text:
    LINDSTEADT v. LOUIS SANDS SALT & LUMBER CO.
    1. Master and Servant — Cause of Death — Review.
    In a proceeding for compensation in favor of the widow of a workingman who was found dead under a pile of refuse from the mill of defendant, evidence reviewed, and Held, to support the finding of the Industrial Accident Board, that decedent came to his death by reason of an accident arising out of and in the course of his employment.

    2. Same — Evidence.
    The burden of proving the essential elements in such a proceeding rests on the claimant, but the findings of fact of the board are, by statute, made conclusive on the court, which, if there is competent evidence to support the findings, will not undertake to weigh it. 2 Comp. Laws 1915, § 5465.
    3. Same — Wages—Average Earnings — Award.
    The award should not have exceeded the average earn-lugs per week during the year preceding his death, under the provisions of section 11,, Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5441).
    Certiorari to the Industrial Accident Board.
    Submitted January 4, 1916.
    (Docket No. 1.)
    Decided March 30, 1916.
    Mary Lindsteadt* presented a claim for compensation against the Louis Sands Salt & Lumber Company for the death of her husband in defendant’s employ. From an order awarding compensation respondent brings certiorari.
    Affirmed, but remanded for modification of amount awarded.
    ■ Peter T. Glassmire, for appellant.

      Howard L. Campbell, for appellee.

      As to workmen’s compensation acts, see note to L. R. A. 1916A, 22.,

   Brooke, J.

In this proceeding defendant reviews the determination of the Industrial Accident Board, by the terms of which it is compelled to pay to the applicant the sum of $6.17 per week for a period of 300 weeks, as compensation for the death of one William Lindsteadt, husband of the applicant. The findings of fact and law made by the Industrial Accident Board follow:

“(1) That the defendant, the Louis Sands Salt & Lumber Company, is a corporation with its principal offices and place of business in the city of Manistee, Mich., and is and has been for a number of years engaged in the manufacture of lumber and salt at its mill and -plant in Manistee, and was so engaged in carrying on said business on and before the 9th day of May, 1914.
“(2) That a large part of the sawdust from the logs sawed in defendant’s mill, as well as certain other refuse from said logs, was used by said defendant as fuel under its boilers in its fire room for the purpose of generating steam for operating said plant, and for this purpose said refuse was passed through a grinding hog at or near said sawmill, and said refuse, after being so ground, was carried from said hog by a conveyor to a building nearby, designated and called a hog or fuel house, into which said refuse was dropped to the floor beneath, a distance of about 53 feet from said conveyor, which extended inside of said hog house about 6 feet and at the top of the same and near to the west wall thereof, said hog house being of wrought-iron construction, and 30 feet wide and 50' feet long, and oval in shape.
“(3) That said refuse carried into said hog house by said conveyor was removed therefrom to the fire room for use under said boilers by means of another conveyor underneath the floor of said hog house, by which said refuse was carried to said fire room; that said refuse coming into said hog house through said conveyor from the mill consisted of about one-third sawdust, the rest of said material being small pieces of wood and shavings as it was ground in said hog; that as said refuse fell from the conveyor at the top of said fuel house to the floor thereof it assumed a cone shape, piling up against the west wall of said building and slanting toward the opposite wall thereof near the entrance to the same; that over the conveyor underneath the floor of said fuel house, which said conveyor extended along the east side or wall thereof, were several loose planks about 3 feet long and 10 inches wide, which were moved forward in such a way as to permit the refuse in' said building to fall by its own weight through the spaces between said planks and into the conveyor underneath.
“(4) That said refuse was usually damp, having come from logs which were taken out of the lake day by day and into the mill for sawing; that as said loose planks over said conveyor were removed, the said refuse fell into said conveyor by its own weight, thereby leaving a pile or bank of said refuse on each side of said conveyor which, as the volume of said refuse in said building decreased, would be scraped or raked into said conveyor by a man employed for that purpose ; that said refuse was conveyed into said building during the daytime while said sawmill was in operation and was carried out of said building to the fire room during the night by the night operations; that is, from 6 o’clock in the evening until 6 o’clock the next morning; that no refuse was coming into said fuel house at night.
“(5) That the entrance to said fuel house is shown on the map or diagram which was marked respondent’s Exhibit A, and received in evidence upon the hearing of said cause before the board of arbitration, and it was conceded by counsel that said plat or diagram was substantially correct as to measurements and as to such other things as it pretended to show.
“(6) That the deceased, William Lindsteadt, had been employed in and about the defendant’s mill for a period of 3 years and upwards prior to May 9, 1914, and for 42% days prior to said date was employed by said defendant in said fuel house on the night shift and was so employed on May 8 and 9, 1914; that said deceased was nearly 65 years of age and had been regular in his work during the said 42% days.
“(7) That the work and duties of the deceased required him to keep said refuse in said fuel house passing'and falling in said conveyor to be carried to the fire room for use under said boilers, and for this purpose he was furnished a hook with which to scrape, pull, or rake said refuse from said pile into the conveyor when the volume of the same had so diminished that it would not fall into said conveyor by its own weight; that the planks over said conveyor near the entrance or door of said fuel house were usually first removed so that said refuse at or near that side of said building would first fall into said conveyor and as further planks were removed approaching further into said pile of refuse, the said refuse would continue to fall into said conveyor of its own weight, so that .as the quantity or volume of said refuse diminished in said building the said deceased was required to pull, scrape, or rake said refuse at the sides of said conveyor down into the same so that it would be carried by said conveyor to said fire room and that the said deceased during the night of May 8th and the early morning of May 9th was so engaged in performing the said duties in the fuel house.
“(8) That one Christ Radtke, foreman of the night shift at defendant’s mill, went into the hog house at 20 minutes of 3 in the morning of May 9th, and talked with Lindsteadt about 5 minutes, who, at that time was standing over or near said conveyor raking said refuse into the conveyor, the floor at or near the entrance at that time being clear for a considerable space of said refuse, said refuse being about 8 feet high on one side of said conveyor and 3 feet high on the other side, and that the deceased then stood about 15 feet from the entrance door and apparently was in normal condition and health.
“(9) That at 5 minutes after 3, said Radtke returned to the fuel house with one Patulski, and deceased was not then visible; his body was found by Radtke and Patulski a minute or two afterwards underneath. said refuse with his head about 6- inches from the door and his feet about 6 feet from the door or entrance and about 9 feet from where he stood when Radtke had last seen him alive about 20 minutes previous.
“(10) That the deceased lay on his back with face upwards, his mouth was slightly open, with a chew of tobacco therein, into which sawdust had fallen; there was also sawdust in his nostrils, eyes and ears; there was about 6 inches of said refuse over his face and about 36 inches deep over his feet, the entire body being covered with said refuse; both legs were straight, one heel resting over or near a space between said loose boards, both arms were straight alongside of his body, the hook he had been using in his work lay near him in said refuse; the floor underneath his body was clear and free from sawdust, and he was found to be fully clothed.
“(11) That said refuse at, near, or over the body of said deceased showed no indications of any distubance or any struggle on the part of deceased.
“(12) That there was no injury, wound, cut, abrasion, or external injury of any kind or nature upon the body of deceased.
“(13) That the features, limbs, or body of said deceased were not distorted in any manner whatsoever.
“(14) That an inquest was held at the mill of defendant soon after the body was discovered, and after said inquest said body was removed to undertaking parlors, where at about 6 in the morning an arterial injection of standard embalming fluid was made into said body immediately after the face of ’said deceased had been washed and shaved by one Cron, licensed embalmer.
“(15) That the defendant company during the morning of May 9, 1914, made three requests of the claimant and the family of deceased that an autopsy be held for the purpose of determining the cause of death of deceased, which were denied and refused by said claimant and said family, although the said defendant offered to pay the entire expenses of the same.
“(16) That application was made by the president of defendant’s company, R. W. Smith, to this board by telephone and by letter during the morning of said May 9, 1914, asking said board to order and direct that an autopsy be held for the purpose of determining the cause of death of said deceased, and that this board advised the said defendant that it had no authority to order an autopsy.
“(17). That the body of said deceased between the hours of 6 o’clock in the morning and noon of the said 9th day of May was examined by three physicians, and that -it was the opinion of the medical witnesses that said deceased died from one of the forms of heart disease, and not from strangulation, suffocation, or asphyxiation.
“(18) That the deceased had never complained to the claimant or their family of having any trouble with this heart, and had never been treated therefor as far as his family knew.
“(19) That the average daily wage of said deceased during the 42% days he was employed by said defendant in said fuel house was $1.90; that previous to the time deceased was employed in the fuel house he was employed at various work about the mill and plant of defendant company, and from May 10, 1913, to May 10, 1914, deceased had received a total of $540.49, or an average weekly wage of $10/39, during the year prior and immediately preceding his injury.
“(20) That it was agreed by counsel that one cubic yard of refuse in said fuel house would weigh 600 pounds.”

