text:
    PEOPLE v. MULLIS.
    1. Receiving Stolen Goods — Criminal ' Law — Instructions —■ Trial.
    In a prosecution for receiving stolen property, an instruction by the court that the place “where the offense was committed” was not in dispute, was not prejudicial error because he failed to use the word “alleged” before the word “offense.”
    2. Same — Question oe Law.
    Undisputed testimony of a witness that he stole1 the goods defendant was charged with receiving, justified the trial court in instructing the jury that there was no dispute that they were stolen.
    3. Same.
    Defendant having testified that the stolen goods were worth over $25, and there being no testimony to the contrary, the court was not in error in instructing the jury that it was admitted that the value was over $25.
    4. Same — Guilty Knowledge.
    On the question of guilty knowledge of defendant, the court was not in error in charging the jury that “His possession must- be regarded as innocent, unless shown to have been received with knowledge that they were stolen, or under circumstances which would satisfy the jury that he believed them to be stolen.”
    Error to superior court of Grand Rapids; Brown, J., presiding.
    Submitted January 17, 1918.
    (Docket No. 191.)
    Decided March 27, 1918.
    Sam Mullís was convicted of receiving stolen goods and -sentenced to imprisonment for not less than six months nor more than five years in the State reformatory at Ionia.
    Affirmed.

      Merman & Johnson, for appellant.

      Cornelius Hoffius, Prosecuting Attorney, and Fred P. Geib, Assistant Prosecuting Attorney, for the people.
   Kuhn, J.

The respondent was convicted on an information which charged that he did, on the 21st day of February, 1917, in the city of Grand Rapids, receive eight automobile tires, of the value of $108, which had previously been stolen, and that he well knew at the time that the goods had been stolen. One Miller Burleigh had previously pleaded guilty to the larceny of the tires which he had sold to the respondent, and appeared as a witness for the people in this case. Sentence was pronounced.

The questions raised by the assignments of error relate entirely to the charge of the court, and, in general, it is the claim of the respondent that the charge of the court was so prejudicial to the rights of the respondent that he did not have a fair trial, and that, therefore, his conviction should be set aside and a new trial granted.

Counsel for the respondent state their position as follows:

“By the various assignments of error in this case we have sought to point out various specific instances wherein the court erred. While any one of the assignments, considered alone, might not be of sufficient importance to warrant the vacating of the verdict, still we are fully convinced that all of them, considered as a whole, will bring this court to an irresistible conclusion that this respondent was denied a fair and impartial trial.”

The court, at the beginning of its charge, said:

“The elements which constitute this offense are, first: You establish the place where the offense was committed. That was in the city of Grand Rapids and is not disputed.”

It is claimed that this was grievous and prejudicial error on the part of the court, in that the court failed to use the word “alleged” before the word “offense,” and that in effect the court, in its opinion, was stating to the jury that the crime had been committed. However, a reading of the excerpt clearly shows that the court was referring to the place of the crime as one of the elements necessary to be proven, and stated that this was undisputed. As it clearly appears from the record that there was no dispute that the crime, if committed, took place in Grand Rapids, we see no prejevidence showed beyond a reasonable doubt that the the court.

Again the court said:

“The tires in question were stolen. Under the testimony in this case and under the admission of counsel, there is no dispute about that, that these tires we.re stolen by Burleigh.”

It is the contention of counsel for appellant that the court should have left it to the jury to find whether the udicial harm to the respondent in the language of tires were stolen. That they were stolen is shown by Burleigh, the man who pleaded guilty to the larceny,, and no contention was made by the respondent, or any witness, that this was not the fact. It being an undisputed fact, we do not see how it can be said to be reversible error for the court to have so instructed the jury.

The court further said:

“That they were of the value.of over twenty-five dollars. That is also admitted by the defense in this case. Ordinarily as to whether or not the value is over twenty-five dollars, or twenty-five dollars or less, becomes an important issue in a case, but in this case the tires are admitted to be of the value of over twenty-five dollars at the time, so there is no disputé about that ”

Again the record is very clear, according to the undisputed evidence, that the tires were worth over $25. No testimony is referred to by counsel for' appellant to justify the claim that there was any evidence that the value of the tires was $25, or less than that amount. In fact, the respondent himself testified that they were worth over $25. We are therefore of the opinion that there was no prejudicial error in charging the jury as the court did with reference to the value of the tires.

The court,‘after stating the elements of the offense, limited the issue to the single question of guilty knowledge, and the court proceeded to explain what established guilty knowledge, as follows:

“So there may be some question in your minds as to what establishes knowledge. When can you be said to know a thing, and when don’t you know it? That is a matter that receives a great deal of attention, but in this case of Durant v. People, 13 Mich. 353, I think is a definition that I have just read: ‘Her possession must be regarded as innocent, unless shown to have been received with knowledge that they were stolen, or under circumstances which would satisfy the jury that she believed them to be . stolen/ ”

We see no error in this, as the court followed the language in the case referred to, which decision justified the use of the language criticized by respondent’s counsel.

A reading of the charge shows that the court fully explained to the jury the necessity of the people proving their claim beyond a reasonable doubt, the presumption of innocence, that the burden of proof rested upon the people and continued upon the people throughout the trial, that the jury were at liberty to disregard the testimony of any witness that had sworn falsely upon any material fact, and that the jury were the sole judges of the evidence.

The respondent had a fair trial, and none of the assignments of error satisfies us that prejudicial error was committed by the court in his charge submitting the case to the jury. The conviction and judgment of the court must therefore be affirmed.

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


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    DIER v. VOORHEES.
    Negligence — Automobiles • — ■ Conteibutoky Negligence — Death Act — Question eob Juey.
    In an action under the death act for the negligent killing of plaintiff’s decedent hy collision with a runaway horse frightened by collision with defendant’s automobile, where the evidence shows that decedent was riding north, on a bicycle, on .the east side of the street, and, because of a head wind, was riding with his head down and failed to see the horse coming, he was not, as a matter of law, guilty of contributory negligence.
    Error to Ingham; Wiest, J.
    Submitted January 8, 1918.
    (Docket No. 4.)
    Decided March 27, 1918.
    Case by Augusta Dier, administratrix of the estate of Rudolph Dier, deceased, against J. Martin Voorhees for the negligent killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Person, Thomas, Shields & Silsbee, for appellant.

      W. F. Steinkohl (Walter I. McKenzie and Cummins & Nichols, of counsel), for appellee.
   Kuhn, J.

On March 2, 1915, one Frank H. Green was driving a covered laundry wagon, drawn by one horse, in an easterly direction along Main street west, in the city of Lansing, and when about 200 feet west of the corner of Main street and Washington avenue, his wagon was struck by an automobile, driven by the defendant, J. Martin Voorhees, who had come up behind the laundry wagon and was attempting to pass it, going in the same direction on Main street. The collision dished a wheel of the wagon, broke the thills, otherwise damaged it, and moreover frightened the horse, which, ran away and, at the intersection of Main street and Washington avenue, turned south on the latter street, along which it ran for about four blocks with the wagon still attached, when the driver, Green, was thrown from the wagon, the horse became detached therefrom, and, continuing south on Washington avenue, at a point not far from the intersection of South street, ran into plaintiffs intestate, Rudolph Dier, who was riding a bicycle north along the easterly side of Washington avenue. By this collision Mr. Dier was thrown from his bicycle and instantly killed.

The testimony showed that the horse, after turning onto Washington avenue, kept to the westerly side of the street until he reached a point five or six rods north of South street, where he swerved and crossed the street at quite a sharp angle, and then proceeded south on the easterly side a short distance before the collision, which occurred about ten feet north of the crosswalk of South street. The accident happened a few minutes after 11:30 a. m., while the employees of the Reo factory were coming north on Washington avenue on their way home for the noon hour, many of them on bicycles. Mr. Dier was near the head of the crowd, however, and the testimony was to the effect that there was nothing to shut the horse from his view from the time it was six rods north of South street on the other side till it ran into him. It was a windy day. Mr. Dier had his head down, appeared to be looking down; but two of the witnesses thought he saw the horse a few seconds before it struck him and tried to turn his bicycle toward the curb. While there was some noise on the street, one witness testified that, when he was crossing South street on the east side of Washington avenue, his attention was attracted to the horse, then about seven or eight rods north of South street, on the other side of Washington, by the clatter of its hoofs.

Plaintiff brought suit, under the death act, against Frank H. Green and J. Martin Voorhees, but, on the trial, proceedings were not pressed as to defendant Green. Some testimony was introduced on behalf of defendant Voorhees, and at the conclusion of the trial he moved the court to direct a verdict in his favor on the ground of contributory negligence on the part' of plaintiff’s intestate. This the court refused to do, and a verdict was rendered in favor of plaintiff for $2,500, whereupon defendant asked the court to enter judgment in his favor notwithstanding the verdict, under Act No. 217, Pub. Acts 1915 (3 Comp. Laws 1915, § 14568 et seq.). This motion was also.denied.

