text:
    SAUER v. McCLINTIC-MARSHALL CONSTRUCTION CO.
    1. Pleading — Sales—Contracts—Breach.
    Where, in a suit for a breach of a contract of sale, the amended declaration averred that plaintiffs duly and seasonably furnished to the defendant complete information for detail drawings as required by the contract and duly and seasonably kept, observed, and performed all of the terms and conditions of said contract on their part to be kept, observed, and performed, a demurrer was rightly overruled, particularly after, the first trial wherein evidence covering the allegation was offered and received so that the defendant understood the claims made by plaintiff: the objection that the declaration stated the conclusions of the pleader was not sufficient and is held to be over technical.
    2. Damages — Evidence—Market Value.
    The legal duty of the buyer to minimize his damages so far as possible does not deprive him of his right to recover in ease he made no inquiries about market values before he purchased, but his maximum recovery should not exceed the amount to which he could have reduced his damages if he had sought for and obtained such bids.

      3. Same — Verdict—Sams—Breach.

      Held, also, that the amount of the verdict was not excessive, and that the award of less than certain witnesses testified the difference between market price and contract price amounted to' was sufficiently justified by plaintiff’s evidence.
    4. Same.
    The measure of damages for failure to deliver steel ordered was the difference between the contract price and market price at the time and place of delivery.
    5. Same — Evidence Fixing Amount oe Market Price.
    Taking into consideration the amount of the verdict, which was less than the difference between the contract price and the price paid by plaintiffs for the steel, the reception of evidence offered by the plaintiffs as to the bids that they received about the time of entering into the contract was not prejudicial.
    Error to Washtenaw; Kinne, J.
    Submitted October 13, 1915.
    (Docket No. 64.)
    Decided December 22, 1915.
    Assumpsit by Charles A. Sauer and another against the McClintic-Marshall Construction Company for breach of a special agreement. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Cavanaugh & Burke, for appellant.

      Robert E. Bunker and Arthur Brown, for appellees.

      The duty to prevent or reduce damages on breach' of contract of sale or purchase is discussed in note in 52 L. R. A. 259.

   Brooke, C. J.

Upon a former trial of this case a judgment in favor of plaintiffs in the sum of $1,026.34, which included interest, was reversed, for two reasons:

First. Because the declaration was wanting in specific allegations that plaintiffs furnished to defendant “complete information for detail drawings” under the following clause of the contract:

“All material is to be delivered f. o. b. cars in Ann Arbor, within eight to ten weeks after receipt of complete information for detail drawings.”

Second. Because the verdict was held to be against the weight of the evidence, and contrary to law upon the question of the measure of damages. Upon this point, speaking through Mr. Justice Steere, we said:

“The contract price of the material to be furnished by defendant was $1,450. Plaintiffs bought the same material of the Toledo Iron & Wire Company at an increased price of $1,002, without obtaining quotations from other competitors or making any inquiries elsewhere as to the condition of the market or possibility of securing a more favorable price. The contract required 34 tons of steel, and it was shown that such steel could have been bought in the open market during August, September, and October of that year at an advance of $8 per ton, and the usual price for quick delivery was about $4 per ton extra. As the testimony stands in this record, it appears by the weight of evidence, and in some particulars by the undisputed evidence, that plaintiffs made no such general inquiry and effort, and exercised no such diligence to secure the material at the fair market price, and thus diminish the damages, as the law requires, and that, had they done so, a substantial reduction from the price paid might, and probably would, have been obtained. In that particular we conclude that the verdict was against the weight of evidence and contrary to law.” Sauer v. Construction Co., 179 Mich. 618 (146 N. W. 422).

To meet the first ground plaintiffs filed an amended declaration with reference to performance, as follows:

“And the said plaintiffs aver that they duly and seasonably furnished to said defendant complete information for detail drawings as in and by said contract they were required to do, and duly and seasonably kept, observed, and performed all of the terms and conditions of said contract on their part to be kept, observed, and performed.”

Defendant interposed a demurrer to the amended declaration, which was overruled by the circuit court and an exception was duly taken.

The first error discussed by appellant relates to the overruling of the demurrer. The ground’ of demurrer is stated as follows:

“It appears from said declaration that as a condition precedent to any liability on the part of defendant the plaintiffs were under obligation to furnish to defendant complete information for detail drawings; and it is nowhere alleged in said declaration, except in the form of a legal conclusion, that said information was ever furnished to the defendant, and said declaration wholly omits any allegation respecting the time, place, or manner of the performance of said condition precedent on the part of the plaintiffs, and wholly omits to allege what, if anything, plaintiffs did which constituted a performance on their part of said condition precedent; and the attempt to allege any such performance consists wholly of the allegation of a legal conclusion, and wholly omits to state any facts representing such performance.”

In our former opinion at page 628 of 179 Mich, (at page 425 of 146 N. W.), we said:

“Defendant agreed to deliver all material at Ann Arbor f. o. b. within 8 or 10 weeks after receipt of the information desired, and had offered to deliver within 5 weeks for $200 additional price. Correspondencia on the subject not resulting in obtaining all the information desired, defendant’s agent visited plaintiff’s office on August 6th, and from there went to the architect’s office: As a result the defendant was then furnished with complete information — just how or by whom is unimportant. The condition precedent imposed upon plaintiffs was complied with in all essentials within a reasonable time. Assuming that after this it was their duty to see the defendant’s shop drawings for its workmen were approved by the architect, this was done by August 19th, which yet gave defendant the maximum contract time before the building was to be completed. Defendant had already received drawings for the structural steel on July 6th, and the architect’s plans on July 23d. We find nothing in the contract to suggest that it was made with reference to subsequent market conditions affecting defendant’s ability to perform, and the testimony shows it was possible to perform it within a month after receiving the order.”

In view of the fact that the case had already been tried once and evidence as to the performance of the condition was known to defendant, and had been passed upon by this court, we think that the objection to the declaration as amended is over-technical and that the demurrer was properly overruled. Hanselman v. Carstens, 60 Mich. 187 (27 N. W. 18).

The second assignment of error deals with the amount of the recovery, which it is urged is still excessive, and with the evidence touching the measure of damages, and to the charge of the court in relation thereto. Upon this trial plaintiffs’ recovery was $651.45, which included interest for about three years. Upon the second trial counsel for plaintiffs admitted that he could not furnish testimony showing that inquiries had been made as to the price from others than the company from which it bought at or about the 27th day of September. He said:

“I am not going to be able to offer any testimony as to making inquiries of others about the 27th day of September, but I am going to ask leave to show that we had figures from other parties, and it has a tendency to prove what the market price was; and, furthermore, if we bought at the market price of that material, if we paid no fancy price, then we have complied with the rule which requires us to make an effort to reduce the damages.”

He was permitted, however, to produce evidence of the amount of competitive bids received for this steel from other concerns in July before the contract was awarded. Upon the question of the measure of damages, plaintiffs examined Mr. Frank Powell, who, under the name of the Toledo Iron & Wire Works, actually furnished the steel to the plaintiffs. He testified that he charged plaintiffs $60 a ton for the steel, and that that was its market price at that time. (The latter part of September, 1912.)

Defendant introduced the testimony of Mr. Geo. H. Danforth, structural engineer for the Jones & McLaughlin Company, to the effect that at that time steel' of this character was worth about $52 a ton. Likewise the testimony of Mr. Clyde Taylor, employed by structural steel manufacturers, who fixed the value at that time at $55 per ton. Also the testimony of Mr. L. A. Walker, engineer for defendant company, who fixed the value in the latter days of September at $50 per ton. Under all this testimony it is the claim of the defendant that the jury returned a verdict of at least $5 per ton, or $170, in excess of the true measure of damages, and that as to such excess the verdict is against the weight of evidence, and contrary to law. In reaching this conclusion, defendant ignores the testimony of Mr. Powell, who actually sold the steel, and who testified to having made contracts'at about the same time, at the same figure, for steel of a like quality and quantity.

Defendant requested the court to charge that the plaintiffs could not recover to exceed $12.50 per ton, that being the amount of the highest estimate of the value of the steel when it was ordered on September 27th given by any witness except Powell, who actually sold the steel. This request was refused and the court charged:

“If you find under the evidence and the instructions I have given you that the plaintiffs are entitled to recover, they are entitled to recover as damages whatever sum they necessarily paid for the structural steel in excess of the sum they agreed to pay the defendant therefor, * * * provided that they purchased the said structural steel * * * at the best or lowest prices obtainable under all the circumstances of the case.”

An analysis of the verdict would seem to indicate that the jury determined that the best or lowest price obtainable was $60 per ton, and not $55 a ton, or any less sum, as testified to by the various witnesses on behalf of defendant.

In holding as we did in our former opinion that it was the legal duty of the plaintiffs to minimize the damages to defendant as far as possible through inquiries of different manufacturers, in order that the steel should be obtained at the lowest possible price, it was not our intention to prevent recovery on the part of the plaintiffs in case no such inquiries had been made, but to compel plaintiffs to accept such a judgment as the evidence showed he would have been entitled to recover in case they should have performed their legal duty by-securing the best price obtainable at the time the steel had to be purchased. The measure of damages for failure to deliver steel was the difference between the contract price and the market price at the time and place of delivery. Galinski v. Thomas, 178 Mich. 589 (146 N. W. 191).