Findings of Law.

“From the foregoing we find that the injury or death of deceased arose out of and in the course of his employment in accordance with, section 1 of part 2, Act No. 10, Pub. Acts 1912 (Extra Session) (2 Comp. Laws 1915, § 5431), and that compensation shall be awarded accordingly; that his average daily wage during the 42% days deceased was employed in said fuel house was $1.90, and the award of the committee of arbitration is accordingly affirmed.”

The evidence taken before the arbitrators is made a part of their return by the Industrial Accident Board. The following additional facts may be gathered from a perusal of the evidence:

The coroner who conducted the inquest testified: ,

“The face of Mr: Lindsteadt was discolored, pretty much black.”

The undertaker who prepared the body for burial gave the following testimony:

“I found the mouth packed with sawdust, not exactly tight, but as much as could be gotten into it. There was some in his throat, eyes, and nostrils. The sawdust in his eyes was between the lid and the eyeball. I did not notice much out of the ordinary as far as any discoloration of the man’s face. * * * The effect of embalming fluid when injected in the human body has a tendency to bring it back to a natural color. * * * I could not state what he died from. My idea is that suffocation is what I understood. My common sense would tell me that. * * * I have never studied medicine and wouldn’t be able to state what he died from.”

Dr. King, sworn on behalf of the defendant, testified :

“I would say that it would be very strong evidence that he did not-die of strangulation or asphyxiation. * * * There would be discoloration of the features. * * * There would be no way of finding out whether he died of heart disease without an autopsy. There may be or may not be a struggle from death of heart disease.”

Dr. Ramsdell, a witness for the defendant, testified:

“Without an autopsy it would be impossible to determine whether he died’ from heart disease or other cause. * * * I have attended persons dying of heart failure at their bedside and the cessation of breathing usually starts immediately. A very slow intake of air, you can hardly recognize it. They will breathe very slow and then (illustrating) out, with just a natural exhaustion. The lungs will suck in a little air, but there will be no decided breathing.
“Q. Mouth usually open or closed?
“A. It relaxes. When I saw the deceased he had no sawdust in his mouth. A man dying of heart trouble, I doubt whether his breathing would be of sufficient force to draw sawdust into his mouth and thoroughly clog it.”

The claimant's daughter testified:

“I examined father’s face and body after the body was returned to the house. I looked at him the next morning and his face looked very nice. It was white; but under his arms, he was in the casket, and I pushed back his coat sleeve, and the skin was dark looking, and back of his ears had a purple look.”

It is the claim of the appellant that the record contains absolutely no evidence from which the Industrial Accident Board could lawfully draw the inference that the deceased met his death as the result of an injury arising out of and in the course of his employment. Reference is made to the case of McCoy v. Screw Co., 180 Mich. 454 (147 N. W. 572, L. R. A. 1916A, 828), where we said:

“The burden of furnishing evidence from which the inference can be legitimately drawn that the injury arose ‘out of and in the course of his employment’ rests upon the claimant. * * *
“ ‘If an inference favorable to the applicant can only be arrived at by a gness the applicant fails. The same thing happens where two' or more inferences equally consistent with the facts arise from them.’ ”

See, also, Hills v. Blair, 182 Mich,. 20 (148 N. W. 248).

Appellant’s contention is stated in the following language:

“In applying the foregoing principles to the facts in the case at bar, the inquiry arises: Do the facts as contained in the board’s findings of facts establish by the burden of proof the right of applicant to compensation for the death of deceased? The right of the parties to this appeal is determined by this finding of facts by the Industrial Board. They are binding and conclusive upon the parties in this proceeding for review, unless there is no evidence at all upon which to-base them. It is not claimed by the appellant, however, that these findings of fact are not warranted by the evidence. On the contrary, no other findings were possible. It is the contention of the appellant, however, that the board erred in finding these facts sufficient to award compensation to applicant under the act in question, for the reason that they fail to establish by any preponderance of the proof that the death of the deceased arose out of his employment. The board arrived at an erroneous conclusion of law from the facts as found by them.”

It seems to be the contention of the appellant that the claimant must establish the fact that the injury, giving rise to the demand, arose out of and in the course of his employment, by a preponderance of the evidence, as in a case at law. Judged by this standard it may perhaps be said that claimant failed to sustain the burden. The act, however, does not cast this burden upon the claimant. It provides, section 12, part 3 (2 Comp. Laws 1915, § 5465):

“The findings of fact made by said Industrial Accident Board acting within its powers, shall, in the absence of fraud, be conclusive, but the Supreme Court shall have power to review questions of law involved in any final decision or determination of said Industrial Accident Board.”

In two recent cases we have determined that where there is any competent evidence to support the finding of the board, this court will not undertake to weigh the evidence or disturb that finding. Raynor v. Furniture Co., 180 Mich. 168 (146 N. W. 665, L. R. A. 1916A, 22); Bayne v. Storage & Cartage Co., 181 Mich. 378 (148 N. W. 412).

While this court might reach a different conclusion as to the cause of the death of the claimant’s decedent than that reached by the board, we do not think it can be said that there is no evidence in the record justifying that conclusion.

It will be noted that the award provides for the payment of $6.17 per week for a period of 300 weeks. This sum is based upon the earnings of the deceased for the 42% days preceding his injury. The record discloses, however, that his average weekly earnings covering the year prior to his death amounted to but $10.39. Under section 11, part 2, this sum should have been made the basis of the award. The finding of the Industrial Accident Board on the question of liability is affirmed, and the case is remanded to that board for the entry of an order in the proper amount, which would be one-half of $10.39 per week for 300 weeks.

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


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    SEILNACHT v. WAYNE PROBATE JUDGE.
    Mandamus — Appeal and Error — Revival of Commission on Claims — Probate Courts — Appeal.
    Mandamus is not the appropriate remedy to review in the Supreme Court the denial of a petition to revive a commission on claims in probate court. • The orders and decrees of the probate judge are ordinarily reviewable in the circuit court by appeal (3 Comp. Laws 1915, § 14145, note), or by certiorari and mandamus. Except in exigencies of a nature requiring the remedy in this court, the writ is not' allowed for the purpose of reviewing directly probate orders and judgments.
    Mandamus by Frieda Seilnacht and Sophia Pfrengle against Edgar O. Durfee, judge of probate for the county of Wayne, to compel respondent to revive the commission on claims in the matter of the estate of.' Theresa Mueller, deceased.
    Submitted January 24„ 1916.
    (Calendar No. 26,980.)
    Writ denied March 30, 1916.

      Stephen H. Howey, for relators.

      William E. Henze, for respondent.
   Per Curiam.

Relators seek by mandamus from this court to compel respondent to grant their petition for revival of the commission on claims in the matter of the estate of Theresa Mueller, who was a resident of Wayne county, and died intestate on June 13, 1911, leaving property to be administered, and as heirs at law certain nephews and nieces.

The merits of their demand cannot be considered by this court in this proceeding. Relators have mistaken their court, if not their remedy. The order to show cause herein was inadvertently granted. We are not unmindful that rare instances may be found Where this court has by direct proceeding reviewed the action ■of a probate court in some exigency, or for exceptional reasons peculiar to the case; but they are in no sense •a precedent for such practice in other cases. The announced policy of this court and settled practice is to the contrary, where resort may be had to the circuit court. This case discloses no features making it an exception to the general rule.

By statute the primary authority to review orders and decisions of probate courts is conferred upon the circuit courts. 1 Comp. Laws, § 669, re-enacted by Act No. 238, Pub. Acts 1911 (3 Comp. Laws 1915, § 14145, note). They have power to issue writs of mandamus and certiorari to probate courts, and the practice in such cases is prescribed by Circuit Court Rule 46. The circuit courts are thus equipped to exercise, Iby appropriate process, appellate control over probate ■courts in the first instance. No exigency appears here to prevent application to that court.

