text:
    BARGER v. BISSELL.
    1. Automobiles — Evidence—Negligence—Infants.
    Testimony in an action for the negligent injuring of an infant, of almost seven years of age, that she started to cross a paved avenue in the city of Detroit between two. streets, where there was no regular crossing, that she failed to look for approaching vehicles, that defendant’s car, in charge of an experienced driver, was passing at a moderate rate of speed (from 7 to 9 miles per hour), and the driver who was watching for persons, etc., in the way blew his horn, got his feet on the brake and clutch, grabbed the emergency brake, and stopped as quickly as his car could stop, and turned to one side, as soon as she stepped into the street from behind a standing horse and wagon, that when the child went upon the pavement, she was only 20 to 25 feet in advance of the car, which defendant’s testimony tended to show was less than that distance from her, held, insufficient to raise an inference of negligence on the part of the chauffeur.
    2. Same — Contributory Negugbnce — Actions.
    Though the question of contributory negligence of a little girl, 6 years, 10 months of age, is in most cases for the jury, the conduct of the infant in unexpectedly attempting to cross a paved avenue, in the middle of the block, may be considered and has a proper bearing on the question whether defendant was guilty of negligence as a matter of law.
    3. Same — Pueading—Negiigence.
    In order to entitle the plaintiff to rely on the claim of negligence that the driver had no license to operate a car, the point must be alleged and relied upon in his declaration.
    4. Same.
    In an action for personal injuries of a female infant under seven years of age, no presumption that the driver of the .automobile that caused her injury was guilty of negligence is raised by mere proof of the accident.
    Error to Wayne; Hally, J.
    Submitted June 9, 1915.
    (Docket No. 34.)
    Decided September 29, 1916.
    Case by Orilia Barger, by next friend, against Edward W. Bissell for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      George H. Prentis and Harrison Geer, for appellant.

      Dohany & Dohany, for appellee.
   Steere, J.

On the afternoon of March 25, 1911, plaintiff, a child six years, ten months, and ten days of age, started hurriedly to cross Gratiot avenue, in the city of Detroit, from the north curb at a point between Townsend and Sheridan avenues, and was struck by the right fore wheel mud guard of defendant’s passing automobile, receiving injuries, the exact nature of which is not made clear in this record, but for which she recovered in this action, brought by her mother, as next friend, a verdict and judgment for $975.

Under their assignments of error, defendant’s counsel first and most seriously urge that plaintiff’s testimony totally failed to make a prima, facie case of negligence, and ask reversal on the following grounds, which were properly preserved for review by timely objections, requests, and exceptions before verdict, and by a subsequent motion to set the judgment aside:

“(1) There was no evidence showing or having any tendency to show negligence on the part of defendant.
“(2) The verdict is contrary to the great weight of evidence.”

The automobile which struck plaintiff belonged to defendant, then riding in the back seat, and was driven by his chauffeur, Edmund De Meyer, an experienced driver, who was familiar with the rules of the road and with the car, having driven it and one of the same make, previously owned by defendant, for several years. It was a Peerless seven-passenger car, and at the time of the accident all seats were occupied. Defendant had taken some friends for a ride to Mt. Clemens that afternoon, and they were returning to their homes in Detroit when the accident occurred, at about 4:30 p. m. It was then yet broad daylight.

The declaration charges that while plaintiff, a healthy child seven years old, was lawfully upon the street, in the exercise of due care and caution, without negligence on her part—

“defendant did carelessly, recklessly, and negligently cause his said motor vehicle to be operated as to lose control of the same, and in such a manner as to be unable to avoid colliding with plaintiff, and at a rate of speed far in excess of that permitted by law, and which was without any proper regard to the traffic and use of said street, said Gratiot avenue being then and there one of the- principal business streets of the city of Detroit and in constant use for the passage of vehicles, horses, and persons thereon, and without giving plaintiff any warning whatever of the approach of said motor vehicle, and without any attempt to avoid colliding with plaintiff, who was then and there crossing said street, and without using any proper precaution whatever to avoid endangering the life and limb of plaintiff, and did then and there bodily collide with, strike, and knock plaintiff to and against the pavement of said street.”

The evidence is undisputed that plaintiff stepped quickly off the curb on the side of the street the car was running, and started rapidly to cross just in front of and diagonally from this closely approaching car, with her head down, without looking, her back turned partially from it and from the direction vehicles should be expected upon that side of the street. It is manifest that she exercised no care at all, and, if an adult, she would clearly be barred from recovery by her own carelessness and negligence; but with a child of her age the question of contributory negligence precluding recovery, in case the defendant is shown guilty of negligence, is usually an issue of fact for the jury. In passing upon the legal questions raised here, the materiality of her conduct in thus suddenly coming upon the street close in front of a passing automobile, in the middle of a block, is its bearing upon the question of defendant’s negligence.

The evidence is undisputed that defendant’s automobile was properly equipped, was upon the right side of the street, for the direction it was going, driven by an experienced driver, and running slowly, within the speed limit, the highest estimate given by any witness being from 7 to 9 miles an hour. In equipment, speed, and manner of operation, no statute or ordinance was being violated. The only negligence finally claimed and upon which the case went to the jury was that De Meyer could and should have stopped the car quicker than he did when plaintiff came upon the street in front of him.

The facts of the accident are in the main undisputed. There were in the car three men, three women, and a boy. The boy sat beside the driver. They were going west into Detroit on Gratiot avenue, which has upon it a double-track street car line. As they approached Townsend avenue, which crosses Gratiot, they stopped just back of an inbound street car which had stopped at the street crossing to receive and discharge passengers, waiting back of it at full stop until the street car proceeded on its run and was about half a block ahead, when the driver started the automobile again, manipulating in gradual sequence the different speed appliances, as was customary when starting. They had proceeded but a short distance west of Townsend avenue when the accident occurred, the distance being stated at from 50 to 75 feet, and, also, to near the middle of the block. The distance from the north curb to the north rail of the double street car track was about 16 feet, and, owing to rigs standing along the curb, it was necessary to run within 5 or 6 feet of the car track. In front of a grocery store, called “Michels,” located towards the middle of the block on the north side of the street, was a high-topped grocery wagon to which was hitched a horse standing facing west, and just as the automobile, coming from the east, was about passing that point, plaintiff came out of the entrance way to a flat over the grocery to the curb, close ahead of the horse, and started quickly to cross the street right in front of the automobile, as before stated. That her appearance on the street as she came out from beyond the concealing wagon and horse was sudden and unexpected, causing alarm to all who saw it, and hasty action on the part of De Meyer, is shown, and not questioned. De Meyer repeatedly asserted in varying language, according to questions asked in direct and cross-examination, that he was driving slowly and watching; that he noticed the different persons and things nearby as he passed along, and recalled seeing plaintiff come out of the passageway onto the walk in front with no expectation she would start to cross the street without looking, but almost immediately she appeared again beyond the horse, and he at once did everything possible to stop the car and avoid it hitting her. He consecutively described what he saw and did in part as follows:

“She came out in front of the horse all at once and was on the machine. * * * I couldn’t stop any quicker — couldn’t do any better to not allow the girl to run into the machine. * * * Well, as soon as I saw the girl, I blew the horn; I got my two feet, one on the brake, and one on the clutch, and my left hand on the steering wheel. After I blew the horn, I grabbed the emergency brake, so that I stopped instantly; stopped so quick as any machine could stop; turned over the engine to get out of the road, and at the same time stopped everything.”

He stopped so suddenly as to throw the passengers forward in the car, and all witnesses who saw the accident confirm his testimony as to his making a quick stop, swerving the car away from the child as he did so, describing it as “almost simultaneously” with her appearance, “quickly,” “suddenly,” “almost instantly,” “very sudden,” etc.

In charging the jury the court rightly said:

“There is no evidence from which'the jury will have a right to find that the automobile at the time of the accident was being driven faster than the laws of Michigan and the ordinances of the city of Detroit allowed. If the chauffeur driving the car sounded the horn, put on the brake, and released the clutch as soon as he saw the child starting from the center of the street, that was exercising reasonable and proper care and precaution under the circumstances.”

The record does not disclose what portion of the evidence was construed by the court as tending to establish defendant’s negligence and raise an issue for the jury, but it is indicated from counsels’ briefs that certain testimony of De Meyer himself, and of Mrs. Boss, called as a witness by plaintiff, was held to tend in that direction.

