

“The defendant in this case sought to give in evidence facts tending to show where the rails, over which the dispute arose, were located, whose land they were on, and who they belonged to, a.nd the reasons for these conclusions.

“This evidence on the part of the defendant was offered for two purposes: First, to show a qualified privilege on the part of the defendant; and, second, to show want of malice, and thus mitigate damages. It was first offered to show a qualified privilege on the part of the defendant, and, when the court refused to receive it for that purpose, it was then offered, said offer being refused, for the purpose of mitigating damages.”

The plea of the defendant was the general issue and nothing more.

The defendant was allowed to testify and did testify:

“They [the rails] were on the north side of the line that they established on my side; the rails was. At the time of this alleged occurrence, I claimed to be the owner of these rails which were upon my side of the line established by the lawsuit. I can point' but on defendant’s exhibit one the place where Mrs. Sanford and I were when this altercation occurred. It was two or three rods north of the 80-rod post, the line established by the court, and about 90 rods from the road, and about half a rod north of the line established by that judgment. On this day I claimed the old rails, and I knew they (the Sanfords) claimed them.”

We think that in view of the pleadings, if any one is justified in complaining of the rulings in relation to the admission of testimony, it is not the defendant. We find no reversible error.

The judgment is affirmed.

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


text:
    SEGER v. NORTHWESTERN COOPERAGE & LUMBER CO.
    Master and Servant — Personae Injuries — Negugence—FeeeowServants.
    Evidence that plaintiff, who was in defendant’s employment, was, at the time of his injury, engaged in removing a set screw from certain machinery, and that two servants of the defendant permitted a roller weighing between 150 and 200 pounds to slip from their grasp and fall down a stairway striking plaintiff, that there was grease on the shaft of the roller so as to make it difficult to handle, and that the cause of the injury was the slipping of the roller from the hands of one of the employees who was carrying it, did not tend to establish actionable negligence on the part of the defendant, and warranted the trial court in directing a verdict for the defendant.
    Error to Deltá; Flannigan, J.
    Submitted November 4, 1914.
    (Docket No. 138.)
    Decided January 4, 1915.
    Rehearing denied July 23, 1915.
    Case by Adelbert M. Seger against the Northwestern Cooperage & Lumber Company for personal injuries. Judgment for defendant upon a directed verdict. Plaintiff brings error.
    Affirmed.

      A. W. Wolfe (C. D. McEwen, of counsel), for appellant.

      G. R. Empson, for appellee.
   Moore, J.

This is a personal injury case. From a directed verdict in favor of the defendant the case is brought here by writ of error.

The facts are not complicated. In addition to the oral proof, a photograph was introduced in evidence. This shows an iron stairway running from the lower floor of defendant’s sawmill, which was used as a repair shop, to the floor above. This was a substantially built stairway, with open spaces at the back between the steps, with an iron handrail at the side at the proper height, and midway between this rail and the steps was another iron rail running parallel with the handrail. Under this stairway was a window. Still further back were three other windows. The plaintiff was foreman of defendant’s hoop mill. He had occasion, just before noon, to remove a set screw from an arbor. It became necessary to drill it out. He attempted to do this at a bench 10 or 12 feet away from the stairs. Fearing he was drilling too deep, he stepped over to the window under the stairs to examine his work, and an iron roller fell from the stairway, and hurt him severely.

The foreman of the sawmill testified that this roller was at the head of the stairs, that he directed two men to carry it downstairs. “The roller weighed about 150 pounds. One man could pick it up very easily.”

The plaintiff testified about the roller on cross-examination :

“The roller was approximately three feet long. It was not solid. As I figure it, its weight was a little less than 200 pounds. The shaft projected at one end about four inches and the other about seven. It was a 2%-inch shaft; it was a little less. The grease and frost in combination with its shape and weight made it dangerous to carry down the stairway. The shaft was a little bit large for a good hand hold.”

The claim of negligence is that the men should have been instructed not to let the roller get away from them, or that it should have been lowered with ropes;

One of the men carrying the roller was nearly 20 years old, and, though only a short time in the mill, was used to manual labor, and weighed about 160 pounds.

The young man testified:

“The roller was lying between the log deck and the •re-saw. Emil Lundstrum was working with me. I guess he was about '30 years old. I guess he was larger than I was. He was not very much taller. To carry it downstairs, well I took hold of one end, and he held hold of the other, and just as I got four or five steps down on the stairway I changed hands, and at the time I missed my hold and the roller slipped away from me. I can’t tell now whether I had mittens on or not; it was two years ago.

“Q. State whether or not there was oil or grease on the end of the roller? '

“Mr. Empson: I object to that as incompetent, irrelevant, and immaterial.

“The Court: Oh, let us know just what the conditions were.

“A. I can’t tell anything about that. I don’t know, but I guess the roller had been used before. In carrying it down I went first. The end of the roller I had hold of may be an inch and a half diameter. The roller was seven or eight inches through the big part. The roller was hollow. I don’t know how much it weighed; it was a little heavy, all right.

“Q. Was it about all you could do to lift it to carry your end of it?

“A. Oh, I could lift it all right. As we went down the stairs, my end became heavier.

“Q. Did you let it fall because it was heavy, or because it slipped?

“Mr. Empson: I object to that.

