author: Montgomery, C. J.

text:
    DAVIS v. PORT HURON ENGINE & THRESHER CO.
    1. Master and Servant — Personal Injuries — Electric Wires —Assumption or Risk.
    A servant who, in stringing a wire for a call bell, goes upon the roof of a building over which a live electric wire is suspended, he knowing the character of such wire and the danger of contact therewith, and the roof being in a wet and slippery condition, assumes the risk of injury from' slipping and coming in contact with such wire, and cannot recover for an injury so received.
    2. Same — Scope or Employment.
    An employe in a machine shop who has assisted in wiring the ■building for electric lights, and whose duty it is, among other things, to look after the wires and lamps, cannot be said to be acting without the scope of his employment when engaged, pursuant to the master’s direction, in stringing a wire for an electric call bell from the building to a point outside
    Error to St. Clair; Vance, J.
    Submitted October 9, 1900.
    Decided May 7, 1901.
    Case by Mary Davis, administratrix^ of the estate of Charles Davis, deceased, against the Port Huron Engine & Thresher Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      John B. Mcllwctin (O'Brien J. Atkinson, of counsel), for appellant.

      Stevens & Graham {Moore & Moore, of counsel), for appellee.
   Montgomery, C. J.

This action is brought to recover damages for the negligent killing of Charles Davis, January 21, 1898. The defendant is a threshing machine manufacturing company. Its office is located on the west side of Twenty-Fourth street, Port Huron, and its machine and foundry shops still farther west. The deceased had been employed by the defendant since June previous.

On the afternoon of January 21, 1898, Mr. Peavey, the general manager, and also secretary and treasurer, of defendant, ordered a call bell to be put into the office, to be connected with a pole at the Saxton House corner, about 250 feet or more north on Twenty-Fourth street. At this corner the street cars turned, and the object of the call bell was that parcels might be thrown off by the street-railway company on the platform at that corner, an electric button pushed, and thus notify defendant’s office. The order was given to Charles Peavey, a brother of the manager, with directions to have Mr. Vanness, the general superintendent, have the work done. Mr. Vanness directed Mr. Moak, the foreman of the machine shop, to send a couple of men to do the work. Mr. Peavey says Robert Riggs, another employé, was the man who did that kind of work. Mr. Moak ordered Charles Davis, then at work as a helper, to go and find Riggs, and the two together to put in the call bell. Davis found Riggs, and informed him of the order. The two went to the storeroom, and g'ot sufficient wire to make the circuit from the Saxton House corner to the office. Riggs fastened one end on the pole at the corner on the east side of Twenty-Fourth street, crossed over to the west side of the street, made a fastening there on another pole, and then started in a course little west of south to the point where the entrance to the office would be made. Adjoining the office on the north side was a little frame building about 20 feet high, with four gables, the south gable butting up to the office building. A direct course from the pole at the corner to the office would pass over the roof of this little building. As a guide to Riggs where to put the wire, there were four or five telegraph and telephone wires stretched from this same pole to the office, passing over and fastened to the roof of this small building, and from there entering the office; so this course was one well defined, and one long recognized and used by defendant, and no wires from this corner to the office went in any other direction. At that time there were also passing over the roof of this small building, in an east and west course, two electric light wires, carrying a current of 1,040 volts, a ground connection with which would be almost certainly instant death. The latter wires passed from 18 inches to 2 feet above the peak of the roof, being •attached to a pole still farther west, on which was a transformer, where the current was reduced 'before passing into the buildings.

