text:
    YUILLE-MILLER CO. v. CHICAGO, INDIANAPOLIS & LOUISVILLE RAILWAY CO.
    1. Carriers — Sales—Delivery—Inspection.
    An inspection of a car load of plums, made by the consignee ■without authority of the carrier, and without paying a sight draft to which the bill of lading of the plums was attached, was not a delivery, where the consignee thereafter rejected the goods as imperfect.

      2. Same — Estoppel—Acceptance—Delivery.
    Where plaintiff received a letter and telegram from the consignee, plainly indicating that there had been no delivery or acceptance of the plums, and demanding a reduction of $50 in the price, and plaintiff neglected to inquire of the bank handling the draft for the purchase price as to whether it had been paid, the defendant is not estopped to deny delivery, in an action for consequent loss, by reason of a telegram to its agent that the car had arrived and been delivered, being merely a reply to the telegram giving information of shipment and directions to notify consignee.
    Error to Kent; Perkins, J.
    Submitted November 29, 1910.
    (Docket No. 162.)
    Decided December 22, 1910.
    Assumpsit in justice’s court by Yuille-Miller Company against the Chicago, Indianapolis & Louisville Railway Company, for failure to carry and deliver a car load of plums. A judgment for defendant directed by the court on appeal to the circuit, is reviewed by plaintiff on writ of error.
    Affirmed.

      Cleland, Heald & Montgomery, for appellant.

      Kleirihans & Knappen, for appellee.
   Hooker, J.

The plaintiff, a fruit dealer, shipped a car of plums from Shelby, Mich., to Indianapolis, Ind., upon an order received by it from Neumann & Co., dealers in the latter city. It was sent via Pere Marquette and defendant’s lines. The car started from Shelby on August 29, 1908. The original bill of lading recited that the car was received from the plaintiff and was consigned to itself, at Indianapolis, Ind. On the same day plaintiff drew a draft on Neumann & Co. through a bank at Indianapolis, for $868.40, the price agreed on. Attached to this draft was an order to the defendant, directing it to deliver the car of fruit to John W. Neumann & Co., on surrender of the order.

The principal place of business of the plaintiff was at Grand Rapids, and it received the bill of lading from Shelby on August 30, 1908. It forwarded the same duly indorsed to its bank at Indianapolis, with the request that it be substituted for the delivery order sent to the bank with the draft the day before. Neither the waybill nor the bill of lading contained any direction allowing inspection. The car arrived on September 1st, and was placed on the hauling and unloading track where such cars were usually placed. It was a sealed car. Having no directions nor information as to the delivery of this car to any one other than the plaintiff, the cashier of the railroad company made inquiries of the local fruit dealers, and learned that Neumann & Co. were looking for such a car and they were notified that the car was in the yard ready for delivery. They said they would look after it. Neumann’s agent broke the seal of this car without the consent or knowledge of the railroad company and examined the fruit. Soon after, defendant’s yardman found, reported, and replaced the broken seal, though not until Neumann had, without the knowledge or consent of the railroad company, made a more careful inspection on the morning of September 2d. On September 1st Neumann wrote plaintiff as follows:

“East Street and Union tracks,
“ Indianapolis, September 1, 1908.
“Yuille-Miller Company,
“Grand Rapids, Michigan.
Gentlemen:
“We are rather disappointed in quality car plums E. G. E. 18229. This stock was nothing compared to previous shipments. Not alone was the stock rather soft and showing more or less decay, but the baskets were poorly filled, some lacking an inch or two. We hope our good fortune in making this purchase on advancing market did not affect the quality or packing, though what you thought would make us rich will probably enable our buying an extra smoke, but nothing more than that. Please ascertain from the local agent at once the freight and refrigeration charges, also the minimum weight. We believe that there is an overcharge in these shipments. Wired you today with reference to small car to be shipped tomorrow. If you have some good stock and prices are not too high, we will be glad to place an order.
“Yours truly,
“John W. Neumann & Company.”

Mr. Yuille testified that he thought he received this letter on the morning of September 2d and that about noon of that day he received the following telegram:

“ Time filed, 10:15 a. m. K. September 2,1908. YuilleMiller Company, Grand Rapids, Michigan. Blue plums all showing considerable decay, loaded over ripe, will lose money. Wire bank reduce draft $50. You should not have shipped such. John W. Neumann & Company.”

After receiving this telegram plaintiff started a tracer for the car through the Monon Agency at Grand Rapids. The following are the telegrams:

“Grand Rapids, Michigan, September 2, 1908. “A. J. O’Reilly, General Agent, C. I. & L. Railway Company,
“ Indianapolis, Indiana.
“From Shelby, Mich., August 29th, in our care at Michigan City F. G. E. 18229; plums billed order YuilleMiller Company, notify Neumann & Company, please wire date of arrival and delivery. W. T. Webster.”
“Indianapolis, Indiana, September 2, 1908. “W. T. Webster, Commercial Agent, C. I. & L. Railway,
“ Grand Rapids, Michigan.
“ 18229 plums arrived and delivered yesterday morning. A. J. O’Reilly, 4:11 p. m.”

After receiving this last telegram, but when does not appear, plaintiff answered Neumann’s telegram, refusing a concession of $50. Yuille stated that he relied on the telegram received from the Monon Agency, and that otherwise he would have allowed it. Neumann refused to pay the draft or have anything to do with the car. The defendant asked through the Pere Marquette Railway for a disposition of the car, and was directed to deliver to Hind & Fuchs, commission men, which it did. Plaintiff received net $151.67 from a sale of the fruit. The trial judge denied a proposed amendment to the declaration alleging an estoppel to deny delivery of the car to Neumann, refused to consider the estoppel, and directed a verdict for defendant on the ground that there was no evidence of delivery by the railroad company. Plaintiff has appealed.