Error is assigned upon the action of the court in admitting testimony as to bids of others received by plaintiffs in July. While we are of opinion that the evidence was inadmissible, it is apparent from the amount of the verdict it was without prejudice to defendant. The recovery was in fact more than $400 less than the amount actually paid by the plaintiffs to the Toledo Iron & Wire Works.

We discover no reversible error, and the judgment is therefore affirmed.

The claim made by counsel for plaintiffs that this is a proper case for the assessment of damages as for a vexatious appeal has been considered, but we believe it to be without merit.

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


source: Caselaw Access Project

author: Brooke, C. J.

license: Public Domain

text:
    BROWN v. TOWNSHIP OF BYRON.
    1. Municipal Corporations — Townships—Highways.
    Where plaintiff sustained injuries to his person in using a temporary road or turnout to cross an interurban track, it being out of repair, and the township in which it was situated was not alleged to have constructed the temporary way, or participated in the establishing of the same, which was not made a public highway by dedication or by statutory proceedings, «the trial court did not err in sustaining a demurrer to the declaration, since the liability of a township for injuries sustained in the highway is limited by statute to public ways. Act No. 283, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §§ 2462, 2174, 2179.)
    2. Same — Statutes—Construction.
    The liability of municipalities for injuries upon highways is purely statutory and cannot be enlarged by construction.
    3. Same.
    Public highways can be established in two ways only under the statutes of this State: (1) by proceedings instituted by the commissioner of highways of a township upon written application of freeholders, notice, etc.; (2) by user.
    4. Same — Personal Injuries.
    One who travels outside of the limits of a legally established highway must be held to do so at his peril, so far as his statutory remedy .against the township is concerned, even though the municipality has, without legal authority, alone or in conjunction with others, constructed a temporary way.
    Error to Kent; Perkins, J.
    Submitted October 12, 1915.
    (Docket No. 57.)
    Decided December 22, 1915.
    Case by Edward Brown against the township of Byron and others for personal injuries. From an order sustaining a demurrer to plaintiff’s declaration he brings error.
    Affirmed.

      Nichols & Shaw, for appellant.

      Edward N. Barnard, for appellees.
    Plaintiff in his declaration sets out that the defendant tov/nship for more than 10 years prior to August 21, 1913, maintained a certain highway within the limits of said township; that the defendant, the Michigan Railway Company, on said date was the owner of an interurban railway which passed through said township, and which railway intersected said highway in said township at a point near the east boundary line of said township of Byron; that the defendant, the Michigan Railway Engineering Company, whs on said date engaged in the building and construction of said railway at said place in said township; that previous to said date all three defendants during the construction of the railway, at the point where said interurban line crosses the highway running east and west between sections 24 and 25 of said township, constructed a temporary road across said interurban line for the use of public travel; that at the point where said interurban railway crosses said highway, it became and was necessary to build a viaduct or bridge over said interurban railway; that during the construction of said interurban railway and of said viaduct, it also became and was necessary for the traveling public and pedestrians and persons driving teams and vehicles in passing along said highway to use said temporary road around said intersection, which said road was built and laid out by the said' defendants as aforesaid; that said road so laid out extended from said highway around said place of intersection to a point north of said intersection a distance of 300 feet from said highway, at which place said temporary roadway crossed said interurban right of way; that thereupon it became the duty of defendants to keep said temporary roadway extending around the said intersection of said highway and said interurban right of way, as aforesaid, in reasonable repair, and in a condition reasonably safe and fit for public travel; that, disregarding said duty, the defendants on said August 21, 1913, permitted said temporary way to become out of repair and in a condition unsafe and unfit for public travel, and permitted a large hole, to wit, 3 feet in diameter and 2 feet deep, to remain along the line of said temporary roadway at a point 300 feet north of said intersection of said highway with said interurban railway, and 20 feet west of said interurban railway, and within the right of way of said interurban railway, and particularly that the defendant township of Byron, failing in its duty, negligently and carelessly constructed said temporary roadway around said intersection in such manner that the same was unsafe and unfit for public travel, and permitted the same to remain in such condition; and that plaintiff, using said temporary way with due care on his part, on said date received certain injuries for which recovery is sought. To this declaration defendant township of Byron interposed a demurrer in the following terms:
    “(1) It is not alleged or shown by said declaration that the plaintiff sustained bodily injury or other damage upon any public highway or street within the corporate limits, or jurisdiction of the said township of Byron.
    “(2) It is not alleged or shown by said declaration that the construction of the temporary road referred to in said declaration was made by or under- the municipal authorities of the said township of Byron.
    _ “ (3) The said township of Byron had no lawful municipal authority to construct the temporary road for the purposes for which it was alleged that said temporary road was constructed.”
    The court having sustained the demurrer, a request was- filed by counsel for plaintiff that reasons be given by the trial court for sustaining the demurrer. The learned circuit judge thereupon filed the following reason:
    “I do not believe that a township is liable under the statute for injuries, sustained outside the established portion of the highway.”
    Plaintiff in this court now reviews the order sustaining the demurrer.
   Brooke, C. J.

(after stating the■ facts). Plaintiff claims that the township became liable for injuries sustained by him upon this temporary highway, which he claims is a public highway within the meaning op the statute, for two reasons:

(1) Because it was connected with a public highway in such a way as to become part of it, the. opening and terminus being the public highway.
(2) Because it was held out to the public as a public highway, and the public were invited and induced to use it as a public highway.

Many authorities are cited'by plaintiff, alleged by him to support his contention. With reference to those cited from this State, it is sufficient to say that the question, though presented in the recent ca,se of Hayden v. Township of Bangor, 182 Mich. 601 (148 N. W. 691), was undetermined, for the reason that plaintiff’s recovery was there held to be barred upon the ground of contributory negligence. We have frequently held that the liability of municipalities for injuries upon highways is purely statutory, is in derogation of the common law, and cannot be enlarged by construction. See Miller v. City of Detroit, 156 Mich. 630 (121 N. W. 490, 132 Am. St. Rep. 537, 16 Am. & Eng. Ann. Cas. 832), and cases cited. The statute under which plaintiff seeks to recover limits recovery to bodily injuries sustained—

“upon any of the public highways or streets in this State, by reason of neglect to keep such public highways or streets, and all bridges, sidewalks, crosswalks and culverts on the same in reasonable repair, and in condition reasonably safe and fit for travel.” 2 How. Stat. (2d Ed.) § 2462.

Public highways can be established in two methods only under the law of this State: (1) By proceedings instituted by the commissioner of highways of a township upon written application of freeholders and notice to landowners to be affected, appraisement • of damages, and the making of a proper record in the office of the township clerk. 2 How. Stat. (2d Ed.) §§ 2174 to 2179. These proceedings must conform strictly to ’statute, or they are void. Price v. Stagray, 68 Mich. 17 (35 N. W. 815); Dixon v. Commissioner of Highways, 75 Mich. 225 (42 N. W. 814). By the second method public highways may be established by user. 2 How. Stat. (2d Ed.) § 2193. It is clear that at the point where plaintiff was injured the defendant township of Byron had not established a “public highway” within the meaning of that term as used in the statute upon which liability is predicated. We are of opinion that one who travels outside of the limits of a legally established highway must be held to do so at his peril, so far as his statutory remedy against the township is concerned, even though the municipality has, without legal authority, either alone or in conjunction with others, constructed a temporary way for his accommodation.

The judgment is affirmed.

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


text:
    CLARK v. NORTH AMERICAN UNION.
    1. Insurance — Fraternal Beneficiary Associations — Evidence —Trial— Directing Verdict.
    Where the testimony of defendant’s examining physician showed, on cross-examination, at the trial of an action on a benefit certificate, although he had stated affirmatively in his direct examination that decedent answered a question in her application relating to pregnancy by “No,” that he did not’recollect definitely actually asking the question, the trial court did not err in submitting the issue of decedent’s alleged fraud to the jury.
    2. Same — New Trial — Weight of Evidence.

      Held, also, on motion for a new trial, that the verdict was not so opposed to the weight of the evidence as to require the court to grant a new trial.
    Error to Muskegon; Barton, J.
    Submitted October 13, 1915.
    (Docket No. 80.)
    Decided December 22, 1915.
    Assumpsit by Fred A. Clark against the North American Union on a benefit certificate. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Cross, Vanderwerp, Foote & Ross (Clarence V. Donovan, of counsel), for appellant.

      Turner & Turner, for appellee.
   Brooke, C. J.

For a statement of the facts involved in this case reference is made to Clark v. North American Union, 179 Mich. 131 (146 N. W. 336), where it will be found reported. We there held that the evidence of the examining physician as to the asking and answering' of a controlling question was such as to present an issue for the determination of the jury. The case has now been tried a second time, and, the questions of fact having been determined by the jury in favor of the plaintiff, defendant has removed the case to this court for review.

The examining physician was again placed upon the stand by the defendant, and an elaborate examination and cross-examination ensued. The evidence upon the first trial will be found set forth, in part, in the earlier opinion. We quote briefly from the evidence upon the second trial.

