text:
    ELLIS v. COMMON COUNCIL OF GRAND RAPIDS.
    Municipal Corporations — Employment of Veterans — Penal Statutes — Construction.
    Act No. 205, Pub. Acts 1897, providing, by section 1, that honorably-discharged Union soldiers and sailors of the Rebellion shall be preferred for appointment and employment “in all public departments of municipal corporations, and upon the public works of the State; ” declaring, by section 2, that no veteran holding an office or employment in the “public works ” of any city or town shall be removed, suspended, or transferred without his consent, except after full hearing; and imposing a penalty, by section 8, for violation of the provisions of the act, — is penal in character, and must be strictly-construed. Hence the provisions of section 2, being expressly limited to offices or employment in the public works of any city or town, cannot be extended to include public departments.

      Certiorari to Kent; Adsit, J.
    Submitted January 3, 1900.
    Decided April 3, 1900.

      Mandamus by Hiram E. Ellis to compel the common council of the city of Grand Rapids, and Lant K. Salsbury, city attorney, to audit and allow a claim for services, and to revoke an order removing relator from office. From an order granting the writ, respondents bring certiorari.

    Reversed.
    Act No. 205 of the Public Acts of 1897 reads as follows;
    “Section 1. In every public department and all public departments in all municipal corporations, and upon, the public works of the State of Michigan, honorably-discharged Union soldiers, sailors, and marines of the late Rebellion shall be preferred for appointment and employment; age, loss of limb, or other physical impairment vyhich does not, in fact, incapacitate, shall not be deemed to disqualify them: Provided, however, that the applicant shall have been a resident of the State for at least five years, and of the county in which the office or position is located for at least two years, and possesses other requisite qualifications.
    “Sec. 2. No veteran holding an office or employment in the public works of any city or town of the State shall be removed or suspended, or shall, without his consent, be transferred, from such office or employment, except after a full hearing before the mayor of such city or before the common council of such town, and at such hearing the veteran shall have the right to lie present and to be represented by counsel. Such removal, suspension, or transfer shall be made only upon a written order of the mayor or of the common council.
    “Sec. 3. Any violation of the provisions of this act shall be deemed a misdemeanor, and, upon conviction in any court of competent jurisdiction, shall be punishable by a fine of not less than fifty ($50) dollars, and not more than one hundred ($100) dollars.”
    The charter of the city of Grand Rapids provides (Act No. 374, Local Acts 1897, tit. 4, § 23) that the city attorney “may appoint an assistant city attorney, and also such clerical assistance as may from time to time be necessary. Such assistant city attorney and such clerical assistants may be removed by him at will.” Relator had been clerk under previous administrations in the city attorney’s office. Mr. Salsbury was appointed city attorney May 1, 1899, removed the relator, and appointed another clerk in his stead. Relator presented a bill to the common council for services after his removal, which the council declined to pay. He then applied to the circuit court for the county of Kent for the writ of mandamus to compel the council to audit and allow his claim. That court issued the writ. The case is now before us on certiorari to review the judgment of that court.

      William Alden Smith (Cutcheon & Siuarthout, of counsel), for relator.

      Lant K. Salsbury, City Attorney, for respondents.
   Grant, J.

(after stating the facts). The first section of the act (No. 205, Pub. Acts 1897) gives preference for appointment and employment to honorably-discharged Union soldiers, sailors, and marines of the late Rebellion, in “all public departments of municipal corporations, and upon the public works of the State.” The second section provides that no such veteran “holding an office or employment in the public works of any city or town shall be removed,” etc. The learned counsel for relator insist that the term “public works,” in section 2, includes public departments. We cannot concur in this view- A “public department” is defined as “a division of official duties or functions; a branch of government; a distinct part of a governmental organization: as, the legislative, executive, and judicial departments; the department of state, of the treasury, etc.” The term “public works” is defined as “ all fixed works constructed for public use, as railways, docks, canals, waterworks, roads, etc.” Cent. Diet. The statute recognizes the distinction. Similar statutes in other States also use the two terms. It seems clear that the legislature did not understand that “public works” meant the same as “public departments.” The provisions of this act are penal in their character, and must be strictly construed. Section 2 of the act alone is before us for construction. Its language is p expressly limited to ‘ ‘ office or employment in the public works of any city or town.” Courts are not at liberty to extend this penal statute so as to include public departments. This would amount to judicial legislation, rather than interpretation. This disposal of the case renders it unnecessary to discuss the other questions raised.

Judgment reversed. No costs will be allowed.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    CITY OF GRAND RAPIDS v. DE VRIES.
    1. Municipal Corporations — Abatement op Nuisances — Garba&e — What Constitutes — Removal.
    Under a city charter authorizing the common council to provide for the abatement of nuisances and the disposition of unwholesome or nauseous substances, the removal of “garbage ” may be regulated by ordinance defining the term as including "every refuse accumulation of animal, fruit, or vegetable matter, liquid or otherwise, that attends the preparation, use, cooking, dealing in, or storing of meat, fish, fowl, fruit, or vegetables,” since refuse accumulations of the substances enumerated are in and of themselves regarded as nuisances.
    2. Same — Validity oe Ordinance.
    A city ordinance requiring all refuse accumulations of animal, fruit, or vegetable matter to be placed in receptacles for removal by the city is not invalid on the ground that it controls the disposition of wholesome substances, without leaving the owner liberty to use or dispose of them, since the ordinance only affects discarded matter unfit for food.
    3. Same — Reasonableness.
    A provision of a city ordinance requiring garbage to be deposited and collected in water-tight tanks and wagons, covered on top, so as to prevent the contents or odor escaping, and to be removed only by the city’s licensee, is not unreasonable. People v. Gordon, 81 Mich. 306, followed.
    4. Same — Monopoly—Police Powers.
    A city ordinance providing that all garbage shall be removed, under the direction of the board of health, by some person duly licensed by the mayor upon recommendation of such board, and permitting only one such license to be issued, is not void as creating a monopoly and in restraint of trade, since the subject-matter — the gathering of garbage — is in no proper sense a trade, business, or occupation, but is a public duty, to be so discharged by the city as best to promote the public health.

      5. Same — Violation oe Ordinance — Defenses.
    Where a city ordinance provided that no person should remove garbage except the one licensed to do so, the invalidity of the city’s contract with the licensee, because for a longer term than authorized by the ordinance, was not available as a defense in a prosecution for removing garbage without a license.
    Exceptions before judgment from superior court of Grand Rapids; Newnham, J.
    Submitted January 5, 1900.
    Decided April 3, 1900.
    Reindert De Vries was convicted of violating an ordinance regulating tbe disposition of garbage.
    Affirmed.
    G. IT. Albers (Taggart & Denison, of counsel), for appellant.

      Lant K. Salsbury, City Attorney, and Frank W. Hine, Assistant City Attorney (Edwin F. Uhl and William Wisner Taylor, of counsel), for the city.

       As to monopoly in contract for removal of garbage, see note to Smiley v. MacDonald, (Neb.) 27 L. R. A. 540.

   Long, J.

Respondent was convicted under a complaint charging that he ‘ ‘ did unlawfully and willfully engage in collecting and removing in open vessels and in an open wagon garbage, offal, and other refuse matter from various residences in the city of Grand Rapids, without being authorized so to do by a license for that purpose, issued by the mayor of said city; contrary to the provisions of an ordinance,” etc. The cause was tried before a jury in the superior court, and a verdict of guilty found.

The ordinance under which the prosecution was had reads as follows:

“Section 1. The board of health of the city of Grand Rapids shall have charge, management, and control of the garbage burner or cremator owned by the city of Grand Rapids, and the regulation of the cremation of garbage and other refuse matter, and for that purpose shall have power to employ such necessary help as may be required to do the work connected therewith, at such salaries as may be fixed by the common council of the said city of Grand Rapids; and the number of such employés shall be sanctioned and determined by said common council.
“Sec. 2. It shall be unlawful for any person residing within the limits of the city of Grand Rapids or elsewhere to deposit, throw, or place any garbage, offal, or dead animals in any lane, alley, street, or other public place within the city of Grand Rapids; nor shall any person place any garbage, offal, dead animals, or other refuse matter upon any private property, whether owned by such person or not, unless the same shall be inclosed in proper vessels or tanks; such vessels or tanks to be perfectly water-tight, and so kept, with tightly-fitting covers, which covers shall not be removed except when absolutely necessary ; and such vessels or tanks shall be kept in the rear of the house, or in the basement, area, or passageway, so as to be readily accessible for collection, and never upon the street, alley, sidewalk, or other public place; and all such tanks or vessels shall be promptly delivered to the collector when called for, and shall be returned by him to said place or places without unnecessary delay, and no person except for such purpose shall in any manner interfere with said vessels or tanks, or with the contents thereof: Provided, hotoever, that this section shall not apply to any person who immediately destroys, by cremation or otherwise, satisfactorily to the said board of health, such garbage, offal, and refuse matter.
“Sec. 3. The words ‘garbage’ and ‘offal’ as used in this ordinance shall be held to include every refuse accumulation of animal, fruit, or vegetable matter, liquid or otherwise, that attends the preparation, use, cooking, dealing in, or storing of meat, fish, fowl, fruit, or vegetables. And it shall be unlawful for any person to place in said vessels or tanks any ashes or soil.
“Sec. 4. Said board of health is hereby authorized and empowered to enter into a contract with any suitable person or persons for the purpose of furnishing proper vessels or tanks for the reception of garbage, offal, and all other refuse matter, and for furnishing the necessary vehicles for collecting and removing the same, in the manner directed by said board. Said board of health shall have the power to make such rules, regulations, and requirements, to be contained in said contract, as said board may from time to time deem for the best interests of the city; and said board may also divide said city into convenient garbage districts, and shall have power to regulate the gathering of night-soil, and the collecting and conveying of dead animals, garbage, slops, and offal to the cremator, to be delivered at such place as may be directed by said board. Tbe person thus entering into a contract for the' collection and removal of such garbage, offal, dead animals, and other refuse matter, as hereinbefore stated, shall, upon the recommendation of the said board of health, receive a license for that purpose, issued by the mayor of said city, and no license shall be issued to any other person, firm, or corporation for the gathering of such garbage; and such person so licensed shall give a bond to the city of Grand Rapids, with sufficient sureties and in such amount as may be required by said board of health. The condition of such bond shall be that said person so licensed shall in all things carry out the provisions of the contract thus entered into between himself and the board of health, acting for the said city, and such rules and regulations as may from time to time be made by said board of health.
“Sec. 5. The scavenger thus licensed, as hereinbefore stated, shall receive no compensation from the city of Grand Rapids, but shall be permitted to make such arrangements, with the citizens of the said city in the various^, districts that may be established by said board of health, for the furnishing of proper vessels or tanks, at the expense of said scavenger, for the reception of garbage, and for the removal thereof from the premises of the owner or occupant of property to the cremator: Provided, hoivever, that the patrons so furnishing garbage as aforesaid shall not be subjected to a weekly charge of more than ten cents for each household, and not more than one dollar a week for each hotel, restaurant, or boarding-house. And said licensed scavenger shall gather said garbage and other refuse matter, herein provided to be conveyed to the cremator, as often as the board of health shall direct.
“Sec. 6. The person so licensed and authorized as hereinbefore stated, in collecting and removing garbage and all other refuse matter as aforesaid, shall, where said vessels or tanks as hereinbefore mentioned are not capable of holding such refuse matter, provide a proper vehicle, which shall be water-tight, and kept so, and covered on top, so as to prevent the contents or any odor escaping therefrom, and, when unloaded, said box or vehicle shall be thoroughly washed and disinfected, and, when conveying said matters, shall be so loaded and removed that none of the contents shall fall upon the ground or spill therefrom ; and all vehicles used for the collection of garbage shall have attached thereto on both sides a sign with the words ‘Garbage Wagon’ painted thereon, together with ' the number of the wagon, in black letters, not less than four inches in height, on a white ground.
“Sec. 7. Any and every person or persons failing to comply with the provisions of this ordinance, or of the rules and regulations made under and by virtue of the same, shall, for every such offense, upon conviction thereof, be subject to a fine of not less than one dollar nor more that twenty-five dollars and costs of prosecution, or by imprisonment at hard labor in the common jail of the county of Kent, or in any penitentiary, jail, workhouse, or house of correction of said city, in the discretion of the court or magistrate before whom a conviction may be had, for a period of not less than five days nor more than ninety days; and in case such court or magistrate shall only impose a fine and costs, the offender may be sentenced to be imprisoned at hard labor in the common jail of Kent county, or in any penitentiary, jail, workhouse, or house of correction of said city, until the payment of such fine and .costs, for a period of not less than five days nor more than ninety days.
“Sec. 8. That any ordinance or part of ordinance conflicting with the provisions of this ordinance be, and the same is hereby, repealed, so far as the same affects this ordinance.”

On the trial it was shown that an agreement in writing was entered into on July 26, 1898, between the board of health of said pity and one Charles E. Herrington, as follows:

“Articles of agreement, made and entered into this 26th day of July, A. D. 1898, by and between the city of Grand Rapids, a municipal corporation, of the county of Kent and State of Michigan, as party of the first part, .and Charles E. Herrington, of said city of Grand Rapids, county and State aforesaid, party of the second part, as follows:
“Said party of the first part, by and through its board of health, in accordance with the provisions of an ordinance entitled ‘ An ordinance providing for the regulation, collection, removal, and cremation of garbage, offal, dead ■animals, and other i’efuse matter, and for the regulation of the crematory in the city of Grand Rapids,’ passed July 18, 1898, hereby recommends the said party of the .second part to receive a licensó for the purposes named in said ordinance, • and recommends that said license be issued by the mayor, in accordance with section 4 thereof ; and further agrees that said party of the second part shall have the exclusive right, under this agreement and under said ordinance, to carry out in full the terms of said ordinance and the agreements herein contained.
“And said party of the first part, by and through its said board of health, hereby agrees that said party of the second part shall have such exclusive right, as herein-before stated, for the period of three years from and after the date hereof, and that, at the end of said period of three years, said party of the first part shall, at its option, either buy from the said party of the second part his entire outfit necessarily used by him in the carrying out of the provisions of said ordinance, at a value to be placed thereon by two disinterested persons, or shall extend the contract for a period of two years from and after said date on the same terms and conditions herein named.
“Said party of the second part, in consideration of receiving such license for the exclusive right to gather garbage, as provided for in said ordinance, and as said ordinance may from time to time be amended for the public good, agrees to procure all the necessary galvanized iron cans or receptacles, which shall be watertight, and have water-tight covers fitting thereon, and also all the necessary horses, wagons, and harnesses, tools, and other implements necessary to be used in connection with the proper gathering and conveying of garbage, night-soil, dead animals, and all other refuse matter, to the satisfaction of the said board of health; and such wagons . shall be numbered, and the city may be divided into districts by said board of health; and said second party in such case agrees "to furnish the number of the wagon or wagons in each of such districts to the health officer of said board of health, as the said board of health may from time to time redistrict and request.
“Said material so gathered by said second party shall be gathered as often as the board of health shall, from time to time, deem necessary for the health of the city in the different districts or parts thereof. And the receptacles or cans so furnished shall be in duplicate, and of sufficient size for use at the different places where such garbage or other refuse is taken from.
‘ ‘ Said party of the second part is to deliver said material so gathered at such point near the crematory as said board of health shall designate, or at such other place as-said board of health may from time to time direct, within a reasonable distance therefrom. Said party of the second part further agrees to conduct the business required by this contract in a careful manner, and observe said ordinance and all other ordinances of said city in reference to-health matters, and his work shall be done to the full satisfaction of the board of health, and under the direction of the health officer of said board; and shall have an office-with telephone connections.
“Said party of the second part agrees on his part not to assign or sublet this contract to any person or persons unless permitted so to do in writing by the board of health first obtained; and shall continue to perform the duties- and requirements of this contract for the full term and period named herein, and to pay for all labor and material that may be necessary to carry out and fulfill the terms of this contract, and to save the city harmless from any claim for damages or costs on account of failure to fulfill any part or parcel of this contract; and further agrees-for that purpose to execute and deliver to the said city of Grand Rapids a bond in the penal sum of one thousand dollars, with sufficient sureties, to be approved by the board of health, for the faithful performance of this contract. ”

The bond given was also put in evidence, together with the license granted by the mayor to Charles E. Herring-ton, dated July 29, 1898. Evidence was given tending to show the facts set forth in the complaint and warrant. After the proofs were closed, counsel moved that the complaint be dismissed and the respondent discharged.

The proofs showed that the respondent, on February 16, 1899, gathered garbage from several private residences in an open basket, and put such garbage into a sleigh, which was partly open, and so carried the same through the streets of the city; that this garbage was partially decomposed matter, and was deleterious to public health. The' respondent testified that he had been in the hahit of gathering garbage in the city for the last 12 years; that on the occasion shown by the people he did gather garbage, but that such garbage did not have a bad odor, and that he took it home, and fed it to his hogs. He also testified that he made application for a license to the board of health, which was refused, and that he was at that ■ time told he had no right to gather garbage. The court left it to the jury to determine whether the articles gathered by the respondent came within the definition of garbage mentioned in the ordinance.

The principal objection to the ordinance is that it is invalid, and that the common council was not authorized, under the charter of the city, to adopt the same. The charter of Grand Rapids (Act No. 374, Local Acts 1897) provides (title 3, § 10):

“The common council' * * * shall have power * * * to enact * * * ordinances * * * for the following purposes: * * *
“Fifth. To abate or remove all nuisances of every kind, and to compel the abatement and removal of the same; to order and compel the owner or occupant of any grocery, tallow-chandler’s shop, butcher’s stall or shop, soap factory, tannery, stable, privy, water-closet, hog-pen, sewer, or other nauseous or unwholesome house or place, to cleanse, remove, or abate the same from time to time, as often as the common council may deem necessary; to direct the location of all slaughter-houses, rendering-places, markets, and market-places; to prohibit any person from bringing or depositing any dead carcass, or any other unwholesome or nauseous substance, within the corporate limits of the city; and if any person shall have on any premises owned or occupied by him, within such limits, any such substances, or any putrid meat, fish, hides, or skins of any kind, which are unwholesome, nauseous, or offensive, to order and compel the removal thereof; and, in case of neglect or refusal of the owner or occupant of such premises to remove or abate the same, to authorize the removal, abatement, or destruction thereof by some proper officer of the city. All for the health, comfort, safety, and convenience of said city. * * *
“Sixteenth. To provide for the preservation of the general health of the inhabitants of said city; to make regulations to secure the same;- to prevent the introduction or spreading of contagious or infectious diseases; to prevent and suppress diseases generally; to establish a board of health, and to prescribe and regulate its powers and duties, subject to the provisions of this act; to regulate the burial of the dead, and to compel the return of births and deaths to be made to such board of health, and the return of all burial permits to said board; to provide for a complete record of all births, deaths, and interments, to be kept in the office of said board of health. * * *
“Eighteenth. To pass all needful ordinances and regulations governing sextons and undertakers for burying the dead, and scavengers and chimney-sweeps, and regulating their compensation, and the fees to be paid by them for licenses: * * *
“Twenty-fifth. To sell or otherwise provide for the disposal of all dirt, filth, manure, cleanings, and all other substances lying in or gathered from the highways, streets, avenues, lanes, courts, alleys, and public places and public grounds, to be disposed of by the city of Grand Rapids; to sell or otherwise dispose of all earth to be removed from such highways, streets, avenues, lanes, courts, alleys, public places, and public grounds of said city, in grading, paving, or otherwise improving the same.”