After fastening the wire on the pole at the corner, the “two proceeded towards the office — Davis carrying the ladder, and Riggs the coil of wire — on the same line as the wires already there, and the ladder was placed at the north side of the east and west gable of the little frame building, intending to fasten the wire onto the roof, and from there extend it into the office, it being necessary to fasten it on the outside to take off the strain and enter the office. It was a wet time of the year, a wet day, and the building as well as the ground was wet. Riggs gave Davis the loop of the wire, the coil being on Riggs’ arm, •and Davis ascended the ladder, got up on the roof, crawled under the electric wires, pulling the wire he was stringing •after him, and got onto the south side of the east and west gable. He was seen, by the only witness who saw the occurrence, as far as this record shows, to approach the ridge of the gable running east and west, and, as he got nearly to the electric wire, he held out his hand, and tested it, as if seeking to determine whether there was •electricity in it or not. He crawled under that wire, and, while he was between the two wires and on the ridge board, he tested the south wire in the same way, and then slid down'under the south wire some five or six feet, and rose to his feet, still holding the small wire in his hand. He then attempted to walk westerly on the south side of the east and west gable, and as he did so he seems to have slipped, as the testimony puts it, and, either to save himself from falling or thoughtlessly, he took hold of the-electric wire with his hand. In the other hand he held the bell wire, the coil of which Riggs had on his arm. standing on the ground, which formed a complete ground connection. The electric current passed from the wire through his arm and body, -and down this wire into the ground, and killed him instantly.

The circuit judge directed a verdict for the defendant, and plaintiff brings error.

Deceased knew that live wires were dangerous; that, if he came in contact with a live wire, it would be likely to-cause injury. He knew the slippery condition of the roof, and knew as well as his employer that, if he lost his footing while on the roof, an involuntary movement might bring him in contact with the wire. He must be held to-have assumed the risk. The case is unlike Smith v. Car Works, 60 Mich. 501 (27 N. W. 662, 1 Am. St. Rep. 542), which holds that, when a servant is engaged in a hazardous work in which the danger is not apparent, it is the-duty of the master to warn the servant of the concealed danger, its nature and extent. The doctrine of this case is not questioned, and it has since been followed. Fox v. Color Works, 84 Mich. 676 (48 N. W. 203); Ribich v. Smelting Co., 123 Mich. 401 (82 N. W. 279, 81 Am. St. Rep. 215). In each of these cases the injured party was-ignorant of any danger of injury. In none of them was-it held that it is the duty of the master to foretell the exact extent of the injury likely to follow on the neglect of the-warning of danger. This is never precisely known in the-case of an obvious danger. If deceased knew that contact-with this wire would cause him severe injury, he had sufficient warning. This was all the most expert could have known in advance, and there can be no doubt on this record that deceased knew this.

The service was not outside the employment of deceased. The circuit judge, in his charge, correctly summarized the evidence on this point, as follows:

“I understand this testimony to show that Mr. Davis had been employed there in the engine and thresher company’s works as an employé in the machine shop, from about June, 1897, until the time of his death, January 21, 1898; that he was a bright, active, intelligent, energetic, and industrious man; that some time along in the fall— something over two months prior to his death — the superintendent, under the direction of the general manager, selected him as a man that they would like to have take some interest and become acquainted with the wiring of the building for electric lights, and to look after and care for the wires and electric lights. It seems they had a man by the name of Riggs that had done that work for some time, but he was absent on other work at times, and the object was to get Davis acquainted with that work, so that he might take Riggs’ place in his absence, or take his place doing that work when Riggs was otherwise engaged. The superintendent had a talk with Davis with reference to the matter, and he expressed himself as willing to take an interest in it. They were then about to wire the shops, and he was sent, with Riggs, to assist the electrician in wiring the shops, and was occupied in that some two months. From that time until the time of his death, whatever was to be done around there in the way of wiring or looking after the lamps, if anything, either he or Riggs did it, according as they might be sent, or as one or the other might be engaged in other matters.”

It cannot be said that the stretching of this wire was, in view of this engagement, outside the scope of Mr. Davis’ employment. True, it was not his sole employment, but it was in line with what he had engaged to do. Granting that it was the duty of defendant to inform, deceased of any latent danger, when it appears that, through Riggs and defendant’s agent Hutchins, the deceased had been informed of the dangerous character of live wires, and that these wires were open to observation, and actually seen by him, this duty was performed.

Judgment affirmed.