The sole contention made by the appellant’s counsel is that the court erred in refusing to direct a verdict in favor, of the defendant for the reason that, as a matter of law, the plaintiff’s decedent, under the facts, was guilty of contributory negligence. In the consideration of this question it should be borne in mind that plaintiff’s decedent had crossed South street and that Washington avenue, at the point of the accident, is a paved street with double tracks in the center. As is customary, where streets are divided by tracks in this way, traffic divides into two streams, each occupying the right hand side of the street in the direction it is going. Under these circumstances, there was clearly no reason for the plaintiff to look out for vehicles going south on the east side of the street, for, under such circumstances, a vehicle going in that direction would be going counter to the stream of the traffic. Should plaintiff’s decedent, as a reasonably prudent man, under these circumstances, be held to have had in his mind the danger of runaway horses or vehicles not under control? The question of negligence in this case, as in • all cases, is to be decided upon the facts of the particular case. We are not of the opinion that it can be said that the decedent was guilty of negligence as a matter of law because he did not see the runaway horse which came down on the other side of the street until almost opposite him and then crossed abruptly over to his side. The cases cited by counsel for appellant are cases where the plaintiff went into places of known danger, such as street intersections, or attempted to cross streets where traffic was the usual and expected thing, without looking to see whether the way was clear. In this line of cases it has been held that, where a person fails to guard against dangers well known as usual and likely to occur, and which ordinarily prudent men would guard against, he should be held guilty of contributory negligence.- Of this class are the recent cases of Tolmie v. Taxicab Co., 178 Mich. 426, and Ude v. Fuller, 187 Mich. 483. The situation here presented, however, is entirely different and easily distinguishable from the cases relied upon. We think that the conduct of the plaintiff’s decedent was such as to warrant the jury in finding that he acted as a reasonably prudent man would have acted under the circumstances. See Jordan v. LeMessurier, 155 Mich. 188, and Winckowski v. Dodge, 183 Mich. 303.

The learned trial judge did not err in deciding that this question was not one of law and acted properly in submitting it to the jury. The judgment should be, and therefore is, hereby affirmed.

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


text:
    JAMESON v. WALTER S. NEWHALL CO.
    1. Master and Servant — Workmen’s Compensation Act — Disability- — Amount of Compensation.
    Under the workmen’s compensation act, an injured employee’s right to compensation is to be tested by his ability to earn at the same employment in which he was employed when injured. Section 11, part 2, Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § -5441).
    2. Same — Compensation—Award by Industrial Accident Board.
    An award by the industrial accident board of total disability, with the proviso that, should plaintiff become only partially incapacitated he should receive compensation at the rate of one-half the difference between his average weekly wage before the injury and the average weekly wage he is able to earn during the period of his partial disability, was justified under section 11, part 2, of the workmen’s compensation act (2 Comp. Laws 1915, § 5441), where the evidence showed that plaintiff was physically incapacitated from following his former employment as an expert pile driver.
    Certiorari to Industrial Accident Board.
    Submitted January 22, 1918.
    (Docket No. 153.)
    Decided March 27, 1918.
    Rehearing denied June 20, 1918.
    Berton Jameson presented his claim for compensation against the Walter S. Newhall Compány for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Fidelity & Casualty Company, insurer, bring certiorari.
    Affirmed.

      Guy W. Moore and Hal P. Wilson, for appellant.

      Person, Thomas, Shields & Silsbee, for appellee.
   Kuhn, J.

On April 17, 1916, the applicant, Bert (or Berton) Jameson, was in the employ of the respondent Walter S. Newhall Company as foreman of certain pile driving operations in connection with the construction of an ore dock at Zug Island, and on the morning of that day, while he was engaged in superintending the moving of a pile driver, the pile hammer was lowered in such a manner that it struck one end of a plank and hurled the other end violently' against the right side of his face. The impact rendered him unconscious, fractured the right side of his jaw, destroyed nearly all his teeth, cut a large gash in his right cheek, severed certain facial nerves resulting in paralysis of a portion of the right side of his face and caused a partial ankylosis of the jaw, leaving him with impaired sight and hearing, subject to dizzy spells, and permanently weakened physically. He can now open his jaw only about three-fourths of an inch and it is impossible, for this reason, to fit him with artificial teeth.

Prior to the accident he was a strong, vigorous man, capable of performing heavy physical labor and able to engage in occupations of a dangerous character. He had expert knowledge of the construction and operation of derricks and other machinery used in construction work and a long experience in that line of employment. It is admitted that pile driving requires physical labor of a very heavy kind, such as the handling of immense timbers, etc., and is moreover a dangerous occupation, not only because of the clumsy and ponderous apparatus used therein, but also because it involves the climbing to, and working at, considerable heights, requiring a clear head and steady nerves. The testimony showed that a capable foreman in this line of work should, and that Mr. Jame-son did, take an active part in the heavy lifting and in the dangerous part of the work; that he usually set the timbers himself, had tackles to handle, and personally climbed to the top of the pile driver when necessary to adjust the apparatus there. His work included the repairing of the pile driver and other machinery. Since the accident, applicant has been unable to resume this line of work, partly because he is greatly weakened by reason of insufficient nourishment, his injury having made it impossible for him to masticate food, and partly because he is now subject to dizzy spells when he attempts to climb to any height and whenever he stoops over. The superintendent of the Newhall Company testified:

“I would hesitate to put him in charge of a' pile driver crew, or in charge of a crew doing what he was doing the day he was hurt. I would hesitate for two reasons, and the first is physical inability to handle it properly, and the fact is that most always when a man goes through experiences of that kind, he loses his nerve for work of a similar character. * * * The machine he was handling was about 65 feet high, and weighed -9,000 pounds, and it requires a man of full judgment and more or less daring to handle equipment of that sort successfully.”

Ten weeks after the accident Mr. Jameson had recovered sufficiently to be able to do light work and was given employment by respondent, first as foreman of an excavating, gang, involving no physical labor, then as carpenter foreman in connection with some timber work on the dock, later as foreman or superintendent of some concrete bridge construction work near Warren, and afterwards at respondent’s carpenter department in North Detroit for about three weeks, the last three positions requiring some light physical labor on his part. Since April or May, 1917, he has had no further employment by respondent, and, up to the time of taking the testimony, in September, 1917, only about three weeks’ work, as a carpenter foreman, for another construction company.

At the time of the accident, applicant was earning $4.75 per day, working 10 hours a day and six days per week. When he first went back to work, 10 weeks after his injury, the company paid him $4.50 per 10-hour day for the lighter and less responsible employment they then gave him, and when they made him foreman of the carpenter work on the dock, they increased, his wages to $5 per day of 10 hours. He also received this same wage for his bridge work at Warren and the shop carpenter work at North Detroit. Wages generally had increased in the meantime.

Both applicant and respondent were under the workmen’s compensation act at the time of the accident, and applicant’s claim for compensation was, by stipulation, heard before Mr. Ora E. Reaves, deputy commissioner, as sole arbitrator. He awarded $10 per week for the period of 10 weeks for total disability, and for partial disability from the date of applicant’s return to work to date of hearing, 75 cents per week, and thereafter one-half the difference between his wage before the accident and what he might earn in the future. Both parties appealed to the full board, who, after hearing, ruled that claimant was totally disabled within the meaning of the act, and granted compensation at the rate of $10 per week, with the proviso,' however, that if applicant should become only partially incapacitated, he should receive compensation at the rate of one-half the difference between his average weekly wage before the injury and the average weekly wage he is able to earn during the period of his partial disability.

The last sentence of section 11, part 2, of the workmen’s compensation act, being section 5441, 2 Comp. Laws 1915, is as follows:

“The weekly loss in wages referred to in this act shall consist of such percentage of the average weekly earnings of the injured employee, computed according to the provisions of this section, as shall fairly represent the proportionate extent of the impairment of Ms earning capacity in the employment in which he was working at the time of the accident, the same to be fixed as of the time of the accident, but to be determined in view of the nature and extent of the injury.”

It is the contention of the respondent and appellant that the board erred in holding that the claimant was permanently disabled because of the fact that he was unable to engage in the specific and identical work that he was engaged in at the time of his injury, and to give the law this construction would result in great inequity. It is the contention of counsel for claimant that the question here presented has been squarely ruled upon in the case of Foley v. Railway, 190 Mich. 507. At page 515, Mr. Justice Steere, speaking for the court, in referring to the language of section 11, above set forth, said:

“The language of this last provision is plain, and has but one obvious meaning, designating as the test capacity to earn in the same employment in which the employee was injured. That under this rule instances may arise where it works inequitably, does not authorize the court to read exceptions into it or modify its plain language defining the basis for estimating incapacity, which at best can only be approximated. If the method ought to be changed or exceptional cases provided for, the remedy rests with the legislature.”

Counsel for the appellee does not insist that the test in this case should be that the injured man must be able to pursue the identical act in which he was engaged at the time of his injury, but that the facts here presented conclusively show that the claimant cannot pursue the same hind of employment as he did before the accident, that is, being an expert pile driver. In this contention we think that counsel for claimant is clearly right. The serious character of the injuries here undisputed clearly shows that the claimant is physically incapacitated from pursuing the employment in which he was engaged at the time of this accident, and that therefore the case comes, as contended, squarely within the ruling of the Foley Case, supra. We see no escape from the conclusion that the industrial accident board was right in so holding, and therefore affirm the award made by them.

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


author: Brooke, J.

text:
    FLEMING v. JAMES S. HOLDEN CO.
    Brokers — Commissions — Written Contracts — Performance — Question of Law.
    In an action by a real estate broker for commissions on the leasing of land, where the undisputed testimony showed that the terms of the contract, which was in writing as required by section 11981, 3 Comp. Laws 1915, had not been met by the plaintiff, the court below properly directed a verdict in favor of defendant, and such action is not open to the objection that plaintiff was thereby deprived of a trial by jury.
    Error to Wayne; Mandell, J.
    Submitted January 23, 1918.
    (Docket No. 28.)
    Decided March 27, 1918.
    Assumpsit by John H. Fleming against the James S. Holden Company for the recovery of a commission for the leasing of land. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Wilkinson, Routier & Hinkley, for appellánt.