Section 39, tit. 3, provides:

‘£ It shall be the duty of the common council to declare any place, thing, or matter which may be deleterious to public health, or dangerous to persons or property, a public nuisance; and whenever its attention, or the attention of its proper officer or officers, is called to any such nuisance, it shall immediately proceed to abate the same. It shall have power to pass all legal by-laws, ordinances, or regulations which, in its judgment, it may deem necessary to carry into effect the duties imposed upon it by this section.”

Section 1, tit. 7, provides:

It shall be the original duty of the common council to adopt all needful measures for the preservation of the public health of the city, and to restrain or prohibit the exercise of any nauseous or dangerous business or avocation within the corporate limits of the city. In furtherance of such original duty, and to preserve the public health of the city, and to suppress disease therein, there shall be a board of public health in the city, to consist of three members, who shall be electors of the city.”

Section 7, tit. 7, provides:

££ It shall be the duty of the board of health * * * to abate all nuisances of every description which are or may become injurious to public health, in any manner it may deem expedient, and from time to time perform all acts and make all regulations which it may deem necessary for the preservation of the public health and the suppression of disease in the city, and from time to time to recommend to the common council the passage of such by-laws, ordinances, or regulations as it shall deem expedient for the preservation of the public health and the suppression of disease in the city.”

It is contended that there are two reasons why the ordinance cannot be sustained under these charter provisions:

“1. That the charter power is confined to nuisances, and to substances which are actually unwholesome or nauseous; while the ordinance extends to all garbage, under the very broad definition of that term laid down in section 3, and irrespective of whether the same is a nuisance, or whether it is in fact wholesome or unwholesome.
“2. That the power conferred to remove these substances can be exercised only in case of the neglect or refusal of the householder to remove them himself; while the ordinance attempts to confer on an individual the right of immediate removal, against the protest of the householder, and without giving him an opportunity to make such removal himself; and, if construed as the city now asks, positively forbids the householder, either personally or by any one employed by him for that purpose, to remove such garbage, and subjects the householder to a penalty if he attempts immediately to remove from his premises entirely wholesome table refuse.”

We think counsel are in error in both these propositions. The charter provisions empower the council to pass ordinances to regulate the collection, removal, and disposal of garbage, etc. In section 3 of the ordinance the words “garbage” and “offal” are defined to include every refuse accumulation of animal, fruit, or vegetable matter, liquid or otherwise, that attends the preparation, use, cooking, dealing in, or storing of meat, fish, fowl, fruit, or vegetables. These matters, in and of themselves, are regarded as nuisances; that is, the ordinary and accepted meaning of the words “garbage” and “offal” is such refuse matters that in and of themselves are nuisances.

As to the second proposition, it may be said that the ordinance does not attempt to regulate in any manner whatever the disposition of wholesome substances by the householder. It is aimed only at refuse; that is, discarded, worthless matter, — matter unfit for food. The householder has perfect liberty, under the ordinance, to consume, or to sell or give away, all the leavings of his table or kitchen that are fit for food; but he is not suffered by the ordinance to have around his premises, in open buckets, pans, pails, or heaps, that which is known as “refuse.” Matter of this character he is required to care for by depositing the same in water-tight vessels or tanks, and dispose of it in such a way that will not endanger the public health.

But counsel say that the ordinance is unreasonable, and therefore void; and that it also creates a monopoly. The same questions were raised in People v. Gordon, 81 Mich. 306 (45 N. W. 658, 21 Am. St. Rep. 524). The charter provisions of Detroit were somewhat similar to the charter of Grand Rapids, above quoted. Those provisions empowered the common council of Detroit to enact and provide by ordinance for the manner of collecting, transporting, and conveying of garbage and all animal and vegetable matter and refuse in said city, and to require all persons to dispose of the same in the manner provided by the common council in said ordinance for the removal and destruction thereof, and to impose penalties for the violation of the same. The ordinance there provided for the collection of garbage in water-tight vessels, the same as the ordinance in controversy. It also provided that no person except the city contractor or his agents should carry or transport garbage through the streets or public places. It was contended that this ordinance was unreasonable. It was said:

“We think it competent for the common council to prescribe reasonably the manner of removing garbage and offal through and out of the city, and that the requirement that such refuse shall be removed in water-tight closed carts or wagons, and that the same shall be marked ‘Garbage,’ is a reasonable regulation. Gordon did not come within this regulation, and was guilty of violating the ordinance. Had he been provided with a wagon that substantially complied with section 2 of the ordinance, and had he been refused a permit by the health officer for no other reason than that he was not the city contractor, or an agent or employé of such contractor, the interesting questions, so ably discussed by counsel, relative to the authority of cities to virtually grant a monopoly of garbage collection and removal, or to do the whole business through their officials or contractors, would have been legitimately before us for determination.”

In the present case we think the ordinance is not unreasonable as to the manner of gathering and removing garbage. That question is ruled by People v. Gordon, supra.

The charter does not, in express terms, empower the council to grant an exclusive contract. It is contended by counsel for respondent that it is the settled rule of charter construction in this State that, even though a city charter may give the council power of general control over a subject, yet the council cannot make an exclusive contract for a period of years, relating to that subject, unless such power to make an exclusive contract is stated by the charter in express terms; in other words, that the power to make an exclusive contract will not be implied. In support of this proposition, counsel cite Grand Rapids Electric Light & Power Co. v. Grand Rapids Edison Electric Light & Fuel Gas Co., 33 Fed. 659. The question of the granting of the exclusive use of the streets of Grand Rapids to the electric-light company was very fully discussed by Mr. Justice Jackson in that case, and he-states the well-settled doctrine that municipal corporations, which are mere political agencies of government, forming but parts of the machinery employed in carrying on the affairs of state, possess and can exercise only such powers as are granted in express words, or those necessarily or fairly implied in or incident to the powers expressly conferred, or those essential to the declared objects and purposes of the corporation; not simply convenient, but indispensable. Applying this rule to the ordinance there under consideration, he held that there was no express power given by the charter by which the common council of Grand Rapids could confer upon the Grand Rapids Electric Light & Power Company the exclusive use of the streets for 15 years. The learned judge said in that case:

“I cannot discover, in the decisions of the Michigan Supreme Court, any general policy of the State in respect to municipalities and their powers which may be legitimately invoked in support of the validity of the ordinance of 1880, so far as it attempts to grant the exclusive use of the city’s streets to complainant for the purposes aforesaid.”

We think that case is not controlling of the present. The gathering of garbage is not a trade, business, or occupation in any proper sense, and such employment does not come under the doctrine in reference to monopolies, or in reference to legislation in restraint of trade. It is a matter in which the public agencies are authorized to pursue the best means to protect the public health. The charter provisions recognize the fact that certain matter may be deleterious to public health, and dangerous to persons or property, and thus become a public nuisance; and the charter makes it the duty of the common council to declare any place, thing, or matter which may be deleterious to public health, or dangerous to persons or property, a public nuisance, and the council is given power to abate such nuisance. The ordinance treats garbage or offal as deleterious to public health, and directs the manner of its disposition for the benefit of the public health. It is one of the police regulations of the city for the benefit of the public health.

Whether or not the contract with Herrington be invalid for the reason that it is for a longer period than one year is of no importance here. The ordinance itself does not attempt to provide that the board of health may enter into a contract for a longer period than one year. It is true that the board attempted to do so by providing that Herrington should have the exclusive right for the period of three years, with the option of two more years, the license to be issued from year to year; but whether the contract be valid or not cannot affect the rights of the respondent. He was acting without a license, and at a time when there was a duly-licensed person to do the work.

The respondent asserts that the ordinance does not license or control, but prohibits, what he denominates a lawful and proper business. The business of handling and carting garbage through the public streets of a city is a business which the municipality may regulate for the benefit of the public health. No person has the right to carry garbage or other refuse matter through the streets of a city in open vessels. It is not the creation of a monopoly when the city from year to year licenses one or more persons to cart such garbage from and out of the city, specifying the manner in which it shall be done. In River Rendering Co. v. Behr, 7 Mo. App. 345, the ordinance under consideration was in reference to,the removal of dead animals. The court, speaking of that ordinance, said:

“The city authorities would be grossly derelict if they left the chances of removal to be determined by the owners of the animals, or by the enterprise of possible purchasers. They are in duty bound to appoint special agencies for the purpose, and to render performance certain by whatever means their best judgment may suggest. If they find that this certainty can be secured only by confining the agency to a single person or corporation,- upon terms of responsibility for a failure to perform, it is their duty and their privilege to so secure it. The agency so appointed is rather the instrument in the hands of the municipal authorities for the fulfillment of a public duty than the beneficiary of an exclusive privilege.”

We think the ordinance a valid one, and the conviction must be affirmed.

The other Justices concurred.


author: Grant, J. Montgomery, C. J.

text:
    STEARNS v. WIBORG.

    Courts — Foreign Judgment — Res Judicata.
    Where a court of another State, having obtained jurisdiction of the parties and the subject-matter of a suit on plaintiff’s appeal from, justice’s court, set aside on defendant’s motion, after argument, an ex parte order of dismissal theretofore granted to plaintiff, and rendered judgment for defendant for the amount awarded him in justice’s court, the judgment
    0 was res judioata-oí the questions in issue, and a court of this State was not authorized, in a subsequent action, to enter upon an inquiry as to whether the statutes of such other State entitled plaintiff to dismiss as a matter of right; the decision of the'foreign court upon such question of law being as conclusive as its decision upon questions of fact. Grant and Long, JJ., dissenting.
    Error to Livingston; Smith, J.
    Submitted January 10, 1900.
    Decided April 3, 1900.

