author: Grant, J. Carpenter, J.

text:
    HOUGHTON COUNTY STREET-RAILWAY CO. v. COMMON COUNCIL OF VILLAGE OF LAURIUM.
    1. Street Railways — Franchise—Branch Line — Connections.
    A street-railway company was incorporated, the purpose of which was to construct a road through and accommodate the centers of population in Houghton county, and a line from the village of L. to Lake Linden was specifically mentioned in its articles. The authorities of the village, with knowledge óf the localities to be served and the general situation, granted to the company a franchise which authorized an electric road, as a part of its main line, to begin at the southwest corner of the village limits, on C. street (the center of which was the boundary between the village and the adjoining village of F.), thence easterly on said street, and thence in various directions on other streets to the village limits; and the franchise also required the company to run its cars to said village from any terminus of its lines outside the village limits. Held, to authorize the company to make a convenient and necessary connection on C. street with a branch line built from Lake Linden through F. to the village boundary on that street. Carpenter, J., dissenting.
    2. Same — Forfeiture.
    The right of a street-railway company, under its franchise, to connect its main line in a village with a branch line which it afterwards built to the village boundary, was not forfeited by its failure to construct the branch within the time fixed for the completion and operation of its main line.

      Certiorari to Houghton; Streeter, J.
    Submitted January 5, 1904.
    (Calendar No. 20,266.)
    Decided February 16, 1904.

      Mandamus by the Houghton County Street-Railway Company to compel the common council of the village of Laurium to permit relator to make a certain connection between its tracks. From an order denying the writ, relator'brings certiorari.

    Reversed.
    The relator was organized in 1900 for the purpose of constructing lines of street railway in the county of Houghton. Its articles of association read:
    “We, the undersigned, * * * having associated ourselves together to organize a street railway for the pur-, ■pose of constructing, owning, maintaining, and using a street railway in the county of Houghton, * * * from the easterly boundary of the village of Houghton, in said county, thence through the streets of said village of Houghton, across Portage Lake, in said county, thence to the village of Hancock, in said county, and along its streets, ’thence to the villages of Laurium and Red Jacket, across the townships of Quincy, Franklin, Osceola, and Calumet, and along and through the streets of said villages of Laurium and Red Jacket, and to the county of Keweenaw, in the vicinity of the Allouez mine, in said last-named county, and from the village of Laurium aforesaid to the village of Lake Linden, in said county, and through the streets of said last-named village, thence through the townships of Schoolcraft and Torch Lake, and through said townships of Osceola, Quincy, and Franklin, in the county of Houghton aforesaid, to the village of Houghton, in said county, and desiring to become incorporated for that purpose under the provisions of chapter 168, 2 Comp. Laws,” etc.
    “ Art. 2. The purpose for which this corporation is formed is to construct, own, maintain, and use a street railway in the villages and townships above mentioned, in the county of Houghton, in said State, upon the line and over the streets and highways in said villages and townships above mentioned, and, when constructed, to equip the same with passenger cars, to be propelled by electricity, under the system generally known as the overhead trolley system.”
    “Art. 5. The operations of this corporation are to be carried on in the county of Houghton, State of Michigan.”
    Its main line runs from Houghton, through Hancock, Laurium, and Calumet, to Red Jacket. It asked and obtained a franchise from the respondent, the material parts of which are as follows:
    “Section 1. That permission and authority be and hereby is granted to and vested in the Houghton County Street-Railway Company, a corporation duly organized, its successors and assigns, to hereafter construct, maintain, and operate a double-track electric railway, with all necessary tracks, side tracks, and switches, poles and wires, upon and along the following streets of said village, namely: Commencing on Calumet street, at the extreme southwesterly corner of the limits of the village of Laurium; thence running easterly, on and through Calumet street, to Lake Linden avenue; thence north, on and through Lake Linden avenue, to Hecla street; thence northeasterly, on and through Hecla street, to First street; thence westerly, on and through First street, to Conglomerate street; thence northeasterly, on and through Conglomerate street, to the limits of the village of Laurium; and also, if desired, on Seventh and Florida streets.”
    Section 2 requires the company to commence the work of construction of said railway within the village of Laurium on or before July 1, 1900, and also requires that the same shall be completed and in full operation along said streets on or before July 1, 1901.'
    “Section 3. Cars shall be run daily upon such street railway, and, so far as practicable, shall be run at regular intervals; and said company, for itself, its successors and assigns, in accepting this ordinance, agrees that the cars from any terminus of the line or line [this evidently should read “lines”] of its railway without the limits of said village of Laurium shall run at regular intervals to said village of Laurium, without change or transfer, and also that, in the running of its cars and its rates of fares, no discrimination shall be exercised .between said village of Laurium and any other city or village.”
    Section 4 provides for the construction under the supervision and direction of the common council.
    Section 5 provides for the form, material, and manner of construction.
    All the conditions were complied with by the relator, and a single track was constructed instead of a double track, and was in full operation by July 1, 1901. A branch line was subsequently constructed, running from a point about halfway between the villages of Laurium and Red Jacket to the Wolverine Mining Company’s location, where there is a considerable population. Calumet street is the street between the villages of 'Laurium and Florida, the center line of the street being the boundary line between the two villages. Early in 1903 the relator constructed a line from Lake Linden, situated upon Torch Lake, and reaching Calumet street at the extreme southwestern part of the village, where the population and buildings are sparse. The length of this line is 61-miles. It approaches Calumet street upon Hancock street, in the village of Florida. There is no street in Laurium opposite Hancock street. The Lake Linden line approaches the main line in Laurium at right angles, running north and south, and between the end of it at the boundary line and the south rail of the railway on Calumet street, in Laurium, is a space of about 11 feet. About 6 feet of this distance, including the embankments, is now occupied by the line on Calumet street, in Laurium; so that in fact there is only a distance of about 5 feet not now used by the relator, to be occupied by making the connection with its main line at this point.
    The relator, claiming the right to make the connection with these two lines under its franchise from the respondent, but -admitting the right of the respondent, under the franchise, to prescribe the material, manner, etc., of construction, applied to the common council for leave to make this connection, setting forth its plans and specifications, requesting its approval, and, if they should not be approved, that the council then direct what reasonable changes or alterations should be made. The respondent refused either to approve or direct changes, except upon the imposition of conditions not covered by the franchise above stated. Relator then applied to the circuit court for the county of Houghton for the writ of mandamus to compel the council to act as requested. That court denied the writ, and the case is now before us for review on certiorari.

    It is deemed important to state the location of the municipalities of Houghton county. The principal centers of population are as follows: The villages of Houghton and Hancock, situated on opposite sides of Portage Lake, and containing a population of about 8,000 people; the villages of Calumet and Red Jacket are about 12 miles from Hancock, in a northeasterly direction, and contain a population of about 35,000. At or near these places are located the great mines of the Calumet & Hecla, Tamarack, and Osceola. Lake Linden lies in a southerly direction from Calumet, Red Jacket, and Laurium. At Lake Linden are situated the stamp mills and smelting works of the Calumet & Hecla, and near them, on the shore of the lake, the stamp mills of the Tamarack, Osceola, and Quincy mines. The population at Lake Linden and vicinity is about 6,500. Other mining locations are accommodated by the various lines of the relator’s road.

      Gray & Stone, for relator.

      William JR. Oates (Kerr & Petermann, of counsel), for respondent.
   Grant, J.

(after stating the facts). The sole question presented is, Has the relator the right, under the franchise, to connect the two lines at the place designated P

Counsel agree that franchises of this character are to be strictly construed. When, however, the intention of the parties is clear, that intention will be given effect. What the parties, expressly or by necessary implication, contract to give or to do, they must be compelled to give or to do. The purpose of the company was to construct a street railway running through and accommodating all the centers of population within the county of Houghton. The projected road was to run along past the mining locations of the copper range, whose stamp mills are mostly located at and in the vicinity of Lake Linden, and where also are the smelting works of the Calumet & Hecla. The business of these mining companies was carried on at the mines and at the mills. Obviously the travel between them would be considerable. The articles of incorporation were specific, and mentioned three lines as part of the system, viz., that from Houghton to Red Jacket, that from Laurium to Lake Linden and thence to Houghton, and the one to the Allouez mine. The respondent knew the situation and the provisions of the articles of incorporation, and clearly contracted with reference thereto.