The farthest distance between plaintiff and the automobile at the time she started from the curb, given by any witness, was estimated by Mrs. Boss as about 20 or 25 feet. She was coming from the west towards the scene of the accident and in a position where she could see the approaching car back and outside of the grocery wagon, and also had an unobstructed view of plaintiff. Her testimony is that when she first saw the car it was 20 or 25 feet from plaintiff, who had just come off the curb, walking fast and turned partially away from it, “facing me more,” and the car, after it struck her, ran, she thought, about 10 or 12 feet; but she-negatives this as follows:

“When the automobile struck her she fell at once, and then the machine came to a sudden stop, right in front of her. * * * She was lying in front of the wheel, with her head just about in front of the wheel —the right front wheel.”

She also stated that as it stopped it had turned to the left with one front wheel on the street car track, and she did not hear the horn or whistle blown.' The latter negative testimony can have no probative force against the abundant and. positive affirmative evidence from numerous witnesses that the horn was sounded. That she in her position saw the child more distinctly and noticed she was about to cross the street sooner than those in the approaching automobile, whose view was cut off by the grocery wagon and horse standing at the curb, in front of which and towards Mrs. Boss plaintiff passed, is not proof that De Meyer could have seen her on the street sooner than he did. The claim that'De Meyer’s own testimony raises an inference of negligence is apparently based on extracts from his somewhat protracted and grilling cross-examination as to details, in which answers to repeated questions as to times and distances not always consistent are urged as indicating that the car ran further after he saw plaintiff in danger than the distance in which he stated he could stop the car at the speed he was driving. While he gave figures in response to insistent questions, though protesting, rather disrespectfully at times, that he could not with certainty, he also at times during the inquiry stated he made no measurements, that the figures he gave were “a guess,” said, “everything so close together I can hardly tell how far,” and consistently repeated that as soon as he saw plaintiff on the street he acted at once and did everything in his power to avoid hitting her, at the same time quickly turning the car to the left away from her and stopping it. No reasonable and legal inference of actionable negligence can be drawn from his account of the accident considered in its entirety.

The testimony of the five adult passengers, though varying in minor details according to what each particularly noticed, fully confirms his general account of prompt action and a quick stop after the child appeared in danger. To illustrate, Mr. John B. McKay, who sat on the right auxiliary seat just back of the driver, and stated he “saw the whole thing from start to finish/' testifies in part:

“We were going very slowly down the avenue. * * * I remember a grocery wagon being there, and the little girl came out with a dash from the sidewalk, and I utterly screamed — they all say it was-an awful scream— * * * and the man blew his horn. The little girl ran diagonally across. * * * She kept her head down all the way; rushed right into the car.”
“Q. From the time you saw her leave'the sidewalk how soon did you — when you saw her going across the sidewalk — make- this outcry?
“A. Just immediately; I saw the thing was inevitable ; I was afraid the little girl would be killed.
“Q. At the same time what did the chauffeur do?
“A. Blew his horn and twisted around his car. * * * The street was very narrow, * * * and almost at once as I said the accident happened. * • * *
“Q. About how far did it go after it struck her?
“A. -Oh, it stopped almost at once. * * * I don’t think it went any feet at all.”

Mrs. McKay, who sat in the rear seat at the right, and did not happen to be looking in that direction, possibly because more accustomed to it, does not give her husband’s “awful scream” credit for the first alarm. She testified that they were going slowly along, “just crawling,” the chauffeur occasionally sounding his horn, and she was noticing the people, many of whom were just coming from their work at'that time, when—

“suddenly there was this gong commenced tremendous noises, and I turned around to see what it was, and Mr. McKay gave a shout, and I looked over and saw this little girl, and she was just on the curbstone then, and she stepped right off the curb, and didn’t seem to pay- the least attention to all of the noises that was around; her head was a little bent down; and after that I didn’t see anything, because I thought she was killed. That is what I saw.”
“Q. After you heard this gong and Mr. McKay making this exclamation?
“A. Then the car swerved a little and stopped suddenly. I myself didn’t understand how we could stop so suddenly — stop so quickly. * * * What attracted my attention to the little girl was I first heard the gong in the car, the horn — when I first heard the horn. It tooted; it went very rapidly.”

The controlling facts which took the case to the jury in Winckowski v. Dodge, 183 Mich. 303 (149 N. W. 1061), cited by plaintiff’s counsel, are not in this case. Testimony in that case tended to show that the driver was running upon the left side of the road at a rate of 15 miles an hour, and struck a child coming from the rear of the wagon, while attempting without checking to cut across the road through a narrow passage between two vehicles he, was meeting on the wrong side of the road. Had he driven upon the right side, the accident would not have occurred. The principle there involved is that “one who violates the law of the road by driving on the wrong side assumes the risk of such experiment.” There was nothing experimental, unusual, or unlawful in the manner defendant’s automobile was being driven when the accident occurred.

The contention is made that because De Meyer had no chauffeur’s license he was presumptively guilty of negligence. Whatever might be thought of that proposition when properly pleaded, the declaration in this case contains no averment of negligence in that particular, and the question is not properly before the court.

Drivers upon highways are not held as insurers against accidents arising from negligence of children or their parents, and though in law such negligence in a particular case may not be a defense, as contributory negligence, for a driver also guilty of negligence, the fact of an accident does not establish liability or raise a presumption that the driver is negligent.

A careful consideration of the record in this case leads to the conclusion that this unfortunate accident occurred as the result of an emergency on the highway which arose through no fault of the driver, and that his conduct, under the circumstances disclosed by the evidence, raises no inference of actionable negligence which makes out a prima facie case.

The judgment is reversed, and a new trial granted.

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

The late Justice McAlvay took no part in this decision.


source: Caselaw Access Project

author: Brooke, C. J.

license: Public Domain

text:
    CHURCHILL v. GRAND TRUNK WESTERN RAILWAY CO.
    Carriers — Bill of Lading — Indorsement.
    In an action for the wrongful delivery of a car of wheat and a car of beans consigned to the order of Botsford & Barrett by bills of lading, signed respectively “Botsford & Barrett, per F. M. G„ Shipper, Lapeer Grain Co., Churchill” and “Botsford & Barrett, per C., Shipper, Lapeer Grain Co., Churchill,” the signatures indicating that the Lapeer Grain Company and Botsford & Barrett were shippers, their indorsement was necessary to a legal delivery and plaintiff could recover for delivery made by the final carrier on a forged signature to the bill of lading.
    Error to Lapeer; Smith, J.
    Submitted June 10, 1915,
    (Docket No. 37.)
    Decided September 29, 1915.

      Case by George H. Churchill against the Grand Trunk Western Railway Company for the wrongful delivery of certain grain. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      L. C. Stanley, for appellant.

      Theo. D. Halpin, for appellee.
   Brooke, C. J.

In this case plaintiff seeks to recover for one car load of wheat delivered by plaintiff to defendant carrier upon an order bill of lading consigned to the order of Botsford & Barrett, destination Pitts-field, Me., and one car load of beans likewise delivered to the defendant carrier, consigned to the order of Botsford & Barrett, destination Lynchburg, Va. The bill of lading controlling the movement of the car load of wheat was signed, “Botsford & Barrett, per F. M. G., Shipper, Lapeer Grain Co., Churchill.” The bill of lading covering the car load of beans was signed, “Botsford & Barrett, per C., Shipper, Lapeer Grain Co., Churchill.” Delivery was made by the final carrier upon a forged bill of. lading. The fraud was perpetrated by the same men who perpetrated the fraud discussed by this, court in the case of Nelson Grain Co. v. Railroad, 174 Mich. 80 (140 N. W. 486). A very similar situation was. considered in Turnbull v. Railroad Co., 183 Mich. 213 (150 N. W. 132), where the Nelson Case was distinguished. Plaintiff had judgment.

The only question involved in the case is whether' it falls within the reasoning of the Nelson Case or within that of the Turnbull Case. We are of opinion that a fair reading of the signatures of these bills of lading indicates that the Lapeer Grain Company, as well as Botsford & Barrett, were shippers, and that, as such shippers, their indorsement upon the bill of lading was necessary before the carrier was justified in making delivery. As. the- whole question involved has been recently fully covered in the two cases cited, a further discussion is not here necessary.

The decision in the Turnbull Case governs, and the judgment is affirmed.

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

The late Justice McAlvay, to whom this case was assigned, took no part in this decision.


text:
    ALBERT v. PATTERSON.
    1. Fraudulent Conveyances — Deeds — Delivery — Husband and Wife.
    In proceedings to have a deed from defendant wife to her husband decreed to be void and invalid as in fraud of creditors, alleging that said deed was never delivered, evidence of the due execution and delivery of the deed which was not directly refuted, is held, sufficient to establish the validity of the deed.
    2. Same — Exemptions—Homesteads—Consideration.
    Where defendant’s equity in the property conveyed was less than the homestead exemption, the question of consideration is of no importance.
    Appeal from Kent; Brown, J.
    Submitted June 15, 1915.
    (Docket No. 46.)
    Decided September 29, 1915.
    Bill in aid of execution by Margaret Albert against Clara Patterson and another. From a decree for defendants, complainant appeals.
    Affirmed.