The action sought to be reviewed is a denial by the probate court of relators’ petition, which, if valid, is a final disposition of their claim. Not only have circuit courts power to issue writs of mandamus and certiorari to probate courts, but by authority of the statute cited:

“Appeals may be taken to the circuit court from orders, sentences, decrees, or denials of the probate court, and the circuit court reviews the order, etc., appealed from, and such order is made as in the opinion of the court the probate court should have made and the case is remitted to the probate court for further proceedings.” Cheever’s Probate Law (3d Ed.), p. 326.

Writ denied.


author: Steere, J.

text:
    BILANSKY v. HOGAN.
    1. Vendor and Purchaser — Specific Performance — Recording Law — Acknowledgment—Contracts.
    Where it was provided hy a land contract that the first party was 'to sell a parcel of land for a down payment and a price named, and to receive back a mortgage running one year, that the buyer was to build an apartment house on the premises, with money which the vendor should advance, a new mortgage for the total amount advanced to replace the first one, there was no ground for the contention of the buyer that the mortgage should recite the land contract or so refer to it and set out its terms as to extend the instrument on the record when the mortgage was filed, although the contract as originally drawn was not entitled to record because not acknowledged and witnessed.

      2. Same — Conditions—Dependent Covenants.
    Whether covenants in a conveyance are dependent or independent to some extent depends on the order, in point of time, in which performance is to take place.
    3. Same — Mutuality.
    And specific enforcement could not be granted to complainant where the court could not, on both sides, enforce the contract in all its material parts.
    Appeal from Wayne; Hosmer, J.
    Submitted January 18, 1916.
    (Docket No. 106.)
    Decided March 30, 1916.
    Bill by Harry Bilansky against Annie J. Hogan for specific performance of a land contract. From a decree for defendant, complainant appeals.
    Affirmed.

      BecJcenstein & Wienner (Maurice Sugar, of counsel), for complainant.

      Thomas Hislop, for defendant.
   Steere, J.

Complainant filed this bill to obtain a decree for specific performance of the following contract :

“This agreement made this 24th day of June, 1914, between Annie J. Hogan of the first part and Harry Bilansky of the second part, both of Detroit, Michigan, witnesseth: That the party of the first part agrees to sell and the party of the second part agrees to buy lots 86, 87 and the southerly ten feet of lot 88 in W. A. Butler’s, subdivision of the Cass farm on the easterly side of Third avenue between Hancock and Warren avenues in the city of Detroit aforesaid for the sum of eight thousand ($8,000) dollars, upon the following terms: The party' of the second part is to pay $300 on this date and the sum of $3,700 as soon as the abstract' (Burton or Union Trust’s) is brought down to date and examined and found to show a good and merchantable title and receive from first party a good and sufficient warranty deed thereof and the said second party will then make, execute and deliver to first party a mortgage thereon for the remaining ($4,000) four thousand dollars payable within one year dating from this date at six per cent, per annum, interest payable semi-annually.
“It is further agreed between said parties that said second party will erect a three story solid brick apartment building thereon and first party in consideration thereof agrees to furnish funds to the extent of seventy per cent, of the cost of the building and lot, not exceeding thirty thousand ($30,000) dollars as the building progresses after said building has up two stories in height and all bills for material and labor therefor has been paid by said second party and take as a security therefor a first mortgage for the amount as advanced to run five years at six per cent, per annum, interest payable semi-annually, except the first year after the making of said last mentioned mortgage for which year the interest is to be paid at the end of the year and thereafter semi-annually. It is understood that ■upon the making of said last mentioned mortgage, the first mortgage of $4,000 is to be discharged and the said amount merged in said last mentioned mortgage as part thereof.
“It is agreed that this agreement is to be binding upon the heirs and representatives of the par-ties hereto. In witness whereof the parties hereto have hereunto set their hands and seals the day and year first above written.
[Signed] “Annie J. Hogan. [Seal.]
“HarryBilansky. [Seal.]”

The bill alleges that complainant has always been ready and willing to perform said agreement, makes tender of performance, and avers that he has often requested defendant to perform on her part, but that she has refused and still continues to refuse, on divers frivolous pretexts. Preliminary injunction is prayed to restrain her from selling or incumbering the property described in said contract. Defendant, answering, admits the contract, denies that complainant has ever requested her to perform according to its terms, or that she ever refused, and avers that on the contrary she has furnished him a satisfactory .abstract, offered him the deed called for in said contract, and done all in her power to induce him to perform on his part according to the terms of their agreement, which he refused to do, making unreasonable demands and imposing conditions which the contract did not specify.

The facts are not in dispute. After the contract was entered into, an abstract, furnished in compliance with it, was examined by complainant and found satisfactory, and defendant tendered him, on or about July 14, 1914, a good and sufficient warranty deed of the premises, demanding therefor $3,700 in money, with a mortgage and note in usual form for the remaining $4,000 of the purchase price, payable in one year, according to the terms of their agreement. Complainant refused to pay the money and execute the mortgage as demanded, but tendered a mortgage with the contract in controversy attached and $3,700 in cash, which defendant declined to accept. Complainant did not erect or start any building upon the premises contracted for. No question is raised as to defendant’s request for a note with the mortgage. The trial court found that defendant tendered performance of the contract in due time according to its requirements, and dismissed complainant’s bill.

It is to be observed that the contract which these parties agreed upon and signed is not witnessed or acknowledged, and therefore not entitled to record. As inferable from the record and briefs of counsel, complainant had an impression which developed into a conviction that life would not be worth living, even in Detroit, unless this contract was recorded, while defendant scented in this obsession a masked scheme to do. her some great wrong. His project, under claim of right conferred by the contract itself, was to have it attached to and made a part of the mortgage which he would give, which would be properly witnessed, acknowledged, and entitled to record, so that the contract would become legally entitled to record with and as a part of the mortgage, while defendant contends no such right is inferable from or can be read into the contract. As a matter of curiosity, it might be asked what difference it would make whether this contract was or was not recorded, either to complainant if he performed on his part according to the first clause of their agreement, acquired title to the property, went into possession, and proceeded with his improvements, thus giving constructive notice to all parties of his rights in the property whatever they might be, or to defendant if she conveyed the title to him on receipt of half the purchase price and a first mortgage on the property securing the balance, as the contract specified? But it is not for the court to reason why on such questions or to make contracts for litigating parties. The question here is, as in all such cases, What are their rights under this contract as it reads?

It is clear that under the first clause of the contract defendant tendered full performance according to its terms. Complainant refused performance on his part, asserting an additional right, at that time, to make the contract a part of his mortgage by reason of the second clause, which he claims should be read with and modifies the first. The provision as to a mortgage for deferred payment on the purchase price reads that complainant “will then make, execute and deliver to first party a mortgage thereon for the remaining ($4,-000) four thousand dollars payable within one year dating from this date,” etc. He contends that by virtue of modifying provisions in the second clause, it should be construed to read that he “will then make, execute and deliver to first party a mortgage thereon, with this contract attached to and made a part of itj for the remaining ($4,000) four thousand dollars,” etc. No language of that import is to be found in the second clause, but it is contended that such is implied, or to be inferred, from the provision for a merger of said mortgage into one to be given later for money borrowed to make improvements after a proposed building upon the premises is partially constructed by complainant, stated in the second clause as. follows:

“It is understood that upon the making of said last mentioned mortgage, the first mortgage of four thousand ($4,000) dollars is to be discharged and the said amount merged in said last mentioned mortgage as part thereof.”

One infirmity of this contention is that the events are not contemporaneous.

“In determining whether covenants are dependent or independent, the order of time in which they are to be performed is an important consideration.” 6 R. C. L. p. 861.

The manifest intent of the parties as expressed in the two paragraphs or clauses of the instrument is that, after complying with the first, and securing his title, complainant would erect an apartment building upon the premises. No time of performance is specified, though the intent may be inferred that the building should be up two stories in height and all bills for material and labor paid within the year during which the $4,000 mortgage ran. His right to a merger is entirely contingent upon these subsequent events. The whole subject-matter of the first clause is the purchase of the land, transferring the title, and paying or securing the purchase price. The second relates entirely to proposed improvements on the property and borrowing money to finish them after they have progressed to a certain point. These are not interdependent matters. While .the merger mentioned in the second is dependent upon complainant securing title to the land under the first and partially constructing the building as stated, the provisions in the first clause contain the terms of purchase and sale complete in every particular, and nothing else, and we find nothing in the second which can be construed as a condition precedent to the first.