While its so-called main line was that running from Houghton to Red Jacket, the other two lines were as much a part of its road as the so-called main line. It was apparently as much to the benefit of the village of Laurium and the traveling public to have an unbroken connection with Lake Linden and vicinity as to have it with Houghton and Hancock. That the parties contracted in reference to these lines is apparent from the language of section 3, by which, for the accommodation of its own inhabitants and all travelers to and from Laurium, the franchise required the company to run cars from any terminus of the line or lines of its road without the limits of said village at regular intervals to said village, and without change or transfer, and without any discrimination between said village of Laurium and any other city or village. No such language would have been used if but one line had been contemplated, running between Houghton and Red Jacket. One of the things which the relator unequivocally-contracted to do was to connect all the lines of its road, so that cars should run from any terminus outside the village along its track or tracks within the village without change or transfer. This was obviously for the accommodation of the inhabitants of the village of Laurium and travelers thereto. If the relator contracted to do this, the respondent certainly contracted to give it the right to do it. No place was fixed for this union of the Lake Linden line with the other lines. It follows that the parties contemplated and contracted for a union at a place convenient both to the relator and to the inhabitants of Laurium and those having occasion to travel over the road to Laurium. It is apparently conceded that the relator has constructed its Lake Linden line for the convenience of the public and of itself. It is virtually conceded upon this record that the point of union is a proper, convenient, and necessary one. No claim is made by the respondent that the company either ought to or could have-constructed its road so as to make connections outside the village of Laurium. It is a fair inference from the record that the Lake Linden line was contemplated as finally constructed. It runs through the village of Florida, and naturally the understanding was that it should be built to accommodate the people of that village as well as those of Laurium.

Let us reverse the proposition: If the relator, having constructed its road to Calumet street at the point designated, had refused, upon the request of the authorities of the village of Laurium, to connect this line with the other line at that point, would not its refusal have been in violation of its contract ? A contract, to be binding, must be mutual, and what the relator contracted to do, the respondent, by the same instrument, contracted to give it the right to do. By the ordinance (section 3) the relator contracted to run all its cars without change to the village of Laurium. “To” means within, not up to. It was not a compliance with the terms of the contract for the relator to construct its road up to the boundary line of the village. It is therefore clear that the franchise granted to the relator the right to connect the Lake Linden line with the other line at some convenient and proper place, and was not limited to a connection outside the village of Laurium. If the Lake Linden line had been constructed within a year, probably no question would have arisen as to the right to connect the two.

The only other question is, Is that right lost or forfeited by the failure to construct the Lake Linden line within the time fixed for the construction of the road through the village of Laurium ? If this contention prevail, it follows that the company has lost all right to construct a double track because two tracks were not constructed within the time. The ordinance, under the authorities, gave the right to construct a second track whenever the necessities and business of the company required. City of Burlington v. Burlington St.-Ry. Co., 49 Iowa, 144 (31 Am. Rep. 145); Ransom v. Citizens’ St.-Ry. Co., 104 Mo. 375 (16 S. W. 416). See, also, Detroit Citizens’ St.-Ry. Co. v. Board of Public Works of Detroit, 126 Mich. 554 (85 N. W. 1072).

The occupation of about five feet of the street in the manner and at the place designated creates no additional burden upon the street. The connection is clearly for the accommodation of the inhabitants of Laurium, and as well all travelers over the road, and is in accordance with the terms of the franchise. The right to make the connection has not been forfeited by the failure to construct the Lake Linden line before July 1, 1901. Besides, the road was constructed along the designated streets in the village of Laurium within the time provided. The right to connect with other lines was not limited as to time.

Judgment reversed, and judgment entered in this court for the relator.

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

Carpenter, J.

(dissenting). Relator proposes to lay a track in respondent’s street to connect its line in said village with a branch line running to Lake Linden. Is the right to build this track granted by relator’s franchise? The granting part of that franchise is contained in section 1, which reads as follows:

“ That permission and authority be and hereby is granted to and vested in the Houghton County Street-Railway Company * * * to hereafter construct, maintain, and operate a double-track electric railway, with all necessary tracks, side tracks, and switches, poles and wires, upon and along the following streets of said village, viz.: Commencing on Calumet street, at the extreme southwesterly corner of the limits of the village of Laurium; thence running easterly, on and through Calumet street, to Lake Linden avenue; thence [and here follows an enumeration of streets, not material to the case].”

I think it clear that the right to construct the proposed track is not granted in this section. It surely is not a track “upon and along” Calumet street. Neither is it a side track or switch necessary to the operation of said track.

Is the right to construct the proposed track granted by section 3 of said franchise ? Said section, so far as material to the question under consideration, reads:

“And said company, for itself, its successors and assigns, in accepting this ordinance, agrees that the cars from any terminus of the line or lines of its railway without the limits of said village of Laurium shall run at regular intervals to said village of Laurium, without change or transfer.”

This provision, and, indeed, all the provisions of this section, impose obligations upon the grantee of the franchise. It is not the section in which we would naturally expect to find a grant to the relator. Nevertheless, I think it should be presumed that relator was granted everything necessary to enable it to perform the obligations imposed upon it by respondent. It is insisted that under this rule there passed to relator a grant to construct in the streets of respondent village a track to connect its Lake Linden branch with its line on Calumet street. To this proposition I cannot assent. Relator did not agree to construct its Lake Linden line to Laurium. At most, it agreed that the cars on said line should run to Laurium. We cannot infer that, when the franchise in question was granted, the route of the line from Laurium to Lake Linden was determined. Where the two lines would he connected was therefore not known, either to relator or to resppndent. It is obvious that the point of connection would be subsequently determined by relator. In making that determination, relator was not, in my judgment, bound by the contract with respondent to select a place convenient to the inhabitants of Laurium and those having occasion to travel over the road. The obligation of relator to run its cars over the Lake Linden branch into Laurium did not affect the right of relator to determine the point of connection of its two lines. If relator had chosen, as it might, to make this connection outside the village of Laurium, it could have run the cars on the Lake Linden line into the village, as it agreed, without laying any other track. We cannot say, therefore, that the right to lay the track in question is necessarily implied by the obligation of relator to run its cars from this line into the village of respondent; and it is well settled, in the construction of grants of this character, that nothing passes unless it is expressly granted or necessarily implied. See Coolidge v. Williams, 4 Mass. 140; Charles River Bridge v. Warren Bridge, 11 Pet., at page 547; Grant v. Leach, 20 La. Ann. 329 (96 Am. Dec. 403); Sprague v. Birdsall, 2 Cow. 419; Cooley, Const. Lim. (6th Ed.) 486, 487.

It is true that the relator’s proposed track in the respondent village is very short, and perhaps it may not seriously damage the street; but, in my judgment, it is a clear invasion of respondent’s rights, and should not be permitted. If relator can build this track to permit a connection at this point, I am unable to see any reason why it should not select the point of connection to suit its convenience, and build whatever tracks are necessary to effect a juncture there. Indeed, it is stated in relator’s brief:

“We might well argue from these eases [cases which I think are clearly distinguishable from the one under consideration] that this very section of the ordinance gives the relator the right to run its Lake Linden branch to some convenient point within the village of Laurium, even using some of the streets of the village if necessary to reach such point; • but we do not, of course, take that position.”

An argument leading to such a conclusion is, in my judgment, unsound. Even if we construe the franchise liberally to the grantee, — and it should be construed strictly against it (see Detroit Citizens St.-Ry. Co. v. City of Detroit, 110 Mich., at page 394 [68 N. W. 304, 35 L. R. A. 859, 64 Am. St. Rep. 350]), — no such grant could, in my judgment, be implied.

I cannot agree to the proposition that “the record shows that the point of union [of thh two lines] is a proper, convenient, and necessary one,” and that “the Lake Linden line was contemplated as finally constructed.” By its petition relator claimed the right, under the ordinance in question, to.connect said Lake Linden line with its line on Calumet street by building a side track or switch. Respondent denied this right, averring that “the construction of a branch railway from Lake Linden, entering said village of Laurium, and connecting with said relator’s main line in said village, was in no way contemplated or authorized by any ordinance enacted by respondent.” Respondent’s denial is as broad as relator’s claim. In my judgment, there is nothing in relator’s petition to suggest that the point of connection was a necessary one, or that the Lake Linden line was contemplated as finally constructed. As relator did not plant its case on this ground, the failure of respondent to deny it is of no significance.

This question is asked:

“If relator, having constructed its road to Calumet street at the point designated, had refused, upon the request of the authorities of the village of Laurium, to con-meet this line with the other line at that point, would not its refusal have been in violation of its contract?”

I answer “Yes,” and I also say that, if respondent insists upon this connection, it must permit relator to make it. I also say that, if relator’s Lake Linden branch had been constructed to some point at respondent village so remote from its line in that village that it could only reach the same by laying a mile of track in a street not designated in its franchise, respondent could have insisted upon the connection being made, and would have been obliged to permit the laying of the track necessary to effect it. I apprehend that this would be true even if relator had expressly promised to make connection without laying additional track in respondent’s street. The right of relator to lay the track in these supposed cases arises, not from its original contract, but from relator’s undertaking a particular method of performing that contract, and respondent’s insistence upon the execution of that method. In the case at bar, respondent objects to the execution of that method of performance, and the question before us is whether it ever granted relator the right to perform its contract by that method. In my judgment, we cannot say from the record before us that it did.

I think that relator is not entitled to the mandamus, and that the decision of the court below should be ' affirmed.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    CITY OF DETROIT v. GRANT.