Delivery. The important questions in the case relate to the alleged delivery of the car to Neumann and the estoppel. Counsel for plaintiff claim that:

(1) Permitting Neumann & Co. to examine or inspect the fruit was a delivery of the same.
(2) That if it was not, the defendant is estopped to deny delivery by its telegram announcing delivery.
(3) If there was a delivery or its equivalent, without the order or bill of lading, defendant’s liability follows:

It is manifest that Neumann & Co. never meant to accept these plums and that the railroad company never meant to deliver them. Counsel’s claim seems to be that because the railroad company omitted to place a lock on the car, according to its alleged custom, where cars were “sent bill of lading” and informed Neumann that the car was on the siding, they intended to turn the car over to Neumann, and that his inspection without other authority constituted an acceptance. It seems to us that this cannot be said to constitute a delivery. Neumann’s man was given no authority to break the seal by the railroad company, and his principal undoubtedly knew that the payment of the draft was a prerequisite to any right to the plums. No right to them was ever asserted by Neumann. The failure to lock the car has no particular significance in our judgment. Counsel seem to think it equivalent to authorizing Neumann to take the car of plums without paying for it. It does not follow that it was a delivery, for he did not take them. Evidently he knew better than that, and while his man without authority broke the seal and looked at the plums, and Neumann looked at them later, he never signified by act or deed an intention to take them, and the defendant was ignorant of what was done. We must hold that the car was at all times in the custody of the railroad company, and so long as the plums were neither taken nor injured by Neumann’s unauthorized act, the plaintiff could not complain.

Estoppel. Plaintiff’s claim of estoppel is based upon some telegrams, etc. We will state the situation in detail : The car arrived, and was set in on the delivery track at Alabama street on September 1st. On the same day, after an unauthorized examination by Neumann’s agent, the letter of September 1st was written by Neumann. It indicates arrival and examination, but neither delivery nor acceptance. It appears to have been received by plaintiff September 2d. On the afternoon of September 2d the telegram asking a reduction of $50 was received, indicating that it had not yet been accepted. Thereupon a tracer was sent for the car by plaintiff. It was sent through the Monon City Agency, defendant’s road being often called ‘ ‘ The Monon Route. ” At some time the same day, September 2d, the following telegram was sent:

“ Grand Rapids, Michigan, September 2, 1908. “A. J. O’Reilly, General Agent, C. I. & L. Railway Company,
‘ ‘ Indianapolis, Indiana.
“From Shelby, Mich., August 29th, in our care at Michigan City, F. G. E. 18229; plums billed order YuilleMiller Company, notify Neumann & Company, please wire date of arrival and delivery. W. T. Webster.”

Plaintiff’s manager was in the country for some hours on September 2d, and returned to his place of business after office hours. He found the following telegram in reply to the one last quoted:

“Witness continuing: Mr. Webster is the commercial agent for the Monon route here at Grand Rapids in charge of the district in this territory. That telegram that you now show me was received in reply to this Exhibit F, which you have just read. ( Telegram offered in evidence, marked ‘ Exhibit G.’)
“Mr. Heald (reading):
“‘Indianapolis, Indiana, September 3, 1908.
“ ‘ W. T. Webster,
“ ‘ Commercial Agent, C. I. & L. Railway,
“ ‘ Grand Rapids, Michigan.
“ ‘18229 plums arrived and delivered yesterday morning. A. J. O’Reilly, 4:11 p. m.’ ”

It apparently was not in reply to the tracer, but as Mr. Yuille himself testified was in reply to the telegram giving information of shipment and directions to notify Neumann, sent probably before Neumann’s letter or telegram had been received. Plaintiff’s claim is that he relied on this statement, that car was delivered on September 1st, and did not accept the $50 reduction proposition; which he would have done had he not been informed that the car was delivered to Neumann September 1st.

Late on September 2d (4:55 p. m.) Neumann sent the following telegram:

“Telegram marked ‘ Exhibit D’ is as follows:
“‘Indianapolis, Indiana. Time filed, 4:55 p. m. September 2, 1908. Yuille-Miller Company, Grand Rapids, Michigan. No answer our telegram. Unless deduction granted today we decline acceptance car. John W. Neumann & Company.’”

Plaintiff’s manager said that he did not recall getting two telegrams on his late return to his office September 2d, and that he probably received it the next morning, but elsewhere.

Apparently the receipt of this telegram aroused suspicions that there had been no delivery and acceptance of this car, for he then took up the matter with Mr. Webster. Yuille says that “it was not because he was not satisfied with what Webster had reported with regard to the delivery of the car that we took it up with him.” He said he was satisfied that the car was delivered, but the Pere Marquette was inquiring after its disposition. If he was satisfied of its delivery to Neumann and the payment of the draft, it would have been natural for him to have given that information to the Pere Marquette Company, but instead he “took it up with Webster again, and Webster telegraphed again.” It should be noted that Yuille testified that the Pere Marquette informed him on the morning of the 8d that the car was refused. He then saw Webster who telegraphed, and later, or early on the 4th, he received the following:

“ Indianapolis, Indiana, September 3, 1908. W. T. Webster, Grand Rapids, Michigan, 18229 plums undelivered, still on hand, refused. A. J. O’Reilly, 5:07 p. m.”

Plaintiff immediately wired:

“ Deliver oar * * * to Hind & Fuchs without bill of lading.”

To recapitulate: Plaintiff shipped car on August 29th. On September 1st the railroad company delivered it on siding sealed. On September 2d, correspondence by mail and telegram was received by plaintiff, plainly showing that car had not been delivered and accepted, and would not be unless the bill was reduced. On September 2d the telegram answering tracer was received after office hours by plaintiff. On the same day the Pere Marquette wired the plaintiff that car was refused, and asked for disposition of car; i. e. (as we understand), what should be done with it. September 3d, in answer to Webster’s wire, he received the same information. At no time did plaintiff receive or ask any information from the bank as to draft or bill of lading.