      William Wisner Taylor, for complainant.

      Myron H. Walker, for defendants.
   Brooke, C. J.

On December 13, 1909, complainant secured an order for an execution for deficiency against the defendant Clara Patterson in the sum of $563.16. Judgment was rendered upon the following day, and. levy was made upon the same day upon the following real estate: Lot 17 of block 1, lots 1, 2, and 3 of block 2, and lots 1 to 9, inclusive, and 11 to 19, inclusive, of block 6, of Kenwood addition replatted, in the county of Kent, State of Michigan. On the 21st day of December, 1909, the levy was released as to all of the above-described property except lot 17 of block 1. In April, 1911, complainant filed her bill in aid of execution. The relief prayed is that a deed dated March 10, 1900, and recorded December 6, 1909, from defendant Clara Patterson to her husband, defendant Edward H. Patterson, covering said lot 17, block 1, of Kenwood addition, be decreed to be void and invalid as in fraud of creditors.

The record discloses that prior to the year 1892 the defendant Edward H. Patterson was the owner of lot 17 in block 1, and many other lots, situated in said Kenwood addition; that said property at that time was heavily incumbered; and that, in order to secure a loan of $125 from one Powell, defendant Edward H. Patterson deeded the same to said Powell, as security only. Later, and on November 11, 1892, said loan of $125 having been repaid to Powell by Edward H. Patterson, Powell conveyed all the lots, including lot 17, which Edward H. Patterson had conveyed to him as security, to the defendant Clara Patterson. The record shows clearly that defendant Clara Patterson herself never invested any money in the premises in question, and on March 10, 1900, she executed a conveyance of all of said property to her husband, who appears at all times to have been the equitable owner of any equity remaining in the property. At the time of said conveyance (March 10, 1900), the property conveyed was subject to various incumbrances, amounting in all to $4,710. Much evidence appears in the record relative to the value of the property described in the conveyance as of March 10, 1900. There is considerable variation in the estimates of value, but the average would seem to fix it at somewhere in the neighborhood of $6,000. If this be regarded as the true value at that time, the value of the equity would be considerably less than $1,500, the amount allowed under the Constitution and laws as a homestead exemption. It is conceded by counsel for the complainant that during all the time from the date of the deed in 1900 to the date of the trial in 1914 the defendants have occupied the whole of lot 17 as a homestead.

It is the claim of counsel for the appellant that the deed from defendant Clara Patterson to her husband was never delivered. He bases this claim upon the fact that the deed remained unrecorded for upwards of nine years, and that in the interim the property continued to be assessed in the name of Clara Patterson, and that she made deeds, mortgages, and contracts relating thereto. On behalf of defendants there is positive testimony given by themselves of the execution and delivery of the deed, at or about its date, as well as the testimony of one of the subscribing witnesses to this same effect. In explaining the failure of defendant Edward H. Patterson to place the deed of record for some nine years, it is the claim of the defendants that, according to an agreement between themselves, defendant Edward H. Patterson was to pay his wife the sum of $100 as a consideration for the execution and delivery of said deed by her; that said sum was paid in small amounts from time to time, running over a considerable number of years; that it was further agreed between the defendants that in the meantime the record title should remain in the defendant Clara Patterson, she to execute such deeds, mortgages, and contracts relating to the same as her husband should request. There seems to be no direct evidence in the record refuting these statements. The learned circuit judge, who heard the evidence, determined that the deed was executed and delivered, as claimed by the defendants, and after a careful examination of the record we have no hesitation in agreeing with his conclusion upon this point.

It is further apparently the claim of counsel for complainant that the value of the property at the time of the conveyance in March, 1900, was in excess of the incumbrances, plus the value of the statutory exemption. Although, as before stated, the evidence is somewhat in conflict, we think the finding of the learned circuit judge to the effect that the value of the interest conveyed by the deed of March, 1900, was less than $1,500 is supported by the weight of the evidence. The property conveyed being less than the homestead exemption, the question of consideration is of no importance. Nash v. Geraghty, 105 Mich. 382 (63 N. W. 437) ; Palmer v. Bray, 136 Mich. 85 (98 N. W. 849).

We are of opinion that the learned circuit judge reached a proper conclusion in the case, and the decree is therefore affirmed.

Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred. Moore, J., did not sit.

The late Justice McAlvay took no part in this decision.


author: Steere, J.

text:
    LAVIGNE v. COYNE.
    1. Partnerships — Cancellation of Contract — Fraud—Evidence.
    In. an equitable action to set aside a written contract of partnership between complainant and defendant, who were mature business men, and had been business associates for many years, where complainant’s evidence of fraud and overreaching is met by' defendant’s evidence, complainant has failed to establish his case by a clear preponderance of positive and convincing evidence which would justify the court in setting aside the contract.
    2. Same — Fraud—Evidence.
    Evidence that complainant was 51 years of age; of varied experience in business enterprises; was an inventor and master mechanic before he reached his majority; was in the manufacturing business for himself for over eight years; had invented and patented over 200 mechanical devices; was at one time president of a motor car company, and at the time of the trial was president of a manufacturing company; was familiar with business methods and with contracts relating to patents as well as legal steps to be taken in obtaining same; objected to the form of the contract and had it changed, saying it was io good because they could not sue any one that infringed; had entered into numerous contracts regarding payment of royalties, and had before been engaged in litigation arising out of contracts concerning his various inventions, was competent to consider in connection with his claim that he. was overreached and deceived into signing the contract.
    3. Same — Contracts—Evidence—Termination of Contract.
    Complainant’s contention that the formation of a manufacturing company was to terminate their contract is inconsistent with the facts, where the evidence shows that although the company was formed four months after signing the agreement, they continued their joint efforts and operations for over five years, defendant furnishing over $2,000 to perfect and patent new inventions, which complainant received and has never offered to refund.

      4. Same — Cancellation of Instruments — Fraud — Burden of Proof.
    Where complainant repudiates and asks the court to wipe out an instrument in writing, not on its face harsh, unfair, or in any particular questionable, which he signed after examination and change in form as he insisted, on the ground that he was inveigled into signing it by fraud and falsehood, the burden of proof is upon him, and where the evidence is not clear, convincing, and free from doubt, the decree of the court below dismissing the bill will be affirmed.
    Appeal from Wayne; Mandell, J.
    Submitted June 18, 1915.
    (Docket No. 62.)
    Decided September 29, 1915.
    Bill by Joseph P. Lavigne against John Coyne to cancel a written agreement of partnership alleged to have been obtained by fraud, misrepresentation and deceit, and for other relief. From a decree for defendant, complainant appeals.
    Affirmed.

      John E. Moloney, for complainant.

      George F. & Peter J. Monaghan, for defendant.
   Steere, J.

This bill was filed to restrain two actions at law brought by defendant against complainant and to set aside a contract of partnership between them dated January 25, 1911, out of which said actions arose. The suit was heard in the Wayne county circuit court in chancery on pleadings and proofs taken in open court, resulting in a decree dismissing complainant’s bill, from which he has taken an appeal to this court.

The parties to this suit became acquainted in 1902, while both were in the employ of the Detroit Lubricator Company, of Detroit, Mich., complainant being master mechanic and assistant superintendent of its factory, and defendant employed in a responsible position connected with its business management. Complainant is a skilled machinist and mechánic of more than ordinary ability and an inventive turn of mind, having for many years devoted much time and attention to devising new mechanical appliances of various kinds, for many of which he secured patents. Through their association in the same employ defendant became interested in complainant’s efforts in that line, and from 1902 to 1905, under an oral agreement for mutual profits, assumed and paid most of the expense of complainant’s endeavors in the matter of new inventions.

On September 23, 1905, they entered into a written agreement, following up their former efforts and expenditures, looking to the utilization of complainant’s inventions and a division of resulting profits. The immediate occasion for this written agreement was a project to organize a corporation to take over the business which they anticipated they could successfully develop with their experience in connection with new appliances invented and patented by complainant, and which in its name and products would tend to be a rival of the Detroit Lubricator Company, with the operations and business of which both were familiar. This first written contract, preceding the one directly in issue here, stated in outline, contemplated the invention of appliances and securing patents therefor by complainant, the expense of which defendant was to bear, the patents when finally obtained to be in the name of complainant, but defendant to share equally whatever was realized for them from the corporation which they would later organize, and by which they would be employed, their salaries received from such corporation to be divided equally between them. They were then and for some time thereafter on friendly terms, closely associated in their joint enterprises, and apparently had confidence in each other. Several devices had already been invented by complainant and patents obtained therefor; the expense being defrayed by defendant under the preceding oral agreement.