      Assumpsit by Justus S. Stearns against Harry P. Wiborg and another for goods sold and delivered. From a judgment for plaintiff, defendants bring error.
    Reversed.
    This suit is brought to recover for a bill of lumber for 1261.02, alleged to have been sold by plaintiff to the defendants. It was commenced by declaration filed July 13, 1898. The sale was made through one Sprague, an agent for the plaintiff. Defendants reside in Cincinnati, Ohio. Plaintiff’s place of business was Bennett, Mich., from which place the lumber was shipped. The defense upon the merits is that defendants purchased the lumber from Sprague as principal, and not as agent; that they agreed to take the lumber to apply on an indebtedness due from Sprague to them; that such application was made in accordance with the agreement.

      Defendants gave notice of a former suit and judgment for the same cause of action, rendered in the Ohio court of common pleas for the county of Hamilton, State of Ohio. This suit was commenced before a justice of the peace, and was appealed by plaintiff to the court of common pleas in April, 1898. On May 26th following, the defendants, through their attorneys, made a motion for security for costs, and for a more definite and certain petition, which motion was heard and granted on June 4th. On June 11th the court, on motion of the plaintiff, and without notice to the defendants, entered an order dismissing the -cause without prejudice to future action; the costs therein having been paid by the plaintiff. On July 18th, after arguments by counsel for both parties, the court entered an order as follows: “It appearing that the entry of June 11, 1898, dismissing this cause, was inadvertently made, the same is hereby set aside and held for naught,” On July 21st defendants’ counsel entered a motion for judgment in their favor for the failure to comply with the order of June 4th. This motion was also argued by counsel for both parties, and on August 30, 1898, a judgment was entered in the following language:
    “This cause coming on for hearing on the motion of the defendants for judgment, and upon the pleadings and evidence, and was submitted to the court, in consideration whereof the court find for the defendants, and that they recover from the plaintiff the sum of five dollars and sixty cents ($5.60), as was adjudged upon the hearing of this cause before the justice of the peace; and execution is awarded for said sum, and also for the costs herein expended, taxed at $-.”
    Plaintiff insists that the Ohio court had no jurisdiction to enter the judgment; that the order of discontinuance was valid, and deprived the court of any further jurisdiction in the matter. Counsel for plaintiff rely upon section 5314 of the Ohio Statutes, which, so far as applicable here, provides that:
    “An action maybe dismissed without prejudice to a future action—

      “1. By the plaintiff, before the final submission of the case to the jury, or to the court, when the trial is by the court. * * *
    “6. By the plaintiff, in vacation, on payment of costs; and the clerk in such case shall forthwith make an entry thereof on the journal, whereupon the dismissal shall take effect; but this clause shall not apply to a petition in error, or a case in which a counterclaim or set-off has been filed.
    “ In all other cases the decision must be upon the merits, upon the trial of the action.”
    The defendants insist that the order of discontinuance was absolutely void, under section 6589, 2 Rev. Stat. Ohio, which reads as follows:
    ‘ ‘ If the plaintiff in the action before the justice shall appeal from any judgment rendered against such plaintiff, and after having filed his transcript and caused such an appeal to be docketed, according to the provisions of this chapter, shall fail to file a petition, or otherwise neglect to prosecute the same to final judgment, so that such plaintiff shall become nonsuit, it shall be the duty of the court to render judgment against such appellant for the amount of the judgment rendered against him by the justice of the peace, together with interest accrued thereon, and for costs of suit, and to award execution therefor as in other cases.”
    Section 6587 of the same statute has an important bearing upon the question. It reads as follows:
    “The plaintiff in the court below shall be the plaintiff in the court of common pleas, and the parties shall proceed in all respects in the same manner as though the action had been originally instituted in the said court.”
    Section 5315 provides:
    “If .a set-off or counterclaim be pleaded, the defendant shall have the right of proceeding to the trial of his claim, although the plaintiff has dismissed his action or fails to appear.”
    When the plaintiff had rested, defendants’ counsel moved for a verdict, for the reason that plaintiff had not made out such a case as entitled him to recover. This motion was denied. Defendants then introduced their testimony upon the merits, and the transcript of the record of the proceedings and judgment in the Ohio court. When both sides had rested, the court asked counsel for the defendants if he desired to renew any motion, to which counsel replied:
    “I made the motion, when the plaintiff rested his case, to have the jury instructed to find-a verdict for the defendants, for the reason that the plaintiff had not made a case entitling him to any judgment at the hands of the jury. I thought at that time that that was so, and I think so now more strongly. I should like to request at this time th§t the court instruct the jury to find a verdict of no cause of action against the defendants. Unless your honor would desire to hear me, I won’t spend any time in discussing the motion. If your honor requests me to do so, I will take some time to discuss it.”
    The judge then stated that there was but one question of fact to be decided; that he did not then have time to listen to argument, or to examine the questions raised; that he would take the verdict of the jury upon the question of fact, and determine the legal questions subsequently, if the jury rendered a verdict against the defendants. To this course no objection was made otherwise than by exception to the refusal to direct a verdict and to the statements of the court. Subsequently, briefs upon the question were presented to the court, and the court made a finding reciting (1) the verdict of the jury, (2) the Ohio judgment, (3) the contention of the parties upon the effect of that judgment, and (4) that it did not constitute a bar to the present cause of action; and thereupon entered judgment for the plaintiff. To this finding and judgment no exceptions were taken, as required by Cir. Ot. Rule No. 26. Plaintiff had verdict and judgment.

      William P. Van Winkle, for appellants.

      Hyde, Earle & Thornton, for appellee.

       Rehearing denied May 29, 1900.

   Grant, J.

{after stating the facts; dissenting). In my opinion, this case should be considered as one tried by the court, with a special finding of the jury upon the only disputed question of fact involved. Defendants’ counsel did not move to direct a verdict upon the ground that the Ohio judgment was a bar, but renewed-the motion that he had made before the proceedings in that suit had been introduced in evidence. Having failed to take any exceptions to the findings of fact or law, I do not think the defendants are in position to attack the judgment. My brethren, however, think otherwise, and it becomes necessary, therefore, to determine the question arising upon the Ohio judgment.

That the judgments of the courts of one State upon the merits between the same parties and for the same cause of action are binding upon the courts of a sister State, where the former court had jurisdiction to render judgment, is unquestioned. Such judgments are res adjudicata, and bar the right of action in other States. It is unquestionable that there was no trial upon the merits in the common pleas court of Hamilton county. The most that defendants’ counsel urges is that there was a trial upon the merits in the justice’s court, and that under section 6589, 2 Rev. Stat. Ohio, the court was authorized to render judgment for the amount of the judgment in the justice’s court. . Were it not for the order of discontinuance, defendants’ contention might be sound. It is the general rule that a judgment by dismissal or nonsuit is no bar to another suit for the same cause of action. Was plaintiff entitled to his order of dismissal of June 11th? If he was, that deprived the court of any further jurisdiction in the matter. We are cited to no authority by the court of last resort in Ohio upon the question, and, after a careful search, I am unable to find any. Section 6587 requires the case to be conducted in the court of common pleas in the same manner as though it had been instituted in that court. It was decided in Wanzer v. Self, 30 Ohio St. 378, that an appeal from a county court vacated the judgment of the court below. We are of tbe opinion that section 6589 provides for a judgment based upon the proceedings in the justice’s court only where the appellant remains idle, and takes no further steps to prosecute his appeal, and does not apply when the plaintiff has dismissed his suit under section 5314. We do not think this is in conflict with sections 5314 and 6587. Besides, section 6589 provides only for a judgment of nonsuit when plaintiff has failed to prosecute his appeal. A judgment of nonsuit is not, and cannot be, a judgment upon the merits.

The statute of Missouri provides: “Upon the return of the justice being filed in the clerk’s office, the court shall be possessed of the cause, and shall proceed to hear, try, and determine the same anew, without regarding any error, defect,” etc. 2 Rev. Stat. Mo. § 6339. Under this statute it was held that a judgment of nonsuit, granted by the court on the request of the plaintiff, did not constitute a bar to another action. Lee v. Kaiser, 80 Mo. 431; 1 Van Fleet, Former Ad j. § 53; Hughes v. U. S., 4 Wall. 232. The same is held in Vermont. Small v. Haskins, 26 Vt. 209. Our own statute is not materially different from section 6587, 2 Rev. Stat. Ohio, and our courts have recognized the right of the plaintiff in such cases to submit to voluntary nonsuit. 1 Comp. Laws 1897, § 918; Franks v. Fecheimer, 44 Mich. 177 (6 N. W. 215).

When the want of jurisdiction appears upon the face of the proceedings, the judgment is not binding upon other courts. The only restriction upon the right of the plaintiff to discontinue his suit is found in section 5315, 2 Bev. Stat. Ohio, where the defendant has pleaded a set-off or counterclaim. In such case the defendant is entitled to retain the case for the trial of his own claim, notwithstanding that plaintiff has dismissed his action or failed to appear.

We are therefore of the opinion that the judgment of dismissal in the Ohio court was a matter of absolute right, and deprived the court of further jurisdiction.

Exceptions were taken to the introduction of certain testimony. We find no error in the rulings of the court on these questions. It is not important to discuss them.

Judgment should be affirmed.

Long, J., concurred with Grant, J.

Montgomery, C. J.

The facts are fully stated in the opinion of Mr. Justice Grant. It is undoubted that the Ohio court of common pleas obtained jurisdiction of the parties and subject-matter. This being so, that court had the authority to determine the form of judgment to be entered. The parties appear to have so understood the law; had submitted to that court the question whether the order of dismissal of June 11th should stand, or whether a final judgment should be entered. The court ruled against the plaintiff, and entered a judgment for defendants. Whether right or wrong, this judgment is binding upon us. The decision of that court upon a question of law is just as conclusive as it is upon a question of fact. McNitt v. Turner, 16 Wall. 352.

The judgment is reversed, and a new trial ordered.