Plaintiff has not offered his telegram or letter refusing to take the reduced price offered. He did not receive the first telegram until his return after office hours, on the 2d. That night or the next morning, early, he received Neumann’s ultimatum, both clearly showing that the car had not been accepted, and consequently that draft could not have been paid or car turned over to Neumann. ' It is manifest that a refusal to accept after the receipt of this information, upon the theory that the car had been delivered on September 1st, would have been in bad faith. Not only has he failed to show when or what he replied to Neumann, but his testimony leads to the suspicion that it was after he had received all of the telegrams. He said, alluding to the reply to the notification:

‘ ‘ That telegram that you now show me was received in reply to this Exhibit F, which you have just read. * * * The contents of that telegram were communicated to me late in the afternoon or evening of September 2d. I had not at that time replied to the telegraph request of John W. Neumann for reduction of $50 on the car. Subsequently I did reply to that telegram. I did not grant him that allowance of $50 which he asked. I relied in that refusal on the telegram received from the railroad company which is marked ‘Exhibit G? We had asked for arrival and delivery. They had replied that the car was delivered; therefore it was clearly no interest of mine to make any allowance to consignee; thinking, that if the car had been delivered, our draft must have been paid?’

He does not say that he was misled. If this was not a cold-blooded statement that he proposed to speculate upon misinformation which should not and could not have misled him, it is certainly far from proof that in reliance upon an honest and justifiable belief that the information was true, he had been induced to insist on full payment upon the conviction that his draft had been paid. If he believed it to have been paid there was no necessity of saying or doing anything. If he did not believe it had been paid, there could be no estoppel.

It is unnecessary to discuss other questions.

The judgment is affirmed.

Ostrander, Moore, McAlvay, and Brooke, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    KONIECZNY v. DETROIT & MACKINAC RAILWAY CO.
    1. Evidence — Judicial Notice — Current Events.
    The court may take judicial notice of the desperate situation in which the rural population and inhabitants of villages of northern Michigan were placed by forest fires in the fall of 1908.

      2. Negligence — Contributory Negligence.
    A deceased person is ordinarily presumed to have been in the exercise of due care, at the time of the injury resulting in his death.
    3. Railroads — Negligence—Engineer—Operation or Trains.
    Defendant’s engineer was not shown by the proofs to have been guilty of negligence in attempting to run his train, carrying some residents of a village, out of a district threatened with forest fires, and in proceeding through a fire which burned up the cars and some of the passengers; plaintiff failing to sustain the burden of proof by evidence that the engineer adopted the wrong course, or did not act for the best, upon the information he had.
    4. Same.
    And the evidence was insufficient to show that liquor which, he drank contributed to the disaster, where it was not shown that he was in anywise intoxicated, or failed by reason of it to comprehend his danger and the means of avoiding it.
    5. Same.
    Nor was it negligence to take the passengers from the village, which later burned, in an effort to protect them, or to fail to leave them in a place of safety, or warn them of the danger ahead.
    Error to Presque Isle; Emerick, J.
    Submitted November 30, 1910.
    (Docket No. 130.)
    Decided December 22, 1910.
    Case by John Konieczny, administrator of the estate of Eufrozyna Konieczny, against the Detroit & Mackinac Railway Company for the alleged negligent death of his intestate. A judgment for defendant is reviewed by plaintiff on writ of error.
    Affirmed.

      I. S. Canfield ( Charles F. Hull, of counsel), for appellant.

      James McNamara and Charles E. Henry (Cuy D. V. Henry, of counsel), for appellee. -
   Hooker, J.

The plaintiff and his wife were residents of the village of Metz near Alpena, previous to its destruetion by the forest fires, which swept and desolated that region in 1908. We may take judicial notice of the desperate situation in which the rural population and the inhabitants of the new and small villages of that section were placed. It is also plainly shown by this record.

It appears beyond and without dispute that on October 15, 1908, the village of Metz was in great danger of destruction, and that in spite of vigorous efforts to prevent, the fire from the woods burned it up, leaving not a shanty standing. This occurred toward night, and a short time after the train of the defendant departed from the village.

The defendant’s railway from Detroit to Mackinac passes through Metz. On the day mentioned messages were sent from Metz and other stations to Mr. Luce, the superintendent of this railroad, advising him that the inhabitants of Metz were in imminent danger. The south-bound local freight was at La Rocque, a station five or more miles north of Metz, and its conductor received the following message from Luce:

“ Take your engine and way car and go to Metz at once to assist people in danger from fire. C. W. Luce.”

He immediately released his engine and “ ran light ” to Metz with his crew of engineer, fireman, and two brakemen. On their arrival the engine was coupled to several cars, including a gondola. Some of the railroad property was hastily put into a box car, and some of the citizens loaded on some of their personal property. Many persons climbed into the gondola, and the train started south for Posen, distant about 10 miles. The conductor was at the rear of the train. At Nowicki’s crossing, a mile and a half from Metz, the train encountered fire, the rails warped or spread, and the train was destroyed with about 20 persons, among whom were the engineer, fireman, and the plaintiff’s wife and three children. The plaintiff was a saloon keeper at Metz, and at the time was engaged in the attempt to prevent the fire from reaching Metz. This action was brought by him as administrator of his deceased wife to recover damages for her loss to him. Negligence is charged. The jury found a verdict for the defendant, and plaintiff has appealed.

The negligence alleged, as set forth in plaintiff’s brief, is:

“(1) That defendant allowed its engineer and other trainmen to drink intoxicating liquors and thereafter to run and manage the train in question.
“(2) That defendant was negligent in employing an engineer and other trainmen, and put them in charge of said train who would and did drink intoxicating liquors to excess or at all.
“(3) That defendant was negligent in not giving plaintiff’s decedent warning that it was about to run the train on which she was riding between the piles of burning forest products.
“(4) That defendant was negligent in not leaving her in a place of safety.
“(5) That defendant was negligent in running its said train while plaintiff’s decedent was riding thereon, into a place where the track was covered by fiercely burning flames of fire.”