Their proposed corporation, planned to take over and use complainant’s inventions, was organized February 26, 1906, as the Lavigne Manufacturing Company, and considerable profit was realized by them from its promotion, though it is shown to have experienced a somewhat checkered, and not altogether profitable, career as a manufacturing enterprise. So far as disclosed, the profits were chiefly in the promotion. Both parties were stockholders and officers of the organization up to May, 1911. When this corporation was organized and first started in business complainant received from it a salary of $1,800 in money and $1,200 in stock, which was later changed on different occasions. Defendant remained with the Detroit Lubricator Company, receiving an annual salary of $3,-000. In November, 1908, he also entered the Lavigne Manufacturing Company’s employ at $2,000 per year, later raised to $3,000, and finally $3,600. From time to time they adjusted their salaries according to their pooling arrangement provided for in their contract, although it appears that on July 20, 1909, defendant was in arrears to complainant to the extent of about $400, which he claims was then balanced and paid in a loan of $1,000 made by him to complainant on that date.

Details of the many transactions between these parties and their relations with the company which they organized, as disclosed by the record, covering a period of about nine years, are too long to review here at length, but from this record as a whole we fully agree with the finding of the trial court that during all these years, regardless of what was in writing between them, these parties recognized, acted upon, and maintained their original partnership contract relations under the arrangement for co-operation and division of profits in patents, complainant continuing from time to time, according to his inspirations and opportunity, to invent new mechanical devices and get, or try to get, patents for them, while defendant continued to put up the money and defray the expenses incurred by complainant in such endeavors.

In the fall of 1910 it became acutely manifest that the Lavigne Manufacturing Company was in an unsatisfactory and unsound financial condition, for which various and conflicting reasons are assigned, and over which differences arose resulting in the relations of these parties becoming less friendly and strained to a point where each blamed the other for the unsuccessful condition of the corporation.

Complainant claims that, shortly after it was executed, he lost his copy of their first written agreement of September 28,1905, the contents, of which he did not fully remember, and charges that defendant,.learning of this, later pretended he had also lost his copy, and thereafter falsely claimed that by its terms his former partnership rights in complainant’s inventions continued, by which complainant was deceived and induced to both continue to accept money from defendant in aid of his patent projects, and later to sign the contract of January 25, 1911, at the solicitation of defendant, who then, falsely and with intent to defraud, represented that it was in substance the same as their first written agreement and- to take the place of it, when in fact by the terms of the first all rights of defendant in any of complainant’s inventions terminated upon formation of the Lavigne Manufacturing Company.

Defendant in his pleading and proof denies knowledge that complainant had lost his copy of the contract or representing to him a like experience, contends that the first written agreement related to and was intended to cover only their proposed corporation, that the continuance of their partnership efforts and expenditures to develop some patent of value was thoroughly understood, agreed to, and acted upon without question by both for years thereafter, complainant inventing and patenting, while defendant defrayed the expenses, during which time a packless valve was patented; that no misrepresentation whatever was made by defendant as to the first or second contract, but the latter was signed understandingly by both parties after full discussion and alterations to meet complainant’s views, as the culmination of their former agreements and dealings, oral and written, in their joint operations to patent complainant’s inventions.

The packless valve patent appears to have had sufficient merit to afford some profits in royalties, which, complainant at first divided with defendant, paying him in all $550, the last payment being made about October 31, 1910, but after friction arose over the.management of the Lavigne Manufacturing Company,, he made no further payments, and defendant, who had then left the company, brought two actions for his share of the royalties, which were followed by this suit. Defendant states he left the company May 6 or 7,1911. Complainant states it was about two weeks after the second contract was signed, and says:

“At the time of execution of the contract * * * I did not know of any friction outside of the little friction we had. It became a question of my getting out or Coyne and Nagel getting out. Mr. Dwight came to my rescue and bought enough stock to control the corporation and keep me in.”

This suit is brought by complainant to set aside a written contract between himself and a former associate with whom he had “a little friction” at the time he signed it, and who, he says, was trying to get him out of the company he had helped organize. He was a business man of mature years, and signed after abundant time to examine it and after it had been corrected at his dictation. Before a court is justified in setting aside a written agreement of this nature deliberately executed between two business men, there must be a very clear preponderance of positive and convincing evidence sustaining the charges in complainant’s bill that he was induced to sign it by fraud and overreaching deceit. The primary proof of this rests in complainant’s testimony alone, which is met by equally positive testimony of defendant to the contrary. They are equally interested witnesses.

It is difficult to conceive that complainant is a man easily overreached under, the circumstances disclosed here. He was 51 years of age at the time of this trial, of varied experience in business enterprises, states that he was an inventor and master mechanic before reaching his majority, was in the manufacturing business for himself in New Haven, Conn., for over 8 years, has invented and patented during his life over 200 mechanical devices, was at one time president of a motor car company, and at the time of this trial was president of the Lavigne Manufacturing Company. He was familiar with the business methods and organization of corporations and with contracts relating to patents, as well as legal steps customarily taken in obtaining the same. In the office of the attorney who drew this contract, who had formerly acted for him professionally in securing some of his patents, he objected to the form of the contract, and said it was “no good,” because if each owned half they “could not sue any one that infringed,” and the contract was changed at his dictation so that he retained title to the patents. He had previously entered into numerous contracts regarding payment of royalties, and had at different times before been involved in litigation arising out of contracts with persons and companies concerning his various inventions. These facts are competent evidence to consider in connection with his claim that he was overreached and deceived into signing this contract which he now repudiates.

Four months after the first contract was signed the corporation which it contemplated, and which complainant claimed terminated their partnership as to patents, was organized; yet it is conclusively shown that their joint efforts and operations as to new inventions and patents continued as before; defendant pooling his salary with complainant and furnishing him money to perfect and patent new inventions. Just how much money defendant furnished to directly pay for patents is not clearly shown, but upon that subject, including pooling of salaries, it is shown complainant received from defendant in that connection from September, 1905, to January, 1911, over $2,000. There is no showing of any offer to refund before suit was begun.

We are impressed, from a careful consideration of complainant’s testimony, as was the trial court, that it contains various contradictions and inconsistencies which seriously weaken its convincing force. Insisting in his direct examination that he early lost his copy of the first contract, told defendant of it, and in receiving money from defendant to finance his patents insisted it was on condition that the contract continued their partnership, he on cross-examination stated that he received the money without protest, and of the lost copy testified:

“I didn’t know of that contract existing after it was made. I don’t know where I put it after it was made. * * * Nothing came up that I know of that would make me look for it until just a little while before the eruption took place.”

Though contending the whole agreement between them as to patents terminated upon the incorporation of the Lavigne Company, he testifies:

“When the old contract was made, it was to cover anything that we might make. I had been considering the packless valve for some 15 years.”

It was patented in 1909, and defendant financed him in developing and patenting it long after the corporation was formed. He made no protest nor attack upon the validity of defendant’s interest in it until, out of the numerous patents they obtained, this finally proved of some value and afforded some profit, and he was pressed by litigation to account to defendant for a share of the royalties he had collected.

We are unable to discover that there are overwhelming equities in this case appealing strongly in favor of either litigant. Complainant repudiates, and asks the court to wipe out an instrument in writing, not on its face harsh, unfair, or in any particular questionable, which he signed after examination and change in form as he insisted, on the ground that he, in fact, was inveigled into signing it by fraud and falsehood. The burden of .proof on that issue rested upon him. 'His testimony to sustain the issue is met by defendant’s testimony to the contrary. In such a case the courts require, and to set aside the written instrument must find, that the evidence of complainant rings true and of a character so clear, convincing, and free from doubt as to preponderate and carry conviction against defendant’s evidence to the contrary, or the issue must be resolved against his affirmative contention.

A careful consideration of this record in that light has resulted in our reaching the same conclusion as that to which the learned trial judge who heard the case was led by listening to the testimony with the witnesses before him.

The decree is affirmed, with costs to defendant.

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

The late Justice McAlvay, who sat in the case, took no part in this decision.