    1. Municipal Corporations — Pavinu Contract — Personal Injuries — Liability op Contractor — Notice.
    Where a paving contractor, who had agreed to save the city harmless from all loss and damage occasioned by his negligence in doing the work, was sued jointly with the city impersonal injuries arising from his negligence, and procured a discontinuance as to himself, it was not necessary for the city, in order to fix his liability, to serve him with notice of the pendency of the suit and of his right and opportunity to defend.
    2. Same — Acceptance and Payment — Release.
    The acceptance of the work by the city, and payment therefor, prior to the rendition of judgment against it by reason of the negligence of the contractor, did not release the latter from his obligation to save the city harmless from loss and damage arising from his negligence.
    Error to Wayne; Donovan, J.
    Submitted January 6, 1904.
    (Docket No. 8.)
    Decided February 16, 1904.
    Debt by the city of Detroit against Archibald Grant on an indemnity bond under a paving contract. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.
    The defendant had a contract with plaintiff for paving a street in Detroit. The contract was dated August 1, 1894. Defendant agreed—
    “To erect and maintain a good and sufficient fence, railing, or barrier around any and all excavations necessary for said work, in such manner as to prevent accidents; to place upon such railing or fence or barrier, at twilight on each day, suitable and sufficient colored lights, and keep them burning during the night; and further to pay to, indemnify, and save the city harmless against all loss and damage which may be occasioned or arise by reason of any negligence or carelessness on his part in doing such work.”
    Defendant sublet the work. His subcontractor did not comply with this provision of the contract, and one Dooley fell into an excavation and was injured. Dooley filed a claim for damages against the city, which the city rejected. He thereupon brought suit against both the city and defendant. By stipulation between the attorney for Dooley and the attorney for Grant, that suit was. discontinued as against Grant, and left to stand as against the city. After the adjournment of the court the first day of the trial, the city served a written notice upon the defendant, notifying him—
    “That the suit of William Dooley,originally brought against the city of Detroit and yourself, is on trial; that the city will hold you liable for any judgment which may be recovered against it in said cause; and, if you have any information which may be used in the defense, I will thank you to give it to me at once. You are also requested to assist in the defense.”
    On the following day the defendant appeared, was present at the trial, and sworn as a witness. Judgment was rendered against the city for $1,500, January 3, 1898. The work was completed in November, 1894, and the board of public works so reported to the common council November 27th. A resolution was adopted in accordance therewith, accepting the pavement and directing payment. On December 4th the resolution was reconsidered, and referred to the board of public works, information having been received that a man had been injured during the progress of the work, owing to the fact that no lights had been kept at night. After further consideration, and after defendant had filed a petition for mandamus to compel the acceptance of the work, and upon the advice of the legal department of the city that the bond given by Mr. Grant was liable in case of any judgment rendered against the city, the total amount due Grant for paving was paid. The object of this suit is to recover the damages suffered by the city on account of the j udgment so rendered against it. The proofs, in addition to-what is above stated, consisted of evidence of Mr. Dooley’s injury in consequence of the failure to put up lights or barriers, the proceedings in the suit by Dooley against the city, the notice to defendant to appear, the proceedings of the common council accepting the work and ordering its payment, and the receipt thereof by Grant. The court directed a verdict for plaintiff.
    The defenses are:
    1. That the notice to defendant of the pendency of the suit was not given in time.
    2. That the notice was not such as to throw the burden of the defense upon Grant.
    3. That Grant was discharged from all liability by the payment of the balance due under his contract with the city.

      John J. Speed, for appellant. t

      Timothy E. Tarsney (John W. McGrath, of counsel), for appellee.

      Rehearing denied June 18, 1904.

   Grant, J.

(after stating the facts). Grant had agreed to save the city harmless from all loss and damage which the city should suffer in consequence of any negligence on his part in doing the work. Mr. Dooley sued both him and the city. By agreement between Grant and Dooley, the suit as to Grant was discontinued. He knew he was liable for any damage that might result. Instead of contesting the suit, he chose to procure its discontinuance as to him, and apparently without any notice to or consent of the city. No written notice is required in cases of this character, as is required to be given to the grantor in a warranty deed upon his covenant of warranty for breach thereof. The authorities make a difference between notices required to be given of' the pendency of suits involving title to real estate and other actions. Mason v. Kellogg, 38 Mich. 132; Hines v. Jenkins’ Estate, 64 Mich. 469 (31 N. W. 432). Having once been made á party to the suit, the defendant needed no further notice of its pendency, or of his right and opportunity to defend. It is therefore unnecessary to determine the sufficiency of the notice given. Upon this question the authorities do not seem to be agreed. See Chicago City v. Robbins, 3 Black, 418; Consolidated Machine Co. v. Bradley, 171 Mass. 127 (50 N. E. 464, 68 Am. St. Rep. 409).

The payment of defendant’s claim in full did not operate as a satisfaction of his liability under his contract with plaintiff. He was liable upon his contract and bond. The amount of the claim against the city could, not be determined until judgment was rendered. Defendant was evidently advised that the city could not avoid payment after the work was satisfactorily done, and instituted suit to enforce acceptance. In this condition of affairs the plaintiff accepted the work and paid defendant, instead of contesting suit and keeping defendant’s money tied up for a long time. This was a kindness and benefit to defendant, and did not release him from the obligation of his contract.

Judgment affirmed.

The other Justices concurred.


author: Carpenter, J. Carpenter, J.

text:
    PEOPLE v. REMUS.
    1. Criminal Law — Directing Verdict — Right to Jury Trial.
    The jury in a criminal case, in which no testimony was introduced for respondent, after being out all night, reported that they were unable to agree, whereupon the court directed them to return to the jury-room and bring in a verdict of guilty. Held, to violate the constitutional guaranty of trial by jury. Peoples. Warren, 122 Mich. 504, followed.
    2. Intoxicating Liquors — Local Option Law — Sales by Druggists — Reports—Ditto Marks — Object of Purchase.
    Act No. 183, Pub. Acts 1899, § 25, requiring a druggist in a county adopting prohibition to make weekly reports to the prosecuting attorney, giving the full name and residence of every person procuring liquor at his drug store during the previous week, the kind and quantity of liquor procured, the date of procuring the same, and the object for which each purchase was made, is not prohibitory of the use of ditto marks to indicate dates, residence, kind and quantity of liquor procured, etc.; and the word “medical” is a sufficient statement of the object of the purchase.
    3. Same — Affidavits.
    A blank affidavit containing nothing but the signature of a notary public does not comply with the law requiring a druggist to “ make and swear to” his report of liquor sold.
    4 Criminal Law — Information—Bill of Particulars — Appeal.
    The refusal of the trial court to compel the prosecution in a case prosecuted by information to furnish a bill of particulars will not be reviewed on error. People v. McKinney, 10 Mich. 92, followed.
    5. Intoxicating Liquors — Local Option Law — Druggists—Unlawful Sales.
    A druggist who has complied with the general law by filing a bond entitling him to sell liquors for medicinal purposes cannot, on proof of a single unlawful sale, be convicted of keeping a place for the sale of liquors in violation of the local option law; 2 Comp. Laws, § 5429, not warranting a contrary conclusion. Maynard v. Eaton Circuit Judge, 108 Mich. 201, reaffirmed and followed.
    Exceptions before judgment from Van-Burén; Carr, J.
    Submitted November 19, 1903.
    (Docket No. 230.)
    Decided February 16, 1904.
    Additional opinion July 16,, 1904.
    William Remus and William J. Remus were convicted. of a violation of the local option law.
    Reversed.

      Thomas J. Cavanaugh, H. T. Cook, and A. C. Donovan, for appellants.

      Charles A. Blair, Attorney General, and David Anderson, Prosecuting Attorney, for the people.
   Carpenter, J.

The information in this case, except in the names of persons and dates of events, is precisely like that adjudged to be sufficient in Anderson v. Van Buren Circuit Judge, 130 Mich. 697 (90 N. W. 692), and charged respondents with keeping a drug store for the unlawful sales of liquor. No testimony was introduced by respondents, and the testimony of the people tended strongly to prove their guilt. The issue was submitted to the jury, who, after being out all night, reported to the court the following morning that they were unable to agree. Thereupon the court said:

“Gentlemen of the jury, it is your duty to return a verdict of guilty in this case. Now, you will return to your rooms, and you will come in, under these instructions, and bring in a verdict of guilty.”

The jury retired, and, in accordance with the instruction, rendered a verdict of guilty; and the court denied the request of respondents’ counsel to have the jury polled.