“Mr. Wolfe: I don’t know whether Mr. Barrett gave us any instructions or not; I couldn’t understand English at that time. He didn’t give me any because he knew I couldn’t understand. I had never had any experience in handling machinery^ before. I was 20 years old in October, 1910. I am still growing in height.1 I have not grown much since January 1, 1910. I don’t know as I am stronger now than I was then.

“Q. Did you give any warning to the men below that you were going to carry that roller downstairs?

“A. Yes, T hollered, ‘Look out!’ I hollered at the time I lost my hold. At the time I lost my hold, I just happened to look below, and I saw a man on the floor, and I hollered out. It rolled down a couple of steps on the stairway and then rolled off the side. I can’t tell the condition of the side of the stairway. I am working for the defendant now.”

Counsel in the briefs discuss the doctrines of fellow-servant, assumed risk, and contributory negligence. We think it unnecessary to dwell upon them for the reason that the facts disclosed by the record do not show actionable negligence on the part of the defendant. •

Judgment is affirmed.

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


author: Kuhn, J.

text:
    FASSBENDER v. DONOHUE.
    Fraudulent Conveyances — Mortgages—Deed as Security.
    Ir a suit in aid of execution to set aside a deed intended as a mortgage, conveying property from the debtor to his sister, evidence considered, and held, to support the finding of the circuit judge that the deed was executed by way of security and decreeing that it was a mortgage. Also, that the defendant advanced the sums of money secured by the deed, in good faith, without knowing about the pendency of an action against her brother, and that the grantee was in no way a party to the fraudulent intent on the part of the grantor.
    Appeal from Marquette; Flanagan, J.
    Submitted November 4, 1914.
    (Docket No. 133.)
    Decided January 4, 1915.
    Bill by Anthony Fassbender against Patrick M. Donohue and Hannah Gaboury for a decree in aid of execution. From a decree granting partial relief complainant and said defendant Gaboury appeal.
    Affirmed.

      W. S. Hill, for complainant.

      M. J. Kennedy, for defendant Gaboury.
   Kuhn, J.

A cause of action accrued in favor of the complainant and against the defendant Patrick M. Donohue on June 21, 1911, and on the 3d day of June, 1912, a judgment for $274.75 was rendered in favor of the complainant and against the said Donohue, arising out of said cause of action'. An execution was thereupon issued on said judgment, and the interest of said Donohue in the southwest quarter of the northwest quarter of section 2 and the southeast quarter of the northeast quarter of section 3 of township 46 north, of range 24 west, Marquette county, Mich., was levied upon on the 28th of June, 1912.

The bill in this cause was filed in aid of this execution and to set aside a deed of the lands above described executed by the defendant Donohue to his sister, the defendant and appellant Hannah Gaboury. This deed, in the body thereof, was dated May 6, 1911, acknowledged June 30, 1911, and filed for record on July 1, 1911, the consideration therein being expressed as $600; it being claimed that the land was actually worth about $1,500. It is the claim of the defendant Gaboury that she had loaned her brother and codefendant various sums of money at various times, amounting to $550, as found by the circuit judge, and that this deed was given to her in payment of these loans, and the instrument having been actually executed and delivered to her on the 6th day of May, 1911 — prior to the time at which the right of action of the complainant had accrued — it conveyed the legal title to the said lands to her absolutely. Since the receipt of the deed she has disposed of certain timber on the land, for which she received the sum of $300.

The trial court found that the deed was not given as an absolute conveyance of the land, but was, in fact, a mortgage, upon which he found to be due at the time of the hearing the sum of $550, being the amount then due for principal and interest over and above the $300 received for timber; that the defendant, in addition to this amount, was entitled to recover $40 for taxes claimed to have been paid by her, and to recover costs which were to be added to her liens; and, further, that Mrs. Gaboury is to receive these amounts out of the sale of the land, and, if the land produces anything beyond these amounts, it is to be applied upon the execution. Both the complainant and the defendant Mrs. Gaboury have appealed from the decree.

A careful examination of this record is convincing that the trial judge was justified in finding that the “deed was executed by way of security and is a mortgage.” Mrs. Gaboury testified with reference to her conception of the nature of the transaction as follows:

“Q. What did you understand you were to receive under the deed from your brother; were you taking a deed of the land, or taking a deed as security for the money?

“A. I was taking it as security for the money.”

And when recalled by her counsel in an endeavor to correct the statement, she testified:

“Mr. Kennedy: I desire, for the purpose of the record, to state that the understanding was this case was to be reheard on any matters either party desired to offer testimony upon.

“The Court: I do not see the necessity of repeating what she swore to before. If there is anything new go on.

“Q. When you purchased this land from your brother, state whether or not there was any understanding about your deeding it back to him.

“A. No; there wasn’t.

“Q. What amount of money did he owe you at that time?

“A. About $800.

“Q. State whether or not the deed was given you in payment of the indebtedness.

“A. Yes; it was.

“Q. When you testified before, the court asked you if this deed was given to you as security, and you answered, ‘Yes.’ Do you remember that testimony?

“A. Yes; I do.

“Q. Will you please state what you meant by that?

“A. Why, I took the land as security.

“Q. Go on and tell what your understanding was.

“A. He gave me a deed of the land as security for the money I gave him.

“Q. What do you understand by security?

“A. I took the land as security.

“Q. Did you understand that you were obliged to deed it back to him when you got your money?

“A. I did not.

“Q. Then, as a matter of fact, you were mistaken when you say you took the land as security; you mean—

“Mr. Hill: I object to that as leading.

“Mr. Kennedy: Q. You mean you took the deed because you couldn’t get anything else out of it?