      Stevenson, Carpenter, Butzel & Backus (Thomas G. Long, of counsel), for appellee.
   Brooke, J.

This action is brought by one real estate broker against another real estate broker for the recovery of a commission for the leasing of land. In 1914, the Capitol Square Building Company was in possession of a 99-year lease of a building known as the Bamlet building, at the corner of Grand River avenue and Griswold street, in the city of Detroit, which they held as sublessee from the original lessee. The lease had still 97 years to run, and the Capitol Square Building Company, being desirous of subleasing the building for the balance of the term, placed it with the defendant, James S. Holden Company, another corporation. The plaintiff secured from the James S. Holden Company the following contract of employment:

“James S. Holden Co.
“Real Estate
“Building, Fire Insurance, Loans,
“1102 Penobscot Building.
“Detroit, Mich., Sept. 8, 1914.
“Mr. John H. Fleming,
“Detroit, Mich.
“Dear Sir: If a lease is made with Robert Williamson for the Bamlet building, corner of Grand River avenue and Griswold street, within a reasonable time, for a period of ninety-seven years, more or less, at terms and conditions satisfactory to the Capitol Square Building Company, we will pay you a commission of $5,000.00.
“Very truly yours,
“James S. Holden Company,
“James S. Holden, President.
“JSH/EY
“Signed Sept. 9, 1914. $500 paid down by R. Williamson to Jas. S. Holden Company.
“G. D. Hart/5

It is the claim of plaintiff that the president of the defendant company, Mr. James S. Holden, also delivered to plaintiff a written memorandum in his own handwriting containing the terms and conditions of the proposed lease. The original memorandum could not be found, but a copy of it was introduced. After securing the contract and the memorandum, the plaintiff entered into negotiations with George C. Hart, a real estate broker, who had a client named Robert Williamson, who was looking for the building. It is the claim of the plaintiff that the terms of the lease were satisfactory to Williamson, and a conference was arranged between the parties and Williamson expressed himself as satisfied with the terms and conditions as submitted, and deposited with Mr. Holden, as good faith of his intention to carry out the lease, the sum of $500, and Mr. Holden was also informed when the papers were to be prepared — October 1, 1914 — ■ and the building turned over for occupancy. Williamson was immediately permitted to occupy the premises, and he started to make certain alterations and repairs, and remained in possession about three weeks, but it does not appear under what conditions or agreement Mr. Williamson went into possession and did this work. Attorneys representing both parties set about drafting the lease. Mr. Backus, one of the witnesses connected with drafting the lease, testified as to these negotiations regarding the lease with Mr. Duffield, representing Williamson, as follows:

“The lease was agreed upon between Mr. Duffield and myself as being satisfactory in form on October ,8th. There were several changes made in the draft which we. had before us at that time and we decided to retypewrite it and it was retyped in 'my office and handed back to Mr. Duffield on October 12th, which was Monday, and would have been handed to him sooner if it had not been for an intervening holiday.”

The lease was never signed, and the reason for this action is given by Mr. Holden as follows:

“I remember when the last draft or whatever it was, he (Mr. Williamson) came in and said, T have a draft of the lease as the attorneys have agreed upon and I want a few days to look it over/ and the next I knew I was summoned over at a conference in Mr. Duffield’s office and he said he was. not satisfied because he had not been able to close it by the 1st of October/’

Upon the trial of the case, after the taking of testimony had proceeded a short time, the judge dismissed the jury, stating that he thought there was nothing but a question of law involved, saying:

“I will hear all of your proofs now, then later determine whether I will call any jury to aid in the determination of the question of fact.”

It is urged that, by this action of the trial judge, the plaintiff was deprived of a trial by jury. We are not impressed that there is any merit to this claim. The right to the commission here claimed is required by law to be evidenced by writing. Act No. 288, Pub. Acts 1913, § 2, subd. 5 (3 Comp. Laws 1915, § 11981); Smith v. Starke, 196 Mich. 311. Plaintiff’s right of action is based upon the offer of payment in the letter above set forth, and it must be governed by the terms of that letter. It is therein expressly stated that the commission was only to be paid “if a lease is made with Robert Williamson * * * at terms and conditions satisfactory to the Capitol Square Building Company.” We think'it clearly appears that plaintiff has no standing in this case because a lease was. never made, nor does it appear that Mr. Williamson was ready and willing to accept a lease on terms and conditions satisfactory to the Capitol Square Building Company. In the case before us the defendant was not the prospective lessor and cannot be said to have been in any way responsible for the conduct of such a prospective lessor. If the building company had absolutely and wrongfully refused to go any further with the transaction, under the terms of this offer, the defendant, James S. Holden Company, would not have been liable for a commission. Neither could the defendant control the making or the not making of a lease, and therefore it was a very reasonable limitation to the right of recovering a commission that a lease was to be made before such a claim could accrue. Neither one of these two conditions having been met by the plaintiff, it follows that there was no liability on the part of the defendant, and the trial judge acted properly in directing a verdict for the defendant.

The judgment is affirmed.

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


text:
    WOODWARD v. HURON IMPLEMENT CO.
    1. Appeal and Error — Review.
    In an action for fraud, commenced by writ of attachment, where the judgment of no cause of action is sustained by the appellate court, it will be unnecessary to review the action of the court below in dissolving the writ of at- . tachment.
    2. Fraud — Evidence—Clear Weight oe Evidence — Findings oe Court — Review.
    In an action for fraud in the transfer of plaintiff’s business, evidence examined, and hel&, that the findings of the court below were not against the clear weight of the evidence requiring a reversal of the judgment under section 12587, 3 Comp. Laws 1915. "
    Error to Huron; Beach, J.
    Submitted January 16, 1918.
    (Docket No. 94.)
    Decided March 27, 1918.

      Assumpsit by Frank L. Woodward against the Huron Implement Company upon a contract alleged to have been obtained by fraud and deceit. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      A. F. Freeman, for appellant.

      W. T. Bope, for appellee.
   Kuhn, J.

Plaintiff has brought an action of assumpsit, based on alleged fraud on the part of defendant through its agents and directors, both in omitting, in connection with a certain offer submitted to plaintiff, to disclose material facts, and also in making certain promises or representations, whereby plaintiff was induced to enter into a contract arrangement with defendant, pursuant to which he transferred to it his foundry business, stock of materials, tools, etc., and received therefor $10,000 in common stock of defendant corporation and was made general manager of the combined enterprises, as a result of which fraudulent inducement, and the subsequent conduct of defendant and its agents, plaintiff has sustained the loss of the entire property invested. Plaintiff has claimed a rescission of the contract, resigned as general manager and director, tendered back his holding of stock, and seeks to recover the value of the property which he turned over to the corporation; The suit was commenced by writ of attachment, based on the ground that defendant “fraudulently contracted the debt, or incurred the obligation respecting which the suit' is brought.” The declaration consists, of the common counts, with notice setting up the nature of plaintiff’s, claim. •

Upon a trial on the merits before the court without a jury, the trial judge made the following findings of fact and conclusions of law:

“That in the fall of 1915, a company of Bad Axe persons assumed to be a corporation owning a manufacturing plant and a business in the city of Bad Axe, the business of which was the manufacture and sale of a special cultivator under a patent; that the business had not flourished and was at a standstill.
“Mr. John Ryan, a stockholder, was informed by a mutual acquaintance of Mr. Woodward and his business at Clinton, Michigan. Mr. Woodward’s business was the manufacture of plows and plow repairs, and for that purpose he owned a foundry and equipment. Correspondence and negotiations followed, which resulted in a reorganization of the Huron Implement Corporation with an additional capital stock, a transfer to the new corporation of Mr. Woodward’s foundry, material, matters, etc., at a valuation of $10,000, Mr. Woodward receiving thereafter $10,000 in the common stock of the reorganization.
“A contract was entered into by which Mr. Woodward became manager at a salary of $125 per month for the first year and $100 the second year, with a provision for increase if the business paid a certain per cent profit.
“During these negotiations, Mr. Ryan and Mr. Pang-born visited and inspected Mr. Woodward’s property at Clinton and Mr. Woodward was given a free hand at Bad Axe for investigation and to size up the prospects of making a success of the business and to investigate the assets of the business.
“Mr. Woodward assumed management of the business. A stock of completed implements and parts and unfinished implements was on hand, and Mr. Woodward devoted his attention to getting these on the market and finishing the uncompleted implements.
“In the negotiations and meetings of the stockholders of the new corporation, there seems to be no doubt that the addition of Mr. Woodward’s plow business to the corporation was to be made effective by a suitable building to house it and carry on the work, and plans were formulated for the building and estimates of cost made.
“Mr. Woodward assumed management March 1, 1916. In April, three of the directors, Mr. Ryan, Mr. Fremont, and Mr. Pangborn, had a conversation with Mr. Woodward, in which they insisted that work on the foundry building should be postponed until August. In the meantime a part of Mr. Woodward’s foundry equipment had been delivered at the grounds of the company at Bad Axe, the remainder awaiting at Clinton the completion of the building. The completed cultivators were put upon the market and a salesman was employed.
“At the reorganization, cash on hand from stock subscriptions was $9,500 approximately. The indebtedness of the old corporation assumed by the new was approximately $5,500.
“About October, 1916, the bank of F. W. Hubbard & Company, of which Mr. Ryan, a director of the corporation, was manager, notified Mr. Woodward not to overdraw the Implement Company’s account, which was then about exhausted. No work had been commenced on the foundry building.
“A part of the indebtedness of the old corporation, not including the $3,000 secured by the real estate, was paid by checks drawn on the funds by Mr. Rankin, cashier of the F. W. Hubbard bank, by direction of the directors of the corporation.
“About ............ 1916, Mr. Woodward, after interviews and negotiations with Mr. Ryan and the stockholders and directors in session, resigned his position of manager, tendered back his stock and brought this action.
“When the active operation of the business came to a stop, the condition of the corporation was about the same as when operations commenced, so far as indebtedness and inventory value of assets were concerned, except that the cash from the stock subscription and from the proceeds of such sales as were collected, had been invested in material and labor.
“These, I believe, are the essential and material undisputed facts. The disputed facts are:
“First. Mr. Woodward claims that he was misinformed in the negotiations as to the amount of floating debts, over and above that secured by the real estate, which he claims were roughly estimated at four or five hundred dollars. Mr. Ryan and Mr. Pangbom both deny this and state positively that the actual amount of debts was overstated to Mr. Woodward.
“From a preponderance of the testimony and the circumstances, I find as a matter of fact, that the full amount of debt was communicated to Mr. Woodward before he became a stockholder.
“Second. A claim is made that a part of the inducement to Mr. Woodward, to close the contract for service and transfer, of his foundry equipment, was a representation or promise by influential and wealthy subscribers to the new stock, that sufficient funds would be forthcoming to finance the business and erect the foundry, and the failure of the directorate to supply funds when the cash was exhausted, is evidently, as I gather from the mass of testimony and argument, claimed to constitute a breach of contract, express or implied, upon which plaintiff relies as the fraud and tori: as a basis of his suit; coupled with the claim in finding number one, as to the misrepresentations as to indebtedness.
“The testimony in this connection is in conflict, Mr. Woodward claiming that what was said was by those authorized by their positions and influence in the corporation and induced him to close the contract; The opposing testimony is in substance that the statements made were that the banks, of one of which Mr. Ryan was manager, and of the other, Mr. Sleeper was a large proprietor — both those men being stockholders in the corporation, would furnish credit if the corporation’s business warranted credit.
“I find that there was no express, unconditional promise or representation by the corporation, through any one authorized to make such a promise, that more funds would be furnished than the cash capital on hand.
“Third. I find that Mr. Woodward was given complete authority as manager, at the start, with unrestricted use of the funds on hand, except the amount expended in settling the floating indebtedness by the checks signed by Mr. Rankin.
“Fourth. The cause for the instructions to postpone the commencement of building operations until August, does not appear clearly in the testimony, except that it may be inferred that the funds were being depleted and the business not satisfactory,, and that it was a precaution against further financial difficulties. Also early in the spring the ground was too wet to permit • building operations.
“Fifth. I find that Mr. Woodward entered into this contract with as much practical knowledge as to whether it could be made a paying business as the influential stockholders. The bankruptcy proceedings were not started until after this suit was started by plaintiff.
“Conclusions of Law.
“First. The testimony does not warrant (and the burden of proof is not sustained by plaintiff in this respect), the conclusion that active fraud was practiced by any one in the negotiations preceding the contract, and the plaintiff’s declaration disavows such active fraud.
“Second. Was there constructive fraud .in the breach of an implied promise to continue operations and furnish funds?
“I do not think that a promise can be fairly implied, as a matter of law, to continue a business as to which the parties may have had roseate views, both the incorporators and Mr. Woodward, when conditions unforeseen, faulty management or numerous other business difficulties shall confront such an organization with financial ruin. The testimony is bare as to what was to follow the step, whether to resume after a time, sell more stock or wind up. The bankruptcy proceedings can hardly relate back to the original negotiations, nor to the stoppage of credit and operations, to give any fraudulent color to those transactions.
“Third. I find no ulterior intention or motive in the stoppage of credit and operations toward Mr. Woodward or his interest, no misfeasance. At most, if he should be found to have suffered a loss, it is the result of mere nonfeasance and I am not sure that mere nonfeasance can not support a tort action, and it is difficult to say that the refusal of credit and stoppage was not good business sense.
“An order will be entered on these' findings, dissolving the writ of attachment, restoring the property to the defendant and assignee in bankruptcy.
“As I understand, the whole merits of the cause of action were submitted, and testimony to apply to the same, the motion to dismiss the action is sustained and an order will be entered to that effect.” .

A motion for a new trial was denied by the circuit judge, who, at plaintiff’s request, filed his reasons therefor in writing. Plaintiff filed exceptions to the refusal to grant a new trial and also to the court’s findings of fact, on the ground that such findings are against the clear weight of evidence submitted at the trial.

It will be noted from the findings of the court that an order dissolving the writ of attachment was provided for and also that the case was decided upon its merits. Thereafter an order dissolving the attachment was entered and also a judgment of no cause of action. There is some discussion in the briefs of counsel as to whether the order dissolving the attachment is properly before us for review, but as we are constrained to come to the conclusion that the judge was clearly right, in the consideration of all the merits of the case, that there was no cause of action, it will be unnecessary for us to consider the first question suggested, because if the judgment of no cause of action stands, the writ of attachment will ipso facto be dissolved.

The only question that is raised which needs our consideration is whether or not the findings are against the clear weight of the evidence submitted at the trial so as to require us, under section 12587 of the Compiled Laws of 1915 (section 15, chapter 18, judicature act), to disturb the findings of the learned circuit judge upon the questions of fact. A. careful reading of this record has satisfied us that this is simply one of those unfortunate adventures entered into by parties in good faith, but which, because of adverse conditions and perhaps lack of experience, does not meet the expectations of those who engaged in the enterprise and results in failure instead of the anticipated success.

The finding of the trial judge with reference to the alleged misrepresentation of the indebtedness of the company is fully justified by the record. It was stated to plaintiff by at least three persons who had knowledge of the affairs of the company, that the indebtedness of the Huron Implement Company was $5,500, while it seems to be undisputed that this indebtedness amounted to only $5,200. The plaintiff entered into the agreement with a full knowledge of all the facts. He had at least as much knowledge of the sale and manufacture of farming implements as any other officer or stockholder of the Huron Implement Company. He was in complete charge of the affairs of the company, including the right to draw upon all the moneys in the treasury for any legitimate business of the company. He attended all the directors’ meetings after he was elected director and all the stockholders’ meetings that were called, and at no time did he raise any dissenting voice as to any action taken.

We are also of the opinion that the claim of plaintiff that there was fraud committed in the failure of the defendants to furnish sufficient funds to finance the business and organize the foundry is not supported by the evidence, and agree with the finding of the judge that it was not made to appear that there was any “express, unconditional promise or representation by the corporation through any one authorized to make such a promise, that more funds would be furnished than the cash capital on hand.”

We are also of the opinion that the evidence fully sustains the fourth finding of fact, and that the failure to bring the Clinton plow factory to Bad Axe on the part of the directorate gives plaintiff no ground for the relief sought for. With reference to this, it appears that he did not complain until the finances of the concern were nearly exhausted, and then no attempt was made to call a meeting of the board of directors or the stockholders to take action with reference thereto.

The proofs are convincing that it was the intention of all the parties to have the business managed as profitably as possible, and, if there were any errors in judgment, that they were concurred in by the plaintiff, and no complaints were made by him until after the moneys were nearly exhausted. It is apparent that the original stockholders of the Huron Implement Company were desirous of extending the established business of that company, and it is probable that the plaintiff had it in mind also to make the Clinton plow business the paramount activity. In this they may have been acting at cross purposes, but, however that may be, the direction and management of the business was in the plaintiff’s hands, he having been induced to enter into the enterprise for the very purpose'of assuming the managerial duties of the company, and in the performance of these duties it does not appear that he was interfered with.

Being of the opinion, as we have stated above, that the proofs fully sustain the findings of the judge, the judgment of the court below must be affirmed.

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


text:
    GALLANT v. MILES.
    1. Appeal and Error — Trial—Evidence—Admissibility—Saving Question por Review.
    The rejection in the court below of testimony of plaintiff’s misconduct, offered in support of defendants’ theory that plaintiff voluntarily surrendered possession of the premises, in an action for damages for unlawful eviction, cannot be objected to for the first time in this, court on the ground that such testimony was admissible in mitigation of damages.
    2. Trial — Argument op Counsel — Curing Error.
    Improper argument of counsel as to amount of damages to be obtained in order to avoid payment of costs, was not reversible error where the court promptly instructed the jury not to consider the costs or who was going to pay them, and later covered the same question in his general charge.
    3. Forcible Entry and Detainer — Landlord and Tenant — Statutes — Termination op Tenancy.
    A landlord who obtained entry by means of fraud, and was followed by officers, who, by false representations as to the writ of restitution, and with a display of force calculated to intimidate and terrify, but without actual violence,, took plaintiff’s goods from the premises, was liable for damages for forcible entry under section 13229, 3 'Comp. Laws 1915, although the tenancy had been terminated by proper notice.
    4. Appeal and Error — Directed Verdict.
    Where the court below would have been justified in directing a verdict for plaintiff, there was no error of which defendant could complain in submitting the question to the jury.
    Error to Lenawee; Gilday, J., presiding.
    Submitted January 18,1918.
    (Docket No. 128.)
    Decided March 27, 1918.
    Case by Leon Gallant against Otis M. Miles and another for an unlawful eviction from leased property. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Tripp & Burleigh and /. N. Sampson, for appellants.