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    SALMER v. HICKS.
    1. Trial — Evidence—Proceedings in Justice’s Court.
    In an action for wages by a farm hand, cross-examination of defendant as to proceedings in the justice’s court is largely a matter of discretion with the trial court, where defendant stated he had not been allowed by plaintiffs counsel to take the stand and refute testimony given by plaintiff; but where he afterwards admitted that neither court nor counsel prevented his taking the stand, it was error for the court to allow the justice to testify to the same matter, which did not go to prove or disprove any issue on trial, but only tended to divert the attention of the jury to an immaterial issue, and confuse it with the real question, which was the agreement as to plaintiff’s employment, and what, if anything, was yet due to him upon it.
    2. Same.
    While there was no direct testimony as to the result in justice’s court, the prominence given the proceedings in that court indirectly indicated -who appealed and why, and this, in connection with an expression of personal views by the court as to the statutory right of appeal, which tended to shadow the defense with a prejudicial inference, militated against the exercise of an unbiased judgment, and resulted in prejudicial error.
    3. Damages — Evidence—Excessive Verdict.
    A judgment for the full amount claimed in the bill of particulars, which is not warranted by plaintiff’s evidence, is excessive.
    Error to Saginaw; Gage, J.
    Submitted June 21, 1915.
    (Docket No. 83.)
    Decided September 29, 1915.
    Assumpsit by John Salmer against George J. Hicks in justice’s court for an amount claimed to be due plaintiff for wages. From a judgment'for plaintiff defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Russell B. Thayer, for appellant.

      Snow & Snow, for appellee.
   Steere, J.

Defendant owns and operates a large farm near the city of Saginaw, upon which he maintains a dairy, selling and delivering milk and cream to customers in the city. Early in January, 1913, defendant hired plaintiff to work upon this place as a farm hand at $45 per month and house rent free; he, being a married man, to live upon the place in the house furnished him and board himself. He remained in defendant’s employ from January 7 to July 8, 1913. Whether he quit of his own accord, or was discharged, is in dispute, and a material issue of the case. When he left, a disagreement arose over wages yet due him, resulting in his commencing this action in a justice’s court of Saginaw county the following day. He subsequently recovered a judgment, and defendant removed the case by appeal to the circuit court of said county, where a trial by jury resulted in a verdict and judgment in favor of plaintiff for $166.85, being the full amount claimed under his bill of particulars, which is as follows:

Money due on work held back..................$20.00
Three weeks’ wages............................ 52.50
624 hours’ work overtime, 15 cents per hour____ 93.60
5 hours’ work overtime..........................75
$166.85

A motion by defendant for a new trial, upon the ground that the verdict is unsupported by and against the great weight of evidence, was denied. Defendant’s assignments of error are directed against the refusal to grant a new trial, certain rulings upon evidence, and parts of the charge given by the court. The case was primarily, and almost entirely, one of disputed facts, with no serious questions of law involved, except as introduced into the case along the border line of doubtful testimony, in the cross-examination of defendant as to justice’s court proceedings in the case. Counsel for defendant urge that this portion of the cross-examination was incompetent and prejudicial.

It appears that upon trial of the case in justice’s court defendant was not represented by counsel, and, without taking the stand himself, undertook to conduct his own defense, opposed by the counsel who cross-examined him in the circuit. The cross-examination upon this subject occupies 6% pages of the record, beginning with, “The summons was served upon you in this case, wasn’t it?” and concluding with, “You got up and argued the case to the court, the same as I did?” This apparently recalled to defendant a somewhat unpleasant time, which he found it difficult to discuss with equanimity. Some of his impertinent and irresponsive replies to questions touching that event might well have been stricken out and checked with a reprimand, but, as followed up, led to uncomplimentary personalities between counsel and witness. After counsel had asked if the summons in the case was served upon defendant and received an affirmative answer, he proceeded to interrogate him as to the number of times he got the case adjourned, what the pleadings were, and his knowledge of the issue, asking, amongst other questions, if witness did not see the bill of particulars in justice’s court. Upon defendant replying that he did not, the following occurred upon that subject:

“Q. You say you didn’t see this paper? It appears to be the bill of particulars.
“A. Yes; you refused to show me that in court before Justice Clements; you said you didn’t have to.
“Q. Don’t you know you are telling something that is false?
“A. No; I know I can tell the truth better than you can.
“Q. Don’t you know that is the paper that was left with the justice of the peace?
“A. I don’t know anything about that paper, because I never saw it until today, in Mr.. Thayer’s hands here.
“Q. Do you swear—
“A. I am swearing now. * * *
“Q. You didn’t have any attorney?
A. No, sir; I didn’t need any.”

This was followed up by further questions, in answer to which defendant still denied seeing the paper, but admitted hearing it, or a similar paper, read in justice’s court. After several evasive and impertinent replies, defendant squarely answered that in justice^ court he heard plaintiff testify that he (defendant) agreed to pay him for extra services, or overtime, followed by these questions and answers, amongst others:

“Q. After you heard the testimony did you take the stand and give any testimony at all?
“A. I did not. There was no show for me to; you had the floor. * • * *
“Q. Did you take the stand and testify at all?
“A. You would not permit me to testify, and you would not permit me to talk half the time; you ruled the court that day.
“Q. Do you mean to tell me that? * * *
“A. You told me to shut up several times through that case.
“Q. If I should, say it now, it wouldn’t be very much harm?
“A. Not a great deal. At times, when. I wanted to speak, you got up and protested to the court that I was talking foolish; I wasn’t talking law; no use to listen to such nonsense; and you did as you pleased. * * *
“Q. Did I, or the court, or anybody else, refuse to allow you to take the stand, the same as Mr. Salmer and our witnesses? * * *
“A. I don’t know of there being any refusal.”

During this line of examination defendant’s counsel interposed several objections to it, without, however, taking exceptions, and at its Conclusion moved to strike out as immaterial the testimony relative to proceedings in justice’s court, which the court denied, saying:

“Your client has volunteered a good many things that reflect upon Mr.-, and the justice as well. For that reason I permitted the counsel to ask him the questions he has with reference to what occurred there.”

Later counsel for plaintiff called as a witness the justice before whom the case was first tried, and was permitted to show by him, against objection, that defendant was not prevented from taking the stand and testifying, and other matters in denial of defendant’s charges of improper conduct by plaintiff’s counsel, although the justice conceded, qualifiedly, that he “was boisterous and making a loud noise that day,” which he testified was “what all the attorneys do as a rule.”

Related to this alleged incompetent testimony as to the justice’s court proceedings, and as indirectly emphasizing rather than relieving it, counsel for defendant also assign error on the following initiatory portion of the charge:

“While I think personally that the right to appeal from the justice’s court to the circuit court should be limited to a certain amount, every man who has a lawsuit in the justice’s court, considering himself aggrieved, has a perfect right under the law to file his: affidavit^ pay the costs there, and appeal the case to the circuit court, and have it tried over and over again. So the fact that it has been tried there is no concern of ours; it is for us to reach an independent conclusion in the case, in regard to the merits of it; and all the testimony that has been introduced here in regard to what transpired in the justice’s court is purely immaterial to the issues in this case, and you should not consider it in any way, unless it in some way affects the testimony of some witness who has testified in the case. You will recall the way in which the matter crept in was some testimony which was given by one of the witnesses on the stand, and I felt that in order to clear the matter up it was proper for the other side to show what did transpire there. Of course, you have a right to take into consideration any claim made there, or any testimony given there by witnesses, which differs from that given here, in order to determine what reliance you will place in the testimony of those witnesses, but outside of that it really has no bearing on this controversy.”

Defendant did not take the stand in justice’s court, and there was no proof of any claim or testimony by him, or any other witness, differing from that given in the circuit court, for the jury to consider. All that could be claimed for such testimony was that defendant had heard plaintiff testify to a matter of which he had knowledge, and did not take the stand to refute it. Connell v. McNett, 109 Mich. 329 (67 N. W. 344). These facts counsel for plaintiff had once distinctly proven without objection before he rested, and there had been no attempt by defendant to explain or deny them until plaintiff’s counsel proceeded to renew the subject in cross-examination of defendant as to the justice’s court proceedings. Defendant did not then deny those facts, although hj did, by reckless and irresponsive retort, charge in extenuation that counsel opposed to him would not permit him to testify, or to “talk half the time,” and “ruled the court that day.” He finally admitted he did not know of any refusal. Just how far a cross-examination of this kind, drifting into a controversy between counsel and witness as to each other’s veracity and propriety of conduct on a former trial of the case in justice’s court, should be permitted to go, may be conceded as largely a matter of discretion with the trial court; but to permit other witnesses who were present in justice’s court to be called and testify upon that issue is a more serious question.