“A. Yes, sir.

“Q. State whether or not this deed was a mortgage.

“A. No; it was not.”

It is true that the mere use by her of the word “security” with reference to the deed is not sufficient to change the language of the written instrument (Brigham v. Fawcett, 42 Mich. 542 [4 N. W. 272]; Rathbone v. Maltz, 155 Mich. 306 [118 N. W. 991]), but from this record as a whole the conclusion is irresistible that the instrument was given as security, and Donohue did not intend to convey all his interest in the property to his sister.

The proofs show beyond question that she had advanced these various sums of money to her brother, and, whatever his intention may have been in giving her the deed, it does not appear that Mrs. Gaboury knew anything about the possible liability of her brother in an action which was threatened, and was in no way a party, to the fraud, assuming that her brother executed the instrument for the purpose of avoiding liability.

Being satisfied that the trial judge reached an equitable and proper conclusion in this case, the decree is affirmed, with costs to complainant.

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


text:
    GUINON v. GUINON.
    1. Cancellation of Instruments — Deeds.
    In a suit by the complainant to set aside conveyances in the nature of a deed and life lease back, executed to and by the son of complainant, 'the defendant has the burden of showing not only that the complainant. fully understood the terms and effect of the instrument which she executed, but that her intention as expressed by the instrument was not produced by undue influence of the grantee.
    2. Same — Evidence—Weight.
    Evidence that the complainant consulted her advisor, who directed her to go to a lawyer, whom she also consulted in relation to the conveyance of her property to her son in consideration of his care and support, and testimony tending to show that she acted without being influenced by undue pressure, that she fully understood the nature of the transaction and that nothing in relation to • the transaction was misrepresented to her, also that the son undertook to pay a money rental provided for in a later contract modifying the arrangement for support and maintenance, and that the relation continued for a period of eight years; held, to sustain the decree in the trial court in favor of defendant.
    Appeal from Kent; McDonald, J.
    Submitted November 6, 1914.
    (Docket No. 148.)
    Decided January 4, 1915.
    Bill by Sarah Guinon against Matthew Guinon and another to cancel a deed to defendant and life lease back to complainant, later modified by the written contract of the parties. From a decree for the defendants, complainant appeals.
    Affirmed.

      McHugh, Gallagher, O’Neil & McGann (Martin H. Carmody, of counsel), for complainant.

      William B. Brown, for defendants.
   Kuhn, J.

The complainant came to Grand Rapids from Dexter, Mich., to live, about the year 1886. Her husband had died while she was living at Dexter, and she had given birth to six sons, two of whom are dead, and two daughters, both of whom are dead; the defendant Matthew Guinon being her eldest son. When she left Dexter she sold a small house and lot which she owned there, receiving about $150. About one year after arriving at Grand Rapids, she purchased the premises at 719 Hall street for $1,200. In 1894 Hall street was improved, and complainant, in order to pay the expenses of this street improvement, borrowed the sum of $300 from the Grand Rapids Mutual Building & Loan Association, of which Mr. F. O. Cutter then was, and now is, the secretary..

While the defendant her son Matthew was single he lived with his mother, but when he married she went to Cadillac, Mich., to live with another son, James, taking her furniture with her, and while she was there she rented her house on Hall street for $8 and $9 per month. Her stay with James was not satisfactory to her, and she came back to Grand Rapids, leaving her furniture at Cadillac, and lived about two months at the home of her son Matthew, which was directly across the street from her own place on Hall street. Having some trouble with her tenant about paying rent, and having no furniture for her house, and the property being in need of repairs, she went alone to the office of Mr. Cutter to advise with him about conveying the house and lot to her son Matthew. Mr. Cutter advised her to consult an attorney, and took her to the office of Mr. Charles E. Ward, an attorney, who, on the 19th day of September, 1896, she being then 56 years old, drew a deed of the house and lot at 719 Hall street from her to Matthew Guinon, the consideration being $1,700, and the property being free from incumbrances, except the mortgage of $300 to the Grand Rapids Mutual Building & Loan Association, which had been partly paid, and which Matthew assumed and agreed to pay. The deed also had the following clauses:

“As a part of the consideration for the above conveyance, it is expressly agreed that the party of the first part, being the mother of the second party, shall reside upon said premises with second party, second party to clothe and board first party and to care for her in all respects in such a manner as is reasonable and with such care and maintenance as she has heretofore been accustomed to have, furnishing medical attendance, if necessary, and shall furnish such care and maintenance during the natural life of first party, both in sickness and health. Provided, that second party shall outlive first party, and, in case of his death during the lifetime of first party, or in case of his neglect or refusal to furnish the care and maintenance herein provided, then and in that case the party of the first part hereby reserves to herself the whole of the use, rents, profits, and income, together with the control and possession of said premises during the balance of her natural life.”