This is a bill for specific performance of contract. It is a well-settled general rule that such relief will not be granted unless the court can enforce the whole contract.

“Specific performance will not be decreed unless the court can, at the time, enforce the contract on both sides; or, at all events, such part of it as the court can ever be called upon to enforce.” Waterman on Specific Performance, § 392.

If, as complainant contends, the two clauses of the contract are indivisible and interdependent, the obstacles to enforcing specific performance of the whole contract on both sides are obvious.

The decree is affirmed, with costs.

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


text:
    WEXEL v. GRAND RAPIDS & INDIANA RAILWAY CO.
    1. Railroads — Contributory Negligence — Duty to Trespassers —Personal Injuries.
    A person in the possession of all his faculties, sober and in his right mind, who, without necessity, selected the track of a railroad company, in active use, and walked along the right of way on a stormy day, was guilty of contributory negligence, which precluded his estate’s recovering for his injury and death by being hit by an engine and tender that was backing up on the tracks, no gross or subsequent negligence of defendant being established.
    2. Same — Subsequent Negligence — Last Clear Chance — Gross Negligence — Maintaining Lookout.
    Where an engine and tender operating along a portion of defendant’s right of way that the public used as a way or thoroughfare, collided with a pedestrian who was walking along beside the track too near for safety, and it appeared the day was stormy and an outlook difficult to maintain with certainty, and deceased was on the side of the track which was difficult to watch from the cab in rounding a curve, and where the tender was in front, without a lookout on it, the engineer, who did not see deceased until after the tender struck him, was not guilty of gross negligence.
    3. Same — Rule of Due Care — Reasonable Caution.
    * A lookout is required to be maintained with such a degree of care as a person of ordinary prudence and caution, having in mind both the safety of the engine and those it carried, would have employed, according to the circumstances and probabilities of danger at the portion of the track on which they were passing. The engineer was not bound to stop or slow up simply because he observed ahead of him a pedestrian who had no apparent disability and was of sufficient age to understand the danger of a railroad track.
    4. Same — Definition of Gross Negligence.
    Gross negligence has been defined as the intentional failure to perform a manifest duty, in reckless disregard of the consequences, as affecting the life or property of another, and it implies a thoughtless disregard of consequences, without the exercise of any effort to avoid them.
    Error to Muskegon; Sullivanj J.
    Submitted January 6, 1916.
    (Docket No. 37.)
    Decided March 30, 1916.
    Case by Bendine Wexel,'administratrix of the estate of Odin H. Wexel, deceased, against the Grand Rapids & Indiana Railway Company-for'the unlawful killing of plaintiff’s decedent. Judgment, for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      F. E. Wetmore, for appellant.

      James H. Campbell, for appellee.
   Steere, J.

On January 28, 1908, plaintiff’s intestate was struck and fatally injured by a switch engine of defendant while he was walking along its railroad track jn the outskirts of the city of Muskegon, Mich. The trial court directed a verdict for defendant at the conclusion of the proofs, upon the ground that it appeared from the undisputed evidence deceased had unnecessarily and for his own convenience selected a known path of danger, but for which the accident could not have occurred, and while traveling along it took no reasonable precaution for his own safety, which primary negligence caused or contributed to the accident and precluded a recovery.

Plaintiff’s- intestate was a man of mature years, sober, and in full possession of his faculties, both mental and physical. That a sane adult, with no infirmities, who unnecessarily selects the used track of a railroad as a pathway and continues to remain upon or walk along it until struck by a passing train or engine, is, as a general proposition, guilty of negligence which at least contributes to, any injury he may sustain, needs no discussion or citation of authorities.

While not directly conceding deceased’s negligence, plaintiff’s counsel do not seriously claim to have sustained the burden of proof upon the issue of whether, deceased was free from contributory negligence, but base their contention that plaintiff is entitled to recover upon the charge in her declaration, and claimed sustaining proof, that defendant was guilty of discovered, or gross, negligence in running its engirie over its track backwards, without a proper lookout, and without warning, by bell or whistle, at the place of the accident, which occurred on a portion of defendant’s right of way generally used by the public for many years as a thoroughfare, with the knowledge and acquiescence of defendant.

Most of the material facts are undisputed. The accident occurred after 9 o’clock in the forenoon, about halfway between Grand and Houston avenues, in the southerly part of the city of Muskegon, where defendant’s track runs through the block which lies between the avenues, curving in a northwesterly and southeasterly direction. It begins to curve northwesterly from Grand avenue which lies south of Houston. On the south side of Grand avenue, west of and near the track, are located the “Rogers boiler shops,” with an office on the avenue and the shops back of it to the south. Farther south, and near the track, is another industry called “the chemical works.” On either side of the railroad are north and south streets, crossing Grand avenue, available to readily reach the central part of the city from Rogers’ shops, although along the track is the “shortest cut”; and it was shown that employees of factories in that vicinity, and the public generally, were accustomed to travel on foot along defendant’s right of way in that locality, when and as they chose, to the knowledge of defendant’s agents and employees, without any steps being taken to prevent such use. At the time of the accident deceased was 32 years of age, in good health, with no infirmities, a marine engineer in government employ as inspector of machinery in the construction and repair of ships in the lighthouse service. Upon that morning he went from where he was stopping in the central part of the city to Rogers’ shops, to inspect the construction of some boilers which were being made there for a lightship, and to get a sample of the steel used in them, to send away for testing. After remaining at the shops for a time he started to return down town, walking along the railroad track, carrying a piece of steel, called by some of the witnesses a “rod,” described by Rogers as 18 or 19 inches long, 6x6, and weighing 20 or 25 pounds. Rogers, called as a witness by plaintiff, was the last person who talked with him. He testified:

“I told him that I was going down town; that if he would, wait a little while I would take him down town. He said he was in a little bit of a hurry, as I remember now, and' wanted to get right off. After he left the office, he walked along just north of the rails. There seems to be a little path running along that side, and he was taking that path. Before he started down the track I saw him fix his cap. When he got right at the crossing, he laid the iron that he had on his shoulder down, and muffled up his coat and pulled his cap down over his ears and buttoned his coat up, and then picked up the iron and put it upon his shoulder and went down the track. The weather was very stormy; the wind was blowing very hard, and the snow blow•ing. In fact it was blowing so hard you could hardly see a block away. It was snowing quite bad, and the snow was carried in all directions on account of the wind. The wind was coming from the northwest right up to the track from the lake. There is a gully right there, and it comes up there a little bit stronger.”

An engine was switching cars south over this piece of track that morning to a point near the chemical works, from a dock farther north, engaged in making up a freight train at the accustomed place called “the yard-limit boards,” and while returning for more cars after taking a drag south past Rogers’ shops, running backwards at from 6 to 10 miles an hour towards the north against the wind in the same direction deceased was walking, struck and fatally injured him. He was not run over by the engine, but was outside of the rails just near enough to them for the tender to strike and throw him to one side. The three witnesses who saw the accident so stated, and each testified to the impression, until just as deceased was struck, that he was or would be sufficiently to one side for safety. Two of them did not know whether he was hit or not until after the engine had passed.

Plaintiff’s testimony failed to disclose even prima facie that warnings by bell and whistle were not given as customary and required by law. The accident occurred on defendant’s right of way in the middle of a block, where such signals are not imperative. Defendant’s testimony was positive that the whistle was sounded on approaching Houston avenue crossing just before entering upon the curve to the north beyond it, and the bell was ringing automatically all the time the engine ran. Three of plaintiff’s witnesses testified negatively that they did not hear or notice the bell ring, and one said he would have heard it if it was ringing, but on cross-examination testified all he meant to say was he did not hear any whistle or bell. Another stated he did not notice any signals; that he did not “very often pay any attention to those whistles,” and “the bell may have been ringing all the time, and I might not have noticed it at all.” The third, who testified no whistle was blown between Grand and Houston avenues, also said:

“I don’t know whether the bell was ringing or not. I heard the whistle up there by Rogers’ shop. I saw the engineer in the cab with his head out of the window.”