It certainly was not material or competent to call the justice to vindicate himself. While defendant recklessly, and manifestly to his own prejudice, had by unseemly retort accused counsel of preventing him from testifying in his own behalf in justice’s court, he had contradicted himself and negatived his excuse' by also testifying that he, in fact, had no knowledge of being refused the privilege of taking the stand, either by court or counsel. The material facts, for proof of which plaintiffs counsel claimed the right to go into the justice court proceedings, had not only been proven by him without dispute before the cross-examination began, but when it ended had been testified to by defendant himself. The testimony of the justice did not go to prove or disprove any issue on trial. Its tendency, beyond proving what was already admitted, was to divert the attention of the jury to an immaterial issue, and confuse it with the real question for them to decide, which was the agreement as to plaintiff’s employment, and what, if anything, was yet due to him upon it. It is elemental that a jury, in trying an appeal case, may not consider or be influenced by the previous trial, and its result in the court from which appeal is taken, and it is therefore improper to show, or discuss before them, how the case was there decided, or who appealed it.

While there is no direct testimony by any witness in this case as to the result in justice’s court, or who appealed, the prominence given the proceedings in that court in the trial under consideration inevitably, if indirectly, furnished to the most obtuse listener a clear understanding of who appealed and why. Although the court very properly cautioned the jury to dismiss from their minds all matters relating to the previous trial of the case, and seek to reach an independent conclusion, it was in connection with an expression of personal views as to the statutory right of appeal, which tended to shadow the defense with a prejudicial inference.

We are convinced that these prejudicial matters above referred to, in combination, had a tendency to and did influence the verdict of the jury and militate against the exercise of an unbiased judgment, resulting in a failure to carefully confine their deliberations to an analysis of the testimony bearing upon the real issue in the case. A verdiet for the entire amount •claimed in plaintiff’s bill of particulars is not warranted by his own evidence.

It is undisputed that plaintiff was hired as a farm hand at $45 a month, with a house in which to live, and began work on January 7th. The only dispute touching the terms of his hiring is over his claim that his hours of labor were fixed, which defendant denies. He testified that defendant was absent when he began work, and at the foreman’s request he worked over hours; that the matter ran along in that way for about 2 weeks, when defendant returned, and plaintiff spoke to him about it, “to see what the agreement was,” and defendant then promised him 15 cents.an hour for extra time, which was also denied. He was paid on the 1st and 15th of each month by check, accompanied by a slip stating what the check was for, and showing any deductions made for coal or other items furnished him for household use. No mention was made on these slips'of overtime, and plaintiff testifies nothing was said about it when he received them with his checks. He states that he worked at general farm work from January 7th to June 6th, when he went on the milk wagon to learn the route, and on June 13th started delivering, continuing in that service until his. employment terminated, receiving $50 per month and a •commission on bottles returned as wages. It is undisputed that when he went upon the milk route it was agreed between him and defendant that should he desire to leave, he would give 2- weeks’ notice of his intention to quit, and $20 should be held back from .his wages as security for performance, and, on the ether hand, in case defendant desired to discharge him he should have 2 weeks’ prior notice. No 2 weeks’ notice was given by either party before plaintiff left, and whether he quit voluntarily or was discharged was an issue in the case. He admitted on cross-examination that, with the exception of overtime claimed and the $20 held back, he had been paid in full for his services up to July 1, 1913. He claimed according to his bill of particulars, and recovered in full for, 4 hours daily at 15 cents per hour during 24 days in January, 28 days in February, 31 days in March, 30 days in April, 31 days in May, and 12 days in June, being every .day from the time he commenced until he began driving the milk wagon. His own testimony discloses that a portion of the time for which he charges defendant was devoted to eating his meals. While he first testified that his regular wages were changed from $45 to $50 per month when he commenced upon the milk route on June- 13th, on being confronted with statements and checks given him on pay days, he admitted, without explanation, that the terms of his hiring were changed on May 1st to the extent, at least, of an increase in his wages from $45 to $50 per month. In any aspect of the case, irrespective of the overwhelming testimony that he did not each day of the time claimed work the length of overtime claimed, this verdict was excessive, and in part unsupported by any competent testimony.

For the foregoing reasons, we are impelled to the conclusion that prejudicial error is manifest in the record of this trial, and the result cannot be sustained. The judgment is therefore reversed, and a new trial granted.

Brooke, C. J., and Kuhn, Stone, Osteandee, Bied, and Mooee, JJ., concurred.

The late Justice McAlvay, who sat in the case, took no part in this decision.


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    BRIN v. MICHALSKI.
    1. Specific Performance — Land Contract — Tender—Evidence.
    In an action for specific performance of a land contract, evidence by complainant, that, on a certain date within the time limited in the contract, she, in presence of defendants, counted out the money to defendants’ attorney, and requested him to make out the necessary papers; that he offered the money to defendants and explained to them what it was for and complainant’s purpose in tendering it to them; that they refused to accept it, and repudiated the contract on the ground that they had been offered more money for the property, corroborated by defendants’ attorney and another witness who was present when the offer was made, is sufficient to establish the fact that tender was timely made, and complainant not in default in any respect, notwithstanding defendants’ denial of the offer.
    2. Same — Adequate Remedy at Law.
    A decree for specific performance of a land contract will be affirmed, even though complainant has an adequate remedy at law for damages.
    3. Same — Land Contract — Possession—Validity.
    It is no objection to the validity of a land contract that a stipulation as to possession is omitted from its provisions, as the law provides that possession remains with the vendor until full performance and receipt of deed by the vendee.
    4. Same — Land Contract — Definiteness—Provisions.
    While provisions as to defeasance, insurance, repairs, and payment of taxes might properly have been included, they are not essential to the validity, or decree for specific performance, of a land contract, where said agreement is definite as to parties, property, consideration, terms, and • time of performance.
    5. Assignments — Land Contract — Right of Action.
    The assignee of a vendee’s interest in a land contract, which contained no restrictions against selling and assigning his rights thereunder, succeeded to all his rights and could / sue In her own name for specific performance, or, if performance was impossible, for damages.
    6. Vendor and Purchaser — Land Contract — Ownership of Land Sold — Validity—Damages.
    A land contract would be equally valid if tbe vendor bad no title to tbe property nor ability to secure one, though, if the latter were shown, the only remedy would be an action for damages.
    7. Specific Performance — Evidence—Ability to Perform.
    Where the evidence shows that it is within the power of defendants to perform, a decree for specific performance of a land contract will be affirmed, although they do not hold legal title to the property.
    Appeal from Wayne; Mandell, J.
    Submitted June 22, 1915.
    (Docket No. 96.)
    Decided September 29, 1915.
    Rehearing denied December 22, 1915.
    Bill by Frances V. Brin against Dominik Michalski and another, for the specific performance of a land contract. From a decree for complainant, defendants appeal.
    Affirmed.

      Beckenstein & Wienner (William Friedman, of counsel), for complainant.

      August Cyrowski, for defendants.
   Steere, J.

This bill was filed to compel specific performance of the following land contract which complainant holds as assignee through mesne conveyances from, the original contractee:

“$50.00 Detroit, Mich., June 19, 1912.
“Received of Sam Feldman the sum of fifty dollars, being part payment of purchase price of five thousand four hundred ($5,400.00) dollars for house and lot situated Nos. 847 and 349 north side of Alexandrine Avenue E., Detroit, Michigan. The balance of five thousand three hundred and fifty ($5,350.00) dollars to be paid as follows: The above-named Sam Feldman is to pay nine hundred and fifty ($950) dollars within thirty days from date hereof, and receive a land contract for the payment of one thousand dollars, which includes the above payment, and the balance of four thousand four hundred ($4,400.00) dollars within five years from the date of the land contract, in semiannual payments of $100.00 or more, to apply on the principal, with interest thereon at the rate of six per cent, per annum, payable semi-annually. The undersigned Dominik Michalski and Anna Michalski, his wife, are to mortgage the above-described premises for the sum of two thousand one hundred ($2,100.00) dollars
“Dominik Michalski,
“Anna Michalski,
“Owners.
“Sam Feldman,
“Purchaser.
“In presence of B. F. Do'mzalski.”

The bill alleges tender of full performance by her within the time limit, demand for performance by defendants and refusal on their part, makes proffer to deposit the stipulated price with the court, and asks:

“That the said defendants, Dominik Michalski and Anna Michalski, may be decreed to execute, acknowledge, and deliver to your oratrix a good and sufficient land contract of said described premises, in accordance with the terms and conditions in said contract mentioned and set forth, accept and receive therefor the sum of five thousand four hundred dollars ($5,400) in the manner specified in the aforesaid contract, and that your oratrix may have such other and further relief as the nature of this case may require, and as shall be agreeable to equity and good conscience.”

Defendants’ answer denies that any offer of performance or tender was ever made them within the time specified in the contract by complainant or any one in her behalf, avers that all matters of complaint alleged in said bill are triable in an action at law, and therefore claims the benefit of a demurrer, and asks that her bill be dismissed.