Upon direct examination:

“Q. Do you have a very distinct recollection of that examination?
"A. No. * * *
“Q. I suppose you have a great many examinations to make, and blanks of this kind to fill out, and can’t carry them all vividly in your mind.
“A.' No.
“Q. But let me ask you this: Is it your practice to write down dates and answers and everything of that sort truthfully and in accordance with the fact?
“A. Yes, sir. * * *
“Q. Let me ask you, Doctor, in making out this certificate, did you intentionally make any misstatement of any kind?
“A. No, sir.
“Q. Or write down anything different from what you understood the fact to be?
“A. No, sir.
“Q. But at this date you can’t recall, I suppose, the asking of specific questions or the return of specific answers?
“A. It isn’t customary to keep records of those things, because that is a record, and the physician can’t remember five years very well, distinctly. * * *
“A. (To the Court.) Now, your honor, this paper was — is a paper that I examined the deceased, and every question there was asked upon honor, except those of minor importance, and whatever the answer was on this blank is true, and that is all I can say. # * *
“The Court: Look at that blank.
“Mr. Cross: Here is the question I speak of.
“A. Your honor, if the answer is there, I certainly asked it.
“Q. Well, look at it.
“A. I did look at it. I know what those questions are better than any man in this courtroom.
“Q. Certainly.
“A. I filled out hundreds of these blanks.
“Q. Are you able to say now that you propounded that question to Effie B. Clark?
“A. I certainly asked that question.
“Q. And she certainly answered it ‘No.’
“A. The answer is there.
“Q. Well, look at the answer.
“A. Yes, sir. That was my testimony at first.”

On cross-examination:

“Q. Now, you don’t have any recollection now whether the question was asked Mrs. Clark as to whether she was pregnant or not, have you?
“A. I don’t remember.
“Q. And you don’t know as you asked that question, do you?
“A. I don’t remember now whether I asked it; no, gjj» H» H»
“Q. Now, some of these questions are put down— they are answered by the party making the examination, without questions to the party you are examining; isn’t that true?
“A. Certainly, there are some of them.
“Q. And you don’t pretend to remember whether that was the fact in regard to the question of pregnancy, do you?
“A. I don’t remember.”

There is much more of this witness’ examination and cross-examination in the record, but the foregoing will serve as a fair sample. No other testimony was offered by the defendant tending to show that the question was asked by the physician and answered by the deceased. Error is assigned by the -defendant upon the refusal of the court to direct a verdict at the close of the testimony, and after verdict upon the refusal of the court to set aside the same upon the ground that it was against the great and overwhelming weight of the evidence. These are the only questions raised upon the present record.

We are of opinion that the testimony given upon the last trial by the examining physician, taken as a whole, does not present a situation essentially different from that considered by us upon the former hearing. .Under the authority of Wilson v. Royal Neighbors of America, 139 Mich. 423 (102 N. W. 957), we believe the case was properly submitted to the jury.

We do not think that it can be said that the verdict of the jury is so clearly against the weight of the evidence as to require us to overrule the action of the trial judge in denying a new trial upon that ground. Upon the one hand, every person is presumed to have read that which he has signed; and, upon the other hand, there stands the testimony of the physician, who, under cross-examination, gave evidence which, to say the least, makes it doubtful whether he actually asked the question relative to pregnancy, or whether the deceased fraudulently and untruthfully answered it.

The judgment will stand affirmed.

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


text:
    AMERICAN BRASS CO. v. EMERY.
    Corporations — Director’s Liability — Reports—Neglect to File.
    As the statutory liability of corporate directors for the debts contracted since the filing of the report preceding the default or refusal to file the annual report did not, ' prior to the amendment of 1915 (Act No. 142), extend to an indebtedness arising after default, the directors of a corporation were not liable for an indebtedness contracted in 1911 after noncompliance with the statutory requirements in and for the previous year, though the time of incurring the same preceded another default; no report being filed in 1909, 1910, or 1911. Act No. 137, Pub. Acts 1907 (4 How. Stat. [2d Ed.] § 9543).
    Error to Muskegon; Sullivan, J.
    Submitted October 14, 1915.
    (Docket No. 91.)
    Decided December 22, 1915.
    Assumpsit by the American Brass Company, a foreign corporation, against John G. Emery, Jr., and others, to enforce the statutory liability for failure to file the annual report of a corporation, of the directors of the American Electric Fuse Company. From an order sustaining a demurrer to the declaration, plaintiff brings error.
    Affirmed.

      Earl R. Stewart and Colin P. Campbell (Thomas P. Hardy, of counsel), for appellant.

      Cross, Vanderwerp, Foote & Ross (Norris, McPherson, Harrington & Waer, of counsel), for appellees.
   Brooke, C. J.

The facts in this case are exactly like those in the case of Continental, etc., Bank v. Emery, 178 Mich. 612 (146 N. W. 303), with the following exceptions: The plaintiff is different, and whereas in the Continental Case the indebtedness was incurred between April 20, 1911, and June 29, 1911, the indebtedness in the case at bar was incurred, as it appears from the amended bill of particulars filed in the case, in large part prior to the 10th day of March, 1911; a considerable amount of said indebtedness having been incurred during the months of January and February, 1911. A demurrer was interposed on behalf of the defendants, which was sustained by the learned circuit judge.

Plaintiff has removed the case to this court for review, under the claim that the decision in the Continental Case is not controlling, for the reason that the indebtedness in the case at bar was incurred prior to March 10, 1911, whereas in the Continental Case the indebtedness was incurred subsequent to that time. The record in the case at bar, as well as in the Continental Case, shows that the corporation, the .American Electric Fuse Company, failed to file any annual report during the months of January and February, for the years 1909, 1910, and 1911. In the Continental Case the debts were contracted after the failure of the corporation to file its 1911 report. In the case at bar the debts were contracted after the failure of the corporation to file its 1910 report. We are unable to distinguish the two cases upon principle. In the Continental Case, the court, speaking through Mr. Justice Ostrander, said:

“Every one is presumed to know when reports ought to be made, and every one may know whether there is a default in making them. If after a default has occurred, and the directors have become liable for all existing debts of the corporation contracted during the year, a person chooses to deal with the corporation and become its creditor, his case presents no moving reason for enlarging what seem otherwise to have been the limits of a statutory liability of directors.”

The legislature, apparently for the purpose of meeting the decision in the Continental Case, amended section 12 of the act of 1903 (Act No. 232, Pub. Acts 1903), as amended, in the following manner (Act No. 142, Pub. Acts 1915) :

“And any director of such corporation so in default, who has neglected or refused to join in the making of such report shall be liable for all the debts of such corporation contracted during the period of such neglect or refusal.”

We are of opinion that the case at bar is controlled by our decision in the Continental Case, and the judgment sustaining the demurrer is, therefore, affirmed.

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


author: Person, J.

text:
    FEIST v. ROOT.
    1. Sales — Evidence—Directing Verdict — Husband and Wife— Contracts — Principal and Agent.
    Defendant, a music dealer, who had been in business associated with his wife, was not, as a matter of law, entitled to a directed verdict because the music for the price of which plaintiff brought action had been originally-charged to his wife, who ordered it, the business belonging in fact to him, and the goods becoming a part of his stock, where there was evidence that he made payments on the account so as to reduce it below the price paid and he had informed an attorney, that had the account for collection, that he had received the goods and would pay for them, and he had not returned the merchandise to plaintiff, claiming, in explanation thereof, that they were negotiating concerning the claim, etc. The question was for the jury.

      2. Same — Frauds, Statute of — Written Contract.
    Any subsequent promise of defendant to pay a debt which in fact was his wife’s was void if it was not in writing, under the statute of frauds.
    3. Same — Trial—Charge.
    Nor did the trial court err in charging the jury, as to this phase of the defense, that if the goods were not purchased by authority of defendant or accepted by him as his goods, he would not be bound by any promise to pay for them, unless he made it in writing and for a valuable consideration.
    4. Trial — Charge.
    No error was committed by the court in declining to give requests to charge as framed by counsel for the defendant, if the subject was covered by the general instructions.
    5. Sales — Consideration.
    And if the goods were purchased for and accepted by defendant, there was no failure of consideration, inasmuch as he had theretofore received the music ordered.
    6. Appeal and Error — Saving Questions for Review.
    In the absence of exceptions, improper argument of plaintiff’s counsel is not reviewabl© on writ of error.
    Error to Washtenaw; Kinne, J.
    Submitted October 18, 1915.
    (Docket No. 65.)
    Decided December 22, 1915.
    Assumpsit in justice’s court by Leo Feist against Frank M. Root for goods sold and delivered. From a judgment for plaintiff defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Edward B. Benseoe (Frank A. Stivers, of counsel), for appellant.

      Cavanaugh & Burke, for appellee.

      The validity of husband’s express promise to pay debt previously contracted by wife is discussed in note in 7 L. R. A. (N. S.) 1048.

   Person, J.