From the date of this deed until March 3, 1900, complainant lived in the home of Matthew on these premises. Some dissatisfaction arising on the part of complainant with her stay at Matthew’s home, because of claimed lack of attention and nursing, and failure to furnish proper clothing, and other trouble with Matthew and his wife, she again went alone to see Mr. Cutter, and asked him to draw a contract between her and Matthew under which she would get a certain sum monthly from Matthew, instead of living at his house, she expressing the wish of going to Detroit to live with other relatives. Mi Cutter again referred her to the same law office where the deed had been drawn, and upon going there she then met Mr. William B. Brown, an attorney, who prepared a contract or lease as suggested by her, which was subsequently referred by the defendants to their counsel, and, upon being approved, was thereafter, on March 3, 1900, executed in duplicate by the parties. By this contract the complainant leased to the defendant Matthew Guinon her life estate in the premises in consideration of $10 rent per month, to be paid on the 15th of each month, and it was further provided that:

“On the death of said first party, the said second party, his heirs, representatives, and assigns, shall defray and pay the expenses of the last sickness of said first party and the expense of furnishing and conducting her funeral, the same to be provided for in a good, substantial manner, such expense to be contracted under the direction of second party.

“This lease and agreement is made and entered into by the parties hereto for the purpose of leasing and conveying to the second party hereto all the right and interest that said first party has in and to the premises herein described, and which she holds under and by virtue of a life lease, as stated in deed of record in the office of the register of deeds of Kent county, in Liber 261 of Deeds, on pages 562 and 563, and recorded on the 28th day of September, A. D. 1896, and that a violation of the terms hereof on the part of said second party will place the parties hereto in relation to said premises the same as though this agreement were not made.”

The payments of rent were promptly made, excepting on one occasion when Matthew went West, and some trouble arose about his sending his mother extra sums of money, and the wife held up the rental payments, which, however, were subsequently paid by Matthew. From the time of the lease up to April 30, 1908, when the bill was filed, no complaint was made by complainant about the arrangement which had been entered into. The bill of complaint is filed to set aside and declare null and void both the deed and lease, and counsel for complainant say that the two questions presented by the record are:

“First. Do the facts and circumstances surrounding the execution of the two instruments in question —viz., the deed and lease — constitute a fraud upon the complainant?

“Second. Are the instruments involved so repugnant to the principles of equity and good conscience as to warrant their being set aside and declared null and void?”

In transactions of this nature, we fully recognize the rule that they are regarded by courts of equity with suspicion, and should be scrutinized with vigilance. As was said in Smith v. Cuddy, 96 Mich. 562 (56 N. W. 89):

“Under the circumstances of this case, the burden was upon the defendant to show not only that complainant fully understood the terms, import, and effect of the instrument executed, but, if her intent was as expressed by that instrument, to show that such intention was not produced by undue influence exerted by himself.”

A careful reading of this record has satisfied us that the defendants have met this burden. The record is convincing that at the time the complainant executed the deed she — being 56 years of age — was in good mental and physical condition, and was not influenced to do so by her son. She went alone to the office of Mr. Cutter, in whom she had confidence, and herself proposed making the conveyance. At the time she made the contract as to her life estate she was 60 years of age, and must have fully understood the nature of the transaction and its full import. We are satisfied from the testimony that she was not imposed upon; that nothing with relation to the transaction was misrepresented to her; and that Matthew undertook the payment of a money rental, as provided in the contract, at the request of the mother. In fact, no trouble arose with reference thereto until she had received the benefits thereunder for a period of eight years. The son, having taken the property at the request of his mother, met the burdens placed upon him, and it would, to our minds, be inequitable to now disturb the agreement which was carried out by the parties in good faith for such a length of time without complaint.

Being constrained to find that both questions raised by complainant should be answered in the negative, we affirm the decree of the court below, with costs to appellee.

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


author: Brooke, C. J.

text:
    KINNE v. CLEVER.
    Costs — Justice of the Peace — Removal to Circuit Court — Title of Land in Issue — Statutes.
    Under the provisions of sections 782-789, 1 Comp. Laws (5 How. Stat. [2d Ed.] §§12235-12242), providing for the removal to circuit court of any cause in which the title to land might be in question from justice’s court, the prevailing party is entitled to costs even though the circuit court found that no question of title was in fact involved; the statute awarding costs to the prevailing party is mandatory, irrespective of whether the justice determined of his own motion that title to -lands was in question or whether the objection was raised in the first instance by counsel for defendant.
    Error to Eaton; Smith, J.
    Submitted November 4, 1914.
    (Docket No. 131.)
    Decided January 4, 1915.
    Assumpsit by John L. Kinne against Jacob Clever, in justice’s court. The cause was certified by the justice to circuit court where judgment was rendered for defendant and costs given to plaintiff. Defendant brings error.
    Reversed; costs granted to defendant;

      Elmer N. Peters, for appellant.

      R. L. Sowers, for appellee.
   Brooke, C. J.

This case was brought in justice’s court. The action was assumpsit. Defendants pleaded the general issue, and gave notice of special defenses based upon the statute of limitations and the infancy of two of the defendants. Upon the trial in justice’s court the jury disagreed. A second trial was commenced before another jury. During the examination of the first witness, the attorney for defendants moved that the case be certified to the circuit court, for the reason that upon plaintiff’s own showing the question of title to lands was in issue. This motion was granted by the justice.

The case having reached the circuit court, it was there tried, and a verdict and judgment in favor of defendant was had. This judgment carried costs to defendant. A motion was then made by plaintiff to amend the judgment so as to award costs to plaintiff. Defendant now reviews by writ' of error the order granting said motion. In the course of his opinion the learned circuit judge said:

“The title to lands did not come in question on the trial and I now here so certify.”