Hooker and Moore, JJ., concurred with Montgomery, C. J.


author: Moore, J. Grant, J.

text:
    BUHL v. MECHANICS' BANK OF DETROIT.
    Evidence — Parol Agreement — Admissibility.
    Where a purchaser of goods from a trustee for creditors -gave his notes for the price to the creditors whose claims were admitted, under a verbal agreement and understanding that they should prorate with him any additional amount he might be required to pay to others, whose claims were then in dispute, evidence of such agreement, in an action to enforce it against the original creditors, was not objectionable as contradicting the notes.
    Error to Wayne; Waite, J.
    Submitted January 10, 1900.
    Decided April 3, 1900.

      Assumpsit by Walter Buhl against the Mechanics’ Bank of Detroit upon a contract of indemnity. ' From a judgment for plaintiff, defendant brings error.
    Affirmed,

      Bowen, Douglas & Whiting, for appellant.

      Corliss, Andrus & Leete, for appellee.
   Moore, J.

The plaintiff is the assignee of Walter Buhl & Co. Oscar E. Rasch & Co., dealers in furs, became financially embarrassed. They gave a chattel mortgage to Charles A. Rich, trustee, to secure certain creditors, among which were the defendant bank and the American Exchange National Bank. Walter Buhl & Co. arranged with these creditors, with Rasch & Co., and with the trustee to buy the property and effects covered by the mortgage, with certain exceptions, free from all mortgage incumbrances, for $10,000, for which they were to give their promissory notes, payable January 1, 1895. The parties got together for the purpose of carrying out this agreement. A written request was made to the trustee, signed by the creditors named in the mortgage, to carry out this arrangement.

It is the claim of the plaintiff, and he gave proof in support of his claim, that, when the parties got together to carry out this arrangement, it was suggested that the Peninsular Bank and the Union Bank claimed to have an interest in the property by virtue of the mortgage made to the trustee, which claim was not admitted by those present. It is his further claim that it was agreed that he should give three notes, aggregating $10,000, for the property and effects he was buying, and, if the courts should afterwards decide that the Peninsular Bank and the Union Bank had an interest in the property, establishing a claim against him, so that he should be required to pay not only the notes, but an additional sum above the $10,000, that the defendant and the other creditors should prorate with him in the amount above the notes he was required to pay and that, relying upon this agreement, he bought the property, gaves his notes for the $10,000, and afterwards paid them. This court afterwards held (Union Nat. Bank v. Rich, 106 Mich. 319, 116 Mich. 414 [64 N. W. 339, 74 N. W. 659 ] ) that the Peninsular Bank and the Union Bank had an interest in the property, and because of that holding Buhl & Co. were obliged to pay more than the $10,000 evidenced by the notes. This agreement rested in parol, and is said by the defendant never to have been made. The trial court submitted the question to the jury, which found in favor of the contention of the plaintiff.

A number of errors are assigned in relation to the trial of the case, the principal one of which is that, as Buhl & Co. gave their notes in payment for the property and effects, the court erred in allowing the plaintiff to show the parol agreement, urging that this allowed parol testimony to contradict a written contract; counsel citing Phelps v. Abbott, 114 Mich. 88 (72 N. W. 3), and ether cases. We do not think these cases are in point. There is no claim here that Buhl & Co. were not to pay the notes, but, on the contrary, it is agreed they were to pay them; but it is claimed that if, in addition to paying the notes, Buhl & Co. were required to pay an additional sum, the defendant should pay its share of that sum. It is conceded by counsel that it was the intention of the parties that the property bought by Buhl & Co. was to cost them but $10,000. If the contention of the defendant prevails, it will cost them much more than $10,000. If the contract was made as claimed by the plaintiff, as he has performed his part of it, I can see no difficulty in holding the defendant bound to perform its part. See Bennett v. Beidler, 16 Mich. 150; Bowker v. Johnson, 17 Mich. 42; Trevidick v. Mumford, 31 Mich. 467; Doty v. Martin, 32 Mich. 462; Blackwood v. Brown, 34 Mich. 4; Richards v. Fuller, 37 Mich. 161; Brittain v. Kelly, 86 Mich. 278 (49 N. W. 53); Fitzpatrick v. Hoffman, 104 Mich. 228 (62 N. W. 349); 1 Greenl. Ev. § 284a.

The other questions suggested by counsel have been considered, but we do not deem it necessary to discuss them.

Judgment is affirmed.

Montgomery, C. J., Hooker and Long, JJ., concurred with Moore, J.

Grant, J.

I think the case is ruled by Bennett v. Beidler, 16 Mich. 150.


text:
    CURRAN v. BANKS.
    Land Contract — Outstanding Title — Purchase by Grantee— Assertion Against Grantor.
    One in possession of land under contract of purchase cannot defeat a bill for specific performance by showing himself to he the owner of a tax title upon the land, based on taxes which were unpaid at the time the contract was executed, since the doctrine that a lessee cannot dispute his landlord’s title extends to purchasers in possession under contract.
    Appeal from Van Burén; Smith, J.
    Submitted January 12, 1900.
    Decided April 3, 1900.
    Bill by James Curran against William H. S. Banks, Benjamin Smith, Jane Smith, and Cora M. Shakespeare for the specific performance of a land contract. From a decree for complainant, defendants Banks and Benjamin Smith appeal.
    Affirmed.

      Johnson & Wicksall, for complainant.

      Anderson & Chase, for appellants.
   Long, J.

This bill was filed for the specific performance of a land contract made in 1895 between defendant Banks and complainant. The agreed price for the land was $650, payable on or before August 1, 1895. Banks went into possession, and still remains in possession, and has paid only $15 on the contract. It appears that the taxes assessed against the land for the year 1893 were not paid, and the land was afterwards sold for these taxes, and bid in by the State. February 11, 1897, the State sold its bid to William O’Connor, of Lansing, for $16.85. At the time of the execution of the land contract, in 1895, neither the complainant nor defendant Banks knew that the taxes of 1893 had not been paid, and neither one learned of it until after the land had been bid in by the State and sold to O’Connor. When the complainant' learned that O’Connor held the State bid, he entered into correspondence with him, with a view of buying his title; but before that could be accomplished defendant Banks bought the title of O’Connor by paying him $50 therefor. After procuring the tax deed from O’Connor, Banks quit-claimed the land to defendant Smith, to secure him for signing notes with him to the amount of $150, and mortgaged it, with other land, for $300, to defendant Cora M. Shakespeare.

The complainant, before filing his bill, tendered to Banks a warranty deed in proper form, and demanded his pay on the contract. Banks declined to pay him anything, claiming to own the land by virtue of this tax deed. The court below decreed that defendant Banks pay the balance remaining unpaid on the contract, less the amount paid by Banks to O’Connor for the tax title; that the tax title procured by Banks inured to the benefit of complainant; and that complainant’s title was paramount to the Smith deed and the Shakespeare mortgage. It was also decreed that, in default of payment of the amount due on the contract, the land should be sold to meet the amount. Defendants Banks and Benjamin Smith have appealed. It appeared that the Shakespeare mortgage had been discharged before final entry of decree.

We think the court was not in error in the disposition made of the case. Defendant Banks was in possession of. the premises, under contract made with complainant, at the time he purchased in the tax title. It was held in Ryerson v. Eldred, 18 Mich. 12, that one who is in possession of land as tenant of another cannot buy in an adverse title which existed at the time he received his lease, and make such purchase the basis of a suit in equity to quiet his title as against his landlord. Nims v. Sherman, 43 Mich. 45 (4 N. W. 434). It was held in Wilkinson v. Green, 34 Mich. 221, that parties who have obtained possession of lands from their grantor cannot afterwards repudiate his title, and that all releases thereafter procured by them to cure defects in the title of such grantor have been obtained in support of, and not for the destruction of, such title. The doctrine that a lessee cannot dispute his landlord’s title extends to one who takes possession under a contract of purchase. See Wolf v. Holton, 92 Mich. 136 (52 N. W. 459). The English rule is stated in Fry, Spec. Perf. § 1320, as follows:

“Where the purchaser, having discovered a material defect in the title, * * * gave notice to determine the contract, and immediately afterwards bought up the interest which had constituted his objection, it was held that having thus, by his own voluntary act, cured the defect, he could not avail himself of this purchase for the purpose of destroying the original contract; and specific performance was decreed against him.”

This principle is supported by Murrell v. Goodyear, 1 De Gex, F. & J. 432.

The court was not in error in entering the decree in favor of complainant. That decree must be affirmed

The other Justices concurred.


author: Hooker, J. Grant, J. Long, J.

text:
    RYAN v. DETROIT CITIZENS’ STREET-RAILWAY CO.
    Street Railways — Collision with Driver — Speed op Car — - Contributory Negligence — Question for Jury.
    Where it appeared, in an action against a street-railway company for injuries received in a collision with a trolley car, that the car could have been seen for a distance of two blocks from the place of the accident, and that plaintiff, according to his testimony, looked in its direction, to a point 75 or 80 feet distant, before attempting to drive across the tracks, and saw no car, but, before he could get across, was struck and injured by the car, which was going at a high rate of speed, it was error to direct a verdict for defendant on the ground that plaintiff's contributory negligence was established as a matter of law; the question of negligence and contributory negligence under such testimony being for the jury. Long, J., dissenting.
    Error to Wayne; Donovan, J.
    Submitted January 31, 1900.
    Decided April 3, 1900.
    Case by Michael Ryan against the Detroit Citizens’ Street-Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      George X. M. Collier and Frank C. Moriarty, for appellant.

      Brennan, Donnelly & Van De Mark, for appellee.
   Hooker, J.