The other Justices concurred.


source: Caselaw Access Project

license: Public Domain

text:
    PADMAN v. RHODES.
    Trespass — Cutting Timber — Treble Damages — Burden of Proof.
    Under 3 Comp. Laws 1897, § 11304, authorizing the recovery of treble damages against any person cutting timber on the land of another without his leave, the burden is on the plaintiff to show that the cutting was without leave of the owner.
    Error to Jackson; Peck, J.
    Submitted November 13, 1900.
    Decided May 7, 1901.
    Trespass by Mary E. Padman against Lorenzo M. Rhodes for cutting timber. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      John F. Henigan, for appellant.

      Parkinson & Campbell, for appellee.
   Montgomery, C. J.

Plaintiff, in her own right and as assignee of her co-heirs, represents an ownership of an undivided three-fourths of a farm of 200 acres in Jackson county. The defendant was the administrator of his father’s estate, and in possession under authority from the heirs, with authority to sell, etc. This action is in trespass for cutting trees. The declaration contains a common-law count for trespass, and one under section 11204, 3 Comp. Laws 1897. On the trial the circuit judge charged the jury, in part, as follows:

“There are two counts of the declaration of the plaintiff in this case. The first count charges the defendant with a trespass upon lands, in the ordinary way. I instruct you, however, that the plaintiff cannot recover under this first count, for the reason that the evidence shows, without dispute, that the plaintiff was not in possession of the premises at the time the alleged trespasses were committed. The second count of the declaration charges trespass in the cutting of trees, and injuring them, upon the lands of the plaintiff, under a special statute, being consecutive sections 11204 and 11205 of Miller’s Compilation. Now, the elements necessary to constitute a case under this statute are that the defendant cut the trees in question, that they were upon the lands of another person, and that they were cut without leave of the owner; and so in this case I charge you that, to justify you in finding a verdict for the plaintiff, it must appear, and by a preponderance of the evidence, that the defendant cut the trees in question, that they were upon the lands of the plaintiff, and that the cutting was done by the defendant without the leave of the plaintiff, her mother, or sister, Mrs. Dancer.”

No complaint is made of the instruction limiting the plaintiff to the statutory count, but error is assigned upon that portion relating to the burden of proof under that count.

The statute provides that “every person who shall cut down or carry off any wood, underwood, trees, or timber * * * without the leave of the owner thereof * * * shall be liable to the owner of such land * * * in three times the amount of damages which shall be assessed therefor,” etc. The statute is penal in its nature, and, to make the defendant liable under it, all the essential ingredients of the wrong legislated against must appear. It is conceded that the averment that the cutting was without the leave of the owner was necessary. This is but a recognition of the general rule that, where there is an exception in the enacting clause of the statute, the pleader must negative the exception. People v. Curtis, 95 Mich. 214 (54 N. W. 767), and cases cited. It being necessary to allege that the defendant committed the act without leave of plaintiff, it was also necessary to prove it. In Shaw v. Ashford, 110 Mich. 534 (68 N. W. 281), we held that an affidavit to hold to bail, made by -one who could not of his own knowledge negative permission of-the owner under this statute, was fatally defective.

We think the instruction was proper. It is obvious that the mitigation of damages under section 11205, 'by showing that the trespass was casual or involuntary, is. quite another thing than the defense that no right of action has been shown under section 11204, because of failure to prove that the trees were cut without leave of the owner. In most cases the plaintiff can recover under a common-law count without the necessity of making this proof; but the court in this cage held, and, we assume, properly, that no recovery could be had under the general count. The jury, in answer to a special question, found that the defendant did not cut the trees without leave of the owner. This finding negatives plaintiff’s right to recover under this statute.

Some criticism is made of the charge in other respects, which we find unfounded.

Judgment is affirmed.