The impropriety of this ruling is the principal ground upon which respondents ask to have the conviction set aside. The court assumed to direct this verdict because the reports made by respondents to the prosecuting attorney did not comply with the law; and it is to us clear that these reports, in stating the amount sold, in some cases as “1 B. Beer,” and in others as “2 B. Beer,” did not state the “quantity of liquor procured,” as required by law. See section 25, Act No. 183, Pub. Acts 1899. It is to be borne in mind, however, that respondents were not on trial for making illegal reports. They were being tried for the offense of keeping a drug store for the unlawful sales of liquor. The issue was not whether the sale was illegally reported, but whether the reported and illegal sales were in fact made. These reports undoubtedly furnished very convincing testimony, but can it be said, as a matter of law, that the jury were bound to believe that the illegal sales reported had actually been made P

The authority of a court to direct a verdict of guilty in a criminal case was fully considered and determined by this court in People v. Warren, 122 Mich. 504 (81 N. W. 360, 80 Am. St. Rep. 582). We quote from the opinion in that case, and we think it applicable to the facts in this:

“Our attention has not been called to a case in which the judge undertook to enter a verdict for the jury when the latter failed to follow the instructions of the court, and it is not believed such a case can be found. The cases of People v. Neumann, 85 Mich. 98 (48 N. W. 290), and People v. Collison, 85 Mich. 105 (48 N. W. 292), indicate very clearly that, should a judge attempt to return a verdict for the jury, he would be trespassing upon the province of the jury. In all the cases where a verdict was directed, the only question involved was a question of law. As a rule, the facts were admitted, so that it was simply a question of whether the admitted facts, under the law, showed respondent was guilty of the crime. Here the facts were not admitted. It became the duty of the people to show by competent evidence the guilt of the accused. It was for the court to say what evidence was competent, and to decide whether it should be admitted, or not; but, after it was admitted, it was for the jury to say what weight should attach to it. The jury were not obliged to believe a witness simply because he had been sworn. Can it be said that in this case the action of the jury cannot be accounted for upon the theory that they did not believe some of the witnesses ?
■ “ Whether that can be said or not, the fact remains that, under the Constitutions of the United States and this State, before a respondent can be convicted of a felony upon a plea of not guilty, a verdict of guilty must be rendered against him by the jury. While it is the duty of the jury to take the law from the judge, and be guided by it, still, if the jury does not do its duty, its failure to do so does not confer upon the judge added power, and authorize him to usurp the functions of the jury, and return a verdict of guilty himself. The right of the trial judge to direct the jury in relation to the law of the case is not conceded in all of the courts, but, as we have already seen, that question is no longer an open one in this State. When, in addition to that right, it was held that, in cases where the facts were admitted, the trial court might direct the jury to return a verdict of guilty, the border line separating the functions of the trial judge from the province of the jury was reached. If another step is to be taken, and, in addition to the right to direct a verdict, it is held that the judge may, when the jury is unwilling to follow the direction of the court, compel a verdict, then the border line is passed, the judge has entered upon the province of the jury, and the constitutional guaranty of a right of trial by jury in criminal cases is overthrown.”

The rule above stated clearly condemns the practice adopted in this case. The verdict under consideration was in no sense the verdict of the jury. It is true, they retired to the jury-room, but they did not go there to consider their verdict. They went there charged with the positive instruction to return a verdict of guilty; and, when they obeyed that direction, they were not given the opportunity of denying that it accorded with their own judgment. We must regard this visit to the jury-room as a mere idle ceremony, and their verdict as one which the court compelled them to return.

For the purpose of affording aid upon another trial, it is our duty to consider the other questions raised by the record.

The trial judge was of the opinion that the law (section 25, Act No. 183, Pub. Acts 1899) requiring respondents to make each week to the prosecuting attorney a report “giving the full name and residence of every person procuring liquor at their drug store during the last week, the kind and quantity of liquor procured, the date of procuring the same, and the object for which each purchase was made,” forbade the use of ditto marks to indicate dates, residence, kind and quantity of liquor procured, etc., and that the word “medical” was not a sufficient statement of the object of the purchase. We cannot agree with this opinion. We think it is based on too narrow a construction of the law.

The blank affidavit on one of the reports introduced in evidence contained nothing but the signature of a notary public, and the trial judge was quite right in saying that this affidavit did not comply with the law, which required the druggist to “make and swear to” the report.

Respondents contend that the complaint is defective. This contention is fully answered by our decision in Anderson v. Van Buren Circuit Judge, supra.

It is contended that the trial judge erred in refusing to compel the prosecution to furnish a bill of particulars. We must decline to review this ruling. People v. McKinney, 10 Mich., at page 92.

Error is assigned because the trial judge refused to give without modification the following request of respondents:

“A druggist who has complied with the general law by filing a bond entitling him to sell liquor for medical purposes cannot, on proof of a single unlawful sale, be convicted of keeping a place for the sale of liquors in violation of the local option law. A prosecution in such case should be for the unlawful sale.”

Respondents were not entitled to have this request given. Section 5429, 2 Comp. Laws, reads:

“ Proof of a single sale of any one or more of the liquors or beverages mentioned in this act. * * * shall be presumptive evidence of * * * keeping a place where such liquors are * * * kept for sale.”

Respondents raise no other objection which, in our judgment, demands discussion.

The conviction will be set aside, and a new trial ordered.

Moore, C. J., Montgomery and Hooker, JJ., concurred. Grant, J., did not sit.

ADDITIONAL OPINION.

Carpenter, J.

The opinion filed in this case on the 16th of February last (reported above) will be taken as authority for the proposition that proof of a single unlawful sale is sufficient evidence to justify a conviction for keeping a drug store for the unlawful sale of liquor. In deciding this case we did not have the advantage of an oral argument, nor was there any reply made to the brief of the prosecuting attorney. The case of Maynard v. Eaton Circuit Judge, 108 Mich. 201 (65 N. W. 760), hereinafter referred to, was overlooked both by the court and by counsel, and we were led — too hastily, we concede —to accept the argument of counsel that the conclusion above stated was justified by section 5439 of the Compiled Laws. We have re-examined the question, — having on this re-examination the benefit of additional briefs, — and are of the opinion that said conclusion was wrong; that it virtually overrules the dicision of Maynard v. Eaton Circuit Judge, supra, and places a wrong construction upon said section 5439. We deem it our duty, therefore, upon our own motion, to take, this early opportunity of correcting our error.

Section 5439, 3 Comp. Laws, reads as follows:

“ Proof of a single sale of any one or more of the liquors or beverages mentioned in this act, or of the posting in any distillery, brewery, saloon, or other place of business of a United States revenue receipt permitting the manufacture or sale of any one or more of the liquors or beverages mentioned in this act, at the time and place alleged in the complaint or information, shall be presumptive evidence of such manufacture, sale, keeping for sale, giving away, or furnishing of any such liquors, or of keeping a place where such liquors are manufactured, sold, kept for sale, given away, or furnished, as the case may be.”
“ Proof of a single sale ” of liquor, or proof of the posting in one’s “place of business of a United States revenue receipt permitting ” the sale, is by this section made presumptive evidence ‘ ‘ of keeping a place ” where such liquors are “kept for sale.” But this section contains no warrant for our conclusion that proof of a single unlawful sale affords evidence that one is keeping a place for the unlawful sale of liquor. Under said section, “ proof of a single sale” affords the same, and no greater, evidence “of keeping a place where such liquors are * * * kept for sale ” than is afforded by “ the posting * * * of a United States revenue receipt.” Certainly the posting of such revenue receipt is no evidence of keeping a place where liquors are sold in violation of law. We therefore reaffirm our decision of Maynard v. Eaton Circuit Judge, supra, that proof of a single unlawful sale does not justify a conviction under an information charging that respondent kept a drug store for the unlawful sale of liquor.

As these views lead to no modification of the judgment of reversal heretofore entered, no new order will be made.

Moore, O. J., Montgomery and Hooker, JJ., concurred. Grant,. J., did not sit.


author: Carpenter, J.

text:
    DOWNING v. BUCK.
    1. Real-Estate Agents — Commissions—Liability of Seller.
    In an action by a real-estate agent to recover commissions for services alleged to have been rendered in selling land for defendant, to whom plaintiff had applied in behalf of a prospective purchaser, held, on a review of the evidence, that, though it appeared that plaintiff was in frequent communication with the parties, and active in the negotiations, he was not entitled to recover, as there was nothing in the circumstances from which defendant could have inferred that plaintiff was rendering services for him.
    2 Same — Custom.
    The fact that, as the real-estate business is ordinarily conducted, it is the custom for the seller to pay the commission of the agent conducting the negotiations, cannot impose a liability for commissions on the seller, where all the circumstances indicated that the agent was working for the purchaser.
    3. Same — Ratification—Knowledge of Facts.
    The owner of land who sells it through the negotiations of a real-estate agent not authorized to act for him is not liable to the agent for commissions on the ground of ratification of the agency, where he did not know that the agent was working in his behalf, and the circumstances indicated the contrary.
    4. Same — Evidence—-Harmless Error.
    The question to the plaintiff, as a witness in his own behalf, “As a real-estate agent, for whom were you acting in this sale ? ” was properly excluded as calling for plaintiff’s undisclosed purpose; and, if admitted, it could not have affected the duty of the court to direct a verdict for defendant.
    Error to Van Burén; Carr, J.
    Submitted January 6, 1904.
    (Docket No. 10.)
    Decided February 16, 1904.

      Assumpsit by Elmer E. Downing against Joseph S. Buck for commissions on the sale of real estate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      David Anderson, for appellant.

      Thomas J. Gavanaugh, for appellee.
   Carpenter, J.