‘ The contract was drafted by Mr. Domzalski, an attorney who represented defendants in the transaction and signed as subscribing witness.- After preparing the instrument he read it to- them, translating and explaining its nature and terms to them in the Polish language, which they best spoke and understood. They expressed themselves as satisfied, accepted the first payment of $50 from Feldman, and signed the agreement. No claim is made of inadequacy of price, fraud, undue advantage, or misunderstanding, or that the instrument-failed in any particular to express the terms of the bargain as made.

Feldman soon sold and assigned his contract to one Leon Van Vliet, at the same time giving with the contract a quitclaim deed of his interest in the property described in it. Van Vliet shortly thereafter in like manner assigned the contract and quitclaimed his interest to complainant, Frances V. Brin, his sister. Defendants had some time previous purchased this property with deferred payments, and held it by a land contract from one Anton Skotzke, who yet had the fee title, subject to their contract, upon which payments had been regularly made and which was not in default. Their contract from Skotzke contained no restrictions against selling and assigning their rights -under it; nor any obstructing provisions which would prevent them from carrying out the terms of their contract with’ Feldman.

The case was heard upon pleadings and proofs taken in open court. On conclusion of the hearing the trial court rendered a decree granting specific performance of said contract according to its terms and as prayed for in complainant’s bill.

The substance of the testimony introduced by complainant is that on July 12, 1912, she called up defendants, accompanied by a Mr. Zack, who knew the'parties and was present in Domzalski’s office when they gave the contract to Feldman, and talked with them about the contract, telling them she proposed to buy the property; that Michalski replied it made no difference who bought the property, and it was all right; that she soon thereafter, on July 17th or 18th, called upon defendants at their home to pay them the $950 which the contract provided should be paid “within thirty days from the date hereof,” and upon being informed of her mission, they told her to go to their lawyer, Mr. Domzalski, which she did, and there met with him and them in his office; that she told him to make out the necessary papers and counted out to him the full amount of $950 as payment upon the contract, which he then offered to defendants, explaining fully to them what it was for, her purpose in tendering it to them, and her request that they comply with the terms of the agreement. They refused to accept the tender, and repudiated the contract on the ground, as she claims, that they were offered more money for the property. On July 19, 1912, she personally served written notice upon defendants, describing the contract and assignments under which she acquired Feldman’s rights, stating that she was yet ready and willing to perform, desired to close the transaction at once, requesting that she be advised by July 24, 1912, whether they would accept payment and perform on their part. Upon their again refusing, this bill for specific performance was prepared and soon filed.

The only issue of fact raised by defendants’ evidence was tender of payment within the contract time. They were the only witnesses in support of their denial of tender. Their testimony is so inconsistent, conflicting, and completely overwhelmed by distinct and direct evidence, both oral and written, to the contrary, as to call for little consideration. Finding no fault with the contract itself, and expressing themselves as ready to accept payment if offered within the specified time, and in such case perform on their part, they testified that no offer of payment or tender of any kind was ever made them, although they waited in receptive expectation for months after the time had expired. Both testified that complainant did not come to their house and offer payment. Dominick stated she once “said she would pay next week, and I ¡waited two or three months, and I got not a penny.” His wife, Anna, the other defendant, testified that they waited for complainant until November; that they were told to go to their attorney’s office to get their money on two different dates, July 18th and 24th, and went each time, but no one was there and they never got their money. Mr. Domzalski, their then attorney, does not represent them in this case, and declined to support their testimony, but, when called as a witness and interrogated, frankly confirmed the circumstances of the tender in his office as related by complainant, and Zack, who was also present in the office, testified that he saw the money laid on the table, heard complainant ask Domzalski to make out the papers and defendants’ refusal, when the money was offered them, Michalski saying he was offered more money for the property. Defendants make no explanation or denial of the written demand received by them on July 19th, or their refusal in that connection. This bill was filed on August 24th, process served on them August 30th, and their appearance entered September 4, 1912. We fully agree with the conclusion of the trial court that tender was timely made, and complainant not in default in any respect.

Upon the legal aspect of the case it is contended, as obstacles to decreeing specific performance, that complainant has an adequate remedy at law; the terms of the contract are not certain and definite, and present no mutuality of consideration and remedy. Of the remedy it is sufficient to .note that the subject-matter of this agreement is an interest in land, and it does not depend upon the inadequacy of legal remedy. 36 Cyc. p. 552.

It is pointed out by counsel that this is not a contract to convey, but a contract to enter into a contract to sell real estate, and does not contain sufficient, definite, and certain provisions essential to directing specific performance of a contract of that nature, in the particulars that no mention is made of defeasance, insurance, repairs, payment of taxes, and, most important of all, possession.

As to the omission pointed out as “the most important agreement of them all” in a land contract, the law provides that, where such stipulation is omitted, possession remains with the vendor until full performance and receipt of deed by the vendee. Druse v. Wheeler, 22 Mich. 439; Gault v. Stormont, 51 Mich. 636 (17 N. W. 214); Way v. Root, 174 Mich. 418 (140 N. W. 577). While the omissions pointed out properly may be and often are guarded by express provisions in contracts for sale of real estate, as the conditions of the property and desire of parties may suggest, they are not essential to the validity or decree for performance of a contract. This agreement contains the essential elements of a contract, and is certain and definite so far as it 'goes. The parties, property, consideration, terms, and time of performance are clearly stated.

That complainant on receiving an assignment of Feldman’s contract succeeded to all his rights and could sue in her own name for specific performance, or, if performance was impossible, for damages, there can be no question. 36 Cyc. pp. 758, 759. The agreement would be equally valid if the vendor had no title to the property nor ability to secure one, though, if the latter were shown, the only remedy might be an action for damages.

It is true in this case that defendants do not, or did not, hold legal title to the property, but they have the legal right to acquire it. They not only plant their defense on other grounds,, but it is shown to be within their power to obtain title and perform. They held the property under a land contract, the full consideration for which was $1,700, and upon which over $1,000 had been paid at the time of the hearing. A tender of $950 was made them by complainant under her agreement calling for a contract from them which might run five years, and under their contract with Skolzke they could pay him in full in 1913 and secure their title to the property.

We are of opinion that the equities of the case and the law entitle complainant to the relief granted.

The decree is affirmed, with .costs.

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

The late Justice McAlvay took no part in this decision.


text:
    VRELENICH v. CALUMET & HECLA MINING CO.
    1., Master and Servant — Feixow Servant — Timber Boss — Safe Place. '
    Where an employee in defendant’s mine, working under the supervision of a timber boss, was injured by the fall of some rock in one of the stopes immediately after a blast, and where it appeared that his work at this time was timbering the mine, replacing some of the timbers which had become displaced, and that the timber boss made an examination of the stope, before plaintiff entered after blasting out a piece of rock, and the boss found the
      hanging wall apparently safe, but did not call the men in or assure them that the place was safe, that he was accustomed to call the men after he had examined the condition of the rock, if he found everything safe, and that plaintiff knew about tbe custom and rule, be was not entitled to recover for bis injuries.
    2. Same.
    It is now well settled that tbe duty to provide a safe place is not applicable to those engaged in tbe work of timbering: tbe employer’s duty being fulfilled when be has promulgated reasonable rules and properly instructed tbe servants, furnished suitable tools, machinery and materials for tbe work and engaged competent men to perform it.
    Error to Houghton; O’Brien, J.
    Submitted June 23, 1915.
    (Docket No. 31.)
    Decided September 29, 1915.
    Case by Steve Vrelenich against the Calumet & Hecla Mining Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Allen F. Rees (Rees, Robinson & Petermann, of counsel), for appellant.

      Le Gendre & Driscoll, for appellee.
   Steere, J.

While an employee in defendant’s mine, plaintiff sustained two distinct physical injuries in accidents occurring at different times and places. This action was brought to recover damages for both injuries, each being distinctly charged in a separate count of his declaration. The earliest injury, charged in the first count, occurred February 18, 1909, at which time a falling tram car broke plaintiff’s left leg below the knee. On July 24, 1911, while working as a timberman on the fiftieth level of No. 4 shaft in defendant’s mine, a fall of rock from the hanging wall bruised his shoulder and broke his right leg. The latter accident is the subject of the second count in his declaration, and of this appeal.