The other Justices concurred.


author: Long, J.

text:
    PEASE v. COMMON COUNCIL OF SAGINAW.
    1. Municipal Corporations — Boards of Health — Physician's Compensation — Conolusiveness of Allowance.
    Where a city council, pursuant to charter authority, established a board of health, conferring upon it all the powers vested in township boards of health by chapter 108, 2 Comp. Laws 1897, section 2 of which authorizes such boards to regulate and audit all fees and charges of persons employed by them, an allowance by such board of the bill of a physician for services rendered under its direction is conclusive upon the city, and the amount allowed cannot be reduced by,the council, notwithstanding a general charter provision empowering the council to pass upon all claims against the city.
    2. Same — Part Payment of Claim — Estoppel.
    An acceptance by a claimant against a city of an amount allowed him by the common council, being a part only of a definite sum to which he was legally entitled, will not estop him from recovering the balance, although such payment was made and accepted with the understanding that it should constitute full satisfaction of the claim.

      Certiorari to Saginaw; Snow, J.
    Submitted November 13, 1900.
    Decided May 7, 1901.

      Mandamus by L. Willard Pease to compel the common council of the city of Saginaw to allow relator’s claim for services rendered by direction of the board of health. From an order denying the writ, relator brings certiorari.

    Reversed.

      William 6r. Cage, for relator.

      Henry E. Naegely, for respondent.
   Long, J.

Relator is a physician, and under the direction of the board of health of the city of Saginaw performed professional services for the city in certain contagious diseases. He presented his bill for $480 to the board of health, and that body allowed it' at that sum. The bill was then certified to the controller and the committee of the council on finance and auditing, who, after taking testimony as to the value of the services, reached the conclusion that the usual charge was $3 per visit, instead of $5, as charged by the relator, and thereupon reported to the common council recommending that the claim be allowed at $292, and that relator be tendered that amount in full settlement of his claim. This recommendation being adopted by the common council, the bill was allowed at that sum. An order was drawn upon the city treasurer for that amount in favor of the relator, which order he at first refused to take. It is the claim of relator that he called upon the city clerk, who informed him he could take the order, and that it would not be a receipt in full for his services, and that thereupon he took the order. The city refusing to pay anything more upon the claim, relator presented his petition for mandamus to the circuit court of Saginaw county to compel respondent to pay the balance of his claim. The respondent filed an answer to this petition, setting up the facts, and claiming that the relator had accepted the order in full payment of his claim. A replication was filed to this answer, and an issue framed upon the question whether the relator did accept the order in full payment of his claim. The court found upon that question in favor of respondent- The city, in making return to the order to show cause before the circuit court, returns that the value of relator’s services did not exceed $292, and that this amount was tendered him, and by him accepted, in full payment of his claim. The court below having denied the writ of mandamus, the case is brought into this court by writ of certiorari.

It is claimed by counsel for relator:

1. That it was the duty of the board of health to pass upon the amount of compensation; that that board only could fix the amount owing him; and that the amount so fixed could not be reduced by action of the common council, but that it was bound to issue the order to him for the amount claimed.

2. That, although the court below found that the relator accepted the $292 in full payment of his claim, yet, having the legal right to the full amount allowed by the board of health, he is not estopped from claiming the balance due him.

Act No. 455, Local Acts 1889, provides that:

“The common council shall have power * * * by. ordinance * * * to establish a board of health, and to invest it with all such powers, and to impose upon it such duties, as shall be necessary to secure the inhabitants of the city from contagious, malignant, and infectious diseases, and to provide for its proper organization, and for the appointment of proper officers; to make all such by-laws, ordinances, and regulations for the government of such board of health, and for the preservation of the health of the inhabitants of the city, as shall secure a prompt and efficient discharge of the duties imposed upon the common council by this act.”. Title 9, § 1

Under this act the common council, April 24, 1893, passed an ordinance to establish a board of health, prescribing its powers and duties. The ordinance provides that the board of health shall consist of five members, to be appointed by the mayor and approved by the council; that the board shall, select its own president, and possess all the powers and perform all the duties imposed upon boards of health of townships and cities under the provisions of chapter 39, 1 How. Stat., and all acts amendatory thereof. The ordinance also provides that there shall be a health officer annually appointed by the common council from each of the taxing districts of the city, and that the chief of police of said city shall be assistant health officer, and shall have the power to detail so many of the police force of said city to assist him in the discharge of his duties as he may deem necessary. It is also provided by section 14 of the ordinance that:

“ Any and all expense incurred by the health officer or assistant health officer in the removal or abatement of any nuisance, or in the putting of any premises in a sanitary condition, shall be certified by said officer under whose direction the same shall be expended to the controller of said city, and shall be audited and paid in like manner as other claims against the city,” etc.