In January, 1902, plaintiff was a real-estate agent in the village of Paw Paw. Defendant owned 320 acres of muck or swamp land in Van Burén county. One C. Gr. Kleinstueck called on plaintiff for the purpose of purchasing land of that character. When plaintiff and Kleinstueck were looking over the atlas, they noticed marked thereon the parcel belonging to defendant. The two thereupon determined to see defendant, and arrange a deal if they could. They met defendant, plaintiff introduced Mr. Kleinstueck to him, told him what was wanted, and asked him if he would make the sale. Defendant fixed a price, and gave a verbal option for two months. Plaintiff took Kleinstueck to the land several times, and carried numerous communications between the parties. He called at defendant’s house several times, and defendant repeatedly called at his office and house to make inquiries as to the progress of the negotiations. Kleinstueck finally declined the proposition made by defendant, and made a counter proposition less favorable to defendant, which, plaintiff communicated, and which was subsequently accepted. Defendant took his.deeds to plaintiff’s office, and plaintiff at his request drew the papers and took ■ the acknowledgment, and defendant delivered the deed to Kleinstueck and received the money for his property. Defendant knew what plaintiff’s business was. There was no arrangement for Kleinstueck to pay plaintiff for his services, and he never in fact did pay for them. It is the custom of real-estate dealers to receive commission, not from the purchaser, but from the seller, of lands. After the deal was closed, plaintiff presented his account to defendant, who refused to pay the same, but shortly afterwards did offer to pay him for making out the deed. On proof of these facts, the trial court directed a verdict for the defendant.

Was this error F Plaintiff contends that this case should have been decided in his favor upon the principle that, “where a party knowingly and without objection permits another to render service for him of any kind whatever, the law implies a promise to pay what the same is reasonably worth.” See Shelton v. Johnson, 40 Iowa, 84. This is a familiar and well-settled principle, but, in our judgment, it has no application whatever to this case. That principle can apply only when one knows that services are being rendered for him. There is nothing in the circumstances of this case from which defendant could have inferred that plaintiff was rendering services for him. It is true plaintiff was assisting in bringing to a head negotiations for the sale of defendant’s land. But defendant could not infer that plaintiff, in assisting these negotiations, was rendering services for him. Nothing that he did, to the knowledge of the defendant, tended to induce the purchaser to buy on terms favorable to the seller. Plaintiff appeared to defendant as the representative of the purchaser. He communicated to defendant the purchaser’s objections to the land. He obtained defendant’s consent to sell the land on terms less favorable than those contained in the original option. Surely defendant could not have inferred that services of this character were being rendered for him.

Nor do we think that plaintiff’s case is aided by the evidence of custom. Several witnesses testified respecting this custom. None of their testimony is stronger than that of plaintiff himself. We quote his testimony:

Q. What is the custom in the real-estate business as to whether the purchaser or the seller of the real estate pays the commission ?
“A. 'Well, the man that sells the property.”

The custom proved by this testimony — a custom so common that perhaps we may know it judicially — is that, as the real-estate business is ordinarily conducted, the seller, and not the purchaser, pays the commissions of the agent. The custom which governs ordinary real-estate transactions has no application to the exceptional case before us. Because in ordinary transactions the seller of real estate pays the agent, no obligation to pay will be presumed where, as in this case, all the circumstances indicate that he is working for the purchaser.

It is urged by plaintiff that, if defendant was not bound in the first instance to compensate him for his services, he ratified those services, and thereby rendered himself liable for their value, when he consummated the sale. The doctrine by which one by ratification becomes responsible for the act of an unauthorized agent is usually applied to render the principal liable, not to the agent whose act was unauthorized, but to the person with whom the agent dealt. Assuming that the agent can invoke the docrine of ratification, — and it is held that he may (see Wilson v. Dame, 58 N. H. 392), — its application will not aid plaintiff in this case. The ground upon which it is claimed that defendant ratified plaintiff’s agency is that he accepted the benefits of that agency.

“Ratification of an unauthorized contract, in “order to be made effectual and obligatory upon the alleged principal, must be shown to have been made by him with a full knowledge of all the material facts connected with the transaction to which it relates.” Mechem, Agency, § 129.

See, also, the numerous cases there cited in support of this doctrine. It results, therefore, that the fact heretofore pointed out, that defendant” did not know, when he consummated the sale, that plaintiff had rendered services for him, makes the doctrine of ratification inapplicable.

Complaint is made because the court refused to permit plaintiff to answer this question: “As a real-estate agent, for whom were you acting in this sale?” We think the question did not call for a statement of fact, as did similar questions in Sweet v. Tuttle, 14 N. Y. 465, and Knapp v. Smith, 27 N. Y. 277, relied upon by plaintiff. We think, under the circumstances of this case, the question called for a statement of plaintiff’s undisclosed purpose, and that it was therefore inadmissible. Even if the court erred in excluding this testimony, it was not prejudicial error. Had plaintiff answered this question in the manner desired by his counsel, under the reasoning of this opinion it would have been none the less the duty of the court to direct a verdict against him.

The judgment of the court below will be affirmed.

The other Justices concurred.


text:
    MARVIN v. BOWLBY.

    1. Pleading — Deolaration—Amendment—Issue—Practice.
    Under Circuit Court Rule No. 10, providing that, when a declaration is amended after plea or demurrer, the plea or demurrer shall stand as a plea or demurrer to the amended declaration, unless defendant shall, within 10 days after receiving such amendment, file another plea or demurrer, the case stands at issue on failure of defendant to file a plea or demurrer within the prescribed period.
    2. Practice— Trial — Docket.
    Where a case is called or set for trial, the objection of defendant that it is not properly on the docket comes too late; he should have moved on the first day of term to strike the case from the docket, or for a continuance.
    3. Appeal — Directed Verdict — Record.
    Alleged error in directing a verdict on questions of fact cannot be considered when the record fails to show that it contains all the evidence introduced on the trial.
    Error to Shiawassee; Smith, J.
    Submitted January 6, 1904.
    (Docket No. 13.)
    Decided February 16, 1904.

      Assumpsit by ^Thomas Marvin, administrator of the estate of Jacob M. Bowlby, deceased, against Elmer Bowlby, on certain promissory notes. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.
    On April 26, 1902, plaintiff, as administrator of Jacob M. Bowlby, deceased, filed a declaration in this case, which was commenced February 28th by summons, upon the common counts, and gave notice that he would give in evidence under the money counts seven promissory notes, copies of which were attached to the declaration. These notes, all but three, were signed by the defendant and by J. M. Bowlby, who was his father. One for $152 and one for $200 were signed by J. M. Bowlby, and one for $1,500 was signed by the defendant alone. On November 6th, and before any plea was filed, he filed an amended declaration, setting forth that, as to four of the notes, they were signed by J. M. Bowlby as accommodation maker; that they had been allowed against the estate, and paid by the plaintiff. November 21st defendant filed his plea of the general issue, and gave notice of the statute of limitations, and that these notes had been presented to and allowed by the commissioners as a set-off against the claim of the defendant against the estate. On January 28,1903, plaintiff filed another amended declaration by the consent of the defendant upon the payment of an attorney fee of $10, which was paid, but no order of the court permitting the amendment was made. These amendments, like the others, were deemed necessary to set up more fully the ground of liability of the defendant upon the notes. All the notes upon which recovery was had were set up in the original declaration.
    On February 6,1903, plaintiff served notice of trial upon the defendant for the next term of court, to commence February 23d. At the opening of the court on February 23d, the case, at the request of the plaintiff, was set for trial on March 5th. No objection was made to this order. Defendant’s attorney claims that he was not in the court-room at the time this order was made, although it appears that he was in attendance at court during the day. He claims that he asked Mr. Chandler, an attorney of the court, to state, when the calendar was called, that he did not expect to be ready to try the case, but, if the matter could stand in abeyance, he would try and get ready.
    Defendant served no further pleadings in the case until March 4th, the day before the case was set for trial. He then served plaintiff with a demurrer to the first count and a plea and notice of special defenses to the other counts. These pleadings were not filed until the following day. February 25th defendant demanded a bill of particulars, and one was promptly served, although plaintiff’s attorney claimed that he was not entitled to it. Defendant, through his attorney, appeared in the case on the 5th, and objected to proceed with the trial upon the ground that the case was not in condition, for lack of pleadings, to be noticed for -the then term of court. On March 4th plaintiff’s attorney offered to postpone the trial to the following week, but defendant’s attorney declined the offer. The record shows that no statement was made by Mr. Chandler when the case was called, but that, two or three days before the time fixed for trial, the judge received a statement by telephone of similar import through the janitor. The court ordered the case to proceed, whereupon the defendant withdrew from the case, and the plaintiff proceeded to trial, and the court directed a verdict for the balance due upon the notes.
    The defendant has brought the case to this court by writ of error, claiming that the court erred in proceeding with the trial, that some of the notes were barred by the statute of limitations, that some were offset by the commissioners on claims of the Bowlby estate against defendant’s claim, and that the $1,500 note was not paid by the administrator, and therefore he was not entitled to recover.

      Almond G. Shepard (Lyon & Moinett, of counsel), for appellant.

      Fred R. Everett (John C. Fooling, of counsel), for appellee.

       Rehearing denied June 27, 1904.

   Grant, J.