Four persons were riding in the engine cab, the engineer, fireman, and two other members of the train crew who were assisting in the work of making up their train. None of them observed deceased, or then knew that any one had been injured. He was outside the rails on the fireman’s side when struck. The fireman was putting in a fire, and consequently not watching the track, while the' engineer, in charge of and operating the engine, was in his seat, keeping a lookout ahead, as. testified to by both those with him upon the engine and others who saw him at the time. There was a sharp curve in the track at the point where the accident occurred. The engineer testified that he was keeping a vigilant watch ahead but it was then snowing and blowing, so that he could not see any distance, and the storm, combined with the “lay of the track,” made it impossible |or one on the engine to see any person on or close to the track at that time and place.

Although it is shown that while running this engine backward in the work of making up a train constant lookout was maintained, the speed was not excessive, all signals required by law were given, and no rules of the company for operating an engine under such conditions violated, plaintiff urges that it was gross negligence not to have kept such a lookout as to have seen deceased in time to adequately warn, or stop, before hitting him, and insists that because this was a place customarily used as a thoroughfare by foot passengers to the knowledge of defendant, greater precautions should have been taken, and a more vigilant watch maintained, not alone from the cab of the engine, but by a person stationed at the front end of the tender in the direction the engine was running. Assuming greater care should have been taken in that particular, liability does not follow from such neglect unless the misconduct of those operating the engine was wilful, wanton, and gross. Unquestionably greater caution is required when running through populous portions of cities or villages and at places where pedestrians are known to customarily travel upon the track than in more sparsely settled sections of the country, but the general rule applicable to all conditions is that a lookout shall everywhere be maintained with that degree of care which a person of ordinary prudence and caution, having in mind both the safety of the train, or engine, and those it carried, as well as persons likely to be upon the track and injured by it, would commonly exercise according to the circumstances and probabilities of danger at the portion of the track then being passed over. In that connection, conceding to the limit claimed that the engineer was familiar with the track where the accident occurred and knew it was customarily used as a way of travel by the public, both adults and children, and especially by employees going to and returning from manufacturing institutions in that locality, it is also evident that he knew the day was cold and wild and stormy; that weather conditions were such there was little probability of persons being out in the storm except as business or other necessities demanded; that it was a time of day when neither children would be going to nor returning from school, nor employees going to or returning from their work. He would be justified in not anticipating that the old and feeble or the young, weak, and helpless would be abroad at such a time, and had the right to assume that any adult persons using the track as a thoroughfare upon such a day would exercise reasonable care for their own safety commensurate with existing conditions. As the engine approached, deceased was outside the rails in a position where but a step in the right direction on his part would have put him out of danger.

None of the three witnesses called by plaintiff who were in that vicinity and observed deceased at or about the time of the accident appear to have regarded his. danger so imminent as to require any warning from them, either to him or those on the approaching engine. .Ralph Kanaar, who testified that when he first saw deceased he was walking between the rails, said:

“Why, just a little before the engine got to him he stepped on the outside of the rails, and I thought to myself then that he was in the clear until I saw the splur in the snow, and the curtain was blowing on that side of the engine so that I could not see that it did hit him. * * * You see there, was an awful sharp curve there. * * * At times it was blowing enough so that snow flurries would swish .about in the air. * * * He was quite clear to me until the light snow from the tank blowed up. I could see him quite plain until that light snow blowed up: that kind of blinded him from me, but I kept my eye on him all the time from the time I saw him walking in the middle of the track.”

Charles Misch, who testified that as he saw him deceased was “walking just outside of the tracks” on a-path at the end of the ties, and he did not appear to be conscious of the approach of the engine, also said:

“I supposed that he heard it when it blew, but by' the time it was a couple of feet from him it was too late to holler at him then. * * * I thought, ‘That fellow is pretty close/ and just as I stopped, it struck him.”

William Peterson, a mail carrier, who happened to be in that vicinity, testified that he noticed deceased was facing the storm as he walked along the track and might meet with an accident, but did not call him, saying in part:

“I thought that he was far enough on the east side of the track so that — at least, I thought he was on the outside of the rails on the further side from me, and after the engine passed between us I saw his form laying alongside the track. * * * He was on what we would term 'the east side’ of the track there. The engine was backing slowly toward him.”

It has been repeatedly held by this court that those running trains are not required to stop or check simply because they see ahead of them upon or approaching the track persons who are apparently without disability and of sufficient age to understand the hazards of a railroad track, always to be recognized as "a perpetual menace of danger.”

The fatal result of this unfortunate accident gives pause to discussion or criticism of deceased’s initial negligence as compared with that of the defendant’s employees, which plaintiff contends was gross, and therefore so reckless, wanton, or intentionally wrong as to acquit the injured party of fault. Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274; Freeman v. Railway Co., 74 Mich. 86 (41 N. W. 872, 3 L. R. A. 594). This court, in harmony with the great weight of authority elsewhere, has defined gross negligence as—

'the intentional failure to perform a manifest duty, in reckless disregard of the consequences, as affecting the life or property of another. It also implies a thoughtless disregard of consequences, without the exercise of any effort to avoid them.’ Schindler v. Railway Co., 87 Mich. 400 [49 N. W. 670]. See, also, Richter v. Harper, 95 Mich. 221 [54 N. W. 768] ; La-barge v. Railroad Co., 134 Mich. 139 t95 N. W. 1073] ; Buxton v. Ainsworth, 138 Mich. 532, [101 N. W. 817, 5 Am. & Eng. Ann. Cas. 146] ; Knickerbocker v. Railway Co., 167 Mich. 596 [133 N. W. 504]; 29 Cyc. p. 507.” Putt v. Railway Co., 171 Mich. 227 (137 N. W. 136).

As was there said in conclusion:

"Applying the definitions and principles laid down ,.in the foregoing cases to the facts in the case at bar, we are of opinion that there was no evidence in the .case which warranted its submission to the jury upon, the question of defendant’s gross negligence.”

The judgment of the trial court was therefore right and will stand affirmed.

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


text:
    COCHRAN TIMBER CO. v. FISHER.
    1. Deeds — Fraud—Quitclaim—Quieting Title.
    Complainant, a lumbering corporation, filed its bill to remove a cloud from its' title arising out of defendant’s claim to tbe land by subsequent quitclaim from complainant’s grantor. Defendant charged in bis cross-bill that tbe deed to complainant was procured from one E. A., who was intoxicated when sbe signed tbe. instrument, and wbo was not in a state of mind to understandingly execute a conveyance; also tbat sbe was fraudulently misled or deceived in relation to the amount of taxes and tax interests tbat were outstanding. Held, tbat tbe defendant could not question tbe validity of tbe deed to complainant on the ground of fraud; tbat tbe right to complain of any fraud was nonassignable and tbat defendant took title with full knowledge of tbe situation.
    2. Same — Assignment—Fkaud—Chose in Action.
    Tbe assignee of a cause of action for fraud cannot enforce bis right or claim in equity, as tbe right to bring suit to set aside a conveyance for fraud is not assignable, but is a personal right.
    3. - Same — Voidable Conveyance.
    The conveyance was prima facie valid and, unless it was disaffirmed by tbe grantor after she was restored to her right mind, became binding by ratification.
    4. Same.
    And the grantee might, before disaffirmance, convey to a tona fide purchaser, so as to transfer a good title. Having parted with the legal title, the owner retained only a right to sue to set aside her deed, which did not pass to defendant by her quitclaim.
    5. Same — Equity—Clean Hands.
    The power to grant complete relief incident to the court of equity does not extend to third persons, not parties to the proceeding, nor was defendant entitled to prevail on the ground that complainant did not come into court with clean hands, in relation to said third person.
    Appeal from Baraga; O’Brien, J.
    Submitted January 12, 1916.
    (Docket No. 109.)
    Decided March 30, 1916.
    Bill by the Cochran Timber Company, a corporation, against E. L. Fisher to remove a cloud upon complainant’s title to certain land. From a decree dismissing the bill of complaint, complainant appeals.
    Reversed.

      Joseph J. O’Connor (A. W. MacLeod, of counsel), for complainant.