This action was brought to recover a balance of $122.17 and interest, claimed by the plaintiff to be due him on account. The plaintiff is a pub-; lisher of music in New York City, and the defendant, at the time the account accrued, was a dealer in music in Ann Arbor. The account consists of a list of 24 items, charged against the defendant, beginning in August, 1908, and ending in November, 1909; and 9 items of credit given at various times between October, 1908, and September, 1909. The plaintiff recovered judgment, first in the justice’s court, and then on appeal, each time for the full amount of the claim. The controversy is over one item of this account whereby defendant is charged $192.04, as of September 1, 1908, for a certain publication of music, known as the “Peter’s Edition.” This music was ordered by defendant’s wife, when the two were in New York City making purchases in the fall of 1908. At the time defendant’s business in Ann Arbor was conducted under the name of “Root’s Music House.” The business belonged to Mr. Root, but both he and his wife were actively engaged in the management of it. It is claimed by the plaintiff that the music was purchased for Root’s Music House, that it went into defendant’s general stock, that the wife had authority to make the purchase for him, and that he acquiesced in and ratified it. The defendant claims that this “Peter’s Edition” was purchased by the wife on her personal credit, and that it should not be charged to him.

It is assigned as error that the circuit judge refused to direct a verdict for the defendant. But this could not properly have been done. It is true that the account was in the first place charged to Mrs. Root; this, however, is not conclusive. Considerable evidence was given on the trial tending to show that defendant treated the purchase as made on his account, and for his business. The goods were received at Root’s Music House, with defendant’s knowledge, and some of them placed upon the shelves, with other music, for sale. Sales were made from them. About March 1, 1909, defendant received a statement of account from the plaintiff charging him personally for the Peter’s Edition. Various payments were after-wards made by him on general account reducing the balance considerably below the price charged for that edition. Defendant and his wife separated about February 1, 1909, and the music in dispute remained in his store for a considerable time thereafter. And at some period after his wife left he told an attorney, who had the claim for collection, according to the attorney’s testimony, that he had received these goods and he proposed to pay for them.

It is true that the defendant denies having' made such statement to the attorney, and explains the payment on account by saying that he did not know what the balance of the account was, and that he did not intend to make any payment that should apply on the Peter’s Edition. He also explains the failure to return the music, by saying that the matter was in negotiation between himself and the plaintiff. But these things were all for the consideration of the jury. It was within their province to reject these explanations, if they believed that, in consideration of all the testimony, they ought to do so. Even after the rejection of certain depositions, there was ample testimony from which the jury might find that Mrs. Root was defendant’s general agent and practically managing the business; and the instructions given by the court relative to agency were not unwarranted.

If the liability for the Peter’s Edition was a personal indebtedness of Mrs. Root’s, it is true that any' subsequent promise by Mr. Root to pay it was not binding because not in writing. But the court’s instructions upon this feature of the case were all that the defendant could have required.

The court put it very broadly by telling the jury:

“If this bill of goods was not purchased by the authority of Mr. Root, nor accepted by him as his own goods, then he would not be bound by any promise to pay for them, either to Mr. Cavanaugh or anybody else, unless he had made his promise in writing, and unless there was a good consideration to support such promise.”

It was not error for the court to decline to give the requests as framed by counsel for defendant when the matter was thus properly and thoroughly covered by the general charge. Snyder v. Lumber Co., 135 Mich. 31 (97 N. W. 49). Nor were the remarks of the court as to the retention and examination of the music erroneous, inasmuch as such remarks could have been understood as applying only to the contingency that the. music was purchased for and accepted by the defendant.

The court also fairly submitted the question of value to the jury. There was not a total failure of consideration, if the goods were purchased for and accepted by the defendant, inasmuch as he had received the thing purchased. The matter of value, in case the jury should find that it was not expressly fixed by the contract, was properly submitted; and recovery upon express contract could be had, ünder the common counts, if the price was fixed, and nothing remained but its payment. The other errors alleged have been carefully examined and do not require a reversal of the judgment.

There being no exceptions, we cannot consider the remarks made by plaintiff’s • counsel in his argument over the refusal of defendant to permit his wife to testify. Nor was it error for the court to refuse a new trial.

The judgment will be affirmed.

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


text:
    HARNAU v. HAIGHT.
    1. Evidence — Automobiles—Speed—Sufficiency — Incompetency.
    In a personal Injury case, for being run down by defendant’s automobile, in the dark, testimony of an eyewitness, that from the exhaust of the car it appeared to be going 30 miles an hour, was immaterial and should Rave been struck out, since the speed of a car has no necessary relation to the rapidity of the exhaust if the clutch is out; but the witness having expressed his opinion that the rate of speed, independently of the exhaust, was about 20 miles an hour, the error in admitting the testimony was harmless.
    2. Same — Opinion Evidence — Speed.
    The opinion of a witness who had been an engineer, and whose qualifications were established to form such judgment, that an automobile which he only saw move over a space of 20 feet before it struck plaintiff was moving at the rate of 20 miles an hour, was properly admitted, and its weight was for the jury.
    3. Same — Rebuttal—Affirmative Proof.
    While testimony that there were no lights on defendant’s automobile was not properly rebuttal, the court did not err in the exercise of its discretion by receiving the evidence.
    4. Same — Ordinance.
    Where the plaintiff’s contention was that he was riding along the street on a bicycle when defendant approached from the rear without lights and ran him down, and the contention of the defense was that plaintiff turned from the side and ran into the car, it was not error to exclude from the evidence an ordinance of the city wherein the accident occurred requiring vehicles that move slowly to keep as close as possible to the curb, on the right, allowing more swiftly moving vehicles free passage to their left; as the issues were such as to render the ordinance immaterial, the contributory negligence of plaintiff not being in issue if plaintiff’s evidence was believed, and the fact of being on the wrong portion of the road not affecting the claim of the defense that plaintiff without excuse turned into the moving automobile.

    5. Trial — Charge—Requests.
    Where counsel for defendant, in response to an inquiry of the court at the close of the charge, orally ashed the court to instruct the jury in relation to defendant’s contention and claim that plaintiff turned out of his course and ran into the side of defendant’s automobile, and the court declined to instruct further, but the charge failed to cover the point referred .to by defendant’s attorney, the error was reversible and prejudicial although no request in writing was preferred; if such request was desired, counsel should have been given time in which to prepare it.
    Error to Muskegon; Sullivan, J.
    Submitted October 13, 1915.
    (Docket No. 81.)
    Decided December 22, 1915.
    Case by Peter Harnau against Louis P. Haight for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Cross, Vanderwerp, Foote & Ross, for appellant.

      Turner & Turner, for appellee.

      On liability of automobile owner for collision with bicyclist, see note in 28 L. R. A. (N. S.) 557.

   Person, J.

This is an action to recover damages for personal injuries received by plaintiff on the evening of October 27, 1913. At the time of the accident he was riding a bicycle and going east on the south side of Western avenue, in the city of Muskegon. The defendant was also going east on the same side of the street with his automobile, and following the plaintiff. It was about 6 o’clock in the evening, and so dark that the street lamps had been lighted. The day had been cloudy, and some rain had fallen. The plaintiff claims that the defendant was driving very rapidly, without any lights on his car, and that he overtook and ran over plaintiff before the latter could get out of the way. The defendant insists that the pilot lights or small lights on either side of the dashboard of his car were lighted, and that he was driving at a moderate or slow pace. It is his theory that as» his car came alongside of plaintiff the latter turned his bicycle so as to avoid the street car tracks, thus colliding with the automobile and being caught under its left fender. The claims of the parties can be best stated in their own words. The plaintiff testified as follows:

“I live at 56 East Walton street, and am now 45 years old. My occupation is driving a team for the Muskegon Brewing Company bottling works. I was driving a team the day I was hurt. I was returning home on a bicycle at the time. I came straight up Western avenue, going east on the right-hand side. I had a light on the front end of my bicycle. It was shortly after 6 o’clock when I came along there by the Toledo, Saginaw & Muskegon depot. It had been an awful dark, dismal day that day. It had been raining in the afternoon and was cloudy. It was dark that night. It had been raining just a few drops that night, but it wasn’t raining when the accident happened. I should judge it had been dark about half an hour— dark enough so street lamps had to be lit. I was coming along, and just as I got pretty near to the depot of the Toledo, Saginaw & Muskegon, I heard the whir of an engine of an automobile back of me. I turned around and saw a dark shape coming, and I yelled and tried to get out of the way, but it struck me before I could get away from it. I heard no warning or sound of a gong, or anything like that, except the whir of the engine just before it struck. I tried to get out of the way, and I couldn’t. He was on to me too quick. He struck me from behind and turned me over. * * * When I turned around and saw that automobile coming there was no lights there. If there had been a light on that automobile, I would have seen it. There wasn’t a particle of light on it. * * * When we were going out to the hospital- Mr. Haight made the remark a couple of times that he had his rain shield up and couldn’t see a thing. He said he didn’t see me until he struck me. I told him if he had his lights lit he couldn’t help but see me, and he didn’t make any reply to that. I think the automobile ran over me.”