It is made clear, I think, by a reading of the various sections of the statute (1 Comp. Laws, §§782-789; 5 How. Stat. [2d Ed.] §§ 12235-12242), that section 787 is complete in itself, and that the court was in error in refusing defendant costs. The statute is imperative, and the case made by defendant is clearly within its terms. The other class of cases, to which section 789 applies, are certified to the circuit court upon the demand of the defendant, without judicial determination that the title to lands appears or seems to be in question. If section 787 had been printed after, instead of before, section 789, it is probable that no question of the application of section 787 to the facts presented would have been raised. Whether counsel for defendant called attention to the fact, or whether the justice discovered without aid, that from plaintiff’s own showing the title to land was in question is not important. The determination was one to be made by the justice, and, whether he was right or wrong, costs followed the judgment in the circuit court.

The original judgment should be reinstated.

McAlvay, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Ostrander, J.

text:
    NEWTON v. CONSOLIDATED CONSTRUCTION CO.
    1. Damages — Building Contracts — Breach.
    Where a portion of a building which defendant has contracted to construct is left undone, the measure of damages for failure to carry out the contract is the increased cost of completion; if the building is left uncompleted it is not material that its value for purposes of sale is not lessened because of the work being left incomplete; the owner is generally entitled to damages for the necessary expense to which he would be put to have the work done, and it is not necessary in order to recover that plaintiff should have actually completed the building.
    2. Same — Evidence—Intent.
    Testimony of the owner tending to show that he intended at some future time to construct or complete the building was immaterial but did not amount to reversible error, in an action for a breach of the building or construction contract.
    3. Same — Evidence—Hearsay.
    It was erroneous to admit in the evidence a notice from the building department of- the municipality, as tending to prove the condition of the incomplete structure, but the error was not prejudicial where competent testimony covered the same subject and was substantially undisputed.
    4. Same — Value—Opinion Testimony:
    Testimony, also, of a witness as to the value of the house and lot with the structure completed thereon according to specifications was not prejudicial to defendants, although he was not familiar with the cost of construction of the house and only knew about what contractors would ask for it and would agree to build it for.
    5. Trial — Charge—-Jury Trial.
    3 Comp. Laws, §§10243, 10246 (4 How. Stat. [2d Ed!] §§ 11837, 11840), providing that the circuit judge in charging the jury shall give his instructions in writing and read them to the jury and forbidding any oral qualification, is modified and is no longer in effect, by reason of the provisions of section 414, 1 Comp. Laws (4 How. Stat. [2d Ed.] § 11926), providing for the appointment of stenographers.
    6. Same — Trial—Appeal and Error — Instructions to Jury.
    While it may be improper practice, in charging the jury, to state that the plaintiff or defendant requests the court to charge and to qualify and amend the requests, with or without argument, so that their effect is weakened or lost, it cannot be held that such action on the part of the trial court is prejudicial error, if the court states the rules of law which are applicable and covers the requests in such a way that the jury could not have been misled.
    Error to Wayne; Hosmer, J.
    Submitted November 4, 1914.
    (Docket No. 135.)
    Decided January 4, 1915.
    Assumpsit by Géorge Newton and another against the Consolidated Construction Company and Illinois Surety Company upon a surety bond securing the performance of a construction contract. Judgment for plaintiffs. Defendant Illinois Surety Company brings error.
    Affirmed.

      Cullen,'Casgrain & Wurzer, for appellant.