The trial court directed a verdict for the defendant. We must therefore examine the record, to ascertain whether the case presented a question that should have been submitted to the jury. The action was for negligence, whereby defendant’s car collided- with the plaintiff’s vehicle, to his injury. The statement of facts, as given by the appellee, is that the plaintiff, an old man, was driving a horse and buggy west on the north side of Jefferson avenue, in Detroit. There'is a double track for a street railway on this avenue, upon which trolley cars are run. When plaintiff reached First street, he attempted to cross the street-car track,.and was struck by the car. There was testimony that, standing at the intersection of First street, one can see a car from one to five blocks, according to the testimony of different witnesses. It is claimed, therefore, that the plaintiff was conclusively shown to have been guilty of contributory negligence. The plaintiff testified that he looked up to the point of the hill, about 75 or 80 feet, and saw no car, and thought that was far enough to look to make the attempt to cross safe. Counsel for the appellee cite four cases which are said to support their contention. They are Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007); Borschall v. Detroit Railway, 115 Mich. 473 (73 N. W. 551); Doherty v. Railway Co., 118 Mich. 209, 213 (76 N. W. 377, 80 N. W. 36); McCarthy v. Railway Co., 120 Mich. 400 (79 N. W. 631). Of these, some are cases where pedestrians walked upon a track, immediately in front of a car, under circumstances which made it impossible for them to have looked in the direction from which the car was coming, immediately before stepping upon the track, without seeing the danger. Such were the cases of Doherty v. Railway Co. and McCarthy v. Railway Co. In the case of Fritz v. Railway Co., the plaintiff, a milk vender, was driving along a street, and turned abruptly across the track, without looking to see whether it was safe or not, which he could not do, as the wagon was so covered as to prevent: In the Borschall Case, the driver looked both ways, and saw a car coming from the south, but saw none coming from the north. He backed out of the way of the north-bound car, and, as soon as it passed, drove on the track. It was held that, had he looked after the car passed, he must have seen the danger.

We have said that street railways have ordinarily the right of way over vehicles, and that the driver owes the duty of looking before going upon the track. But both have rights upon all parts of the highway, and a driver is not obliged to wait until all cars in sight pass before attempting to cross. If he were, his progress would be slow. There is testimony in the case that the whole car could have been seen from the place where the accident occurred when it reached the top of the hill, which was two blocks away. The plaintiff stated that he looked to the point of the hill, and saw no car, and thought he could get across. He estimated the distance at 75 or 80 feet; others make it more. It was held in the case of Garrity v. Railway Co., 113 Mich. 369 (70 N. W. 1018, 37 L. R. A. 539), that, when the circumstances are such that a driver may reasonably think that he has time to cross, it is not negligent to attempt it; and while, as we have seen, there are cases where it is conclusively shown that the attempt was necessarily negligent, there are others where the question is for the jury. It is unnecessary to repeat what is said in the Garrity Case, and sufficient to say that this case is within the rule there stated, and that it should have been left to the jury upon the questions of negligence and contributory negligence.

The judgment is reversed, and a new trial ordered.

Montgomery, C. J., and Moore, J., concurred with Hooker, J.

Grant, J.

(concurring). There was testimony that the car was running down this hill at a speed of 30 miles an hour. I do not think the evidence conclusively shows that plaintiff was from 15 to 30 feet only from the car when he attempted to cross. If this were so, he would clearly have been guilty of contributory negligence. He had got nearly across the track, when the hind wheel of his buggy was struck. There was testimony that the car was more than 100 feet away when plaintiff started to cross. I think it was for the jury to determine the speed of the car, its distance from plaintiff when he turned to cross, and the negligence of defendant and contributory negligence of plaintiff. I think the case is ruled by the Garrity Case, and should be reversed.

Long, J.

(dissenting). I am unable to agree with my Brother Hooker in this case. The plaintiff testified that he looked up the track some 75 or 80 feet, towards the east, before crossing; that he saw no car coming; that he •then turned, and went across the tracks, and the first thing he knew he was struck. It is evident from this testimony that he did not look, or, if he did, that he took the chances of going across the tracks in front of the car. The car must have been very close upon him when he attempted to cross, and, in my opinion, his attempt to cross, under such circumstances, would constitute such contributory negligence that he could not recover. It is true, as stated by my Brother Hooker, that a driver is not obliged to wait until all the cars in sight pass him before he attempts' to cross a track, but I think that, when a driver sees a car approaching as rapidly as this one must have been approaching, it is contributory negligence for him to attempt to go across the track. Some caution is due from the driver of the team to the people on the car. These cars are permitted to run in the city of Detroit at a great rate of speed. A driver seeing a car coming at great speed might well apprehend that the motorman could not stop his car within the distance of 15 or 20 feet, and that, if he attempted to cross, it would be at the risk of being struck and injured. The testimony given by plaintiff’s witnesses shows that the car in question was going at great speed, and if the plaintiff had looked, as he claims he did, he must have discovered the fact that the car was very close to him, and that there was imminent danger of a collision if he attempted to cross. It may be said in this case, as it was in Borschall v. Detroit Railway, 115 Mich. 473 (73 N. W. 551), that, “had he looked before entering upon the track, he must have seen the car approaching.” In that case the driver was adjudged by the court guilty of contributory negligence. In the case of Garrity v. Railway Co., 112 Mich. 369 (70 N. W. 1018, 37 L. R. A. 529), it was expressly stated: “We cannot say that the car was nearer than 150 feet, or that it could not have been readily stopped in time to avoid the collision. ” Here the undisputed testimony given by the plaintiff’s own witnesses shows that the car was from 15 to 20 feet only from the plaintiff when he attempted to cross, and was passing at a great rate of speed, and could not have been stopped within that distance.

I think the court below very properly directed the verdict in favor of defendant, and the judgment should be affirmed.


author: Montgomery, C. J.

text:
    LYLE v. ANDERSON.
    Executors and Administrators — Allowance of Claim — Agreement Against Public Policy — Fraud on Estate — Remedy.
    An agreement entered into by one of .several executors with a creditor of the estate, the amount of whose claim was in dispute, that the claim, which was based on certain notes, should be allowed at the face of the notes, and be thereafter reduced by indorsement of such amount, if any, as should be found on investigation to have been paid thereon by decedent, was beyond the authority of such executor, against public policy, and a legal fraud upon the estate; and equity, on petition of all the executors, the creditor refusing to come to any agreement as to the amount to be credited on the notes, will order an accounting between the parties.
    Appeal from Van Burén; Smith, J.
    Submitted February 1, 1900.
    Decided April 3, 1900.
    Bill by George M. Lyle and others, executors of the last will and testament of William Lyle, deceased, against L. R. Anderson and May Grace Hammond, to set aside, the allowance of a claim against the estate of decedent. From a decree dismissing the bill, complainants appeal.
    Reversed.

      B. F. Heckert and T. J. Cavanaugh, for complainants.

      Anderson & Chase, for defendants.
   Montgomery, C. J.

The bill of complaint is filed by complainants, as executors of the estate of William Lyle. The bill alleges that defendant Anderson was the payee named in two notes signed by G. M. Lyle and deceased, and that on the 1st of March, 1897, Anderson presented the notes for allowance to the probate judge; that it was claimed that payments had been made from time to time on such notes, and that they had been fully paid. The hearing was adjourned to May 14th. The bill further alleges:

“Your orators further show that on the said 14th day of May, A. D. 1897, they appeared in said court, and were ready and willing to offer objections and contest the allowance of said notes so filed as aforesaid by the said L. R. Anderson; and thereupon the said L. R. Anderson appeared in said court, and entered into an arrangement, agreement, and understanding with George M. Lyle, one of said executors, wherein and whereby it was understood and agreed by and between said L. R. Anderson and said George M. Lyle, in order to save trouble, expense, and annoyance of litigation on their part, that said notes be passed upon by the probate judge, and allowed as a claim at the sum which appeared on their face to be due, and that thereafter the said George M. Lyle and the said L. R. Anderson would meet at the State Bank of Decatur, and look over and examine the books of said bank, and receipts and other papers which passed between said William Lyle in his lifetime and L. R. Anderson and George M. Lyle, as one of the executors of said estate, with reference to the moneys paid on said notes so filed as a claim as aforesaid, and when it should be3 found what amounts had been paid on said notes, and the-amount yet due on the same/if any, the said George M. Lyle and L. R. Anderson would appear before the probate judge, and indorse on said notes, and upon said allowance so made by said probate judge, such amount as said parties would have found to be paid on said notes; that, in accordance with this agreement between said L. R. Anderson and George M. Lyle for the executors of said estate, said probate judge did compute the amount appearing to be due by said notes, and allowed the claim of L. R. Anderson against the estate of William Lyle, deceased, at the sum of three thousand and eight and 78-100 dollars.”

The bill then alleges that Anderson refused to come to any agreement as to the amount that should be indorsed, and further charges:

“ Your orators further show unto the court that the said arrangements so made by the said L. R. Anderson were entered into by him for the purpose of cheating, wronging, and defrauding said estate, and that at the time he agreed with said George M. Lyle to have said claim allowed at the amount shown by the face thereof, and thereafter agree upon the amount, if any, owing said estate by virtue of said notes, he did not intend or care to carry out said agreement, but entered into said agreement for the purposes hereinbefore set forth.”

The defendant May Grace Hammond is an assignee of Anderson, but has no superior rights or equities. The answer denies the agreement set up in the bill, and claims that whatever arrangement was made related to certain other notes, known as the “Murdock notes.” The case was heard upon testimony taken in open court, and complainants’ bill was dismissed without prejudice. The circuit judge filed a written opinion, in which he held that complainants were concluded by the judgment, and that, if such an agreement as is alleged be found to have been made, the remedy of complainants is by a suit at law against Anderson.