On cross-examination he further said:

“As I came down Western avenue from my work I kept close to the street car track. I should judge that the street car track was about 20 feet from the curb. After I passed the Pere Marquette track I didn’t change my course any to speak of; I couldn’t very well. It is pretty rough there where the street car track crosses the railroad track. At that time I was just going along at an easy gait on a bicycle. The pavement along there is pretty rough in places. You couldn’t very well see the bumps only as you come to them. I kept on that side of the street car track. I might have varied a few feet either way in trying to escape bumps. It had been raining, and there were puddles all over the street. I might have turned a couple of feet either way to get out of the puddles, but I was on the right-hand side of the street car track all the way up. When the accident happened I had crossed the Pere Marquette tracks and had gone on towards the east from that track. The street car track on the east of the Pere Marquette track changes its course a little bit. There is a switch there that commences several feet from the Pere Marquette tracks, and as I was traveling along there I would come in towards the south a little on account of the switch; I don’t think there was any time when I traveled between the rails of the street car track that night. When this accident happened, I was 3 or 4 feet from the rail of the street car track. It was quite dark. I couldn’t see very far. There were street lights all the way up the avenue. There was a street light on the corner by the depot; that would be possibly a third of a block from where I was when the accident happened. The lights were only on the corners.”

It was shown by the assistant city engineer that the westerly end of the switch of the street railway track was about 12 feet east of the Pere Marquette crossing, and that it was 17 feet and 2 inches from the curb on the southerly side of west Western avenue to the first rail of the street railway track.

The defendant’s testimony as to the accident was as follows:

“My place of business is situated about a quarter of a mile from the place of the accident. That evening as_ soon as the whistle blew at the mill I put on my things and went out to my machine. I pressed on the button which threw on the lights so that I could see how to put in my plug in order to start the machine. That switch lighted my pilots and tail light and the lights over my speedometer and clock. I backed out of the shed and came up past Ninth street. There I saw ahead of me on the left a light, and was looking for railroad trains, supposing that light to be the railroad guard there signaling for a train. There was a train due from Chicago that got in about 6 o’clock, and I thought probably that train was coming, so I threw out my clutch, and at the same time I noticed my speedometer, which was in plain sight. I was running at eight miles an hour. My brakes were not brand-new, and so I cut down my power on my throttle and coasted from just the other side of Ninth street up to the Pere Marquette crossing. Just before I reached that crossing I saw a green light almost ahead, but a little to the left of my right of way. It then disappeared and only the one light remained on the left-hand side of the road. Just about as I was crossing the Pere Marquette track I saw a red light. It seemed to be a little bit to the left of where the green light had been, then that disappeared, and the raindrops on my wind shield made the light from Eighth street appear as though there were many white lights there, but as I crossed I saw this light, and I heard the noise of the engine which was blowing off steam or pumping water. I started to put in my clutch, at which time I must have been running slower than when I threw out my clutch and started on up the street. Just at my left fender, back of it, appeared suddenly a green light, and I saw a man go down under my fender. I didn’t know what had happened, but I knew something had happened, so I turned my car and drew up to the curbing, threw out my clutch, and went back to see what was the matter. * * * The automobile is a Henry 40. I think it weighs 3,000 pounds. * * * The lights on my car were not out at any time that night. These pilot lights or small lights usually on the dashboard are on either side. * * * I can see half a block ahead with those lights for anything that is in the way of the line of vision. You can’t see the sides. They are not intended^ to see on the outside. You cannot see on the side with the strong headlights. So far as operating the car is concerned, you can see as well with one as with the other. If Mr. Harnau had been directly in front of my car, I could have seen him. Just before the collision I heard Mr. Harnau call out something, but it was nothing that I could understand any more than, ‘Look out there!’ and was simply as he went down. I knew it was a man and a bicycle. The injury broke my left fender. * * * The front end of my fender was not touched a particle. If I had struck him, it would have struck the front end there, and broken that, instead of breaking it down here. * * * When I saw this man go down under the fender and I ran up to the curb and stopped, I did not apply my brakes. I simply turned my wheel to the right as far as it would go and then brought it up to the curb. I didn’t use my emergency at all; just used my foot brake when I got up there.”

On cross-examination he said:

“I had headlights on the car. Those lights are much brighter than the side lights and they throw a light far ahead of the car in the highway, much farther than the side lights do. I didn’t have those headlights lit that night. The side lights are just ahead of the dashboard. It was a dark night. I had my wind shield up. I had to look through that wind shield. That was the only way that I could look ahead. I was seated on the right side of the car. When I started out from the factory it was raining. The top was up. All the side curtains on the machine were on. The rain and the mist that had accumulated there on the wind shield did not perceptibly obstruct my view. * * * These side lights were electric lights. * * * I saw the tender of the locomotive after I got up there. The tender was towards me. It had no light on it, and I couldn’t see the tender until I crossed the railroad. I was from 20 to 25 feet from the tender before I could see it. * * * I saw a green and a red light. I knew at that time the kind of light they carry on a bicycle. I knew they carried a green and red light. There was no tail light. I couldn’t see anything except the side lights. As the green light came in range of my left pilot light I saw the man and the bicycle and the light all about the same instant, and saw him go down under my fender. My machine was past him before I saw him. I was going straight, right straight up; never changed my wheel at all to speak of. I could see him come into the fender. * * * I claim this man ran into me; that he was headed obliquely towards me and ran into me.
“Q. The back part of that bicycle then, the back wheel, appears to be crushed down, don’t it?
“A. Yes.”

It was charged in plaintiff’s declaration that the defendant drove his automobile at a high, dangerous, and unlawful rate of speed, with a reckless disregard for the safety of others; that he did not keep a proper lookout for persons on the street, nor have his headlights lit, but recklessly disregarded his duty in these respects, and that he “approached this plaintiff from behind,” and “did carelessly and negligently operate and drive said automobile directly upon this plaintiff.”

The injury to plaintiff was severe and painful. There was a compound fracture of both bones of the right leg about halfway between the knee and ankle. The jury awarded him a verdict of $8,000, and the defendant brings the case to this court by writ of error.

1. The first six assignments of error relate to the admission of testimony. One Robert Pearson, a witness produced by the plaintiff, testified as follows:

“I have been an engineer since 1891 on the Pere Marquette road, and am still employed in that capacity. I know Mr. Harnau. On the evening of October 27th I saw him after the accident occurred lying mixed up with his bicycle on the pavement on Western avenue near the Pere Marquette tracks, about 20 or 30 feet east of it; that is, near the Toledo, Saginaw & Muskegon depot. It was on the south side of the street car track. I gbt a glimpse of the automobile that evening before he was struck by it. I noticed the speed at which the automobile was going. I am accustomed to taking speed of trains and other moving objects. I have some knowledge of those things. I have got to have.
“Q. Now, tell us, in your opinion, at what speed that automobile was going?
“Mr. Foote: Just a minute. I object to that. The witness hasn’t shown himself competent to answer it.
“The Court: I will take his opinion anyway.
“Mr. Foote: Exception.
“A. Well, sir, the speed when he shot by the tank the way the machine was, his engine was running, it appeared to me that it was going about 30 miles an hour, but the automobile was going about 20. When I noticed this speed we were standing just north of the street car crossing, just to clear, so that a car could pass us. We were standing on the north side of the street. We were about 20 feet from the automobile and about 25 feet from where Mr. Harnau lay. I couldn’t see him when he was struck. It was dark. * * * I couldn’t see any lights on the automobile. There was nothing to obstruct my view from where I was.”

On cross-examination he said:

“I was on the engine the night when this accident happened. * * * The first time I saw the automobile was when it shot from behind the tank. I did not see it as it approached the tank at all. But just as it shot by from behind the tank — right when it was directly opposite the tank on the engine — I saw it.
“Q. And it didn’t go over 10 feet before Mr. Harnau came in contact with it — 10 or 15 feet?
“A. Well, it was about 20.
“Q. Then, your estimate of the rate of speed that car was going was based upon what you saw it doing there at 20 feet; is that right ?
“A. I based my theory on the rate of speed that automobile was going when it shot from behind the tank until I heard the explosion of the tire.
“Q. You didn’t see any lights on this automobile?
“A. No, sir.
“Q. How far could you see from the cab that night?
“A. Well, I should judge that I could see about 30 feet.”

On redirect examination:

“Q. You said something about determining something by the noise of the engine. What did you mean by that ? What did you say about this engine.
“A. Why, from the exhaust of the engine I thought he was going about 30 miles an hour.
“Mr. Cross: I move to strike out what the witness thought, on the ground that he hasn’t shown any competency to judge the rate of speed from the throb of a gasoline engine. * * *
“The Court: I am going to let it stand.
“Mr. Cross: Exception.”

The testimony of Mr. Pearson about the speed of the engine as indicated by the exhaust was immaterial and incompetent. It is a well-known fact that the speed of the motor has no relation to the speed of the car if the clutch is out, and this was afterwards fully explained in the testimony of the defendant. But the principal reason why the speed shown by the exhaust of the engine was immaterial was because the witness himself did not use it to determine the speed of the car; in fact, he made it clear that the speed of the engine did not indicate the speed of the car, inasmuch as he testified that the car was going about 20 miles an hour, while the exhaust of the engine would indicate a speed of 30 miles an hour. But this testimony as to the speed indicated by the exhaust was undoubtedly made harmless by the witness’ own explanation.