      Campbell & Dewey, for appellees.
    The testimony tended to prove, among other things, that by written contract dated October 28, 1912, it was agreed that defendant Consolidated Construction Company, a Michigan corporation, should, between that date and the 31st of January, 1913, erect and complete for the plaintiffs a two-story frame building on premises described in the contract, according to plans and specifications, in a good, sufficient, and workmanlike manner, for the sum of $2,542, which sum the plaintiffs agreed to pay — $500 when the building was ready for the first floor joists, $500 when the roof was on, $500 when it was lathed and plastered, $500 when the interior finish was on, and $542 when the building was completed. The defendant Illinois Surety Company thereafter, and on November 8, 1912, joined with the Consolidated Construction Company in an undertaking to pay the plaintiffs $2,542. Said undertaking, referring to the said building contract, is conditioned that if the principal, the Consolidated Construction Company,
    “shall well, truly, and faithfully comply with all the terms, covenants, and conditions of said contract on their part to be kept and performed according to its tenor (except as hereinafter provided), then this obligation to be null and void; otherwise to be and remain in full force and virtue in law.”
    It was provided in said last-mentioned undertaking, as conditions precedent to any right to recover thereon, among other things, that in the event of the happening of any default by the principal the surety should have the right and privilege to assume the performance of the contract and to sublet or complete it, whichever it might elect to do, and, upon electing to assume performance, it should be subrogated to all the rights and properties of the principal arising out of the contract and to all moneys and properties at that time due and payable, including deferred payments, and to all payments, thereafter becoming due and payable to the principal under and by virtue of the contract; that any suit or proceedings in equity to recover any claim against the surety must be commenced within six months after the first breach of the contract referred to herein; that “this bond shall not cover loss resulting from acts of God, war, riots, fire, the elements, or labor difficulties called strikes, nor reconstruction or repair made necessary by reason of any such causes.”
    The contracting company, the principal in this bond, entered upon the performance of its contract to erect the building, beginning work October 29, 1912, and proceeding therewith to some extent until about January 7, 1913. In a notice which, pursuant to the bond above referred to, plaintiff thereafter gave, the conditions of the building January 7, 1913, were stated to be:
    “The basement is completed, outside of a few minor details; also the skeleton up and roof boards partly on.”
    The construction company offered testimony tending to prove that, in addition, the cellar windows were in position, the first floor joists were in, and the first or rough flooring laid thereon; that the contractor had also erected a temporary frame tool and supply shed on the lot and had caused to be delivered there by one C. W. Kotcher some lumber to be used and incorporated in the structure. February 17, 1913, plaintiffs sent their affidavit to the surety company with a letter. On March 19, 1913, the structure, such as it was, was blown down by wind during a severe storm. Early in April the construction company again went upon the premises to resume work, and proceeded to take down and reconstruct that part of the building which had fallen as a result of the storm. After work had progressed for a day or two, plaintiff Newton and the president of the construction company met on the premises. What took place there is in dispute. The loose lumber on the premises had been taken away by the man who furnished it, and the construction company was by him refused further lumber to be used on the job. The construction company did no more work on the building. Thereafter Kotcher, or some one representing him, dismantled and took apart the lumber portion of the structure, including the tool and supply sheds, cellar windows and all other items of lumber, and removed them. On May 7, 1913, the surety company advised the plaintiffs that it elected not to take advantage of the right of subrogation. Neither the proposed structure nor any other structure has been erected on the lot. Plaintiffs never paid any money on account of the contract.
    In a suit upon the bond, the trial court instructed the jury:
    “In the event you are satisfied, as a matter of fact, that the defendant the Consolidated Construction Company abandoned the contract, then you will find for the plaintiffs and against the defendant damages which they have suffered, by reason of breach of contract according to the following rule: The measure of damages is the difference between the fair market price of the value of the work to be done and the materials to be furnished according to the plans and specifications put in evidence, within a reasonable time after the breach and after notice received by the plaintiffs from the Illinois Surety Company of their election not to continue the work, and the contract price as agreed upon by the parties in their contract, which agreed price is the sum of $2,542.
    “This right to recover on the part of the plaintiffs is, of course, based on your being' satisfied, as a matter of fact, that the plaintiffs complied with the terms and conditions of the bond, which was signed by them and thé Illinois Surety Company, and further upon the condition that you are satisfied, as a matter of fact, that the failure to complete the contract was due to the defendant the Consolidated Construction Company, and was not the fault of the plaintiffs herein. * :|: *
    _ “I am asked to charge you, if you find that the plaintiffs had abandoned the contract with the Consolidated Construction Company, and had abandoned the project to complete said contract, or to have any one else for them complete said contract, substantially as is outlined and defined in the contract, plans, and specifications, and they paid out nothing to the defendants or for the use of the defendants under said contract, then you should find for the defendant the Illinois Surety Company, and that the plaintiffs have no cause of action. Gentlemen, I think that is so. You have heard the testimony of the plaintiffs in this case that they intended to go on and build the house. If from the evidence, gentlemen, introduced, and under the testimony in this case, you have reached the conclusion that that testimony is not true, then, of course, they have no cause of action. But that does not necessarily follow from the mere fact that nothing has been done to the present time, that they did not intend to go on, and at the same time when they shall be able to complete the house.”
    The plaintiffs having recovered a judgment for $1,000, the defendant surety company alone prosecutes the writ of error. The errors alleged, assigned, and relied upon present propositions which it states as follows:
    “The measure of damages assumed and adopted by the court throughout the trial — that is, the difference between the contract price and the market price of the contemplated structure on May 11, 1918 — notwithstanding that plaintiffs did not build, did not relet the work, and did not expend a dollar, is erroneous.
    “This measure of damages is erroneous because damages measured by this 'rule are too remote, contingent, and indefinite; breach of contract damages are allowed only to compensate pro tanto for real and actual loss, not for feigned or fictitious, loss.”
    “Letting stand the evidence of Newton why he did not build his house, because it is irrelevant, and it is hearsay.”
    “Receiving in evidence Exhibit 6. It is hearsay, collateral, irrelevant, and incompetent.”
    “The court erred in receiving, and then failing to strike out, testimony of Martin Featherstone as to value of contemplated building, with specifications and blueprints as a basis, because he was not qualified, not being a builder, but only a real estate agent, his evidence is. incompetent.”
    “The court erred: (a) In not settling and reducing its charge to writing; (b) in not reading the charge; (c) in failing to write the words ‘Refused’ and ‘Given’ opposite requests; and (d) in orally qualifying defendant’s requests — because the statute strictly enjoins all these things, and defendant specially requested a strict compliance thereto. Section 414, 1 Comp. Laws, which would seem to avoid or repeal sections 10243-10246, is unconstitutional.”
    “It was prejudicial error for the court to prefix the words T am asked to charge you’ to various paragraphs. of its charge taken from defendant’s requests, and concluding with the remark that the lengthy charge was given only because requested, leaving the inference that it was all unnecessary and meaningless.”
    “The court erred in modifying defendant’s requests 7 and 8 as to clause exempting the surety from losses due to the elements, and charging argumentatively thereon, and unnecessarily repeating the same.”
    “Requests 18 and 19, as to removal of lumber in the structure with knowledge, consent, or acquiescence of plaintiff, should have been given just as presented, and it was error to modify them, as was done with statements relating to loose lumber on the ground which were inapplicable and consequently misleading.”
    ■ “The modification of defendant’s, request No. 22 by an improper and argumentative statement of inferences that may or may not be drawn from the evidence, and undue emphasis given plaintiffs evidence. It invades the province of the jury.”
   Ostrander, J.