The brief states that:

“The errors assigned cover four grounds:
“First, (a) That defendant was allowed to show that, shortly before the trial, plaintiff had remarried. (6) That the court did not strike out all testimony relating to plaintiff’s subsequent marriage.
“Second. That the court refused to submit the question of the effect on the engineer, fireman, and brakeman of having drank intoxicating liquors and afterwards in the running and management of the train.
“Third,. The charge of the court in submitting the case to the jury in effect that they must find, before plaintiff could recover, that defendant’s engineer was guilty of having acted recklessly, wantonly, and wilfully in running the train between the burning piles of forest products.
“Fourth. That the court used the words ‘recklessly, wantonly, and wilfully,’ in charging the jury, without defining and explaining their legal meaning and import.”

The defendant’s counsel were allowed to show by cross-examination of plaintiff that he had married again since the accident.

There is no testimony in the case that tends to prove negligence on the part of any of the crew. The testimony shows that they had no personal knowledge of the condition of the forest fires south of Metz, except what could be seen as the train proceeded. It was through a country filled with smoke. The engineer slowed down his train as he approached the place of the catastrophe, apparently having it under control. We cannot tell what he saw or why he proceeded. Were his own administrator a party plaintiff in an action against this defendant, the presumption of the law would be that he was not negligent under the rule laid down in the case of Underhill v. Railway Co., 81 Mich. 48 (45 N. W. 508). There is not only such a presumption here, but the burden is upon the plaintiff to affirmatively prove that the engineer was negligent in attempting to proceed. It is common knowledge that engineers sometimes find themselves in situations with trains where they must decide between two dangers, and not only that, but must decide instantly. We do not know, and plaintiff has offered no testimony tending to show, that the engineer was negligent, or that he did not do the best thing to be done from the information he had. His own life was in the balance, and he lost it.

Apparently plaintiff’s counsel relied principally on the fact that the engineer drank some beer and whisky while at Metz. There is no proof that the engineer’s judgment was in any way affected by liquor or that it had anything to do with his conduct or ability to fully and intelligently comprehend his dangers, and decide upon the proper thing to do. No one testified that he showed signs of intoxication, and several witnesses testified that all of the crew were sober. In short, there is nothing to justify an inference that the beer or whisky was in any way the cause of or contributed to this unfortunate outcome of a charitable and heroic effort to save life.

The suggestion that it was negligence to take these peopie from a place of safety, or not to leave them in a place of safety, or to warn them of the danger ahead, is without force. A verdict might properly have been directed for defendant.

The judgment is affirmed.

Ostrander, Moore, McAlvay, and Brooke, JJ., concurred..


text:
    RESTRICK LUMBER CO. v. WYREMBOLSKI.
    1. Mortgages — Vendor and Purchaser — Declaring Instrument to be a Mortgage.
    A deed of real property to secure a loan made by the grantee, accompanied by the execution of a land contract back to the grantor, amounts to a mortgage, and does not divest the grantor of the legal title to the premises.
    3. Mechanic's Lien — Estate by Entireties — Statutes.
    A mechanic’s lien attaches to land owned by husband and wife jointly only in case the wife signs a written contract as required by 3 Comp. Laws, g 10711.
    3. Same.
    And where the owners gave a deed to secure a loan, with a land contract back, a lien does not attach, under 3 Comp. Laws, § 10713, providing for such lien, in case the person contracting for materials has no legal title.
    Appeal from Wayne; Murfin, J.
    Submitted October 17, 1910.
    ( Docket No. 76.)
    Decided December 22, 1910.
    Rehearing denied April 1, 1910.
    Bill by the Restrick Lumber Company against Frank Wyrembolski, Joseph P. Kaiser, and Frank Schmidt, to enforce a mechanic’s lien. From a decree for defendants* complainant appeals.
    Affirmed.

      Wilkinson & Younglove, for appellant.

      May & Dingeman, for appellees.
   Hooker, J.

On April 14, 1907, Frank Wyrembolski contracted with complainant for material for a house to be erected on lots 48 and 49, Gamble’s subdivision, which he represented that he owned. His wife did not join, the contract not being in writing, we understand. He had no title or right to said premises of any kind, so far as we are advised, but on April 15th Gamble and wife conveyed lot 49 to Wyrembolski and wife, and on April 29th Gamble and wife conveyed lot 48 to them. They then held by entire-ties. Delivery of lumber began about April 15th to 18th, the exact time being in dispute. On May 2,1907, the premises were deeded to Kaiser and Schmidt by Wyrembolski and wife to secure a loan, and they gave back a land contract, with a balance unpaid of $2,375. We understand that these instruments amounted to a mortgage only, under the decision in the case of Flynn v. Holmes, 145 Mich. 606 (108 N. W. 685, 11 L. R. A. [N. S.] 209), and did not divest the defendants Wyrembolski of a legal estate in the land. The delivery of the lumber was completed on November 30, 1907. This bill was filed to enforce a lien upon the new house.

The cases of Jossman v. Rice, 121 Mich. 270 (80 N. W. 25, 80 Am. St. Rep. 493), and Holliday v. Mathewson, 146 Mich. 336 (109 N. W. 669), are the only cases which can be said to sustain the right contended for by complainant. Jossman v. Rice was a case where land was held by the entireties. Holliday v. Mathewson was a case where it was held on an oral contract of sale to the husband. In both cases the lien upon the new house was sustained against the rights of homestead, and in both it was denied as to the land. There was also this difference between the cases: One was under the lien law of 1891; the other the law of 1897 — the only difference being in sections 2 and 9.