An examination of the record convinces us that such an agreement was entered into, and that, in consequence of this agreement, the notes were allowed without proof. Can a court of equity afford relief ? It is contended that a court of equity will relieve against a judgment at law only in case the party complaining has been deprived of his day in court through the wrong of his adversary. This is undoubtedly the general rule, although the rule has not, in all cases, been adhered to. See Markham v. Angier, 57 Ga. 43. We do not deem it necessary to decide whether we would follow the case cited, as we think the present case may be ruled on a different principle. It appears that the claim in question was allowed without proof; that its allowance by one only of the executors was brought about by an agreement which he had no right to make, and which defendant Anderson must be held, to have known that he had no right to make. George M. Lyle was acting in a representative capacity; and, while the motives of both Lyle and Anderson may have been honest, such an agreement was not only against public policy, but should be held to constitute a legal fraud upon those interested in the estate.

It is prayed that the allowance of the claim be set aside, but we think the better course will be to direct an accounting in this proceeding. As complainants ask equity, they should do equity. The decree will be reversed, and remanded for an accounting. The complainants will recover costs of this court. The costs of the proceedings below will be awarded by the circuit judge as justice may require.

The other Justices concurred.


author: Grant, J.

text:
    GERBER v. UPTON.
    1. Statute op Frauds — Executed Contract — Alienation op Dower.
    Where a widow, as administratrix, sold land belonging to the estate under a parol agreement with the purchaser that he should pay the full value thereof, and that she should give him a clear title, and she, after surrendering possession, refused to convey her dower interest, relying on the statute of frauds to defeat her agreement, it was properly held, in a suit to restrain her from prosecuting an action of ejectment against the purchaser, that the defense was not available, the acts of performance being sufficient to take the case out of the statute.
    2. Homestead — Rights op Minors — Abandonment.
    The right 'of homestead of minor children in the estate of their deceased father cannot be defeated by act of the mother in abandoning it, or conveying it against their interest.
    3. Same — Subrogation.
    One who purchased land at an administratrix’s sale in ignorance of the fact that the administratrix, notwithstanding her agreement to give a clear title, was unauthorized to convey the homestead interest of minor children, is not entitled to be subrogated, as to the amount of such interest, to the rights of a mortgagee who was paid with money arising from the sale.
    Cross-appeals from Newaygo; Edwards, J.
    Submitted February 2, 1900.
    Decided April 3, 1900.
    Bill by Joseph Gerber against Helen L. Upton for the specific performance of a land contract, and to restrain the prosecution of an action of ejectment. From the decree rendered, both parties appeal.
    Affirmed.
    One Adonijah E. Upton died April 18, 1894, leaving a widow, the defendant, and five children, two of whom were minors. He was possessed of a farm of 95 acres, incumbered by a mortgage of-$2,200. Defendant was appointed administratrix, and was granted leave to sell the 95 acres to pay the mortgage thereon and other debts of the estate. At the administratrix’s sale, complainant purchased the land for $3,600, which was a fair price. Out of this money the mortgage was paid, and the balance turned over to her as administratrix. Complainant was immediately given possession, defendant, with her family, removing to, and taking up their residence in, the village of Fremont, upon land belonging to the estate. About a year after the sale, defendant brought an action of ejectment to recover her dower and homestead interests of herself and children in the 95-acre tract. Thereupon complainant filed this bill to enforce the specific performance of a contract and to restrain the action at law. It is claimed by complainant that he agreed with the defendant to pay the full value of this land, and that she was to surrender her right of dower and homestead interests, and to give a deed therefor to him; that it was announced at the sale that the purchaser would obtain a clear title to the land; and that he purchased upon that understanding and agreement. Defendant refused to convey her interest. The case was heard upon pleadings and proofs, and decree entered for the complainant restraining the prosecution of the suit at law as to defendant’s dower, but sustaining the homestead right of the children.

      A. F. Tibbitts and Martin Bozema, for complainant.

      M. A. Boynton (O. W. Sessions, of counsel), for defendant.
   Grant, J.

(after stating the facts). We conclude from the evidence, as undoubtedly did the circuit judge, that it was understood and agreed that complainant was to receive a clear title, and that defendant should convey her interests to him. He fully performed the agreement. She and the estate have had the benefit of it. She surrendered possession under the undoubted belief that she had parted with all her interests in the land. Before, the sale, complainant had agreed to bid $3,600, the fair value of the land, which bid was to be based upon the' agreement. It was publicly announced that a clear title would be conveyed, which could not be done without the conveyance of defendant’s right of dower and homestead interests. The statute of frauds does not apply. This is a case of a parol contract fully executed. The statute of frauds cannot be used as a cloak to cover such transactions. The authorities are numerous in this and other courts.

The homestead right of minor children cannot thus be disposed of by the mother. She cannot of her own act either abandon or convey away this homestead right of her children, when it is not for their interest to do so. Shoioers v. Robinson, 43 Mich. 502, 513 (5 N. W. 988); Riggs v. Sterling, 60 Mich. 643, 652 (27 N. W. 705, 1 Am. St. Rep. 554).

We do not think that complainant is in position to be subrogated to the rights of the mortgagee. He is presumed to know the law, and therefore to have known at the time that defendant had no right to thus contract away her children’s homestead.

Decree affirmed.

The other Justices concurred.


text:
    MATTHEWS v. DETROIT JOURNAL CO.
    Libel and Slander — Criminal Intimacy — Subsequent Misconduct — Evidence.
    In an action for libel in charging that plaintiff and A., on a certain day, were found in a haymow in a compromising position, where the evidence tended to show that, on the day named, the xiarties were discovered in the barn under circumstances calculated to arouse suspicion, and that there had been previous acts of intimacy, evidence that three months later plaintiff and A. were seen together at another place, embracing and kissing each other, was admissible.
    Error to Wayne; Lillibridge, J.
    Submitted February 2, 1900.
    Decided April 3, 1900.
    Case by Sarah J. Matthews against the Detroit Journal Company for libel. From a judgment for plaintiff, defendant brings error.
    Reversed.

      James A. Randall (John W. McGrath, of counsel), for appellant.

      Malcolm C. Yerkes (James H. Pound, of counsel), for appellee.
   Montgomery, C. J.

This is an action for libel. The plaintiff recovered, and defendant brings error. The defendant published an article as follows:

“A Scandal at Wayne.
“Harold Ainsworth Arrested for Being too Intimate with Mrs. Harry Matthews.
“Wayne, Mich., July 21st. (Special.) Harry Matthews, a barber in this village, went to the barn early this morning to feed his horse. When he ascended to the haymow, he found Mrs. Matthews and Harold Ainsworth, a good-looking Frenchman, in a compromising position. Matthews at once swore out a warrant against Ainsworth, charging adultery, and he was arrested. He was given an examination before Justice Deming at 10 o’clock, and' bound over for trial in the circuit court in $1,000 bail. Ainsworth was unable to furnish securities, and he was taken to the county jail on the noon train. There has been much talk in the village for some months about the relations of Ainsworth and Mrs. Matthews.”

The court’s charge left it to the jury as to whether the article should be construed as' charging the plaintiff with adultery or intention to commit adultery. This was sufficiently favorable to defendant.

The court also charged that, if the defendant had shown the substantial truth of the matter charged, it was entitled to a verdict, and that a trifling variation of details would not be material. No complaint is made of this instruction.

The evidence adduced by the defendant tended to show that, on the evening of the day named, the plaintiff and Ainsworth were discovered in the barn together under circumstances well calculated to arouse suspicion. There was also testimony tending to show previous acts of intimacy. The arrest of the parties followed. On the 6th of October following, the defendant Ainsworth was tried and acquitted.

The defendant offered to show that, about the 25th of October, plaintiff and Ainsworth were seen together on the Fort-Street Bridge in Detroit, embracing and kissing each other. This testimony was excluded; the court remarking, “ Improper conduct in October don’t prove improper relations in July.” This offer presents the most important question in the case. The question of whether subsequent acts of familiarity and intimacy can be shown in corroboration of testimony tending to show adulterous intercourse has never been distinctly decided in this court. In People v. Hendrickson, 53 Mich. 526 (19 N. W. 169), it was said, “Such acts, within a reasonable time of the act complained of, and also occurring very soon thereafter, so long as they may be regarded as continuous, are competent and admissible.” But, as counsel for the plaintiff point out, this language, so far as it relates to acts subsequent to the main act charged, was not necessary to a decision of the case, and is therefore entitled to only such weight as the ability and learning of the justice who gave utterance to it entitle it to. But we find that the courts of other States have frequently had occasion to consider this question, and in numerous well-considered cases the admissibility of such testimony has been affirmed, on grounds which appear impregnable. In Thayer v. Thayer, 101 Mass. 111 (100 Am. Dec. 110), it is said:

. “The intent and disposition of the parties'towards each other must give character to their relations, and can only be ascertained, as all moral qualities are, from the acts and declarations of the parties. It is true that the fact to be proved is the existence of a criminal disposition at the time of the act charged; but the indications by which it is proved may extend, and ordinarily do extend, over a period of time both anterior and subsequent to it. The rules which govern human conduct, and which are known to common observation and experience, are to be applied in these cases, as in all other investigations of fact. An adulterous disposition existing in two persons towards each other is commonly of gradual development. It must have some duration, and does not suddenly subside. When once shown to exist, a strong inference arises that it has had, and will have, continuance, the duration and extent of which may be usually measured by the power which it exercises over the conduct of the parties. It is this character of permanency which justifies the inference of its existence, at any particular point of time, from facts illustrating the preceding or subsequent relations of the parties. The rule is that a condition once proved is presumed to have been produced by causes operating in the usual way, and to have continuance, till the contrary be shown. The limit, practically, to the evidence under consideration, is that it must be sufficiently significant in character’, and sufficiently near in point of time, to have a tendency ' to lead the guarded discretion of a reasonable and just man’ to a belief in the existence of this important element in the fact to be proved. If too remote or insignificant, it will be rejected, in the discretion of the judge who tries the case. The fact that the conduct relied on has occurred since the filing of the libel does not exclude it, and proof of the continuance of the same questionable relations during the intervening time, as in the case at bar, will add to its weight.”