(after stating the facts). Performance of the building contract would have given to the plaintiffs the structure called for, and would have cost them the contract price. Owing to the default of the contractor, there is no building, plaintiffs have paid no money, and it appears to be conceded that there are no attaching liabilities by way of liens or otherwise. It would seem reasonable that plaintiffs should have the advantage of their bargain, whether they ever get the house or not.

“The measure of damages for the failure of a contractor to construct a building is the reasonable cost of having the building constructed by another contractor less the contract price. Where a certain portion of the building is left undone the same rule applies ; that is, the increased cost of completion is the measure of damages for failure to complete. * * _ * If the building is left incompleted, it is immaterial that in its incomplete condition its value for purposes of sale is not lessened by reason of the work left undone; so, where the owner of a house which the defendant had failed to complete sold it in the condition in which the defendant left it, and there was no evidence that the price he received was less than he would have received if the defendant’s contract had been fully performed, he nevertheless was entitled to recover the cost of completing according to the contract.” 2 Sedgwick on Damages (9th Ed.), §648.

“In such cases the employer is generally entitled to measure his damages by what the necessary expense would be to procure to be done the work which the contractor neglected to do, whether it_ is done or not; for the same reason that a vendee in an executory contract for the sale of goods need not, in fact, purchase the goods he was entitled to receive from the vendor in order to have his damages computed on the basis of what they would cost him at the time of the breach.” 3 Sutherland on Damages (3d Ed.), § 699.

Both text-writers refer to decisions supporting the rules stated in the text. In King v. Nichols & Shepard Co., 53 Minn. 453, 455 (55 N. W. 604), it is said:

“Upon such a contract as this, to wit, to put the machine in good repair and condition, it was not necessary that, in order to recover, plaintiff should himself put it in that condition. As soon as defendant failed to do what it agreed to do, plaintiff might recover the reasonably necessary cost of doing it.”

Where the employer had taken possession of an uncompleted building, and the contractor sued him, it was held that:

“Where a contract is nonapportionable, as this one is, and the plaintiff does not complete, as this plaintiff did not, his recovery must be upon the quantum, meruit. His measure of damages would be the reasonable value of the building as defendant took possession of it, not exceeding the contract price and the value of the extras, less what it would reasonably cost to complete it and make it comply with the contract and specifications.” Germain v. School District, 158 Mich. 214, 218 (122 N. W. 524, 526).

There are no opposed opinions upon the proposition that a defaulting contractor must respond in damages, although some judges have apparently had difficulty in formulating a rule governing the extent of liability in cases where the work is not completed. This apparent difficulty arises upon some notion of the remote, uncertain, or speculative character of the damages sought to be recovered. In Lamoreaux v. Rolfe, 36 N. H. 33, a case cited by appellant, the contract, which one of the parties wholly refused to-perform, was after breach relet to another, for an amount stated, but was never carried out. In a suit against the first contractor, this price agreed to be paid the second and subsequent contractor was relied upon as evidence of the damages plaintiff had sustained. It was held that, the defendant having absolutely refused to perform the contract, there was no reason why the plaintiff should wait any length of time before prosecuting for the damages, but that the price fixed in the subsequent contract, it never having been performed, was not evidence of the damages sustained. If it were otherwise, it was said, the plaintiff might by arrangement offer to pay, and the subsequent contractors offer to accept, any sum, with no intention of carrying out the contract. See, also, Bertram v. Bergquist, 153 Ill. App. 43. Reason and the weight of authority sustain the propositions, first, that plaintiffs are entitled to the benefit of their bargain, whether they do or do not build the house, and second, that the rule for determining the benefit was correctly laid down by the trial court.

It follows that the testimony of Newton concerning an intention to build at some time was, if wholly immaterial, not prejudicial to the defendants.

It was error to admit the notice of the building department as evidence of the condition of the structure at a, particular time. It was hearsay. The error was not prejudicial, because other competent testimony covered the same subject and is practically undisputed. Besides, the objection now made is not the one made upon the trial.

With respect to the testimonial qualifications of the witness Featherstone, it should be said that he gave no opinion of damages within the rule of damages given to the jury. As to what the house and lot would have been worth with the house completed according to specifications, he appeared to be competent to give, and did give, his opinion. He was competent also, apparently, to place a value upon the vacant lot. But as to the value of the completed house, he stated that he knew only what, or about what, contractors would ask for it, or would agree to build it for. While I think the testimony was of little probative value as affecting the real issue, and that no error would have been committed in striking it out, it may be safely said that it did defendants no harm.

1 Comp. Laws, § 414 (4 How. Stat. [2d' Ed.] § 11926), provides that:

“In cases tried in the circuit court in which such stenographers shall be engaged, sections one and four of an act entitled ‘An act to declare and establish the practice of charging or instructing juries, and in settling the law in cases tried in the circuit court,’ approved March twenty-sixth, eighteen hundred and sixty-nine, shall not apply.”

Said section 414 is the concluding one of an act entitled:

“An act to provide for the appointment and to fix the term of office, duties and compensation of circuit court stenographers in the State of Michigan” — being Act No. 183, Pub. Acts 1897.

The act of 1869, to which section 414 refers, is Act No. 67, entitled:

“An act to declare and establish the practice in charging or instructing juries, and in settling the law in cases tried in circuit courts.”