Section 3 (3 Comp. Laws, § 10712) provides:

“Any person furnishing services or materials for the erection of a new building or structure upon land to which the person contracting for such erection has no legal title, shall have a lien therefor upon such (building) buildings or structure; and the forfeiture or surrender of any title or claim of title held by such contracting person to such land shall not defeat the lien upon such building or structure of such person furnishing services or materials as aforesaid. In case the property covered by the lien is held by the vendee in a land contract, and he surrenders or forfeits his rights thereunder, the person or persons holding such liens may be subrogated to the rights of such vendee, as his rights existed immediately before such surrender or forfeiture, by performing the covenants contained in such contract within thirty days after such forfeiture or surrender is made.”

In the later case of Bauer v. Long, 147 Mich. 351 (110 N. W. 1059, 118 Am. St. Rep. 552), where land was held by entireties, it was held that a lien could not attach, and the application of that section limited to cases of land “to which the defendants had no legal title ” as was the case in Hollidays. Mathewson. This case—i. e., Bauer v. Long—has since been followed in Frolich v. Blackstock, 155 Mich. 604 (119 N. W. 906). We cite and discuss these cases to avoid any misunderstanding or confusion later.

These last cases control the present case unless it may be said that it should come within section 2 by reason of the deed to Kaiser and Schmidt, and the contract to the Wyrembolskis, and that we should hold that the latter had no legal title. Were we to say this, it would be inconsistent with the rule laid down in Flynn v. Holmes, supra.

The decree is affirmed, with costs.

Moore, McAlvay, Brooke, and Blair, JJ., concurred.


author: Stone, J.

text:
    CLAIRVIEW PARK IMPROVEMENT CO. OF GROSSE POINTE, LIMITED, v. DETROIT & LAKE ST. CLAIR RAILWAY.
    Appeal and Error — Judgments—Motion to Dismiss — Estoppel by Enforcement.
    By the issuance of a writ of possession, by accepting the payment of costs, and by enforcing, by threats that the writ will be executed, a compliance with portions of a judgment in ejectment favorable to appellant after settling a bill of exceptions, an appellant precludes itself from reviewing the cause on error.
    Error to Wayne; Donovan, J.
    Submitted October 27, 1910.
    (Docket No. 86.)
    Decided December 22, 1910.
    Rehearing denied April 1, 1911.
    Ejectment by the Clairview Park Improvement Company of Grosse Pointe, Limited, against the Detroit & Lake St. Clair Railway and the Detroit United Railway. A judgment for plaintiff for a part of the premises claimed is reviewed by plaintiff on writ of error. On motion to dismiss, heard at the hearing on the merits.
    Writ of error dismissed.

      William M. Mertz, for appellant.

      Gray & Gray, for appellees.
   Stone, J.

This is an action in ejectment brought to recover possession of two strips of land, one occupied by defendant’s tracks and ties, and the other by a wooden supporting wall known as the bulkhead.” Defendant’s track runs upon Wier lane a distance of about 800 feet from the so-called boulevard in the rear, to Jefferson avenue in front, and clips the corner off the property just as it turns into and across Jefferson avenue; then continues northerly towards Mt. Clemens. The second strip is substantially 150 feet long and about 20 feet wide along the shore of Lake St. Clair, extending northerly from the end of Wier lane, parallel with Jefferson avenue, between defendant’s tracks and the lake. In and upon this parcel defendant has maintained spiles and a wooden supporting wall known as the “bulkhead,” and this last-named strip of land is itself referred to in this record as the “bulkhead.” The latter was intended to strengthen the support of the track where it turns from Wier lane along the lake front. A blue print, in the record, shows the general situation.

Upon the trial, only that portion of .the property clipped off where the track turns upon Jefferson avenue was by the verdict of the jury awarded to the plaintiff. As to the Wier lane proper, the verdict was for the defendant, and it omitted any finding as to the strip of land between the track and the lake known as the “bulkhead.” However, the formal verdict, and judgment, as entered, show a finding for defendant as to the “bulkhead” also.

The plaintiff tendered a bill of exceptions which it claims was settled and signed April 26,1910. The printed record does not contain the exact date of settlement.

The plaintiff caused a writ of error to be issued out of this court on June 9, 1910. No supersedeas bond was filed. On June 8, 1910, the plaintiff caused a writ of possession and of execution to be issued out of the circuit court for the enforcement of the judgment in regard to the property awarded to it, and for the payment of costs. This writ was not actually delivered to the sheriff, but was held by the plaintiff’s attorney.

As early as April 29, 1910, plaintiff’s attorney wrote to defendant’s attorneys calling their attention to the judgment, and asking the following question:

“Will the defendant move its tracks off of the corner of the turn of Wier lane and Jefferson, or will it be necessary for writ of restitution to issue ? ”

He also requested the payment of the taxed costs. On May 2,1910, defendant’s attorneys replied that they would confer with the defendant, and advise plaintiff’s attorney.

As to the subsequent interviews and acts, there is some conflict, as shown by the affidavits on file. It appears, however, that on May 27, 1910, plaintiff’s attorney again wrote defendant’s attorneys relative to tracks and costs, and countercosts, and concluded as follows:

“As to tracks at corner, they are a nuisance and cut in entirely too far. Besides, on a new trial, I think I can show they are over boundary line of lane on premises proper, all the way down from boulevard. It is bad enough to have them there at all, let alone such encroachment. The company lets the lane grow up with weeds and brush, and so long as they monopolize the lane, pending outcome of suit, they should get off the corner and make sure the tracks are not outside lane all along.”

Again, on June 6, 1910, plaintiff’s attorney wrote defendant’s attorneys as follows:

“I wrote you on April 29th regarding Clairview Park Imp. Co. vs. Railway, and received a letter in reply that you would let me know as to inquiry about payment of costs taxed, and also removal of tracks. I have heard nothing since, and wrote you over a week ago, to which I have no reply. I gave citations to Mr. Trowbridge over phone showing that the D. U. R. were not entitled to costs, and that the costs should be paid as taxed. He seems to have misapprehended regarding the matter. If I am to receive no reply from you definitely on my inquiry, I should at least be obliged for the courtesy of immediate information to that effect.”