      A. F. Dixon, for defendant.
   Steere, J.

Complainant filed this bill to remove a cloud from its title to 160 acres of land in Baraga county, alleged to be caused by a subsequent quitclaim deed from its grantor to defendant Fisher, but recorded prior to its own deed.

Defendant, answering, traversed and denied the various allegations of complainant’s bill, and alleged by way of cross-bill that the deed to said land under which complainant claims title was procured for an inadequate consideration, through false' and fraudulent representations, from Eliza Abts, their common grantor, while she was intoxicated, beyond control of her mental faculties, her understanding being clouded and reason dethroned, for which reasons said deed upon which complainant bases its claim of title is void, a cloud upon defendant’s title and a fraud upon his rights; he therefore prays that said warranty deed from said Eliza Abts to complainant, as described in its bill, be set aside, offering to pay all moneys expended by complainant in and about said premises; also praying that complainant be required to make answer to all matters charged by defendant in that particular.

Complainant duly answered defendant’s answer “taken as a cross-bill,” denying its allegations and, amongst other things, saving and reserving all benefit of exception “which can be taken to the many errors and uncertainties and other imperfections in said answer taken as a cross-bill contained.”

It was shown upon the hearing without dispute that Eliza Abts, who then had a good title in fee subject to delinquent taxes for some years to the land in question, conveyed it to complainant by warranty deed dated February 16, 1904, which deed, however, was not recorded until January 24, 1908, and that she subsequently, on August 1, 1907, quitclaimed the same land to defendant, who recorded his deed August 5, 1907.

Complainant’s deed was procured from Mrs. Abts by its representative, named Paquette, who paid her $100 therefor.- He first interviewed her upon the subject at. a hotel where she was working in Nestoria, and upon the following day went with her to, or met her at, Sidnau, in an adjoining county, where she went to the office of a notary public, and there executed and acknowledged her deed to complainant in the presence of two subscribing witnesses.

The issues of fact to which the testimony taken in the case related were the value of the land, Paquette’s representations as to the amount of delinquent taxes upon said land and other inducements to secure Mrs. Abts’ consent to sell, and the extent, if any, she was under the influence of liquor during the negotiations and at the time she executed the deed. The testimony of the respective sides upon these issues was in sharp conflict, and upon the printed record could scarcely be said to settle them either way beyond possible misgiving, although with the witnesses before the court the case may have assumed a different aspect.

But the preliminary and more serious question raised and urged in behalf of complainant is whether defendant can avail himself of an alleged fraud practiced by complainant’s agent upon Mrs. Abts. He makes no claim of any fraud practiced upon himself, or that he was an innocent purchaser. He testified that Mrs. Abts was a distant relative of his wife and had, while living with them, told him “how this land was taken from her,” that he was a traveling man and consulted with' several lawyers about it; that Mrs., Abts gave him a deed so he could litigate the matter, and in consideration of the deed he agreed to give her a home and provide for her. He is here complaining of a fraud practiced upon Mrs. Abts at a time when he had no interest in this land and of which he says he was fully advised before he received his quitclaim deed to it.

The general rule is well established and has been often recognized by this court in varying language that a right of action for fraud is personal and not assignable, in part as follows: '

“As assignee of the contract, Calkins cannot insist upon the fraud.” Carroll v. Potter, Walker’s Ch. (Mich.) 355.
“A court of equity will not countenance the assignment of a cause of action for a tort, or to set aside a conveyance, or other act, as fraudulent.” Morris v. Morris, 5 Mich. 171.
“The right to sue in equity to have a conveyance set aside for fraud is not assignable” (from syllabus). Brush v. Sweet, 38 Mich. 574.
“The present complainant — according to his own proofs — has merely purchased claims for the purpose of this litigation or of some litigation. He was never defrauded. * * * A right to complain of fraud is not assignable, and the claims in controversy have nothing involved which could keep them alive at all unless fraud would do so. Being nothing more than an assignment of” a cause of “action for fraud it is well settled that it will not be enforced.” Dickinson v. Seaver, 44 Mich. 624 (7 N. W. 182).
“It has been held repeatedly in this State that equity will not enforce the demands of an assignee of a right to sue for fraud, when the cause of action is confined to that.” Dayton v. Fargo, 45 Mich. 153 (7 N. W. 758).
“It is very well settled that an action for fraud is not assignable, and that fraud is only to be complained of by the party injured.” Lewis v. Rice, 61 Mich. 97 (27 N. W. 867).
“It is alsp the settled rule in this State that actions for fraud and deceit are not assignable.” Stebbins v. Dean, 82 Mich. 385 (46 N. W. 778).
“If Boughton committed a fraud in selling the lands to Wilson, Luther & Wilson, an action for that fraud is not assignable. * * * It is therefore unnecessary to state or discuss what then took place between them.” Chase v. Boughton, 98 Mich. 285 (54 N. W. 44).
“It is well settled that the right to complain of a fraud is not assignable.” Smith v. Thompson, 94 Mich. 381 (54 N. W. 168).
“If the defendants fraudulently misrepresented the facts to Tillotson, he (Tillotson) might have proceeded against them for their fraud, but his right of action is not assignable, and did not pass to complainant by virtue of the deed from Tillotson to him.” Fuller v. Bilz, 161 Mich. 589 (126 N. W. 712).

On defendant’s theory of the facts, Mrs. Abts’ deed to complainant was but voidable, not void, and voidable only at the instance of the party defrauded or under some disability at the time of its execution, as in case of a minor or person otherwise temporarily incompetent. This deed was witnessed, acknowledged, and on its face executed in compliance with all requirements of law. It was prima, facie valid. Whether it appear that she executed the instrument fully understanding the nature of her act but induced to do so by the fraudulent misrepresentation of Paquette, or that by reason of intoxication her mental faculties were so clouded that she did not fully realize the nature of her act and was 'in effect insane, one or both, the deed was but voidable. It is undisputed that when sober she was sane and that she subsequently fully understood what she had done. A deed of one insane, if not previously adjudicated to be such or placed under guardianship, is merely voidable and can subsequently be ratified by the grantor when mentally normal, as in case of a minor upon coming of age. Moran v. Moran, 106 Mich. 8 (63 N. W. 989, 58 Am. St. Rep. 462); Wolcott v. Insurance Co., 137 Mich. 309 (100 N. W. 569); De Vries v. Crofoot, 148 Mich. 183 (111 N. W. 775); Allis v. Billings, 6 Metc. (47 Mass.) 415 (39 Am. Dec. 744).

Mrs. Abts, being the owner in fee of this land, conveyed it by a regular warranty deed, prima facie valid, and received from the grantee a consideration therefor which she retained. Conceding this deed to be voidable, it nevertheless carried the fee to the grantee and remained in force as a valid instrument of defeasance until such time, if ever, as it would be set aside in an appropriate judicial proceeding at the option and instance of the party entitled to institute such proceeding. In the meantime, the original grantor held no title to the property, and the grantee in whom the fee rested might convey it to a bona fide purchaser, who would take a title to the estate which could not be attacked.

At the time Mrs. Abts gave a quitclaim deed of the land in question to defendant she had already parted with all legal title to it. All that remained to her, under any theory, was the personal right to sue in equity to have her conveyance set aside for fraud. Her deed to him not only conveyed nothing but contained no warranty which might eventually carry the title to him in case her deed to complainant was later set aside, which would reinstate the fee in her as it was before the voidable deed was given. Her quitclaim does not purport to, and cannot, operate to assign her personal right to sue for a cancellation of complainant’s deed on the ground of fraud. Crocker v. Bellangee, 6 Wis. 645 (70 Am. Dec. 489); Graham v. Railroad, Co., 102 U. S. 148.

It was the theory of the trial court and is urged here that equity having once acquired jurisdiction in the controversy can and should retain it to give full relief and make final disposition of all matters involved, and that relief should be denied complainant under the maxim that “he who comes into equity must come with clean hands.” The application of this maxim is limited to the defendant in the litigation, and there can be no claim that complainant came with hands soiled in a fraudulent transaction with him. The act or transaction concerning which complainant asks relief is the taking of a deed by defendant from Mrs. Abts and recording it. Complainant had nothing to do with that transaction and was not guilty of any wrongful conduct in that connection. In obtaining this deed from Mrs. Abts who was then sole owner of the property, complainant did not perpetrate any fraud upon defendant or commit any inequity against him. The wrong must have been done to defendant himself, and not to some third party. The power in equity to grant complete relief when jurisdiction is once taken cannot be extended to persons not parties to the suit and whose rights a party to the suit cannot take by assignment.