But the testimony of the witness as to what he believed to be the actual speed of the car presents a question of greater difficulty. There is no doubt about Mr. Pearson’s competency to judge speed, but his opportunity to exercise such judgment in this case was very limited. He saw the automobile move through a space of only about 20 feet, “after it shot from behind the tank,” to use his own words, and before the collision with plaintiff. He had no intimation that the automobile was approaching until it came into view from behind the tank, and the night was dark. In Wright v. Crane, 142 Mich. 508 (106 N. W. 71), the testimony of a witness was held incompetent who attempted to judge of the speed of an automobile from what he saw of it when passing over a space of 20 feet. But in that case the automobile was coming directly towards the witness, and the witness himself was not shown to have had any extraordinary knowledge of the speed of moving objects. In the instant case the witness was a railroad engineer of long experience. The court must take notice of the fact that it was part of his business to estimate speed by observation of objects which he was passing while in his engine, both by day and night. He must furthermore be given credit for some knowledge of his own ability in this respect, and he professed to be able to give an opinion in this case. We think the court was not in error in receiving his opinion 'as to the speed of the car. Such testimony should not be rejected unless it is clearly apparent that it can be of no value to the jury. Its weight is, of course, to be determined entirely by them. Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 99; Guggenheim v. Railway Co., 66 Mich. 150 (33 N. W. 161); Line v. Railway Co., 143 Mich. 163 (106 N. W. 719).

The witness Hazen Wilder was permitted to testify, on rebuttal, that he saw no lights on defendant’s automobile. This testimony more properly belonged to plaintiff’s main case, but the propriety of receiving it on rebuttal was discretionary with the court. Kozlowski v. Railway, 174 Mich. 412 (140 N. W. 459).

2. Error is assigned upon a ruling of the trial court excluding an ordinance of the city of Muskegon offered in evidence by counsel for the defendant. The particular provision of the ordinance which counsel wished to place before the jury reads as follows:

“Vehicles moving slowly shall keep as close as possible to the curb on the right, allowing more swiftly moving vehicles free passage to their left.”

The ordinance was offered for the purpose of showing that the plaintiff, who was close to the street car tracks, and nearer to the center of the street than to the curb, was guilty of contributory negligence. The court excluded the ordinance as immaterial.

There are but two theories advanced as to the way in which the accident happened. If plaintiff’s theory is true, the defendant, driving his automobile unlighted and at a high rate of speed, overtook the plaintiff and ran him down. If such was the case, the defendant was guilty of the most reckless conduct. Whether the plaintiff was guilty of contributory negligence or not in being near the center of the street, and in front of the car, such negligence could not have been a proximate cause of the accident. He was where the defendant, exercising any reasonable degree of care, should have seen him. The darkness of the night would have been no excuse whatever. If the plaintiff had come suddenly in front of the car, it would have been another thing, but that is not claimed by any one. According to his theory, he was riding along in the direction the car was taking and directly in its path. And the driver of an automobile cannot excuse himself for running down a man under such circumstances. He is required by law to have such lights as will show objects immediately in front of him, and he must have his machine under such control as not to overtake and run down people within the scope of his lights.

“The contributory negligence of the plaintiff does not prevent recovery in a case where the defendant, who knows, or ought by the exercise of the most ordinary care to know, of the precedent negligence of the plaintiff, by his subsequent negligence does plaintiff an injury.” Richter v. Harper, 95 Mich. 221, 225 (54 N. W. 768, 769).

The only other theory of the accident'is that given by the defendant, who says that he did have lights upon his car sufficient to show him the ground in front of it for the distance of half a block; and he insists that the plaintiff was not riding in front of his car, but at one side, and turned as defendant came by and ran into defendant’s car. If this version of the affair is true, then the defendant is not liable in this action. Plaintiff admits that he heard the automobile coming, and, if he turned and ran into it, he offered no excuse on the trial for doing so.

Hence in either case the ordinance was immaterial, and the court committed no error in excluding it. If defendant recklessly ran plaintiff down, as charged by plaintiff, contributory negligence was no defense. If plaintiff himself ran into defendant’s car, he has advanced no theory by which he should be entitled to recover.

3. At the close of the trial, when the judge had finished his charge to the jury, he asked counsel:

“Is there anything I have overlooked?”

In reply counsel for the defendant said:

“If the court please, there is one claim of the defendant that I don’t think you have specifically covered in your charge to the jury and upon which I ask your honor to charge them. It is claimed here by the defendant that at the place where the accident happened was a street car curve, and that Mr. Harnau, either in getting out between the two street car tracks or in attempting to keep outside of the street car tracks where the turn is made, turned his bicycle towards the south, and therefore was not going in a line along the street, and that in so doing, as the automobile of the defendant was along the side of him, the plaintiff, Mr.- Harnau, collided with the automobile by the bicycle being caught under the fenders of the car. I ask the court to charge the jury that, if it happened in that way, the defendant would not be liable for the accident; and, secondly, that they would have a right to consider that claim in considering this whole controversy.”

In reply to this suggestion of counsel, the court said:

“I have charged you, gentlemen, all I am going to charge you. I charged you fully on the law of this case, gentlemen. You will take the case as I have given it to you.”

Upon looking into the charge of the court, which is otherwise very full and complete, we cannot find that this theory of the defendant as to the cause of the accident was mentioned at all. As we have said, there were but two theories of the way in which it happened, the plaintiff’s, and this of the defendant. The court had very fully stated the plaintiff’s theory, and we think that, upon having his attention called to it, he should have explained to the jury the defendant’s claim also. If, instead of being run down, the plaintiff himself ran into defendant’s car, the latter would not be liable. In such event it was not claimed by any evidence, at the trial that the accident resulted from the negligence of the defendant. It is true that the defendant’s request was not in writing, but the court had asked counsel to mention anything omitted from his charge, and under the circumstances time should have been given counsel to present a written request if that was desired. And the language in which the request was refused could not have been otherwise than detrimental to the defendant.

For this error, the judgment is reversed, and a new trial granted.

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


text:
    PEOPLE v. LUMLEY.
    1. Intoxicating Liquors — Criminal Law — Minors — Unlawful Sale.
    Where respondent owned a building that was occupied by him in his business, being the headquarters oí a fishing club, whose members kept liquor stored upon the premises and drank there, and beer was shipped to his place in cases with the owner’s name attached, and where the practice in purchasing the liquor was to have the owner sign an order for the beer, and the respondent placed the order with the wholesaler, who held him responsible for the price, and in supplying club members with the liquor it was obtained by means of a service card on which a record of the liquor supplied was kept by a series of punches, respondent controlling and delivering the beer as wanted, he was guilty of furnishing liquor to a female minor who came to the club quarters with a member and two companions, to whom respondent brought in four bottles of beer and glasses for each person, and where all four were present in the parlor, when he brought in the beer, and it was charged or punched on the service card of the member; under the statute (Act No. 160, Pub. Acts 1909) the fact that the club member owned the beer was no excuse.

      2. Same — Joint Offense.
    That the club member was also guilty did not relieve the respondent from responsibility: there may be a joint furnishing of the liquor.
    3. Same.
    Under section 2, Act No. 160, Pub. Acts 1909, intent is not made an ingredient of the offense and ignorance of the fact that the female was a minor did not constitute a defense. It was his duty to see to it that there were no minors in the party before furnishing them with liquor.
    Exceptions before sentence from Jackson; Parkinson, J.
    Submitted October 28, 1915.
    (Docket No. 105.)
    Decided December 22, 1915.
    George H. Lumley was convicted of furnishing intoxicating liquor to a minor.
    Exceptions overruled.

      Nathan E. Bailey, Prosecuting Attorney, and M. Grove Hatch, Assistant Prosecuting Attorney, for the people.

      John F. Henigan, for respondent.
   Person, J.

Respondent was convicted, under Act No. 160, Pub. Acts 1909, of furnishing beer to one Grace Bassett, as a beverage. The second section of the act reads as follows:

“Sec. 2. It shall not be lawful for any person to sell, furnish, or give to any minor as a beverage any brewed, malt, fermented, spirituous, vinous or intoxicating liquor or any mixture containing any of said liquors.”

Upon the trial the respondent testified that a building which he owned, and in which he did business, in the village of Michigan Center, in Jackson county, was the headquarters of a certain club known as the Lake-view Fishing Club. It was, he said, the practice of such members of the club as. wished to do so to keep liquor stored upon the premises and to drink it there. The beer came to his place in cases with the owner’s name attached, and each case* held 24 pints of beer. The price of such a case of beer to the wholesaler was $1. Sometimes, and perhaps usually, the member signed an order for the beer, and respondent placed the order with the wholesaler, and was held responsible by the latter for the price of the case. The beer so ordered was kept by the respondent in a room used for that purpose. Whenever a member wished any of the beer in the case with his name attached to it, he would purchase of respondent what was called a stock or service card, upon which were 24 places to be punched. For this card he would pay respondent $1. If the member had himself paid the wholesaler for the beer, respondent would punch 1 place for each pint ordered, the respondent keeping the money paid for the card as a remuneration for his services. If the member had not made payment to the wholesaler, respondent would punch 2 places for each pint of beer, to the effect that the card would be used up when the member had received 12 pints (in one place he says 10 pints), and he would have to purchase another card to get the remainder. In this way respondent would get enough money for each case to pay the wholesaler, and to make compensation to himself for his services. Respondent said that the beer remained under his control, and that if a member—

“wanted to get beer in the regular way by the use of the card, he would have to get it from me or my assistant.”