(after stating the facts). The court committed no error in proceeding with the trial. Circuit Court Rule No. 10 provides that, when a declaration is amended after plea or demurrer, “such plea or demurrer shall stand as the plea or demurrer to the amended declaration, unless the defendant shall, within ten days after receiving such amendment, file another plea or demurrer.” If the defendant had filed a plea or demurrer to the amended declaration within the time fixed by the rule, the question might arise whether the pleadings were in condition for a notice of trial. The defendant filed no plea or demurrer for 35 days after the declaration was amended by stipulation, and not until the case was called for trial. By not pleading within the 10 days, the case stood at issue. Defendant should have moved on the first day of court to strike the case from the docket or for a continuance. Peninsular Stove Co. v. Osmun, 73 Mich. 570 (41 N. W. 693).

It is urged that the court erred in directing a verdict .for the plaintiff as to some of the notes upon which recovery was had. These are questions of fact, and their' determination depends upon the evidence. The record-does not show that it contains all the evidence that was introduced upon the trial. This allegation cannot, therefore, be considered. Metz v. People’s Sav. Bank, 129 Mich. 320 (88 N. W. 874).

Judgment affirmed.

Moore, C. J., Montgomery and Hooker, JJ., concurred. Carpenter, J., did not sit.


text:
    RHOADES v. McNAMARA.
    1. Injunction — Continuing Trespass —Use op Private Roadway.
    Where defendant persisted in using a roadway across complainant’s land, contrary to complainant’s will and under an unfounded claim of right, complainant was entitled to an in- . junction, and was not bound to submit to the trespass and sue for damages; nor was he to be deprived of his rightful remedy because defendant, at the time of commencement of suit, had almost completed his use of the way.
    2. Same — Equity Jurisdiction — Damages—Jury Trial.
    Where equity has jurisdiction of a suit to enjoin a continuing trespass, it should give such relief as will finally dispose of every question involved; and an award of damages is not objectionable as depriving defendant of the right of trial by jury.
    Appeal from Van Burén; Carr, J.
    Submitted January-12, 1904.
    (Docket No. 17.)
    Decided February 16, 1904.
    Bill by Lewis Rhoades against Ed. McNamara to enjoin the use of a roadway across complainant’s land. From a decree for complainant, defendant appeals.
    Affirmed.

      W. J. Barnard, for complainant.

      Thomas J. Cavanaugh, for defendant.
   Carpenter, J.

Complainant gave to one Aaron Tail-man a license to construct a roadway across his land, and to draw over the same certain timber belonging to him. After this timber was drawn, defendant, who had been in Tallman’s employ-, contrary to the objections of complainant, drew over said roadway timber belonging to himself, and persisted in so using said roadway, notwithstanding the objections of complainant. This bill was filed for the purpose of procuring an injunction restraining said use, and compensation for the damage. Complainant obtained a decree.

Defendant insists that this decree should be reversed, qn the ground that complainant, by recovering damages in a suit at law, has an adequate remedy. Defendant persisted in using this road, contrary to complainant’s will, under an unfounded claim of right. Under these circumstances, must -the complainant quietly submit to this invasion of his rights, and content himself with suing for damages ? Clearly not. He has a right to have this continuing trespass stopped by an injunction. Wilmarth v. Woodcock, 58 Mich. 482, 66 Mich. 331 (25 N. W. 475, 33 N. W. 400); Campbell v. Kent Circuit Judge, 111 Mich. 575 (70 N. W. 141); F. H. Wolf Brick Co. v. Lonyo, 132 Mich. 162 (93 N. W. 251).

It is also urged that, at the time this suit was commenced, defendant had practically completed the drawing of his timber, and therefore there was no need of the injunction. We think it is to be inferred from the record that, when complainant commenced this suit, he supposed that defendant’intended to persist in wrongfully invading his rights. Defendant himself testifies, “We hauled out lumber the same night that he [complainant] said he was going to get the injunction.” Complainant should not be deprived of his rightful remedy because defendant moved the timber more expeditiously than he expected.

The court below awarded $16 as compensation for complainant’s damages. It .is urged that to permit this to-stand is to deprive defendant of his constitutional right of a jury trial. This position is not sound. From the foregoing consideration, it will appear that the controversy is one of which chancery had jurisdiction. Having jurisdiction, the court should dispose of every question involved. George v. Wyandotte Electric-Light Co., 105 Mich. 5 (62 N. W. 985). It was therefore not a case in which defendant had a right to a jury trial.

Decree affirmed.

The other Justices concurred.


author: Per Curiam.

text:
    MILLER v. McLAUGHLIN.
    Equity Practice — Overruling Plea — Appeal.
    Where, in. a suit in equity to foreclose a mortgage, an order is entered overruling a plea to require another party to be made a defendant, and, notwithstanding an appeal is taken, the right to answer is claimed, the appeal is properly dismissed, as the order is interlocutory, and not final. Cross v. Cross, 54 Mich. 115, distinguished.
    Foreclosure bill, filed in the Wayne circuit, by Sidney T. Miller, trustee, against Joseph R. McLaughlin, Collins B. Hubbard, and others:
    On motion by defendant Hubbard and others to reinstate an appeal.
    (Calendar No. 20,147.)
    Submitted January 26, 1904.
    Denied February 16, 1904.

      Earl D. Babst (Willis G. Clarke, of counsel), for the motion.

      Miller, Smith, Alexander & Paddock, contra.

   Per Curiam.

This is a suit in equity to foreclose a. mortgage. It is the second time the matter has been in this court, having once been heard on a demurrer to the bill. See Miller v. McLaughlin, 132 Mich. 234 (93 N. W. 435). After their demurrer was overruled, appellants interposed a plea setting up facts which, it is claimed, required the State of Michigan to be made a party. This plea was overruled, with permission to defendants to put in their answers to the bill within 15 days. From this order an appeal was taken to this court. The appeal was dismissed on the ground that said order was not appeal-able. Appellants now move for a reinstatement of the appeal on the ground that the court erred in dismissing it. The sole question is, Was said order appealable?

Is this a final order ? If deprives appellants of no property right. It works no immediate injury to their rights. It cannot damage them until a final decree is made, and then only so far as it affects said decree. The order is not a final order. It is an interlocutory order. It is governed by the decision of Morris v. Morris, 5 Mich. 171. There a suit was brought to foreclose a mortgage. A question arose as to the right of the defendant to have certain credits indorsed on the mortgage indebtedness. April 11, 1857, it was ordered that these indorsements should be allowed, and the court directed a reference for computation on that basis. December 2,1857, a decree of foreclosure and sale was made. From this decree complainant appealed to this court. We quote from the opinion in that case (page 179):

“A, preliminary point was made by the counsel for the appellee that, inasmuch as'the decretal order of April 11th settled the question of allowance of the payments, an appeal from the decree of December 2d could not bring up that question. This position is not well founded. That was an interlocutory proceeding, upon which the final decree was based, but which, of itself, granted no relief and performed no active function. The decree of fore- • closure is the only one which disposes in any effectual manner of the rights of the parties. The whole case is properly before us.”

If the question involved in appellants’ appeal can be reviewed by this court at all, it must, in our judgment, be brought before us on an appeal from the final decree. Appellants’ counsel contend that the order is final because it cannot be reviewed by this court on an appeal from the final decree. If this is true, — which is doubtful; see Morris v. Morris, supra; Benedict v. Thompson, 2 Doug. 299, — it does not prove that the order was final. It must be conceded that there are interlocutory orders the merits of which are not open to re-examination on appeal.

This case is unlike the case of Cross v. Cross, 54 Mich. 115 (19 N. W. 919), cited by appellants. In that case this court sustained the right of a defendant to appeal from an order overruling a plea and permitting him to answer, on the ground that, by appealing, “ he thereby elects to stand by his plea, and not to accept the permission given him to answer.” Appellants cannot complain that this court did not sustain their appeal on this ground. Notwithstanding their appeal, they distinctly claimed the right to answer, and two of them have since that time, as we are informed by their counsel, exercised that right.

Motion to reinstate appeal is therefore denied.


author: Cabpenteb, J.

text:
    BOWDEN v. VOORHEIS.
    1. Intoxicating Liquors — Civil-Damage Act — Liability.
    In an action by a wife against a saloonkeeper to recover damages for selling liquor to her husband, she may, under 2 Comp. Laws, § 5398, upon proof that the sales of defendant contributed to her loss of means of support and to her shame and disgrace, recover of defendant for the entire injury, though sales made by others also contributed to produce it. Steele v. Thompson, 42 Mich. 594, followed.

      2. Same — Damages—Evidence.
    Where it is plainly inferable from plaintiff’s testimony that she has suffered loss of means of support and been subjected to shame and disgrace by reason of such sales of liquor, it is not error to refuse to direct a verdict for defendant on the ground that the testimony is too indefinite and uncertain to justify a verdict for plaintiff.
    8. Same — Exemplary Damages — Instructions.
    Exemplary damages, while allowable under said statute, can only be given to compensate injury to feelings caused by the wanton or reckless acts of defendant; and it is error to permit the jury to award them under an instruction that they are punitory in character, and designed to punish defendant for some positive wrong done to plaintiff.
    4. Same.
    An instruction with reference to actual and exemplary damages, “Of course, you will consider them separately in the jury-room, but when you report your verdict, if you find a verdict for the plaintiff, you will not undertake to divide them, unless requested, but will simply put the two amounts together, if you do find both amounts, and announce one aggregate sum through your foreman:,” — merely indicated the court’s notion of the manner in which the jury would proceed, and was not erroneous as making it mandatory on thém to proceed in that manner.
    Error to Oakland; Smith, J.
    Submitted Jan'uary 13, 1904.
    (Docket No. 25.)
    Decided February 16, 1904.
    Case by Ada L. Bowden against Elmer M. Yoorheis and others for damages caused by selling intoxicating liquor to plaintiff’s husband. From a judgment for plaintiff, defendants bring error.
    Reversed.