      B. D. Chandler, for appellee.
   Kuhn, J.

The plaintiff leased from the defendants certain rooms in an apartment building in the city of Hudson, owned by them. There is some dispute between the parties as to what the exact agreement was at the time the apartment was leased. The arrangements were verbal and made by Mrs. Mary A. Miles and Mrs. Helen Gallant, the wife of plaintiff. The plaintiff claims that at the time the agreement was made, they were to give her, in addition to the rooms that were rented, certain lots or garden spots for the raising of garden vegetables. This is denied by the defendants, and it is claimed that this arrangement with reference to the garden was not made until later, that no additional compensation was paid for the use of the garden, and that on the part of Mrs. Miles it was a gift, without consideration, and had no relation to the leasing of the apartment. The rent was to be $1.75 a week. It is admitted by both parties that the tenancy was terminated on July 22d by a notice, served upon the plaintiff, to quit and surrender up possession of the premises “for nonpayment of rent and improper conduct, within seven days from the date hereof,” as stated in said notice. Some time later, July 25th, it is claimed by the defendants, plaintiff paid to one of the defendants the usual weekly rent for the week ending July 22d. About the same time the defendants caused to be served upon the plaintiff an ordinary summons in assumpsit, issued out of the justice’s court, the date of return being left blank. On the return day; as shown by the original summons, defendant Mary A. Miles appeared in the justice’s court and proceedings were had which resulted in the issuing of a writ of restitution by the justice of the peace, which was, some time later, placed in the hands of A. W. Cooper, a deputy sheriff. On the 31st day of July following, the defendants employed Mr. Cooper to move the plaintiff out of the premises in question. He in turn employed Mr, John Roney, the city marshal, and also a Mr. McQueen and a Mr. Edwards, and these, together with the defendants, went to the premises in question while the plaintiff was away at his work. Mrs. Miles was the first to go into the house, and she went in and told Mrs. Gallant that she had come over to see what was the matter with the water pipes, and soon thereafter the two officers and Mr. Miles came in, and Mr. Cooper told Mrs. Gallant they had come to set her out, and also told her that he was a deputy sheriff and that he had a writ of restitution, and they then proceeded to pack up the plaintiff’s goods and put them on a dray. Plaintiff’s wife requested the officers to wait until the plaintiff came back, until she could telephone him, but the deputy sheriff informed her that he would not do that, and while they were packing the goods, she telephoned her husband, who immediately came home, and when he arrived there, found everything belonging to them out on the dray, and the deputy sheriff informed him that he had a writ of restitution and told him the effect of the writ and that he and the others were there for the purpose of putting him out. The officer asked where he should take the goods, and after some verbal altercation, it was determined to take the goods to the home of plaintiff’s father. The plaintiff unlocked the coal house doors so that the officer and his assistants could get the coal and place it on the dray, and it is claimed by the wife of the plaintiff that she attempted to go back into the house after the goods were moved out and that the deputy sheriff took her by the arm and put her out. The plaintiff brought this action to recover damages, and, upon the trial, was limited in his recovery to damages for humiliation, shame and disgrace and the inconvenience he was put to by being dispossessed of the premises. The trial resulted in a verdict for the plaintiff of $164.50 damages.

It was conceded by counsel for defendants upon the trial that the proceedings had in the justice’s court, in pursuance of the summons issued, were irregular, and that the writ of restitution issued was void, and they claim no rights under that proceeding. It seems further to be admitted by both parties that the tenancy had been terminated, and the question seems to be whether the defendants .were endeavoring to take peaceful possession of the premises, or was their conduct a violation of the statute prohibiting forcible entries and detainers, being section 13229, 3 Comp. Laws 1915, which reads as follows:

“No person shall make any entry into lands, tenements or other possessions, but in cases where entry is given by law; and, in such cases, he shall not enter with force, but only in a peaceable manner.”

Eleven assignments of error are relied upon for the reversal of the judgment. The seventh assignment of error relates to the contention of defendants’ • counsel that the court erred in refusing to admit evidence of plaintiff’s improper conduct both before and after the termination of his tenancy. When this testimony was offered, it was stated by counsel that the purpose of offering it was to determine the question as to the correctness of plaintiff’s or defendants’ theory, viz., as to whether the premises were surrendered voluntarily by the plaintiff, as claimed by the defendants, or were obtained by force, as claimed by the plaintiff. It is now urged in the brief for the defendants that this testimony should have been received in mitigation of damages, for if this testimony had been admitted, the jury would have been able to see that the plaintiffs were not the kind and character of people to suffer humiliation and shame on account of being moved out of a house in the presence of immediate neighbors. We do not think that counsel is in a position to argue this question. The objection that these questions went to the measure of damages was not specifically called to the attention of the trial court, and we have held that before the question can be raised on appeal, the ground of objection must be specifically stated. See Philip v. Heraty, 135 Mich. 446, 456, in which decision many cases are cited.

2. It is also urged that the court erred in not declaring a mistrial on account of the argument of counsel for plaintiff, stating to the jury “that they must have more than $100 damages, for in case they did not get that much, costs would be charged against him and that he would obtain nothing.” When this argument was made and objection taken, the court immediately stated that the jury should not consider the argument and were not to take into consideration the costs or who was going to pay them. Again in his general charge he covered the same question and advised the jury that they had nothing whatever to do with the question of costs. We have often held that under these circumstances improper argument does not constitute ground for reversal. See Reese v. Railway, 159 Mich. 605; Merrill v. Tinkler, 160 Mich. 580; Wheeler v. Jenison, 120 Mich. 428; Pruner v. Railway, 173 Mich. 152; Devich v. Dick, 177 Mich. 177; Eberts v. Sugar Co., 182 Mich. 473; also Goldman v. Railway, post, 543.

3. The remaining assignments of error relate to the charge of the court. It is stated in the brief for the defendants that the question involved in this case is, “the right of a landlord to enter upon his premises and put out of possession one who holds them unlawfully and without right;” it being conceded that the tenancy had been terminated by proper notice. It is' the contention of the plaintiff that the entry and possession obtained by the defendant Mary A. Miles was obtained by stratagem and fraud and was not a peaceful entry within the meaning of the law. It is his claim that after such entry was obtained by stratagem, the officers followed and by false representation as to the writ of restitution made to both his wife and himself, took the goods from the premises and notified him that unless he provided a place for his goods, they would be dumped' into the street; that under such circumstances, plaintiff’s direction to take the goods to the home, of his father can not be said to have been a voluntary surrender of the premises. We think that the law with reference to this situation is fairly settled by the decision of this court in McIntyre v. Murphy, 153 Mich. 342, a case similar in many respects to the one now before us. No actual violence was used in that case, and there, as here, there was merely the display of force. A verdict for the plaintiff was directed, and was sustained by this court. Justice Carpenter, in writing the opinion, reviews the statute here in question and the authorities, and it seems unnecessary to again go over the legal questions involved. The court concluded that while it did not appear that actual violence was used towards the inmates of the house, there was a display of force calculated to intimidate and terrify them, and that, under-the authorities discussed in the opinion, the entry was forcible and contrary to the statute. The court there sustained the direction of a verdict for the plaintiff, but we are of the opinion that it clearly was not error to submit the questions in the instant case to the jury, and are of the opinion that the court might properly, under the facts and circumstances of this case, and under the authority of the McIntyre Case, supra, have directed a verdict for the plaintiff as to the liability of the defendants. That being true, there could be no error in submitting the question to the jury, and the jury was warranted in awarding damages for injuries done to the plaintiff in the course of the eviction.

We have been unable to find any prejudicial error in this record, and therefore affirm the judgment.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, and Stone, JJ., concurred. Fellows, J., did not sit.


text:
    FULTON v. MOHR.
    1. Automobiles — Negligence—Contributory Negligence.
    In an action for the death of plaintiff’s decedent, caused by his being struck by defendant’s truck, where the evidence showed that decedent, in the middle of a block of a narrow street, suddenly stepped from behind another car where he could not be seen, and proceeded diagonally across the street with his back toward the direction from which vehicles would come, with his coat collar turned up and his head down, without looking, and apparently so engrossed in thought that he failed to hear either the noise of the truck or the shout of warning, and was hit by the truck, he was guilty of contributory negligence as a matter of law, barring recovery.
    2. Same — Contributory Negligence — Unlicensed Chaueeeur — ■ Negligence.
    Where decedent was guilty of contributory negligence as a matter of law, barring recovery, the fact that defendant’s chauffeur was unlicensed becomes immaterial.
    3. Appeal . and Error — Directed Verdict — Review.
    Where the court below properly directed a verdict for defendant, the judgment will be affirmed by the appellate court although for a different reason.

      Error to Wayne; Hally, J.
    Submitted January 11, 1918.
    (Docket No. 55.)
    Decided March 27, 1918.
    Case by Jean Fulton, administratrix of the estate of James Fulton, deceased, against Frank Mohr for the negligent killing of plaintiff’s decedent. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Dohany & Dohany, for appellant.