Defendant’s entire defense is necessarily an affirmative attack upon complainant’s title under the allegations in his cross-bill of a fraud practiced upon Mrs. Abts, not himself, which manifestly he could only assert as an assignee, and upon which, not being assignable, he could not be heard. As he was not entitled to file his cross-bill on the ground of a fraud practiced upon her, the court not only had no jurisdiction to grant him affirmative relief on his cross-bill, but all defense fell with it, for no other grounds of defense are shown. '

It follows that in this case, as between these litigants, complainant is entitled to the relief asked, for the reason that defendant acquired no title to the land by his conveyance, and whatever right Mrs. Abts had to the cancellation of her deed to complainant on the ground of fraud and undue advantage was a personal right which she could not assign.

The record discloses, that in connection with an order made by the trial court granting a “new trial,” or further opportunity to take testimony upon a certain matter before final disposition of the case, it was stipulated that the statute of limitations would not be pleaded in any suit which might be commenced by Mrs. Abts £o recover title to this land. Nothing in this opinion is intended or to be construed as prejudging, abridging, or to the prejudice of her rights in that respect.

The decree of the trial court is reversed, with costs, and a decree will be entered in this court in favor of complainant, as herein indicated.

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


author: Steeee, J.

text:
    ZILZ v. WILCOX.
    1. Mechanic’s Liens — Supplemental Bill — Equity Practice— Review on Error.
    In proceedings for the enforcement of a mechanic’s lien, the denial by the circuit judge of defendant’s petition to present a supplemental bill, which privilege he did not ask for until after notice of appeal had been entered from a decree of the court, was discretionary and will not be reviewed on appeal in the absence of abuse.
    2. Same — Building Contract — Evidence—Breach.

      Held, that the evidence failed to establish the contention of. the owner that the subordinate contractors colluded with the principal contractor to perpetrate a fraud on her by constructing and tendering a building not in accordance with the contract, but that if a difference appeared, she had impliedly, if not by express terms, assented to the alleged modification.
    3. Same — Rights op Subcontractors — Lien op Materialmen— Breach.
    But the mere failure of the contractor to perform strictly according to the provisions of the building contract would not defeat the liens of materialmen or subcontractors who furnished labor or materials that actually entered into the completed structure.
    4. Same — Service—Validity op Lien.
    The statute authorizing substituted service if the owner is absent from the county, by posting a copy of the claim on the premises (3 Comp. Laws 1915, § 14803), is to bfe strictly construed, and, hence, a subcontractor who failed to serve a copy of the claim on the agent of the owner within ten days of filing his lien could not enforce his claim of lien.
    4. Same — Affidavit—Cause—Attorney and Client.
    The fact that one of the subcontractors made affidavit to his claim before a notary who was then his attorney, but who did not appear for him in the proceedings, did not render the claim void, under 3 Comp. Laws 1915, § 12082, which forbids attorneys and counsellors from administering oaths in causes in which they may he professionally engaged, a cause being defined as a suit, litigation, action or proceeding in court.
    5. Same — Evidence.
    Where there was evidence of the defendant that a copy of one lien was not filed within the statutory period, but the subcontractor who filed it gave testimony that he thereafter performed wort on the foundation to protect it against the weather, the lien is held to be sufficiently established.
    6. Same — "Variance.
    And where there was a substantial but not misleading variance in figures between the evidence and bill of complaint, the court would not treat the difference as fatal, the lien having attached.
    Appeal from Wayne; Codd, J.
    Submitted January 13,1916.
    (Docket No. 133.)
    Decided March 30, 1916.
    Bill by Frederick Zilz against Mary Wilcox and others to enforce a mechanic’s lien. From a decree for complainant, defendant Wilcox appeals.
    Modified and affirmed.

      Bishop & Kilpatrick, for complainant.

      James G. McHenry, for defendant Wilcox.

      Devine & Snyder, for defendant Mohr.
   Steeee, J.

Defendant Mary Wilcox appeals from a decree of the Wayne county circuit court in chancery adjudicating a lien upon a lot in the city of Detroit, belonging to her, in favor of complainant, Zilz, in the sum of $409.50, and of cross-complainant, Mohr, in the sum of $113.33, for labor and material done and furnished in the construction of a building upon said lot.

In 1911 defendant Wilcox decided to erect a two-, family flat building upon said lot, and, not being a resident of Detroit, engaged her sister, Mrs. Williams, who resided there, to act as her agent, giving Mrs. ■Williams a power of attorney'to contract in her name and represent her generally in the project. Mrs. Williams entered into an oral contract with defendants Huth, who were general contractors doing business under the firm name of Huth & Son, to erect the desired building. Complainant, Zilz, had a subcontract with Huth & Son for the masonwork in said building, and Mohr for the plumbing. None of the contracts involved in this inquiry was in writing.

In the negotiations between Mrs. Williams and Huth & Son, William Huth submitted to her plans for a frame duplex house which he was proposing to build for other parties at a cost of $3,000, and it is her contention that their contract was to build a house for Mrs. Wilcox like the plans submitted for $4,500, except that it was to be brick veneer and without a bay window as shown in those plans. She testified that Huth promised to take the plans of the frame building and work them over (to show a duplex house in accordance with their agreement and later submit them to her, but the plans which he finally submitted after the work had progressed for some time differed materially from those shown her when the contract was entered into.

Huth & Son soon entered upon the performance of their contract, having sublet the masonwork to Zilz for $1,140, and the plumbing and gas-fitting to Mohr for $325. These subcontractors were governed by plans and specifications furnished by the principal contractors with whom they dealt and under whose supervision they did work and furnished material. They had no business relations with Mrs. Williams and she did not assume any authority over them, although she was daily upon the premises as the representative of Mrs. Wilcox watching the work as it progressed, and made payments to the principal contractors from time to time, amounting to about $1,500, who, however, never furnished her any sworn statement of laborers, subcontractors, materialmen, etc., as provided for under the mechanic’s lien law (3 Comp. Laws 1915, § 14800). After the building had progressed until the basement was practically completed and ready for the superstructure, Huth & Son quit their contract without paying their subcontractors for work then done. They make no defense in this case, and neither do they appear as witnesses. Both of these subcontractors performed their contracts with labor and material so far as accompanying construction of the building would permit, but, when the principal contractors stopped and abandoned it, they could go no further, and, being unable to otherwise collect pay for what- they had already done, filed liens upon the premises.

Defendant Mary Wilcox contends that the decree appealed from is erroneous for the following reasons:

“1. The court had no jurisdiction to .grant a lien in favor of complainant or cross-complainant because: (1) The bill shows that the statement was not filed within 60 days as required by the statute; (2) was not properly verified; (3) not filed within the time limited; (4) not served on the owner; (5) and no proper substituted service was made by cross-complainant.
“2. There was a fatal variance between the allegations in the bill and the proofs, in that the bill alleged a contract for the foundation of the building only and the proofs disclosed a contract for the whole job.
“3. Neither lienor was entitled to a lien on the grounds that (1) neither complainant, nor (2) cross-complainant had completed his contract.
“4. Fraud was practiced upon the owner by the principal contractor and the subcontractor in that: (1) they were in collusion; (2) and practiced fraud on the owner; and (3) the owner received a substantially different building from what she contracted for.
“5. The defendant was entitled to file a supplemental bill to introduce a defense arising subsequent to the entry of the decree.”

We find no error in the denial of defendant’s petition for leave to file a supplemental bill. The petition was filed long after defendant had given notice of appeal from the decree rendered by the trial court, and no appeal was taken from the order denying such petition. If that order were properly here for review, we see no occasion to disturb the discretion of the court in denying the petition.

Neither do we find any substantial support in the testimony for defendant’s contention that the subcontractor in collusion with the principal contractor perpetrated a fraud upon her by which she received a substantially different building from that she contracted for. While Mrs. Williams’ evidence is to the effect that the plans Huth & Son adopted varied in certain particulars from those shown her when they contracted and as a result the building finally completed upon the property was but 47 feet long instead of 55, the excavation for the basement was lengthened on her insistence to 55 feet, and she testified that she was at the building several times every day while the work was in progress, looking after it. Neither she nor defendant found any fault with the work of the subcontractors, and Mrs. Wilcox testified that after she found the building had been shortened she wanted Huth & Son to go ahead and finish it at the contract price. Whatever may be contended as to the conduct of the principal contractors, we discover no foundation for the charge that the subcontractors were guilty of any fraudulent or dishonest conduct.