On June 17, 1910, defendant’s attorneys sent a check for the taxed costs to the plaintiff’s attorney.

On August 17, 1910, plaintiff’s attorney wrote defendant’s attorneys as follows:

I am much disappointed at receiving no indication of the D. U. E. or the Detroit & Lake St. Clair Ry.’s making any move as to tracks at corner of Wier road on Jefferson. Mr. Trowbridge will of course know how I have withheld the writ upon the company’s promise to move, and also to see as to plan of movement. I will have to let the sheriff act in this matter unless the company sees fit to act immediately. I shall not consider that they intend to act unless it is given immediate consideration by them.”

The tracks were moved on the corner on the night of September 21,1910, but it is the claim of the plaintiff that they were not wholly removed from the corner of Wier lane and Jefferson, but that they still remain outside of Wier lane on said corner, and that said tracks still encroach on said corner for which plaintiff had judgment.

On September 30, 1910, defendant’s attorneys entered a motion in this court to dismiss the writ of error, and all proceedings thereunder, for the reason that the plaintiff appellant has exercised its rights under the judgment below in such a way as to estop it from questioning the same, or further to seek its reversal. This motion was held until the hearing of the case, and should first be disposed of. Counsel have at some length presented arguments and authorities upon the question whether the same rule should apply in an action of ejectment, where there has been a partial recovery, as where the appealing party has obtained satisfaction of judgment in other actions. Counsel seem to agree, however, that, if the state of the case is such that the contention cannot be otherwise than speculative, and no rights of the parties can be changed in point of law, it is not incumbent on this court to formulate an opinion, where the plaintiff could have no legal interest in the result.

The plaintiff contends that the judgment is not in accord with its just rights, and that its recovery was for a small part, only, of the premises involved, and that almost the whole of Wier lane in front of the boulevard, and the “bulkhead,” remain in dispute, and that it seeks judgment for the entire property described in the declaration; and it claims that it was the understanding between the parties and their counsel that what was done by way of payment of costs, and getting possession of the small part recovered by the judgment, was to be without prejudice to its rights upon appeal. It also claims that the writ of possession was not executed, that it was issued at the suggestion of defendant’s counsel, and that a copy of the writ was given to them by arrangement; and finally it is urged that the entire premises recovered have not been surrendered or vacated.

It does appear that while the plaintiff was prosecuting a writ of error for the purpose of reviewing this judgment, it enforced the judgment on the parts thereof which passed in its favor, namely, as to the corner, or a part thereof, and as to costs. It also clearly appears that this was brought about by its repeated statements that if the track was not moved and the taxed costs paid, the same would be enforced by the writ then in possession of its attorney. The motion to dismiss the writ of error is based upon the proposition that a party cannot, while availing himself of the judgment, so far as it passed in his favor, seek its reversal. Either party to a .judgment in ejectment may of right demand a statutory new trial. There is here but one judgment. If it were to be reversed at all, it must be reversed in its entirety. If the judgment should be reversed, it would follow that it would be only under an invalid judgment that the defendant had been compelled to move its tracks.

It should be borne in mind that no part of the plaintiff’s claim was admitted by the defendant, but the entire claim was denied and contested. It is an established rule of procedure that a party to an action cannot receive a benefit under a judgment, and then appeal from it, when the effect of his appeal may be to annul the judgment, unless his right to the benefit is absolute, and cannot possibly be affected by a reversal of the judgment. Easton v. Lockhart (N. D.), 89 N. W. 75. The earlier case of Tyler v. Shea, 4 N. D. 377 (61 N. W. 468, 50 Am. St. Rep. 660), is referred to by Chief Justice Wallin in the above case.

As Tyler v. Shea is cited by plaintiff’s attorney, the following excerpt therefrom is quoted. After stating the rule as above, and citing many authorities in support thereof, the court says:

“We must be careful not to ignore an important qualification of the general doctrine. Where the reversal of the judgment cannot possibly affect the appellant’s right to the benefit he has secured under the judgment, then an appeal may be taken, and will be sustained, despite the fact that the appellant has sought and secured such benefit. To illustrate this doctrine, we may instance the case of an action to recover $1,000, in which the only defense is a counterclaim for $500. It is obvious that $500 of plaintiff’s claim is admitted. If the defendant succeeds in establishing his counterclaim, thus reducing the plaintiff’s recovery to $500, the plaintiff may collect the $500 awarded to him by the judgment, and still appeal from such judgment to secure a reversal, to the end that he may defeat the counterclaim and recover judgment for his entire demand on a new trial. The $500 he is entitled to absolutely. The reversal of the judgment and the second trial of the case cannot impair his right to it. Accepting this sum is therefore not inconsistent with his attempt to reverse the judgment, that he may on a new trial recover more. He can never recover less. It is the possibility that his appeal may lead to a result showing that he was not entitled to what he has received under the judgment appealed from, that defeats his right to appeal. Where there is no such possibility, the right to appeal is unimpaired by the acceptance of benefits under the judgment appealed from. The following decisions enforce this doctrine: Reynes v. Dumont, 130 U. S. 354-394 (9 Sup. Ct. 486); Embry v. Palmer, 107 U. S. 3 (2 Sup. Ct. 25); Higbie v. Westlake, 14 N. Y. 281; Mellen v. Mellen, 137 N. Y. 606 (33 N. E. 545); Cocks v. Haviland, 55 Hun, 605 (7 N. Y. Supp. 870); Portland Construction Co. v. O’Neil, 24 Or. 54 (32 Pac. 764); Morriss v. Garland, 78 Va. 215; Upton Manfg. Co. v. Huiske, 69 Iowa, 557 (29 N. W. 621); Dudman v. Earl, 49 Iowa, 37. The case of U. S. v. Dashiel, 3 Wall. 688, belongs to this class. The reasoning of the opinion delivered in denying the motion to dismiss is unsatisfactory in its statement of the grounds on which the decision rests, but, when we turn to the opinion of the court on the merits ([U. S. v. Dashiel] 4 Wall. 182), we discover that the defendant did not dispute his liability for the amount for which judgment was rendered against him, but only with respect to the balance of the claim; his defense as to such balance being that the money was stolen from him, and that, therefore, he was not accountable for it to the government, whose money it was, in his custody as paymaster in the army of the United States. The judgment was rendered for this amount not in dispute, and a portion of it was collected before the writ of error was sued out. The motion to dismiss was properly denied, because the reversal of the case could not affect plaintiff’s right to what it had collected. Defendant conceded that so much was due. Again, cases will arise — they have arisen — in which the appellant has the right to ask for a more favorable judgment in the appellate court without having the case sent back for a new trial, on which, of course, the whole matter would be open again for investigation, which might result in a judgment not so favorable to plaintiff, or even one that would be adverse to him. In the class of cases in which a new trial of the whole case may result from the appeal, the element does not exist that exists in the one we have already alluded to. No portion of plaintiff’s claim is admitted. Everything is in controversy. Under such a state of the pleadings, it is obvious that a reversal of the judgment and a new trial may result in a decision showing that the plaintiff was not entitled to what the former judgment gave him. In such a case the plaintiff cannot accept what that judgment gives him, and then by appeal pursue a course which may overthrow the right of which he has availed himself. But if it is possible for him to obtain a more favorable judgment in the appellate court without the risk of a less favorable judgment from a new trial of the whole case there or in the lower court, then the acceptance of what the judgment gives him is not inconsistent with an appeal for the sole purpose of securing, without retrial of the whole case, a decision more advantageous to himself. There are several cases in which this doctrine has been enforced, and others in which it has been recognized. Monnet v. Merz, 60 N. Y. Super. Ct. 256 (17 N. Y. Supp. 380), affirmed in 131 N. Y. 646 (30 N. E. 866); Clowes v. Dickenson, 8 Cow. (N. Y.) 328, as explained in Knapp v. Brown, 45 N. Y. 208; Tarleton v. Goldthwaite, 23 Ala. 346 (58 Am. Dec. 296); Inverarity v. Stowell, 10 Or. 261.”

The case of Raborn v. Woods, 33 Ind. App. 171 (70 N. E. 399 ), is in point. It was ejectment for 80 acres of land. The judgment was in favor of the plaintiff for the east one-half of the 80, and in favor of the defendants for the west cne-half. The plaintiff and appellant took possession of the 40 acres awarded to him and exercised all acts of ownership over the same. The court said:

“ It appears in this case that appellant has elected to receive the benefit of what he is alleging is an erroneous judgment and decree of the court. He has taken possession of the land awarded to him by the judgment, and is receiving the rents and profits therefrom, and is here seeking a reversal of the decree as to the other part of the land, which by the judgment of the court, was given to appellees. This he cannot do. A reversal of the judgment under the assignment of error could only result in a new trial of the whole case. The parties to the action could not be placed in the same position that they occupied at the time the action was commenced, because it is alleged, and is not denied, that appellant accepted the benefit of the judgment and decree, and is in possession of a part of the real estate. * * * We think the case falls fully within the rule that a party cannot accept any benefit of an adjudication and afterwards allege it to be erroneous.”

See, also, Sterne v. Vert, 108 Ind. 232 (9 N. E. 127); Moore v. Williams, 132 Ill. 594 (24 N, E. 617); Smith v. Coleman, 77 Wis. 343 (46 N. W. 664); Laird v. Giffin, 84 Wis. 286 (54 N. W. 584); Rariden v. Rari den, 33 Ind. App. 284 (70 N. E. 398, 104 Am. St. Rep. 252); Chase v. Driver, 92 Fed. 780, 34 C. C. A. 668. Many more cases might be cited to the same effect. Counsel for the plaintiff seeks to distinguish some of these cases from the instant case by reason of the statute, but we are unable to distinguish them.

In Talbot v. Mason, 125 Fed. 101, 60 C. C. A. 145, it was held that a claimant who, on the entry of an order denying his petition for an allowance from a fund in court on the ground that he had no legal or equitable claim thereon, accepted an offer made in open court by counsel for opposing interests to consent to an, allowance of a smaller sum, which allowance was accordingly made, based expressly on the consent, and who accepted payment thereunder, was thereby equitably estopped to prosecute an appeal from the order disallowing his claim. We might cite many cases holding that one who accepts the benefits of a decree or judgment, is thereby estopped from reviewing it, or from escaping from its burdens.

It will be noted that this writ of error seeks a reversal of the entire judgment. Should the case be reversed, the judgment below would no longer exist for any purpose.

While there is some disagreement as to the conduct of the plaintiff in seeking the benefits of its judgment, the essential facts are not disputed, that the plaintiff sought the benefit of its judgment by asserting its right under the writ of possession and execution, and is thereby, we think, precluded from prosecuting its appeal.

It is equally undisputed that the defendant at first declined to submit to the demands of the plaintiff, and it was only when threatened with service of process, that the tracks were moved. The motion to dismiss the writ of error was made within 10 days after the tracks were moved. We do not think that defendant was guilty of any laches here. Nor do we find that defendant by its conduct misled the plaintiff. The plaintiff from the first persisted in its course. The parties were adversaries in a lawsuit, and dealt with each other at arm’s length. At most, the defendant stood upon its rights.

We think that the motion to dismiss the writ of error should be granted. Motion granted.