In this behalf he also further testified:

“I had the beer there under my control, but he [the member] couldn’t have got any beer until he laid down a dollar to me, or, rather until he got a stock or service card and paid for the beer as he got it. He would have to pay me for it.”

Respondent also testified that on the day in question a member of the club by the name of Ozier came to his place, with a party consisting of three other persons. It is conceded that the persons constituting the party were a Mr. Maloney, Grace Bassett, and her sister, all under the age of 21 years. Ozier and this party went into the room called the parlor, and it is respondent’s testimony:

“He [Ozier] came into the kitchen, the adjoining room, and called to me, and said he had a party there and he wanted to get four bottles of his beer. He purchased a stock card. I punched out for the four bottles. Mr. Ozier then left and went into the adjoining room, and later on I took in the four bottles on a tray and left them on the table.”

Respondent punched 8 places in the card because Ozier had not paid the wholesaler. Respondent further testified:

“I took glasses with the beer, four of them. The bottles were opened and had a tin stopper with a cork. * :|: * I put the four glasses and four bottles on the table.”

He further says:

“I didn’t take particular attention where the girls were or who they were. They might have been sitting around the table, or they might not. I didn’t take any particular attention. * * * I just walked in — just as long as placing the tray on the table and walking out. I didn’t have any conversation with the parties in there at all. I did not know Maloney, nor either one of the Bassett girls. I had never seen either one of the girls before that I know of.”

He further says that Maloney came out into an adjoining room and ordered some sandwiches, and that respondent took the sandwiches into the parlor some 10 minutes after he had taken in the beer, and that then each one of the party had a glass and was drinking. The fact that the girls were in the parlor when respondent took the beer in is not questioned. And it is conceded on the record that Grace Bassett was at the time a minor.

The circuit judge, in his charge to the jury, after reviewing the facts, said to them:

“Assuming this was a club and in that respect legal for the purposes of this case, yet it being designed for the purpose that it was actually accomplishing, a storehouse for the liquor or goods of members, the proprietor should see to it, in my judgment, that parties who cannot lawfully be furnished with intoxicants should not be permitted to be so furnished on his premises.”

And he closed his instructions as follows:

“So, gentlemen, I say to you that on the undisputed evidence in this case, that which the defendant concedes and what he has stated on the stand, in my judgment, under the law you ought to find the defendant guilty as charged in the information in this case. I cannot say to you that you must do it, or that you should render a verdict without leaving your seats, because the jury is the judge of the evidence. I see no way, however, how you can avoid complying with the opinion I have expressed as to the law, unless you are able to say you cannot believe Mr. Lumley’s concessions and admissions as to what he did, and how you can do that I don’t know. Maybe you can. So you may retire and consider of your verdict which, in my judgment, should be a verdict of guilty.”

Thereupon, after retiring to their room and considering the matter, the jury rendered a verdict in accordance with the opinion of the circuit judge.

In his brief filed with this court, counsel for respondent says:

“The single point in the case is whether or not, under this statute, Lumley, who delivered the beer in the room where Ozier and the others were, violated this section 2 of Act No. 160 by failing to see to it ‘that parties who cannot lawfully be furnished with intoxicants should not be permitted to be so furnished on his premises.”

And counsel’s contentions in the argument are very well summed up in his propositions:

“That if the jury found that all Lumley did was to deliver Ozier’s own beer to Ozier, Lumley would not be guilty,” and “that in order to make Lumley guilty he must have done something or had some knowledge or understanding that Ozier intended to deliver the beer to the minor to be drunk as a beverage.”

We think that the respondent was unquestionably guilty of the offense charged, under his own admissions. Including Ozier, there were four persons in the party to be supplied with liquor, and respondent intended to supply each one of the four, because he took in not only four bottles but also four glasses. V/hether he knew Grace Bassett or not, he produced the liquor, expecting that she would take part in drinking it, inasmuch as he supplied her with a glass for that pur-' pose. He intended to supply liquor to the identical person charged in that behalf in the information, and that person is conceded to have been a minor.

It was not material whether Ozier was the technical owner of the beer or not, and we do not pass upon that question. The respondent says that his own possession of it was such that Ozier could get it, in the regular way, only through himself or his assistant, and could not get it at all except by purchasing from him a stock or service card. The liquor was as much furnished to the minor by the respondent in this case as it would have been by a saloon keeper had the latter set it before her at the request of some third party who paid for it. And that a saloon keeper would be guilty of “furnishing,” under such circumstances, has been fully determined by this court. People v. Neumann, 85 Mich. 98 (48 N. W. 290). That Ozier was also guilty did not exonerate respondent; there could well be a joint furnishing of the liquor.

Inasmuch as the respondent intended to furnish liquor to the entire party, which included Grace Bassett, it was not an essential part of the offense that he should have known at the time that she was a minor. He does not claim to have been a dealer under the general law regulating the liquor traffic, nor that his house was a place where intoxicating liquors were sold or kept for sale. His offense comes, therefore, within the second section of Act No. 160, Pub. Acts 1909, and intent is not made an ingredient of the offense under that section. People v. Averill, 179 Mich. 224 (146 N. W. 189). And while the court’s instruction that “the proprietor should see to it, in my judgment, that parties who cannot lawfully be furnished with intoxicants should not be permitted to be so furnished on his premises” may have been too broad for universal application, yet it was respondent’s duty, under the circumstances of this case, to assure himself that there were no minors among the party before furnishing them with liquor.

The exceptions are overruled, and a court below is advised to proceed to judgment.

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


text:
    DUGAS v. MUNISING, M. & S. E. RAILWAY CO.
    1. Railroads — Negligence — Crossings — Cattle Guards — Contributory Negligence.
    Where plaintiff, returning home from a village in Marquette county on a dark and stormy night in winter, because of a heavy fall of snow, was not able to guide the horses, but permitted his team to have their heads and follow the road by instinct, and, at a point in the highway at which defendant railroad crossed it diagonally, the team diverged from the road, following the track for some distance, when they encountered and were struck by a train, he was guilty of contributory negligence, barring a recovery for the personal injuries which he sustained; defendant’s negligence in failing to have statutory safeguards and fence at the crossing was not a sufficient reason for permitting plaintiff to recover.
    2. Same — Duty to Look and Listen.
    One should exercise as much caution about remaining upon a railroad track as in going on it, and upon plaintiff’s testimony that he looked for a train on arriving at the crossing but did not thereafter ascertain whether or not he had crossed, the trial court was right in directing a verdict for defendant.
    Error to Marquette; Flannigan, J.
    Submitted October 21, 1915.
    (Docket No. 39.)
    Decided December 22, 1915.
    Case by Peter Dugas against the Munising, Marquette & Southeastern Railway company for personal injuries and damages to team and sleigh. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Joseph H. Primean, Jr., and Le Gendre & Driscoll, for appellant.

      William, P. Belden and Thomas Clancey, for appellee.
   Person, J.

The plaintiff brings this action to recover damages which he claims were caused by certain acts of negligence on the part of the defendant railway company, and without any contributing negligence upon his part. The case was disposed of in the court below upon the latter part of the proposition, and consideration of the matter in this court will be confined to that phase of the case.

The plaintiff, on the 13th day of January, 1912, was returning from a village in* Marquette county, called New Swanzy, to his home about eight miles distant. The road which he was traveling ran easterly from the village, on the northerly side of the railroad track for about half a mile, when it turned and crossed the track at something less than a right angle, then continued its course easterly on the south side of the railroad and in very close proximity to it. In some places the highway was not more than 6 or 8 feet from the track and in other places it got away from it as much as 25 feet. There were from 6 inches to 18 inches of snow upon the ground — the witnesses differing as to this — and the plaintiff was driving a span of horses hitched to a sleigh.

It was about 8 o’clock in the evening when he left New Swanzy, the night was dark and cold, and the snow was blowing and drifting to a considerable extent. Plaintiff sat upon the bottom of his sleigh, well wrapped up to protect him from the cold, and holding the lines in his hands. He says that he knew when he reached the railroad crossing and looked to see if any train was approaching. He was, however, letting his horses have pretty much their own way in following the road, thinking, as he says, it was safer, in the dark, to trust to their intelligence than to attempt to guide them. The railroad right of way was entirely unfenced and without cattle guards or wing fences approaching the guards, and this was well known to plaintiff. The failure to construct fences and cattle guards is. the principal negligence charged against the defendant. When plaintiff’s horses reached the railroad track they did not, as he says he supposed they would, follow the highway across the track, but, on the contrary, turned directly upon the railroad track, and continued in an easterly direction between the rails. Plaintiff, sitting on the bottom of the sleigh, did not observe the course his horses were taking, but supposed all of the time that they were still following the highway, which, as has been stated, ran very closely along the south side of the railroad track. When he had-proceeded about a mile between the rails, he noticed the headlight of a train approaching him from the east, but, still thinking that he was in the highway, he continued to watch the approaching headlight, and had got about 50 feet into a cut, which was some 4 feet deep, when the engine struck the horses, killing them both, and throwing the plaintiff upon the ground outside of the track, with a broken leg and other injuries. .