      J. O. Murfin (Howard H. Campbell, of counsel), for appellee.
   Kuhn, J.

On the afternoon of March 5, 1915, plaintiff’s decedent, while attempting to cross Scotten avenue a short distance north of Michigan avenue in the city of Detroit, was struck by a one-ton motor truck belonging to defendant, then being driven by defendant’s employee in connection with the plumbing business conducted by defendant in said city, and received injuries from which he died about an hour later. It had been a stormy day, and at the time of the accident a heavy, wet snow was falling. The truck was proceeding, at a speed of about eight miles an hour, along Scotten avenue in a southerly direction, and was keeping just a little to the right of the center of the street, which is 30 feet wide and was at that time free from other vehicles, except a Ford automobile parked, facing south, close to the westerly curb in front of the Standard Oil Company’s offices, which face Scotten avenue at the point where the accident occurred. This Ford car measured 11 feet 3 inches in length and 4 feet 8 inches in width; its top was up and the side curtains on. No one saw deceased prior to or at the time he stepped off the west curb of the street, but an employee of the Standard Oil Company testified that she saw him a step or two from the curb, in front of this Ford automobile and within two or three feet of it, walking at a moderate speed in a southeasterly direction diagonally across the street, at an angle of about 45 degrees. His head was down and his coat collar up. Just as he cleared the Ford car he was seen by the driver of the truck, which was then about three feet behind the rear of the Ford. The driver at once applied the brakes, turned his car to the left to avoid striking the man, and, just as the car hit the man, was reaching down to apply the emergency brake. • He did not sound the horn — claims he did not have time — but another of defendant’s employees on the truck yelled at the man, without, however, attracting his attention, and deceased was struck by the left front of the truck and received the fatal injuries. It cannot be exactly stated from the testimony how far the truck went after the collision, but the distance as given by the witnesses varies from 4 to 18 feet. There was some testimony to indicate that deceased had reached a point east of the center of the street at the time he was struck. When the truck was stopped, he was found between the axle and the left spring.

According to the testimony of the driver, the truck was not loaded, the brakes were in good condition, and under the conditions that existed that day, he could stop the car within its own length, 12 feet. The regular driver of the truck had been sick for some weeks prior to the accident, and a junior plumber in defendant’s employ (not a licensed chauffeur) was acting as driver at the time of the accident. It appears that he had been driving this truck during the entire period the regular driver was away; also that he had driven it during the sickness or absence of the regular driver on prior occasions, and that he had driven other makes of automobiles at various times, his experience as a chauffeur extending over about four years prior to the accident.

At the conclusion of plaintiff’s testimony, the court, upon motion, directed a verdict for defendant on the ground that there was no evidence that would warrant the jury in finding him guilty of negligence.

The following statement is found in the brief of counsel for appellant:

“It is plaintiff’s contention that the fact that defendant’s automobile was being operated by an unlicensed chauffeur at the time of plaintiff’s injury has a bearing on the question of defendant’s negligence in' this cause.”

The record does not show that this point was presented to the lower court by any request to charge or that the attention of the lower court was in any way directed to this question. The lower court based its decision for a directed verdict on the ground that there was no evidence that would warrant the jury in finding the defendant guilty of negligence, and we are of the opinion that the judge might properly have also based his conclusion upon the ground that it conclusively appears, and therefore should be decided as a matter of law, that the plaintiff’s decedent was guilty of such contributory negligence as would bar the right to a recovery. It therefore does not become necessary to consider the question as to whether or not the fact that the driver of the automobile was an unlicensed chauffeur might be properly considered as bearing upon the question of defendant’s negligence. We think it is sufficient to say that this record affirmatively shows that the decedent, in the middle of a block of a narrow street, 30 feet in width, suddenly and unexpectedly stepped from behind another car where he could not be seen by the driver of ■ defendant’s car, with his back turned towards the portion of the highway that would necessarily be traveled by an automobile on that side of the street, with his coat collar turned up and his head down; further that he not only failed to look, but apparently was so engrossed with other thoughts that he failed to hear either the noise of the car or the shout of warning from the companion of the driver. We think the language used by Mr. Justice Steere in Barger v. Bissell, 188 Mich. 366, is applicable here:

“The evidence is undisputed that plaintiff stepped quickly off the curb on the side of 'the street the car was running, and started rapidly to cross just in front of and diagonally from this closely approaching car, with her head down, without looking, her back turned partially from it and from the direction vehicles should be expected upon that side of the street. It is manifest that she exercised no care at all, and, if an adult, she would clearly be barred from recovery by her own carelessness and negligence.”

See, also, the recent case of Hill v. Lappley, 199 Mich. 369.

While the learned circuit judge did not base his conclusion for a directed verdict upon the reasons herein stated, nevertheless, as we are of the opinion that he acted properly in directing the verdict, his action and the resulting judgment will be affirmed.

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


text:
    GOLDMAN v. DETROIT UNITED RAILWAY.
    1. Carriers — Street Railways — Personal Injuries — Fright — Nervous Shook — Damages.
    In an action for personal injuries by a passenger against a street car company, evidence that there was, as a result of a collision, a violent impact and crash, and by reason thereof plaintiff was thrown to the floor of the car, justified the finding of the jury that plaintiff suffered a physical shock, resulting in extreme nervousness and hysteria, which was due to the collision and not merely to fright.
    2. New Trial — Mistrial—Discretion oe Court.
    In an action for personal injuries against a street car company, in which plaintiff claimed to be suffering from nervous shock, where, immediately after leaving the stand, and while another witness was being examined who stated she was a trained nurse, loud screams were heard in the corridor, and the witness was called from the stand by plaintiff’s counsel, who stated “That is what I feared,” and the court below refused to declare a mistrial, but submitted the case to the jury after properly instructing them to disregard the incident, the action was within the discretion of the trial court, and where it cannot be determined by the appellate court that there was an abuse of discretion resulting in a miscarriage of justice, the judgment of the court below will not be interfered with.
    S. Trial — Argument oe Counsel — Curing Error.
    Improper argument of counsel in asking the jury if there was a gentleman on it “who would take that for all the money that could be given,” was not so prejudicial as to require reversal of the judgment, where the court promptly instructed the jury to pay no attention to the argument, and correctly charged them as to the proper measure of damages.
    Error to Wayne; Brown, J., presiding.
    Submitted January 10, 1918.
    (Docket No. 43.)
    Decided March 27, 1918.

      Case by Dora Goldman against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      A. B. Hall, for appellant.

      Maloney & Mendelsohn, for appellee.
   Kuhn, J.

The plaintiff was a passenger on a Brush street car in the city of Detroit, operated by the defendant, on the 17th day of February, 1915. While proceeding north, the car was struck, at the intersection of St. Antoine street and Forest avenue, by a crosstown car going east and a portion of the car was knocked from the track. The plaintiff, who was sitting' in about the center of the car, saw that a collision was imminent, put up her hand to avoid screaming, and then says she does not remember anything after that until she found herself on the rear end of the car. There is no dispute as to the collision nor as to the fact that the plaintiff was free from contributory negligence. It is the claim of plaintiff that after the accident she assisted a Mrs. Schooler, who was also injured in the accident, and was driven by a doctor to her own home; that upon arrival there she fell into a faint,'and was put to bed; a doctor was called, who found no marked symptoms; that subsequently, however, she developed highly nervous symptoms, which resulted in seriously and permanently injuring her health, and which condition she claims continued and remained up to the time of the trial.

A number of physicians who treated her were called to the witness stand to testify as to her condition, who fully described to the jury her physical condition and the injuries which it was claimed resulted from the accident. Dr. Spitzley, one of these physicians, in answer to a hypothetical question, in detailing what, in his opinion, had caused her condition as he found it, said:

“Certainly I ascribe it to the hurt or injury that she sustained; I thought so then and I think so now.”

The case was tried twice in the circuit court. The first trial, which resulted in a verdict in favor of plaintiff in the sum of $5,641.66, was set aside on account of the misconduct of the jury. The second trial resulted in a verdict of $4,000 in favor of the plaintiff.

The first contention of appellant’s counsel, as presented in his argument and brief, is that the testimony in the case is conclusive that the plaintiff *was not physically injured at the time of the accident, and that her present condition is due to hysteria, and that the hysteria is the result of fright and not of the accident. The case of Nelson v. Crawford, 122 Mich. 466, is relied upon to support the contention that under these circumstances no recovery can be had. We may concede, so far as this case is concerned, the rule announced in Nelson v. Crawford, supra. It clearly appears that in that case there was no assault or attempt to do the plaintiff any physical or bodily injury, and the court charged the jury, which was approved by this court, that the law does not recognize fright alone, unaccompanied by any physical injury, as a basis for damages. In the present case the question was submitted to the jury by the trial judge with the following instructions:

“No matter what may have caused the injury to plaintiff, if you find she was injured in this accident, she cannot recover unless you find from the evidence that she was injured in the manner as claimed by her here; that is, that she suffered physical shock which resulted in injury to her nervous system, and thereby she has become injured, and that this shock was- a result of the accident.
“If you find from the evidence that the plaintiff suf-' fered physical shock which resulted in injury to her nervous system, she is entitled to recover such injury' as she has shown you she has sustained, though there be no external evidence of injury.
“If she was not injured in the manner as claimed by her here, then she cannot recover and your verdict will be for the defendant.”

It cannot be, and it is not, denied that there was, as a result of the collision, a violent impact and crash and a jar. There is testimony of eyewitnesses that the plaintiff, as a result thereof, was thrown to the floor of the car, and we are of the opinion that there was clearly sufficient evidence for the jury to conclude that the plaintiff’s injuries, even though not immediately visible upon the surface of the body, and which developed at a future date, were due to the violent collision which occurred, thus clearly distinguishing the situation in the present case from that of Nelson v. Crawford, where there was no claim of any physical injury. See Light v. Railway Co., 165 Mich. 433; Humphrey v. Railways Co., 166 Mich. 645; Schroeder v. Railway Co., 174 Mich. 684. An interesting and leading case on this subject is the case of Purcell v. Railway Co., 48 Minn. 134.