Under the undisputed facts there is no force in defendant’s third contention that neither of the lienors is entitled to enforce his lien because he did not complete his subcontract.

“It is well established as a general rule that the failure of the principal contractor to complete his contract does not of itself defeat the right of the subcontractor, workman, or materialman to a lien.” 27 Cyc. p. 100.

They are entitled to protection for what they have done or furnished under the contract. Delray Lumber Co. v. Keohane, 132 Mich. 18 (92 N. W. 489).

Defendant’s contention that the court had no jurisdiction to grant a lien because of defective service is clearly well founded as to cross-complainant Mohr. Section 6 of the lien law (section 10715, 3 Comp. Laws; '3 Comp. Laws 1915, § 14803) expressly provides that in cases of this nature the person filing a lien “shall, within ten days * * * thereof, serve on the owner, * * * or in case of his absence from the county, on his agent having in charge of such premises within the county * * * a copy of such statement or claim.” Only jn case neither can be found in the county within the ten days can a substituted service be had by posting the copy in a conspicuous place on the premises. The only proof of service was an affidavit sworn to in Ingham county by one James Tobias, who had formerly worked for Mohr, stating that he had served a copy by posting the same on the front part of the building on the premises. Although defendant’s witnesses deny that any such notice was posted upon the building, yet, accepting the affidavit as true, it was not a legal service under the statute. Neither the pleadings nor proofs show that the owner or agent could not be found within the county. Mohr testified: that Mrs. Williams “was there one time, and I had some talk with her.” That she was in the store picking out fixtures, and right after being there talked over the phone, and said she was pleased with them. That this was while they were doing the roughing,in. That during this time she called them up and talked over the phone 25 or 30 times, and once called him up to see if he would finish the job.

“Q. You didn’t make any attempt to serve the notice on Mrs. Williams?
“A. No, sir.”

That she was the resident agent of defendant, and that Mohr knew it, is. clearly shown.

On the question of whether a lien attaches, the mechanic’s lien law is to be given strict construction in this State as applied to service of notice and personal service is imperative where possible. Such service was possible in this case, and was not made; consequently no lien attached. Not having complied with the statute, Mohr is not in a position to invoke the aid of the statute. Former decisions of this court conclusively dispose of the question beyond need of further discussion here. Hannah & Lay Mercantile Co. v. Mosser, 105 Mich. 18 (62 N. W. 1120); Smalley v. Terra Cotta Co., 113 Mich. 141 (71 N. W. 466); Wiltsie v. Harvey, 114 Mich. 131 (72 N. W. 134); Greilick Co. v. Rogers, 144 Mich. 313 (107 N. W. 885); Godfrey Lumber Co. v. Kline, 167 Mich. 629 (133 N. W. 528).

While this same objection is urged as to service by complainant, Zilz, its only foundation is the denial of defendant that service was made upon her. It is undisputed that she was in Detroit with her sister at times during the months of November and December consulting in regard to the difficulties which arose over this building, and while there talked with Zilz about it. He filed proof of personal service upon her on December 29th, and testified positively that he served the copy on her on Hancock avenue, “where they lived in the old house.” She testified that she was in Detroit for a few days after Christmas, until the 29th, and then went north again. We do not think the proof of personal service was successfully impeached.

The contention that Zilz’s statement was not properly verified is based upon the fact that it was sworn.' to before Frank P. Bumps, a notary public and attorney who prepared it for him, and it is urged that under section 2640, 1 Comp. Laws (3 Comp. Laws 1915, § 12082, note), which,forbids attorneys and counselors from administering oaths in causes in which they may be professionally engaged, the jurat was a nullity.

In practice a cause is;

“A suit, litigation, or action. Any question, civil or criminal, contested before a court of justice.” Black’s Law Dictionary.
“Cause and case are used as synonyms in statutes and judicial decisions, each meaning a proceeding in court, a suit, an action.” Words and Phrases, vol. 2, p. 1013, and cases there cited.

Bumps is not an attorney of record in this suit, cause, or case, and there is no proof that he ever was professionally engaged in any cause connected with this proceeding.

The contention that a copy of Zilz’s statement of lien was not filed .within the time limited therefor is. based on Mrs. Williams’ testimony that the sworn statement of lien, filed soon after the time when the last work was performed, and Zilz’s testimony in substantiation of it, are untrue. His verified statement of lien shows that the last labor was performed and material furnished on the 23d of October, 1911, and it is so stated in his bill of complaint. She testified, apparently from memory, that he was gone on the 17th, and never* came back except to put some fertilizer on to protect the work from frost. It’ is urged that Zilz’s memory at the time of the hearing was so bad, and his testimony so contradictory, that the testimony of Mrs. Williams should be taken as true, and, to sustain this contention, counsel thereupon devote considerable space in their brief to a comparison of alleged conflicting statements made by Zilz. A study of Mrs. Williams’ testimony discloses that she is at least a close second in that infirmity, even to the extent of giving at various times three different contract prices for erection of the building. A review of this feature of the case will be of no general interest, and it is sufficient to state that an examination of the whole record does not satisfy us that the testimony of Mrs. Williams should prevail against the proof contained in the statement filed shortly after the work was completed and Zilz’s testimony in which he affirms that statement, as to the last work being performed on the 2Sd of October, with the modification that they went back and finished up some work on the 25th. He also testified that he later went back to this work after the principal contractors had abandoned the contract and put material around the foundation to protect it from the winter weather.

Defendant further' claims that a fatal variance exists . between the allegations in the bill and the proofs, in the particular that the bill alleges that complainant had a contract to put in the foundation of the building for $400, while his testimony shows that he had a contract to do all the masonwork for $1,140.

Zilz testified that he had an oral contract for the cellar and brick work, figured from the plans Huth & Son had, at $1,140, he to furnish the material; that he did the basement grade high, 12-inch wall, and from there 8-inch wall ready for the woodwork, putting in windows and preparing the wall ready for the joists, and then was obliged to stop because the principal contractors abandoned the building; that while so engaged he put in the building $400 of material and work, and never received a cent for it. He did have a contract for putting in the foundation, which he says amounted to $400, but in his bill of complaint he did not state that portion of the contract which he was prevented from performing. It may be conceded that the bill was loosely drawn in that particular, but it was not misleading as to any material matter. No claim is based upon any other portion of his contract. The bill clearly discloses all his claim and the nature of it. Mrs. Williams, who was daily at the building, was familiar with what Zilz was doing and knew what he did. She apparently had some knowledge of the amount he had earned, and knew he had not been paid. She testified that on November 2d she paid Mr. Huth $900, giving him a check for it, and giving it to him “particularly to pay Mr. Zilz. * * * There was nobody else on the job but Mr. Zilz. He is the first man, except $75 for the excavation.” It is manifest that she desired and intended to pay Zilz, through Huth, what he had earned. She, however, paid the money to the principal contractor, from whom she had no protecting, statutory statement, and the subcontractor was not paid. As between the two, Zilz took proper steps to protect his legal rights, while she did not.

In Smalley v. Terra Cotta Co., supra, quoting from Jones on Liens, it is stated as the accepted policy that:

“Mechanics’ liens are in derogation of the common law, depending for their existence wholly upon statutes, and therefore, upon the question whether a lien attaches at all, a strict construction is proper. * * * But, after the lien has once attached, a liberal construction should be put upon the statute, for the purpose of fulfilling its objects. The statute is highly remedial in its nature, and should receive a practical and reasonable construction to effect its objects.”

It is not shown that defendant was prejudicially misled by the allegation in the bill as to the contract, and we cannot conclude that the variation complained of was’ misleading or is fatal. Zilz’s lien being shown to have once attached, we think that a practical and reasonable construction of the statute sustains the sub" sequent proceedings to perfect his lien, including, as to him, the decree appealed from.

No lien having attached in behalf of Mohr, the decree should be modified to the extent of dismissing his cross-complaint, with costs to appellant; otherwise the same is affirmed, with costs in favor of complainant.

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