The circuit judge instructed the jury that the plaintiff could not recover damages for any injury that he had received to his person; but, by consent of counsel for the railroad company, he was allowed damages for the loss of his horses and the injury to his sleigh and harness. Damages for injury to his property is not in question here, and the controversy turns upon the correctness of the court’s instruction that the plaintiff cannot recover for the injuries to his person, because of his own contributory negligence. This is not an instance where the absence of railroad fences and cattle guards misled the plaintiff as to the location of the railroad tracks. He • knew when he was approaching the crossing, and looked, he says, to see if a train was coming from either way. It was as much his duty to have assured himself that he was over the crossing, as it was to assure himself that he might safely go upon it. One should exercise as much caution about remaining upon a railroad track as in going upon it. In this case, however, the plaintiff took no care to see that he had gotten off the track, but left ( that matter entirely to the knowledge or instinct of his horses, which he was not justified in doing.

The other charges of negligence, averred in the declaration, and mentioned by counsel in their brief, do • not seem to be supported by evidence.

The judgment is affirmed.

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


author: Brooke, C, J.

text:
    SHUMWAY v. MASON.
    Escrows — Deiivery—Evidence—Deeds—Intent.
    Though a deed may be delivered so as to become a valid conveyance by depositing it in escrow with a third party, evidence not showing a completed delivery by the decedent grantor, to the third person, with the intent to leave it for the benefit of the grantee, merely having a tendency to show that it was among the papers of the third person, a brother of the grantor and grantee, held, insufficient to establish a valid conveyance.
    Appeal from Lenawee; Chandler, J.
    Submitted October 27, 1915.
    (Docket No. 68.)
    Decided December 22, 1915.
    Bill by Francis R. Shumway and others against Almira Mason and others for partition. From a decree for complainants, defendants appeal.
    Modified and affirmed.

      Herbert B. Clark and Henry I. Bourns, for complainants.

      J. N. Sampson, Burton L. Hart, Earl C. Miehener, and Leland F. Bean. for defendants.
   Brooke, C, J.

The bill of complaint in this cause is filed for the partition of certain lands in the township of Madison, formerly the property of one Levi Shumway, who died August 3, 1834. The lands having been partitioned into narrow strips of about 17 acres each among his children, two of them, Abigail Shumway and Clarissa Shumway Cole, purchased the shares of the other heirs, and thereafter lived together upon the farm until the death of Abigail Shumway in 1907. Clarissa Shumway Cole, after the death of Abigail, continued to live upon the premises until she died in April, 1911. After the death of Clarissa, the administrators of the estates of the two sisters divided the income from the premises equally, the same as the sisters had done in their lifetime. Upon the trial complainant offered in evidence a quitclaim deed from Clarissa Cole to Abigail Shumway, dated November 29, 1892, and recorded May 28, 1912, more than a year after the death of Clarissa. It is conceded by all parties to the litigation that the land in question cannot be partitioned, but that it should be sold and the proceeds divided among complainants and defendants as their several interests may appear. The only question involved in the case hinges upon the delivery of the deed from Clarissa to Abigail. If said deed was properly executed and delivered, and is to be considered as a valid instrument conveying title, then the complainants in the case take a larger proportionate share of the common property than they will take if it be held that the said deed never became operative. The facts in the case illuminative of the question involved seem to be the following:

These two old ladies apparently entertaining a strong affection for each other, lived together upon the farm in question for a great many years. While one of them owned a greater area of land in the farm than the other, buildings upon that portion owned by the latter seem to have made their several holdings about equal in value. It is clear from the record that so long as both of them lived they divided equally the proceeds derived from the farm. An impression prevailed among their friends and relatives, gathered from frequent conversations with one or the other of the sisters, that it was the intention of both that the survivor of them should take what'belonged to the one who died first. No direct and clear evidence is contained in the record as to how this arrangement was to be carried out, or whether in fact papers had been drawn to effect it. In 1907 Abigail died. She left a last will, by the terms of which she bequeathed her personal property to Clarissa, and she likewise gave to Clarissa a life interest in her real estate. Clarissa at that time handed to the judge of probate Abigail’s will and likewise a quitclaim deed from Abigail to her, which upon examination by the judge of probate was found to convey to Clarissa a life estate only in the real estate owned by Abigail. The judge of probate advised Clarissa to pay no attention to the deed as she took under the will as large an estate as under the deed. There is evidence in the record to the effect that upon being advised by the probate judge of the character of the estate conveyed to her, in the deed from Abigail to her, Clarissa said, “I gave Abbie a good deed.” After Abigail’s death, Clarissa continued to occupy the farm, receiving the entire income therefrom up to the date of her own death in 1911, and thereafter the administrators of the several esta/tes of the two sisters continued to divide the income from said farm equally between the two estates. The fact that the deed in question existed appears to have been unknown to any person living for more than a year after the death of Clarissa. It was then discovered by complainant Francis R. Shumway, who was a nephew of Clarissa and Abigail. It was found among the papers of Nathan Shumway, a brother of the two old ladies. The evidence indicates that Nathan Shumway sometimes drew instruments of a legal character, and that while he lived he advised with and drew papers for both Clarissa and Abigail. His relations with one appear to have been as close as with the other. The deed was drawn by him and was witnessed by him. It was dated in 1892, and was kept by him until his death in 1899, and continued to lie in his safe until 1912. There is nothing in the record to indicate that Nathan Shumway held the deed as agent for his sister Abigail rather than as agent for his sister Clarissa, nor is there anything to show that at the time it was left in his possession it was delivered to him by Clarissa with the then present intention on her part to relinquish control over the same. The learned circuit judge who heard the case determined that the evidence supported a finding that the deed was delivered. Counsel for complainant assert that this finding is justified for two reasons:

(1) Because it is recited in the deed that it was signed, sealed, and delivered in the presence of two witnesses. This, counsel urge, is some evidence of delivery, citing Dennis v. Dennis, 119 Mich. 380 (78 N. W. 333).
(2) They point to the remark made by Clarissa in the probate court, upon being advised of the character of Abigail’s deed to her, to the effect that, “I gave Abbie a good deed;”

From this statement they argue that Clarissa then intended to convey the idea that she had executed and delivered a deed of her interest in the farm to her sister Abigail and that she had relinquished all control over the same.

There is no doubt about the rule urged on behalf of complainant that a delivery of a deed to a third person for the benefit of the grantee, in the, absence of anything conveying a different intention, is as much a delivery as if made to the grantee himself. Hosley v. Holmes, 27 Mich. 416; Cooper v. Cooper, 162 Mich. 304 (127 N. W. 266). The assertion of this principle, however, does not aid complainant, because there is absolute lack of evidence tending to show that Clarissa delivered the deed to Nathan Shumway for the benefit of Abigail, the grantee therein named. We are unable to attach to the statement alleged to have been made by Clarissa in the probate court the weight and importance which it possesses in the opinion of counsel for complainant. The statement may have been made by Clarissa to indicate simply that the deed in question had been made and executed, but it does not necessarily carry the meaning that it had been delivered. In the case of Devaney v. Koyne, 54 Mich. 116 (19 N. W. 772), it was said:

“There is testimony which seems credible, that defendant frequently spoke of having conveyed to Mary; but it is quite possible that in doing so she merely referred to the execution of this deed, which was no secret. * * * The complainant has the burden of proof, and we are not satisfied it preponderates for her. While there is strong testimony in her behalf, there is also very strong testimony that defendant, at any rate, never supposed she had put the property beyond her control.”

In the case at bar we think it may well be said that the circumstances strongly indicate that Clarissa never understood to the day of her death that she had parted with the legal title to her interest in the farm. She lived on the farm for 15 years after the execution' of the deed, with her sister, with whom she divided equally the income thereof, and after her sister’s death she possessed it all; that part which had belonged to her sister being held by her under the life estate created by the last will of her sister. It is significant that, at the time an inventory of the estate of Abigail was prepared by those responsible for the same, they, after a conversation with Clarissa, did not include Clarissa’s portion of the farm in the inventory of Abigail’s estate. It may be said that they did not do so because of their ignorance of the existence of the deed from Clarissa to Abigail, and this would be persuasive if it were not for the fact that Clarissa, from whom they obtained their information, certainly knew of the deed and knew whether or not she had delivered it to Nathan Shumway with the purpose of relinquishing all control over it.

After a careful consideration of all the testimony in this record, and assuming that the deed in question was genuine and properly executed (of which we have no doubt), we are unable to say that there is such evidence of delivery as to warrant a judicial finding to that effect, in view of the situation of the parties and all the circumstances disclosed by the testimony.

The decree of the court below ordering a sale and partition of the property is affirmed. That portion of the decree fixing the proportionate* shares to which the parties are entitled is reversed, and a decree will be entered in this court fixing said proportions as if the deed in question had never been made, with costs of both courts to appellants.

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