The next contention of appellant’s counsel is that the court erred in refusing to declare a mistrial because of the following occurrence: It appears from the record that immediately after counsel for appellant had closed his cross-examination of the plaintiff, she was released and left the court- room. Another witness was called and sworn for the plaintiff, and shortly after her examination was begun, loud screaming and shrieking were heard as coming from the corridor. The witness upon the stand at the time, who was a trained nurse, left the court room at the request of plaintiff’s counsel, and plaintiff’s counsel thereupon stated, “That is what I feared.” The record shows that the following then took place:

“Mr. Hall: I move, the court please, that this case be called a mistrial, on the ground that the plaintiff left the court room after examination, went into the hall and proceeded to scream and holler so that the attention of the court and jury was attracted to it. A witness was on the stand and had just testified she was a trained nurse — left the stand and went to the plaintiff, apparently. I submit that under these circumstances that the yells were so loud and piercing as to be heard throughout the building; everybody’s attention in the court room was attracted to it, including the jury, and I think that justice cannot be done under the circumstances to have this trial proceed.
“Mr. Moloney: We object to it, your honor, please.
“The Court: The jury will understand that this case is being tried on the evidence that is offered here by the witnesses in court. That what takes place outside of the court room you haven’t any basis for using it inside. You do not know, only as you might surmise what is going on, and you know less about what it is going on. There is absolutely no presumption in the case either that it is meritorious or fictitious, and you haven’t any way of telling anything about it. This case is going to be tried on the testimony taken in court here, and we will proceed at this time. You are here with the witnesses taking up the time of the court, and you have the jury and we will go ahead at this time, and you (addressing jury) will understand that any transactions taking place outside of the court room is something that you are to give no consideration. If you should attempt to give it any consideration, you will undoubtedly be wrong. You would be wrong in attempting it, and when it is outside of your observation, you do not know who it is. Now, if you have a presumption who it is, that is something that you cannot use. If you should attempt to presume what is taking place outside in the corridor and why it is taking place, you would undoubtedly be wrong in your conclusion as well as very wrong in your attempt to do it. Let me get that in your mind correctly, that you will not try to take into consideration anything except what took place in the court room, and noticing then only what comes from the witness chair. We will proceed with the case at this time.”

With reference to this incident, the language of Mr. Justice BROOKE, in Jolman v. Alberts, 192 Mich. 368, we think is appropriate:

“With reference to incidents such as that under consideration, which, though infrequent, sometimes do occur in the course of a trial, it may be said that the presiding judge should, in the exercise of sound discretion, primarily determine whether they are prejudicial to that point which would require him to discharge the jury and announce a mistrial. In such disposition as the trial court may make, this court should not interfere, unless it plainly appears from an examination of the record with special reference to the verdict that there has been a miscarriage of justice.”

We are unable to determine or say from this record that there has been a miscarriage of justice. If the plaintiffs witnesses with reference to her injuries were believed by the jury, we are not of the opinion that the plaintiff recovered too much, and therefore do not,believe that the disposition made by the trial judge of this incident should be interfered with. See, also, People v. Kimbrough, 193 Mich. 337.

The remaining assignments of error relate to remarks of counsel in argument to the jury. Complaint is made of the following statement:

“Is there a gentleman on this jury who would take that for all the money that could be given?”

and the case of Hughes v. City of Detroit, 161 Mich. 283, is relied upon to show that this was prejudicial error. When the statement criticized was made to the jury in the present case, however, the court immediately proceeded to call their attention to the fact that the statement was improper, asked the jury to pay no attention to the argument, and correctly charged them as to the proper measure of damages. Under these circumstances we have held that improper argument does not constitute ground for reversal. See Reese v. Railway, 159 Mich. 605; Merrill v. Tinkler, 160 Mich. 580; Wheeler v. Jenison, 120 Mich. 428; Pruner v. Railway, 173 Mich. 152; Devich v. Dick, 177 Mich. 177; Eberts v. Sugar Co., 182 Mich. 473.

With reference to the other argument which is criticized, we think it is sufficient to say that we do not consider the statements complained of sufficiently prejudicial to reverse the case. , ,

The case was fairly submitted to the jury and we find no reason for reversing the judgment of the court below. It is therefore affirmed.

Ostrander, C. J., and Bird, Moore, Steere, Fellows, and Stone, JJ., concurred. Brooke, J., did not sit.


text:
    MARTIN v. BENZIE CIRCUIT JUDGE.
    1. Habeas Corpus — Res Judicata — Minors—Right to Custody-Parent and Child.
    A final adjudication on writ of habeas corpus, brought to determine the right of a parent or guardian to the care and custody of a child, conclusively determines all questions necessarily involved as between the same parties and upon the same state of facts, but is no bar to a later proceeding under changed conditions.
    2. Same — Mandamus — Res Judicata — Changed Conditions — Hearing Upon Merits.
    Mandamus will issue to compel the court below to grant a hearing upon the merits of a petition for a writ of habeas corpus by a father for the custody of his child, although a previous adjudication was against him, where the petition alleged that conditions had materially changed since the former proceeding.

      Mandamus by Harley Martin and another to compel Charles B. Collingwood, acting circuit judge of Benzie county, to grant a hearing upon a writ of habeas corpus.
    Submitted February 12, 1918.
    (Calendar No. 27850.)
    Writ granted March 27, 1918.

      Parm C. Gilbert (Thomas Smurthwaite, of counsel), for plaintiffs.

      Marion G. Paul (W. E. Baines, of counsel), for defendant.
   Kuhn, J.

This proceeding involves the right of a father to prosecute a writ of habeas corpus to obtain the custody of his own daughter.

Leola Martin, the child here in question, was born on or about November 4, 1913, and is the daughter of Harley Martin, one of the plaintiffs herein, and of Vera Martin, who died at the birth of the child. After the mother’s death, an arrangement was made by the father with Cassius and Isabella Chandler (Cassius Chandler being the brother of the mother of the child) to take the child to their home. There was no special contract made, written or otherwise, and no adoption. The father lived for a short time with the Chandlers on their farm, but trouble arose between them and he left. He afterwards began proceedings in the circuit court for Benzie county to obtain possession, of his child. Shortly before the hearing with reference thereto, Harley Martin married his present wife, the plaintiff Nellie Martin, and after a hearing before the Hon. Fred S. Lamb, circuit judge, the court decided that the best interests of the child would be conserved by leaving her with the Chandlers, her uncle and aunt.

About a year after this first hearing, Harley Martin again presented a petition and obtained a writ of habeas corpus from Judge Lamb, to which proceeding objections were presented by the respondents Cassius and Isabella Chandler, who made a motion to quash the proceedings, claiming in substance that the prior proceeding in 1915 was a bar to the present hearing and that the latter writ issued must be quashed and the present petition dismissed. This motion came on for hearing before the present respondent, Hon. Charles B. Collingwood. On this hearing, the respondent granted the motion and filed a written order to that effect, which appears in the record. Mandamus is asked for in this proceeding to compel the circuit judge of Benzie county to proceed with the hearing upon the writ of habeas corpus and that the order made by respondent be vacated and that the plaintiff be granted a hearing.

The merits of the whole controversy are not involved here, and counsel seem to agree that the only question for determination is whether or not the plaintiffs have made a sufficient showing in their petition to entitle them to take proofs and to be heard.

The courts have made a distinction in habeas corpus cases between those brought to determine the custody of children and those brought to determine the legality of sentences of parties to imprisonment. This distinction is referred to in the case of In re Mould, 162 Mich. 7, and the general rule seems to be fairly deducible from the authorities that a proper final adjudication on writ of habeas corpus, brought to determine the right of a parent or guardian to the care and custody of a child, conclusively determines all questions necessarily involved as between the same parties and upon the same state of facts. For a review of the authorities, see note in Re King, 67 L. R. A. 783 (66 Kan. 695). This petition is filed, however, upon the theory that a new condition has arisen materially different from that existing when the former adjudication was had. The petition alleges:

“That upon the decision of said court in November, 1915, and thereafter said Chandlers failed to observe .and obey said order and have not granted to the said Harley Martin the right to freely visit his child at their home nor welcome him there, but have purposely and unlawfully interfered therewith, as shown by the allegations of the present petition of these plaintiffs, Exhibit D, hereto annexed.
“That it has lately come to'’the knowledge of plaintiffs that the said Cassius Chandler is not a man of integrity and honesty, and that the practice of said Chandler in defaming the said plaintiffs, and particularly the said Harley Martin, has but recently come to the knowledge of these plaintiffs, and that likewise the later treatment of the said Harley Martin by the said Chandlers and their refusal to allow him to see his child except within their own house and dooryard, and their forbidding him to take said child outside the yard and into the roadway and to his own home or any place for a visit, which plaintiffs allege they have continually done (all of which is referred to in the present petition of said plaintiffs), constitutes such new facts and charges as to entitle these plaintiffs to a present hearing upon said petition.”