      Lillis & JBeardslee (Allan P. Cox, of counsel), for appellants.

      Fred M. Bond and E. E. Blakeslee, for appellee.
   Cabpenteb, J.

Defendant Yooheis is a saloonkeeper in the city of Pontiac. His codefendants are sureties on his bond. Plaintiff brings this suit averring that defendant sold liquor to her husband, and that, 'as a result, she lost her means of support and suffered shame and disgrace. The issue was submitted to a jury, who rendered a verdict in plaintiff’s favor. We are asked to reverse the judgment of the lower court on several grounds, which we will proceed to consider.

It is claimed that the court erred in permitting plaintiff to prove frequent intoxications of her husband, without proving that they were occasioned by liquor sold by defendant. We do not think, this complaint well grounded. The testimony shows that plaintiff’s husband, during a long period, frequented defendant’s saloon and bought liquor there at least once a week. Plaintiff does not claim damages resulting from any particular intoxication of her husband. . It is her claim that the sales of defendant contributed to her loss of means of support, shame, and disgrace. If they did, — and whether they did or not was a question properly submitted to the jury, — defendant was responsible for the whole injury, even though the sales made by others also contributed to produce it. See Steele v. Thompson, 42 Mich., at page 596 (4 N. W. 536): This decision determined the construction of section 3 of Act No. 193 of the Public Acts of 1877, but it also determined the construction of our present law, — 2 Comp. Laws, § 5398, —which contains the same language. Plaintiff had a right, then, to prove a loss of means of support, shame, and disgrace which the liquor sold by defendant and the liquor sold by others contributed to produce. This she could not do, under the facts in this case, without proving intoxications resulting from liquor sold by Others than the defendant. It must be conceded that Jewett v. Wanshura, 43 Iowa, at page 577, is opposed to these views. That case approves this instruction:

“If others sold him [plaintiff’s husband] liquors which contributed to produce drunkenness, which led to idleness and squandering of his property, to the injury of plaintiff, each party contributing to the injury is liable for the injury which he alone did.”

We prefer the reasoning of Steele v. Thompson, which is a precedent binding on this court. In deciding that case it was said:

“The question is one of construction, and, whatever opinion may have been found in other States :of provisions having some resemblance to ours, we must attend to the sense and spirit of our own enactments, and judge accordingly.”

Defendants contend that the court erred in not directing a verdict in their favor, on the ground that the testimony relating to damages was too indefinite and uncertain to justify a verdict for plaintiff. The trial judge properly denied defendants’ request. It may be inferred from plaintiff’s testimony that the sale of liquor by defendant contributed to make her husband, who had occasionally drank, an habitual drunkard. From this it may be inferred that plaintiff suffered shame and social disgrace. It is clearly to be inferred from her testimony that plaintiff lost in her means of support, though precisely how much is uncertain. Of this we may say, as this court said in a former case:

“She did not show the exact amount that he contrib-, uted, and counsel urge that there was no way for the jury to tell how much she received. We think there was sufficient to enable the jury to estimate her damages.” Lafler v. Fisher, 121 Mich., at page 62 (79 N. W. 934).

We think this is a case where the jury were warranted in giving exemplary as well as actual damages. The court, however, in charging the jury, said:

“ I say to you, gentlemen, that the selling or furnishing of liquors to a person with the knowledge that he is intoxicated at the time, or is in the habit of getting intoxicated, gives to the wife the right of exemplary damages; and I charge you further that the exemplary damages allowed to a wife by the civil-damage act are punitory in their character, and designed to punish the defendant for some positive wrong done to the wife, or for some gross neglect of her rights, in furnishing liquor to her husband at the time alleged in the declaration. The jury must, however, exercise a sound discretion in determining the amount they will impose. * * * The amount of such exemplary damages cannot be, of course, estimated by witnesses, nor are witnesses allowed to give any amount that they think should be awarded; but this matter of exemplary damages rests entirely in the good judgment of the individual jurors.”

Was this error? It is insisted by plaintiff’s counsel that, notwithstanding this language, the jury would understand from other portions of the charge that exemplary damages are damages to the feelings of the plaintiff; and it is true that the court had so stated in a former portion of his charge. Notwithstanding that explanation, we cannot escape the conclusion that the jury would understand from the language under consideration that they were at liberty to give damages for the purpose of punishing the defendant, and that the amount of such damages depended upon their sound discretion or good judgment. Nor can we say that the jury in this case did not follow this direction. While some of the earlier decisions of this court sustain the view that exemplary damages under this statute may be given to punish the defendant (see Larzelere v. Kirchgessner, 73 Mich., at page 283 [41 N. W. 488]; Peacock v. Oaks, 85 Mich., at page 582 [48 N. W. 1082]), later decisions distinctly repudiate that view, and it is now settled that exemplary damages under this statute, like exemplary damages under the common law in this State, may be given only to compensate injury to feelings caused by the wanton or reckless act of the defendant (see Ford v. Cheever, 105 Mich., at page 685 [63 N. W. 975]; Haviland v. Chase, 116 Mich. 214 [74 N. W. 477, 72 Am. St. Rep. 519]; Boydan v. Haberstumpf, 129 Mich. 138 [88 N. W. 386]). We conclude, therefore, that the charge under consideration constitutes reversible error.

The court, at the conclusion of his charge, said:

“Now, gentlemen, I have spoken of actual damages and exemplary damages, but, of course, you will consider them separately in the jury-room; but when you report your verdict, if you find a verdict for the plaintiff, you will not undertake to divide them, unless requested, hut will simply put the two amounts together, if you do find both amounts, and announce one aggregate sum through your foreman. In other words, it will be for you to do the figuring in the jury-room, and only report the one amount.” . /

It is contended that this is a direction to the jury to consider the actual damages and exemplary damages' separately, and that the court should not have given such a direction. We think this criticism is based upon an improper construction of the charge. We think the purpose of this instruction was to inform the jury that, if they returned a verdict for the plaintiff, they should not award one amount for actual damages and another amount for exemplary damages, but should give a verdict for a gross amount for the entire damages. The statement of the court, “but, of course, you will consider them separately in the jury-room,” indicated his notion of the method of procedure the jury would adopt. It did not make it mandatory upon them to adopt that method, and it was not error for the court to suggest that they should.

We discover no other error in the record, and no other question which demands discussion. For the error pointed out, the judgment will be reversed, and a new trial granted.

The other Justices concurred.


text:
    MILLER v. SHUMWAY.
    1. Ejectment — Line Fence — Surveyor’s Monuments.
    In ejectment to recover a strip of land separated from land of plaintiff by a line fence, a surveyor testified that he ascertained that the fence stood several feet on plaintiff’s land by measuring from a stone at the northeast corner of the section. Defendant moved to strike out the testimony, on the ground that there was no evidence that this was a proper starting point. Held, that the fact that the stone stood very near the center of two highways, and was properly situated with reference to a re-established quarter-section post, furnished evidence of its proper location, although not set at the time the original survey was made.
    2. Witnesses — Surveyors— Refreshing Memory — Independent Testimony.
    The use by a surveyor of a copy of his minutes of survey, instead of the original, to refresh his recollection in giving testimony, is not ground for reversal, where it appears that, on direct examination, he testified independently of the copy.
    3. Surveys — Evidence—Disputed Boundary.
    Where, in a controversy over the location of a boundary line, it may fairly be inferred from the testimony of a surveyor that a correct measurement was made from the starting point, it affords evidence of the proper location of the line, even though the surveyor did not observe all the requirements of law in making his survey.
    4. Adverse Possession — Evidence—Harmless Error.
    Where defendant in ejectment claimed title by adverse possession, and offered testimony in support of his possession, which was afterwards, on plaintiff’s motion, stricken out, held, that the ruling, if improper, was not reversible error, as all the testimony tended to show, and the court charged the jury, that defendant was in possession for more than 15 years before commencement of suit.
    5. Trial — Incompetent Evidence — Waiver of Error.
    Where incompetent testimony was offered by plaintiff, and seasonably objected to as such, wiiich provoked interlocutory discussion, from which it appeared that a similar class of tes • timony had been received on behalf of defendant; and during the discussion defendant’s counsel, addressing the trial judge, remarked, in substance, “If you were right in admitting our testimony, you should admit this testimony,” — held, that defendant could not justly complain of the ruling of the court admitting the testimony*
    6. Adverse Possession — Evidence—Neighborhood Reputation.
    Where, under defendant’s claim of title by adverse possession, ' the controversy hinged on the hostility, and not the distinctness and notoriety, of his possession, it did not operate to his prejudice to exclude testimony that it was generally understood in the neighborhood that he owned the land in question. Sparrow v. Hovey, 44 Mich. 63, distinguished.
    7. Witnesses — Matters Within Knowledge of Decedent — Boundary-Line Agreement.
    Where, in ejectment, it appeared that a line fence, over the proper location of which the controversy turned, was built under some arrangement between defendant and plaintiff’s remote grantor, since deceased, and plaintiff claimed the agreement to have been that, if it should afterwards be found that the fence was not on the true line, it should be changed to conform ’thereto, held, that since, under 3 Comp. Laws, § 10312, defendant could not testify to the arrangement, evidence as to his intent with reference to changing the fence, at the time of its erection or subsequently, was properly excluded.
    8. Adverse Possession — Evidence—Question for Jury.
    Where defendant in ejectment asserted title by adverse possession, and there was testimony indicating that plaintiff’s grantor knew, more than 15 years before commencement of suit, that defendant was holding the land in controversy in hostility to his claim, but there was also testimony of admissions by defendant that he had not occupied the land adversely to plaintiff sufficiently long to make it his own, the issue was correctly submitted to the jury, as it was competent for them to find that the occupancy by defendant was not of a hostile character for the statutory period.
    9. Trial — Instructions—Requests.
    The failure of the trial judge to instruct the jury upon some particular matter involved in the issue is not error, in the absence of a request for such instruction.
    Error to Clinton; Stone, J.
    Submitted January 14, 1904.
    (Docket No. 41.)
    Decided February 16, 1904.