This case was approved and followed in State v. Bridgman, 49 Vt. 202 (24 Am. Rep. 124), and also in State v. Way, 5 Neb. 283. The same rule is established in Alabama, Maine, Tennessee, and apparently in Illinois. See Alsabrooks v. State, 52 Ala. 24; State v. Williams, 76 Me. 480; Coley. State, 65 Tenn. 243; Claypooly. Clay-pool, 65 Ill. App. 446. See, also, Baker v. U. S., 1 Pin. 641; People v. Hubbard, 92 Mich. 322 (52 N. W. 729). The testimony offered should have been received.

The other assignments of error need not be considered, as the record on a new trial is not likely to present the same questions.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    HICKEY v. O'BRIEN.
    Contracts — Mutuality.
    A contract by the terms of which one of the parties agrees to furnish and the other to buy all the ice necessary to carry on the latter’s business in a certain locality for a period of five years from date, at a specified price per ton, is not void for want of mutuality, as the quantity to be taken is measured by the necessities of the business, which is presupposed to continue for the time agreed.
    Error to SagináW; Snow, J.
    Submitted February 1, 1900.
    Decided April 3, 1900.
    Replevin by Eugene L. Hickey against Michael O’Brien, John F. Lucas, and Herman Michel. From a judgment for plaintiff, defendant O’Brien brings error.
    Reversed.

      James H. Davitt, for appellant.

      E. L. Beach, for appellee.
   Montgomery, C. J.

In 1895, Kreutzberger & Crabbe were engaged in the business of furnishing ice to their customers in Saginaw. John F. Lucas & Co. were also engaged in the ice business, and had equipment and conveniences for putting up ice in large quantities. On the 1st of March, 1895, a contract, to which John F. Lucas & Co. were designated as parties of the first part and Kreutzberger & Crabbe were parties of the second part, was executed by the parties. Its material provisions were as follows:

“In consideration of.the covenants and conditions hereinafter mentioned, first parties hereby agree to furnish second parties with all the ice that they may require to carry on their ice business in said city for the period of five years from and after March 1st, 1895, at the rate of seventy-five ($.75) cents per ton, to be paid for monthly from and after June 1st, 1895.
“Second parties hereby agree to purchase from first parties all the ice necessary to carry on their ice business in said city for the period of five years from and after March 1st, 1895, and to pay first parties therefor the sum of seventy-five ($.75) cents per ton, to be paid monthly from and after June 1st, 1895.
“It is hereby further agreed by and between the parties hereto that, should first parties, during the continuance of this contract, be compelled, by reason of an open winter or otherwise, to harvest ice at a point distant from the Saginaw river, that second parties shall pay the first parties, in addition to the seventy-five ($.75) cents per ton hereby agreed on, the additional cost per ton to first parties in harvesting, delivering, and caring for said ice during that season or seasons.
“It is hereby further agreed by and between the parties hereto that second parties shall at all times keep accurate and correct books of account of their ice business during the continuance of this agreement, and that the books of account so kept shall at all times be open to the access and inspection of the first parties.”

Kreutzoerger & Crabbe continued to conduct the ice business until about December 19, 1896, when plaintiff claims to have purchased the property of the firm of Mr. Crabbe. John F. Lucas & Co. brought an action against Kreutzberger & Crabbe to recover damages for the breach of the contract on their part, instituting proceedings by attachment on the property which was transferred to plaintiff by Crabbe. The defendant O’Brien is a deputy sheriff, and seized the property by virtue of the attachment. This action is replevin for the property so seized. On the trial it was conceded 'that Kreutzberger & Crabbe had paid Lucas & Co. for all ice actually delivered, and that the claimed indebtedness' named in the attachment suit was for damages for the breach of their contract to take ice at the price stipulated.

The circuit judge charged the jury as follows:

“ Before you can find a verdict for the defendants in this case, you must find that the property in dispute is the property of Crabbe and Kreutzberger, or either one or the other. If Hickey actually purchased the property, it makes little difference what he paid for it, as Lucas and Michel never had any lien upon the property in question, and Crabbe and Kreutzberger had a perfect right to sell it to any one they saw fit; or, as the testimony shows in this case, that Crabbe claimed to be t<he owner, and not Kreutzberger, and he had a perfect right to sell the property, if he had it, for the sole purpose of getting rid of the Lucas and Michel contract; and if Hickey purchased the property knowing the contract between Crabbe and Kreutzberger and Lucas and Michel was in existence, then the plaintiff in this suit is entitled to a verdict, because he had perfect right to purchase it, and Crabbe had perfect right to sell it.”

This instruction was based on a view that the contract did not bind Kreutzberger & Crabbe to take ice for any stated time. If the circuit judge was right in this, the other questions in the case appear to us of little moment; for, if the contract be so construed, there is no indebtedness to Lucas & Co. to support the attachment, and they were not, therefore, in a position to question the bona fides of the transaction. If, on the other hand, the contract bound Kreutzberger & Crabbe to take ice at the fixed price for five years, it can scarcely be claimed that the instruction quoted was correct. The cases which deal with contracts to supply goods to answer the needs of business are not in entire harmony. In Bailey v. Austrian, 19 Minn. 535, it was held that a contract to supply plaintiffs with all the pig iron wanted by them until a certain date was nudum pactum, as plaintiffs did not engage to want any quantity whatever. A similar holding was made in Iowa in the case of Drake v. Vorse, 52 Iowa, 417 (3 N. W. 465). In Cooper v. Wheel Co., 94 Mich. 272 (54 N. W. 39, 34 Am. St. Rep. 341), we had occasion to consider the case of Bailey v. Austrian, but did not in terms decide whether such engagement bound the orderer to take any particular quantity. In National Furnace Co. v. Keystone Manfg. Co., 110 Ill. 427, the case of Bailey v. Austrian is considered as to its bearing on the question here involved. The court point out that in the Bailey Case stress is laid on the word “want.” In the Illinois case cited, the plaintiff agreed to sell to the defendant all the iron needed in its business during the three ensuing years at $22.35 per ton. The defendant agreed to take its year’s supply at that .price. The court say:

“We do not regard the contract void on the ground stated. It is true that appellee was only bound by the contract to accept of appellant the amount of iron it needed for use in its business; but a reasonable construction must be placed on this part of the contract, in view of the situation of the parties. Appellee was engaged in a large manufacturing business, necessarily using a large quantity of iron in the transaction of its business. It is not to be presumed that appellee would close its business, and need no iron; but, on the contrary, the reasonable presumption would be that the business would be continued, and appellee would necessarily need the quantity of iron which it had been in the Éabit of using during previous years. It cannot be said that appellee was not bound by the contract. It had no right to purchase iron elsewhere for use in its business. If it had done so, appellant might have maintained an action for a breach of the contract. It was bound by the contract to take of appellant, at the price named, its entire supply of iron for the year; that is, such a quantity of iron, in view of the situation and business of appellee, as was reasonably required and necessary in its manufacturing business.”

See, also, Smith v. Morse, 20 La. Ann. 220; Wells v. Alexandre, 130 N. Y. 642 (29 N. E. 142, 15 L. R. A. 218).

In the present case, we think the true construction is that Kreutzberger & Crabbe undertook to take ice of Lucas & Co. for the period of five years; that the quantity which they agreed to take was to be measured by the necessities of their business, but that this presupposed that they would have a business for the time agreed.

The judgment will be reversed, and a new trial ordered.

The other Justices concurred.


author: Per Curiam.

text:
    GIBBS v. MONTCALM CIRCUIT JUDGE.
    Assignments for Benefit of Creditors — Right of Assignee to Sue — Objections of Debtor.
    The maker of a note assigned, with other assets of the payee, for the benefit of the latter’s creditors,, cannot raise the question that the assignee, in view of 3 Comp. Laws 1897, § 9541, providing that “ assigned property and assets * * * shall be sold at public auction or at private sale, as the court * * * may direct,” has no authority to sue on the note; the creditors, for whose benefit the statute is designed, alone being competent to raise such objection.

      Mandamus by Lucius H. Gibbs to compel Frank D. M. Davis, circuit judge of Montcalm county, to vacate an order dismissing an action at law.
    Submitted March 27, 1900.
    Writ granted April 3, 1900.

      The relator is the assignee of William Gr. Wisner, who made to him a common-law assignment for the benefit of creditors. Among the assets was a note for $100, made by P. M. Lathrop, and payment guaranteed by Mr. Van Ness, the defendant. Relator brought suit upon this note in justice’s court, and recovered a judgment. Van Ness appealed to the circuit court. The plea was the general issue. An amendment to the declaration was allowed. After two .continuances, the case was tried, and the jury disagreed. The case came on again for trial. A jury was impaneled, sworn, and the taking of testimony commenced, whereupon the defendant raised the question that relator had no right to prosecute this suit under 3 Comp. Laws 1897, § 9541. The court sustained the objection, and refused to proceed with the case. The object of this petition is to obtain the writ of mandamus to compel the-circuit judge to proceed with the trial.

      A. A. Ellis and E. A. Miller, for relator.

      N. O. Griswold, for respondent.
   Per Curiam.

The statute referred to (3 Comp. Laws 1897, § 9541) provides that “the assigned property and assets * * * shall be sold at public auction or at private sale, as the circuit court in chancery or the circuit judge at chambers * * * may direct,” and further provides the time within which this shall be done. The object of the statute is to provide for a speedy sale of assigned assets, and foiqdistribution among creditors. It is designed for the benefit of creditors, and not for the debtors of the assignor. Defendant was not in position to raise the question. It is no concern of his whether the relator or his vendee brings suit. His obligation to pay is the same in either event. As long as the creditors raise no objection to the conduct of the assignee, Mr. Van Ness cannot. Butler v. Wendell, 57 Mich. 62 (23 N. W. 460, 58 Am. Rep. 329); Munro v. Meech, 94 Mich. 600 (54 N. W. 290).

The writ will issue.