The courts should, and have always had in mind, in the determination of the vexing questions arising concerning the custody of a child, the best interests of the child and also the natural and humane feelings and sentiments of the parents. We are not, in this case, however, called upon to review the determination of the learned circuit judge who first decided the case upon its merits, and who had in making that determination the advantage of seeing the parties in court and hearing the testimony from the witness stand. The sole question here is, Should there be another hearing upon the merits as to the claimed changed conditions alleged in the new petition filed and on which the new writ of habeas corpus was allowed? In our opinion, the charge as to a change in the conditions was sufficient to warrant an investigation. If found true, the charge that the Chandlers were seriously prejudicing the child against its father is one that is vital and of serious importance. The superior right of the parent to the child should only be-enforced when it accords with the best interests of the child. As was said by Chief Justice Steere in the case of In re Gould, 174 Mich. 673:

“The leading principle being that, when the right of the parent is not clear and imperative, the best interests and happiness of the child must always control the decision of the court.”

Whether or not the alleged conduct of those now in charge towards the father seriously affects the best interests of the child, cannot be determined until thé proofs have been taken and the case heard on its-merits. The learned circuit judge, the respondent herein, in his return, states that he is constrained to hold that no substantial change in the facts and circumstances surrounding the child or affecting its welfare has taken place since the former trial. This conclusion, however, in view of the charge made, it' seems to us can only be determined after the introduction of the testimony. It may be that after the proofs have been taken, the court may still be of the opinion that the conclusion reached in his return is a proper one; but upon the petition as presented, we are constrained to hold that the plaintiffs were entitled, to a hearing and an opportunity to present their proofs. The writ will, therefore, issue as prayed for, and the circuit court is instructed to proceed to a hearing on the writ of habeas corpus issued.

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


text:
    PEOPLE, for the use of WESTOVER-KAMM CO., v. VALLEY MANTEL & TILE CO.
    1. Contracts — Municipal Corporations — Public Buildinqs — Statutory Bonds — Subcontractors.
    One who takes a contract under the original contract, and. is to perform in accordance with the original contract, is a subcontractor, and, in order to recover under the statutory bond, he must comply with the statute in giving the proper notice. Section 2, Act No. 187, Pub. Acts 1905 (3 Comp. Laws 1915, § 14828).
    2. Same — Subcontractors—Original Contract the Standard.
    That one furnished materials for the erection of a public building in conformity with the original contract would not make him a subcontractor if he was ignorant of the terms of the original contract and did not agree that it should be the standard; one cannot become a subcontractor unless he contracts to become such.
    3. Schools and School Districts — Statutory Bonds — Material-men — Subcontractors-—-Notice.
    In an action against the sureties on the statutory bond of the contractor on a school house, evidence on the question as to whether plaintiffs were materialmen o-r subcontractors examined, and held, to support the finding of the court below that plaintiffs were materialmen, rendering immaterial the question of the sufficiency of the notice required to be given by subcontractors under section 2, Act No. 187, Pub. Acts 1905 (3 Comp. Laws 1915, § 14828).
    4. Same — Bankruptcy—Statutory Bonds.
    Bankruptcy of the contractor on a school building is no bar to an action by the materialmen against the sureties on the statutory bond on the ground that the amount of the liability cannot be fixed pending settlement of the bankrupt’s estate, where there is no question as to the amount due plaintiffs, since by paying the judgment the defendants are legally entitled to be subrogated to plaintiffs’ claims against the estate.
    Error to Bay; Mayne, J., presiding.
    Submitted January 30, 1918.
    (Docket No. 79.)
    Decided March 27, 1918.

      Assumpsit by the people of the State of Michigan, for the use and benefit of the Westover-Kamm Company and others, against the Valley Mantel & Tile Company and others upon a statutory bond. Judgment for plaintiffs. Defendants bring error.
    Affirmed.

      James Donnelly and C. W. Hitchcock, for appellants.

      Stoddard & McMillan, for appellees.
   Kuhn, J.

The Valley Mantel & Tile Company; on the 13th of July, A. D. 1915, executed a contract with school district No. 2 of the township of Portsmouth, in Bay county, this State, for the erection of a school building in that district. The building was erected in accordance with certain plans and specifications furnished by an architect, and was completed under the supervision of the architect and a certificate of the completion thereof was given. The plaintiffs furnished certain materials used in the construction of the building. No notice of any kind was given by any of the plaintiffs to the contractor, the Valley Mantel & Tile Company, or to the school district, until after the completion of the construction of said building and its acceptance by the building committee and the architect. After the contract had been performed, the plaintiffs in this cause started suit for the collection of the several amounts claimed to be due them. This suit is brought under Act No. 187, Public Acts of 1905 (3 Comp. Laws 1915, § 14827 et seq.), upon a bond given pursuant to that statute by the contractor, as principal, and the defendants DeWaele, Marande and Hayward, as sureties. Upon the trial, after considerable evidence had been introduced with reference to the claims of the various parties, counsel for the parties, plaintiffs and defendants, agreed as to the amounts owing for materials, etc., furnished by the several claimants, and after giving credit for 10 per cent, paid by the estate of the defendant, Valley Mantel & Tile Company, bankrupt, and charging 5 per cent, interest on the several claims, the amounts due the several claimants were also agreed upon by counsel as follows:

Westover-Kamm Co....... $769.39

Ideal Plumbing Co.............. 75.95

Kaustine Co. ....................... 177.81

Jennisom Hardware Co.............. 397.12

Henry G.-Koch...................... 57.96

Matthew Eamont’s Sons Co........... 41.62

and judgment was entered accordingly.

It was insisted on behalf of plaintiffs that all of the claimants were materialmen and not subcontractors, and it was agreed by the court and counsel that there were no questions of fact involved, the counsel for the defendants stating that,—

“The question of the service of notice I agree is a question of law, and the question of whether the claim of the plaintiffs in the case are materialmen or subcontractors, I think, also is a question of law.”

The case was decided by the court as upon a directed verdict, the court finding against the contentions of counsel for defendants upon the question of whether or not the claimants were subcontractors or materialmen. It was conceded by counsel for defendants that Matthew Lament’s Sons Company was a “material-man.” We will have no difficulty in affirming this judgment, if the conclusion of the circuit judge was correct that the other claimants were materialmen rather than subcontractors.

The question here involved had the careful consideration of this court in the opinion written by Mr. Justice Carpenter in the case of People, for use of Davis, v. Campfield, 150 Mich. 675. The definition of a subcontractor by this court in the case of Avery v. Board of Sup’rs of Ionia Co., 71 Mich. 538, was adopted, where it was said:

“The subcontractor is an under contractor, — one who takes under the original contract, and is to per~ form in accordance with the original contract.”

It is there said that the test is, Has the person furnishing the material agreed that the original contract shall be the standard by which the performance of his contract shall be judged? If he has, he is a subcontractor and cannot recover on the statutory bond without the proper notice. It is also further said:

“Under this definition, and according to this test, a manufacturer who agrees to furnish the doors and sashes for a building in accordance with the terms of the original contract, is a subcontractor, while if he merely agrees to furnish them in accordance with .certain measurements, he is a materialman.”

It is also further stated that if he furnished the materials in ignorance of the terms of the original contract, while in fact they conform to the terms of that contract and result in a fulfilment of the original contract, the person furnishing the material would still be a materialman, “because he has not agreed that the original contract shall be the standard. * * * He cannot become a subcontractor unless he contracted to become such.”

Applying these tests to the situation before us, we think it conclusively appears that none of these claimants contracted to become a subcontractor. The original contract provided, among other-provisions:

“The contractor Shall make no subcontract except with parties satisfactory to the architect.”

The architect who prepared the plans and specifications and who supervised the construction of the building, and who certifies to the completion thereof, testified that there were no subcontractors. There is no testimony to warrant the claim that any of these claimants contracted to become a subcontractor, or that they agreed to take under the original contract and to perform in accordance with the original contract. It is true that some of them, at the time they made their bids in a lump sum for the various materials which constituted their claims, had before them specifications and plans, but we do not think that this was sufficient to make them subcontractors, because it does not appear that they did agree to take under the original contract and perform in accordance with its terms. We think that the situation is distinguishable from the case of People, for use of Buhl Sons Co., v. Finn, 162 Mich. 481, where the proposition to furnish materials was to be in accordance with plans and specifications which were a part of the original contract, and the subcontract was made with especial reference to the original contract, plans and specifications. See, also, Staffon v. Lyon, 104 Mich. 249; People, for use of Hirth, v. Powers, 108 Mich. 339; People, for use of Winkle Terra-Cotta Co., v. Cotteral, 119 Mich. 27; People, for use of Kroenke, v. Trust Co., 154 Mich. 614; People, for use of Kuenzel, v. Construction Co., 159 Mich. 133; People, for use of Sauer, v. Connell, 195 Mich. 77.

In view of this Conclusion, it will be unnecessary to discuss or consider the question of the sufficiency of the notice which was given, which, it is contended by the plaintiffs, was sufficient to bring it within the provisions of the statute, even if it should be held that plaintiffs were subcontractors instead of materialmen.

There is also a contention made by counsel for appellants: “The court erred in receiving any testimony, because the exact liability, if any, could not be fixed,” owing to the fact that the contractor had been adjudicated a bankrupt and that its estate in bankruptcy had not been settled. We do not think that there is any merit to this contention. There is no question as to the amounts due the several claimants, and credit has been given for the dividend of 10 per cent, already paid by the trustee in bankruptcy. The sureties, if they pay the judgment recovered against them, will be legally entitled to be subrogated to the rights of the several claimants as against the estate of the contractor and receive whatever further dividends may be paid.

The judgment should be, and is hereby affirmed.

Osteandee, C. J., and Bied, Mooee, Steeee, Beqoke, Fellows, and Stone, JJ., concurred.