Bird, O. J., and Ostrander, Hooker, and Moore, JJ., concurred.


author: Ostrander, J.

text:
    A. M. CAMPAU REALTY CO. v. LENHARDT.
    1. Contracts — Sidewalks—Guaranty—Consideration.
    Where defendants, while constructing sidewalks for plaintiff, were notified that the work was being improperly done, and on presenting a bill for same were refused payment, and later secured acceptance of the work and payment by giving a written guaranty; held that there was a good consideration for the guaranty.
    2. Trial — Evidence—Statement of Account.
    In an action to recover the cost of repairing defective sidewalks, on a written guaranty, the statement of an account of the cost of reconstructing various pieces of walk was not received in evidence, where it was merely shown to a witness, who was asked to state the various items appearing therein having reference to the particular walk, and witness answered, “the item, $171.18, being the expense' of rebuilding the damaged walk that was not good.”
    3. Damages — Sidewalks—Reconstruction — Laches — Defenses.
    In an action to recover the cost of repairing defective sidewalks, on a written guaranty, defendants will not be heard to object that plaintiff was not entitled to recover the full cost of reconstruction, after having had the use of them for nearly the period covered by the guaranty, and that plaintiff stood by and permitted the walks to disintegrate without taking action to repair them, where the evidence was undisputed that soon after completion the walks began to disintegrate; that defendants were repeatedly notified to attend to them; that the mixture of cement was wholly insufficient; that the city authorities finally required them to be replaced, and that defendants were asked to replace them and refused.
    4. Same — Sidewalks—Defenses—Evidence.
    Defendants, having offered no evidence that the foundation of the sidewalks, which was laid by other parties, was the cause of the disintegration of the walks, were not entitled to any allowance in this respect.
    5. Same — Cost of Reconstruction — Proof.
    In the absence of an objection suggesting the necessity of further proof as to the reasonableness of the cost of reconstructing the walks, where a witness testified that the sum of §171.18 was paid and the testimony was undisputed and was independent of the statement of said account for reconstructing the walk, a judgment for such amount and interest should not be reversed.
    Error to Wayne; Donovan, J.
    Submitted November 30, 1910.
    (Docket No. 168.)
    Decided December 22, 1910.
    Rehearing denied April 1, 1911.
    Assumpsit in justice’s court by tbe A. M. Campau Realty Company against Robert A. Lenbardt, administrator of tbe estate of Robert Scbillinger, deceased, and Fred Scbillinger, upon a written guaranty. Plaintiff appealed to tbe circuit court from a judgment for an insufficient amount. A judgment for plaintiff on a verdict directed by tbe court is reviewed by defendants on writ of error.
    Affirmed.

      Moloney & Speed, for appellants.
    Wilkinson, Post & Oxtoby, for appellee.
   Ostrander, J.

Plaintiff sued in justice’s court upon a written guaranty given by defendants to plaintiff’s assignor. Tbé declaration is special; tbe plea tbe general issue. In tbe circuit court, to wbicb an appeal was taken, a verdict for plaintiff was directed by tbe court and judgment was entered on tbe verdict.

It is assigned as error:

(1) That the court admitted the written guaranty in evidence.
(2) That Exhibit 2 was admitted in evidence.
(3) That a verdict for plaintiff was directed.

When the written guaranty was offered and received in evidence, it was objected, and it is now asserted, that it was based upon no consideration, which fact appeared by the testimony for the plaintiff. The record does not support this contention. When the contract for the walk was made, there was no guaranty and none was given until it was completed. It was not, however, a gratuitous undertaking. While the walk was being laid, the defendants were advised that it was being improperly laid and upon one occasion the work was stopped. When the defendants presented the bill for "laying Schillinger’s granolithic stone sidewalk, on foundation made by another party,” 2,931 square feet at 7-£- cents a foot, payment was refused upon the ground that the walk was not properly laid. Acceptance of the work and payment of the account were secured by giving the guaranty sued upon, which was written upon the statement of account. Below the guaranty, defendants acknowledged payment of the account in full. It therefore appears that the guaranty was given for a good consideration.

We do not find that Exhibit 2 was received in evidence. It was referred to by a witness and is printed in the record. It is a statement of account for building various pieces of sidewalk, including some of that originally built by defendants. It was shown to a witness, who was asked to state the items appearing therein having reference to the particular walk. The objection made was:

“Objected to as entirely incompetent and immaterial. If any recovery can be had, it is upon the breach of warranty or guaranty, and the cost of the rebuilding of the sidewalk four years and eleven months after the guaranty is given, is not competent evidence of the measure of damages.”

The objection was overruled, an exception noted, and the witness answered:

“ The item, $171.18, being the expense of rebuilding the damaged walk that was not good.”

In the absence of a reference in the record' or brief to any particular exception supporting the assignment of error, we assume that the one just referred to is relied upon. The argument made in the brief is not very well suggested by the objection which was stated. It is said plaintiff was not entitled to recover the full cost of reconstructing the new wálks after havihg had the use of them for nearly the period covered by the guaranty; that plaintiff stood by and permitted the walks to gradually disintegrate without taking action to repair them. The testimony for plaintiff, undisputed, tended to prove that very soon after the walks were laid by defendants there was evidence of disintegration, that defendants were repeatedly notified and repeatedly promised to attend to them, that the mixture of cement and other material used in the walks was wholly insufficient, that the city authorities finally required them to be replaced, that defendants were asked to replace them and refused. Defendants were also notified that the walks had been rebuilt, and that plaintiff would look to them to repay the cost thereof.

It is said, too, that defendants are entitled to some advantage because the foundation for the walks was not made by defendants. We are not referred to any testimony tending to prove that an improper foundation was the cause of the disintegration of the walks. It is likely further proof of the reasonableness of the sum paid for reconstructing the walk would have been made if there had been a suggestion that what was produced was regarded as insufficient. ' Independent of Exhibit 2, a witness testified that the sum of $171.18 was paid for rebuilding defective walk, and the reasonableness of this does not appear to have been questioned.

It does not appear that the court was requested to submit any question to the jury. In any event, there was no dispute concerning the facts.

The judgment is affirmed.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.