It is to be found in 3 Comp. Laws, §§ 10243-10246 (4 How. Stat. [2d Ed.] §§ 11837-11840). The first and last sections (1 and 4) read:

“Section 1. The people of the State of Michigan enact: That hereafter in all civil and criminal cases at law, circuit courts, in' charging or instructing juries, shall charge or instruct them only as. to the law of the case; and such charge or instruction shall be in writing, and may be given by the court of its own motion.”

“Sec. 4. The instructions or law so settled by the court in writing, either upon its own motion or upon the application of the respective parties, shall be read to the jury, filed in and be a part of the record of the case, and the court shall in no case orally qualify, modify, or in any manner explain the same to the jury.”

The legislature of 1869 .passed also Act No. 92, entitled:

“An act to provide for the appointment of a stenographer for the .circuit court for the county of Wayne, and other counties in this State, and to limit the operation of sections one and four of an act” — referring to Act No. 67.

This act may be found in 2 Comp. Laws of 1871, §§ 5027-5035, as amended by the Laws of 1871, Act No. 82, and in sections 6503 et seq., 1 How. Stat. (1st Ed.). It does not appear in the compilation of 1897. Its constitutionality was considered by this court in Sheahan v. Barry, 27 Mich. 217, 224; it being there contended that it embraced more than one object. It was held that Act No. 92 of 1869 was valid and effectual to relieve judges of the Wayne circuit court from the operation of section 1 of the act. It will be noticed that the title is broader than that of the act we now are considering, and that the court was of opinion that no duplicity was indicated in the title.

If the point now urged was for the first time presented to the court, some difficulty might be met with in holding that 3 Comp. Laws, §§ 10243-10246, were not binding upon all circuit courts. So late as the decision in Simons v. Haberkorn, 139 Mich. 130, 132 (102 N. W. 659, 660), it was said, generally, that these sections “declare and establish the practice in charging or instructing juries.” Of course, the question we are considering was not there involved. In People v. Quimby, 134 Mich. 625, 635 (96 N. W. 1061) the same justice who delivered the opinion in Simons v. Haberkorn said that a reference to the note under section 10246, 3 Comp. Laws, will show its provisions are not applicable where a stenographer is employed. In that case counsel was contending that his requests to charge, if they correctly stated the applicable law, should have been given as prepared by him. This right the court denied. In People v. Smith, 177 Mich. 358, 360, 361 (143 N. W. 12), an assignment of error was based upon the fact that the trial judge marked requests of counsel, “Refused, except as covered in the general charge,” instead of marking each as “Given” or “Refused.” It was said:

“We think what was done a sufficient compliance with the statute, in view of the fact that error may now be assigned upon the charge or refusal to charge, without the necessity of taking an exception.”

But in view of the decision in Sheahan v. Barry, supra, which was rendered in 1873, and the practice which has since then obtained in the circuit courts to disregard the provisions of sections 10243 and 10246, we are of opinion that the questions presented should be answered against the contention of appellant. If, however, the practice which the statute imposes was followed generally by the courts, there would be presented to this court fewer complaints of the nature of those hereinafter considered.

It is an exasperating thing, one which most trial lawyers have at some time had occasion to complain about, to have the trial judge say to the jury, “I am requested to charge you,” proceed to read a request, and end by so qualifying or amending it, with or without argument, that its force as a- declaration of the applicable law is weakened or wholly lost. The jury will usually understand by whom the request is preferred, and if several requests preferred by the same party suffer this fate, especially if they are contrasted with an unqualified, connected statement of rules favorable to the other party, dissatisfaction with an adverse verdict is to be expected. It is not that trial judges intend to be unfair, or intentionally depreciate the requests preferred by either party, though unfairness is often charged by the defeated suitor, but it is because, in the hurry of trials, no other course seems open to the effort to give so much of the requested law as. seems to the judge to be applicable, while refusing so much as is thought to be inapplicable or wholly wrong. It is against the supposed evils which may result from the delivery of qualified instructions, explained, or attempted to be, by argument on the part of the judge, that the statute, and especially the sections held to have been made inoperative by the later legislation, seems to be aimed. Very often counsel are partly or wholly to be blamed for presenting. requests so worded as to present contradictions and applicable and inapplicable rules, of law in the same request, or requests so numerous that the court can do no more than hurriedly examine them.

In the case at bar counsel for appellant say that at least 11 times, in giving and while reading from requests preferred by them, the court preceded the reading by the words, “I am asked to charge you,” that in one or more of these instances these words were followed by, “And I charge you,” which were omitted in other instances, emphasizing, it is claimed, those portions of the charge so designated, and in concluding the charge said:

“I have perhaps given a longer charge than I otherwise should, but the Supreme Court have said, so far as possible, the court should give the requests to charge in the language in which the counsel have written them, and for that reason, perhaps, I have given a longer charge than I otherwise would.”

Complaint is made also that the court, prefacing a request as above indicated, after reading it, said, in words or substance, “Now, doubtless that is so, but,” etc., or, “Undoubtedly that may be so, but,” etc.

Particular portions of the charge are called to attention in the brief for appellant showing claimed argumentative qualifications and modifications of requests, in which it is said inferences which were for the jury alone were drawn by the court. I shall not set out the requests or the charge as given. Some argument was indulged in by the court, and, if the statute which has been referred to were controlling, a reversal of the judgment would be inevitable. I have applied to the charge the test of repeated careful readings of it, and am impressed that the jury could not have misunderstood the court, that no improper rules were laid down, and, in the absence of a controlling statute, think that no reversible error is made to appear.

The judgment is affirmed.

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