      Ejectmerit by John Peter Miller against David H. Shumway. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Ohaddock & Scully (Dooling & Kelley, of counsel), for appellant.

      John Gr. Patterson and Lyon & Moinet, for appellee.
   Carpenter, J.

Plaintiff owns the east half of the west half of the northeast quarter of section 18, in the township of Dallas, Clinton county. Defendant owns the land adjoining him on the east. The boundary line which separates their land is disputed. Plaintiff brings this ejectment suit to recover the possession of a strip of land about nine feet in width. The disputed strip is separated from the land occupied by plaintiff by a line fence built about 30 years ago, and has been in defendant’s possession since that time. The testimony of the plaintiff tends to prove that this fence is not on the true line; that it was erected under an arrangement that at some future time the true line would be ascertained by a survey, and the fence placed thereon. Defendant claims that the fence was on the true line, and that, if not, he had acquired title' by adverse possession. The issue was submitted to the jury, who found for the plaintiff. "We are asked to reverse the judgment of the court below on numerous grounds, which will be stated and discussed.

It is contended that the court erred in not striking out the testimony of Charles Eddy, a surveyor, who testified on the part of the plaintiff that he ascertained that the fence in question stood several feet over on plaintiff’s land by measuring from a stone located at the northeast corner of the section. It is claimed that there was no testimony tending to show that this was a proper starting point. To this we cannot agree. While it is quite clear that the stone was not set at the time the original survey was made, the fact that it stands very near, if not at, the center of two highways, and the fact that it is properly situated with, reference to a re-established quarter-section post, furnished evidence of its proper location.

Complaint is made because this witness was permitted to use a copy of the minutes of his survey instead of the original, which had been turned over to the county surveyor, to refresh his recollection. We cannot say that defendant was prejudiced by this ruling. It is fairly to be inferred from the record that the witness did not, on direct examination, testify to anything which he did not remember independently of this copy.

Complaint is also made because the witness was permitted to testify about a former survey in which he took no part. Such testimony was brought out on the cross-examination of the witness, and this complaint is based on no assignment of error.

It is also urged that the testimony of witness Eddy should have been stricken out because in making his survey of the disputed strip he failed to observe all the requirements of law. We think it may fairly be inferred from the testimony of this witness that a correct measurement was made from the starting point; and, if it was, it afforded evidence of the proper location of the disputed line, even though he did not observe all the requirements of law in making his survey.

It is claimed that the- court erred in striking from the record the testimony of John W. Shumway, defendant’s father and grantor, respecting the building and repairing of the fence in question and occupancy in relation thereto. The fence in question was built, and presumably maintained, under an arrangement made with plaintiff’s deceased grantor. Most of the testimony stricken out was therefore inadmissible under section 10312, 3 Comp. Laws. Defendant claims, however, that the statute does not extend to testimony respecting matters of public notoriety, such as the occupation of land. See Wright v. Wilson, 17 Mich., at pages 200, 201; Chambers v. Hill, 34 Mich. 523. Assuming this claim to be well grounded, the trial court erred in striking out that part of the witness’ testimony. But we do not think this error — if error it was — was prejudicial to defendant. The testimony in the case all tended to prove, and the court in submitting the matter to the jury charged, that defendant was in possession of this strip of land for more than 15 years before the commencement of this suit.

Plaintiff was permitted to prove declarations by his grantor asserting his ownership of the disputed strip, and that he signed a petition for a resurvey. We do not think this evidence was admissible, but we do not think that defendant properly objected to its admissibility. When it was offered, defendant’s counsel objected to it as incompetent and immaterial. Plaintiff’s counsel replied, “It is as competent to show what Green said as to show what Shumway said.” (Defendant, Shumway, had been permitted, notwithstanding plaintiff’s objections, to prove declarations of ownership of the disputed strip, made by him, not in the presence of plaintiff or of plaintiff’s grantor.) Thereupon the court admitted the testimony. Later the court asked counsel for defendant, “Do you claim the statements of Andrew Green are incompetent ?” to which counsel replied: “I am not so certain what the rule is. My brother objected to testimony on the same line. I thought I would save an objection;” and thereupon further testimony of like character was admitted. It will thus be seen that the court, in admitting this testimony, had a right to act, and did act, upon the assumption that, if the evidence already introduced on the part of defendant was admissible, then the evidence under consideration was. Defendant’s counsel said, in substance, to the trial judge, “Tf you were right in admitting our testimony, you should admit this testimony.” Under these circumstances, there was nothing for a fair-minded judge to do but to admit the testimony.

Complaint is made because the court did not permit- defendant to prove that it was generally understood in the neighborhood that he owned the land in controversy. It is claimed that this testimony was competent upon the issue of adverse possession. In Sparrow v. Hovey, 44 Mich., at page 64 (6 N. W. 93), defendant was permitted “to prove that the land was generally understood to be and called his in the neighborhood,” on the ground that it “ tended to establish the notoriety of defendant’s possession and claim of title, which were important facts in his defense.” In that case “the distinctness and notoriety of defendant’s possession were the very things in controversy. ” That case has been followed by the similar case of Whitaker v. Shooting Club, 102 Mich. 454 (60 N. W. 983). In the case at bar, however, there is no controversy •about the distinctness and notoriety of defendant’s possession. His possession is conceded to be distinct and notorious. Its hostility is denied. The general neighborhood understanding of defendant’s ownership would be justified by his possession, and would have little, if any, tendency to prove the notoriety of a hostile claim asserted by him. If there was any error in excluding this testimony, we cannot think that it was prejudicial to defendant.

Defendant was not permitted to answer these questions: “At the time you put the fence there, was there any intent on your part ever to change it ?” “ Have you, at any time since this fence was built, intended to change this fence ?” It is contended that, as bearing on the question of defendant’s adverse possession, he had a right to show his intent. See Pugh v. Schindler, 127 Mich. 191 (86 N. W. 515). The line fence referred to was built under some arrangement between defendant and plaintiff’s remote grantor, since deceased. As heretofore stated, plaintiff claims that that arrangement was to remove it to the true line when ascertained. Defendant denies this. As defendant could not, concededly, under the statute (section 10212, 3 Comp. Laws), testify to the arrangement, I do not think he could testify to his intent at the time. Such testimony would be an evasion of the statute. Neither do I think he could testify to his subsequent intent. If the subsequent intent is the same as the intent with which the .fence was erected, it is subject to the same objection as testimony respecting that intent. If it is a different intent, it has no bearing on the controversy, unless known to plaintiff or to his grantors. See Pugh v. Schindler, 127 Mich. 191 (86 N. W. 515).

It is urged that the court erred in not directing a verdict for the defendant. There is testimony whióh indicates that, as early as 1885, plaintiff’s grantor, Green, knew that defendant was holding the land in controversy in hostility to his claim. If this were the only testimony bearing upon the subject, we think that defendant would, have been entitled to a verdict. See Pugh v. Schindler, 127 Mich. 191 (86 N. W. 515). But there was testimony of admissions by defendant that, when the suit was commenced, he had not occupied the land adversely to plaintiff sufficiently long to make it his. From this testimony the jury might have inferred thqt defendant had not held under a hostile claim for the statutory period. The issue-was therefore properly submitted to the jury.

Complaint is also made because the court did not charge-the jury that, if plaintiff’s grantor, Green, knew as early as 1885 that defendant asserted a hostile claim to the land in controversy, he was entitled to a verdict. It is a complete answer to this complaint to say that no such charge was requested, and we cannot say that it was error for the court to fail to cover the point.

We do not think that defendant’s brief points out any reversible error. The judgment of the court below is. therefore affirmed.

The other Justices concurred.