The trial court submitted the case to the jury upon both counts in the declaration, with instructions to pass upon each accident separately and determine whether defendant was liable in damages for negligence causing either or both of the injuries counted upon. A verdict of not guilty was returned for defendant upon the first count, and upon the second a verdict awarding damages was rendered in favor of plaintiff. No questions relating to the earlier accident, charged in the first count, are before the court for review. Defendant’s assignments of error relate only to the second count charging negligence in connection with the accident of July, 1911, when plaintiff was working as a timberman helping to make places safe for mining operations, and the important question raised is whether the trial court erroneously denied defendant’s motion, and requests for a directed verdict of no cause of action urged on the ground that plaintiff’s evidence failed to make a prima facie case of actionable negligence.

At the time of the accident under consideration the timber gang to which plaintiff belonged, consisting of four men and the timber boss, were at work in a stope on the fiftieth level, replacing some timbers which had been knocked down in the night, during the shift before, by blasting. On the following morning, when the timbermen came to this stope, the timber boss devoted some time, assisted by his men, in examining the hanging wall and environments with a light on a staff and barring down any loose rock found, as a protection for their own safety before starting the timbering. The men then commenced to shovel away some dirt, or broken rock, from the foot wall where timbers were to be set, and while doing this found a large piece of rock too heavy for them to move, of the size and kind called a “block hole,” which it is customary to break finer by blasting or otherwise. The miners working in the stope near by were called-upon to re-blast this rock, so the timbermen could get it out of their way. This was done, the timbermen withdrawing together to a selected place of safety when the block hole was ready to blast, where they seated themselves and all waited until the blast was discharged and the smoke cleared away, after which the timber boss started first and went into the stope, where, as he testified, he made an examination of the hanging wall and vicinity in which the timbering was to be done, finding it.apparently safe. The first to follow him was a timberman named Andrew, plaintiff’s working partner, who went into the stope and had just begun work, having moved two or three shovelfuls of dirt, when plaintiff followed and joined him, also starting to shovel and some rock fell upon him from the hanging wall, inflicting injuries as before indicated. The timber boss, who was. a short distance beyond them in the stope, had not then called the men to resume work, nor given any assurances .that the place was safe, neither had he given any warning of danger. Plaintiff testified :

“It was our custom there, when there was a blast, for the timber boss to go in first and look the thing over. The timber boss always went first. When he thought it was all right he used to call us. * * * I didn’t hear anybody call us into the stope that day.”

Plaintiff was a man 52 years of age, experienced in copper mining operations. He first worked for defendant 14- years prior to the time of the trial, and stated that he worked in its mine as a trammer for 8 years before his first injury, during 2 years of which time he was a “$5 boss,” but ceased to be a-boss about a year before he was hurt. His explanation of the nature of his employment when injured, and the manner in which, underground operations were conducted, indicates intelligent understanding of and familiarity with the mining business and its dangers. Of conditions and methods he testifies in part as follows:

“My job this time was timberman. Timbermen are putting up timber, so they can get the rock out of that stope. I was hurt this time on the fiftieth level. * * * The vein in these mines lays between two walls of rock running down on a slant like that, about 38 degrees. The upper wall we call the hanging wall, and the bottom wall the foot wall. In taking out this rock they run a drift in the vein a certain distance and then work the rock out from the bottom. The stope was as long as 75 feet; that is, they block off 75 feet of the vein, and start to take that 75 feet up. The miners start in one place and go across the vein. They take out a layer right near the level first. That’s what they call a cut. After that’s taken out, they take another slice. After they go up, it’s the timber-men’s duty to follow them up and put these timbers in, so as to keep the hanging wall from coming down. That is right. The day I was hurt the stope had gone up about 50 feet. The timbermen had followed it up. They were after the miners. I think they had timbered the stope about 40 feet where we were working. At this place we were not very near to the miners. Some places they were as close as 4 feet, if they can catch up to the miners. * * * Those timbers are put in together some places 6 feet, and other places 8. They put timbers up in a stope of that kind to hold the hanging up, and so it won’t come down. That’s to make it safe for the men going up and down in the stope, so they can work. Just that time on the day I was hurt we were cleaning the dirt. That’s part of the work of putting in the timber. We clear the dirt first before we put in the timber. By cleaning the dirt, I mean the timber is always put on the solid foot, not on the dirt. They don’t cut hitches there, they just clear the dirt and set the timbers on the wall. I have been working at this timberman’s job about 16 months before I got hurt, 16½, something like that. There were four men and the boss the fifth in our gang. * * * After a blast of that kind, it was the duty of the timber boss to go in and take a look at the hanging, to see if it was all right; but I don’t know if he did this time or not. He usually did. I saw him do it at various times. I saw him other days. The way they inspect the hanging wall is to put a light on the end of a staff, so they can get the light close to the hanging wall. If the boss sees something that doesn’t look very good to him, he tells us to get away and pinches it down. Sometimes, when he can’t do it alone, he calls for help. I mean, if he can’t pinch it alone. * * * After the blast I didn’t hear whether the boss asked Andrew to go up with him. I didn’t hear anything. The timber boss didn’t talk to me before he went up after the blast.”

Under the testimony as to rule and custom, showing it was the duty of the timber boss in this mine to look out for the safety of the men under him, to give warning, inspect and direct, bar down loose rock from the hanging wall, etc., it is contended in plaintiff’s behalf that his contract of hiring imposed upon defendant the nondelegable duty to furnish him a safe place at its peril, and the negligence of the timber boss, acting as vice principal, and imputable to defendant, was, under the evidence, an issue of fact to be submitted to the jury.

The duties of this timber boss in caring for the safety of his crew, while emphasized in the evidence and urged as imposing upon defendant the nondelegable duty of furnishing a safe place, are not, in their nature and as applied to the work in which he with his men was engaged, shown to be other or different in principle than those of timber bosses generally.

The timbermen’s work is directed to making places in the mine safe, which, as they entered upon their work, are unsafe or uncertain. Plaintiff was an experienced timberman. He assumed the known risks of the employment, and knowing the rule, as he states it, for the boss to go first after a blast, and call the men if it appeared all right, he did not wait for a call, and went into the stope without any orders or assurances of safety. In this particular there is a marked distinction between the instant case and Danula v. Mining Co., 166 Mich. 350, 361 (130 N. W. 604), Minkkinen v. Mining Co., 169 Mich. 279, 282 (135 N. W. 449), and Scendar v. Copper Co., 169 Mich. 665, 666 (135 N. W. 951), cited and relied upon in plaintiff’s brief as controlling in principle here. In each of those cases the plaintiff was assured by some one of experience and in authority over him that the place was safe,' and ordered to begin or continue work there. Whatever uncertainty may have at one time arisen as to the scope of those cases, it is now made clear that the general rule announced in Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505), is unmodified. See, also, Andrews v. Mining Co., 180 Mich. 72 (146 N. W. 394); Kaaro v. Mining Co., 178 Mich. 661 (146 N. W. 149); Zap v. Mining Co., 184 Mich. 437 (151 N. W. 554) ; Juntunen v. Mining Co., 184 Mich. 341 (151 N. W. 571).

The facts in the latter case are similar in many respects to those before us. Juntunen was working in defendant’s mine as a timberman, engaged with others of his crew in repairing old timbering a short distance from No. 2 shaft on the forty-seventh level, and suffered a broken leg from a fall of rock. His testimony was to the effect that the duty of inspecting for danger and caring for the safety of the workmen rested upon the captain and timber boss; that he relied upon their assurances that the place was then safe and worked there as directed. The doctrine of safe place and vice principal was invoked there, as here. It was held that, as the undisputed evidence showed plaintiff was, at the time of his injury, engaged with other members of the timber crew in making repairs “for the purpose of making safe that which had theretofore been rendered unsafe through the crushing in of the shaft,” a verdict should have been directed in favor of defendánt.

With these timber gangs moving from place to place in the mine, engaged in the work of making places safer for mining operations, it is now well settled that the doctrine of safe place is not applicable- to such employment, and the employer’s duty is fulfilled when reasonable rules are promulgated, the workmen properly instructed, suitable tools and material furnished for the work, with competent men to perform it. The custom or rule that the timber boss should first go into the place where a blast was fired, inspect conditions, and notify the other timbermen did not constitute him a vice principal. His general status and relation to the other timbermen of his crew, as shown in this case and others of like nature, is well stated by Andrew, plaintiff’s partner, as follows:

“The timber boss is an ordinary timberman, with a _timber gang of four or five men. He does the same kind of work that the other timbermen do, only he has the say as to where the timber shall go in; that is what the timber boss is. All of the timbermen are supposed to keep their eyes open, and if they see a bad hanging to take care of it by putting in timbers; that is the entire work of a timberman.”

For the foregoing reasons, and under the precedents referred to, we are constrained to conclude that this judgment must be reversed, and no new trial granted.

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

The late Justice McAlvay took no part in this decision.