It appears that, under the charter of the city, all boards have the power to certify to the common council for payment accounts of all indebtedness incurred by them. It is contended by counsel for respondent that it is obvious that the legislature intended, by enacting the foregoing section of the charter, to lodge all power in the common council to bind the city in regard to the amount of any claim against it; that it was not intended that the expense incurred by the board of health, or by the health officer or his assistant, should be fixed and determined by the board of.health, but by the common council.

We think this contention cannot be sustained, for the reasons: (l) That the ordinance does not apply to services rendered by the health officer; (2) that the value of the services of a health officer, under chapter 39, 1 How. Stat., must be determined by the health board. The ordinance of the city creating a board- of health provides that the board shall possess all the powers of boards of health in townships under the provisions of chapter 39, 1 How. Stat., and all acts amendatory thereof. The boards of health in townships under that chapter have the power, by section 2, to fix the compensation of health officers, and to audit all fees and charges of persons employed by them in the execution of the health laws and their own regulations. That the board of health can fix and determine such compensation has been many times held by this court. Wilkinson v. Township of Long Rapids, 74 Mich. 67 (41 N. W. 861); Elliott v. Board of Sup’rs of Kalkaska Co., 58 Mich. 452 (25 N. W. 461, 55 Am. Rep. 706); McKillop v. Board of Sup’rs of Cheboygan Co., 116 Mich. 617 (74 N. W. 1050).

The acceptance of a' part of the amount fixed by the health board will not preclude the health officer from recovering the whole. Wilkinson v. Township of Long Rapids, 74 Mich. 68 (41 N. W. 861).

The. order of the court below must be reversed, with costs, and an order entered here directing the council to pay the amount found due by the health board.

The other Justices concurred.

      I. e., Act No. 455, Local Acts 1889, tit. 4, § 4.


text:
    PEOPLE v. LUDERS.
    1. Intoxicating Liquors — Nonpayment oe Tax — “Wholesaler” Deeined.
    To constitute one a wholesaler of liquors, within 2 Comp. Laws 1897, § 5880, defining a wholesaler as one who sells in quantities of more than a dozen quart bottles at one time, the title to a quantity exceeding that specified must pass to the purchaser at one time.
    Hence, in a prosecution for carrying on the business of selling liquor at retail without having paid the required tax, a contention that respondent sold in quantities of more than a dozen bottles, and was therefore a wholesaler, is not sustained, where it appears that, while the purchaser may have contracted for the larger quantity in the first instance, the deliveries were made in smaller quantities from time to time, as required by the purchaser, the liquor being paid for as delivered, and no specific bottles exceeding 12 in number were at any time set apart for his use.
    2. Criminal Law — Trial—Indorsement of Witnesses on Information.
    It was within the discretion of the trial court to permit the names of witnesses to be indorsed on the information at the trial, shortly before the jury was sworn, no objection being made to the sufficiency of the showing by the prosecuting attorney.
    3. Same — Improper Statements of Prosecutor — Harmless Error.
    Where, in a criminal case, there was testimony by a number of witnesses to the material facts, which stood undisputed, a statement by the prosecuting attorney that he could make certain proof by witnesses whose names were not indorsed on the information, though it should not have been made, is not ground for reversal, since it could not have influenced the jury.
    Exceptions before judgment from Muskegon; Russell, J.
    Submitted November 15, 1900.
    Decided May 7,1901.
    Henry Luders was convicted of a violation of the liquor law.
    Affirmed.

      Turner & Turner, for appellant.

      Charles B. Cross, Prosecuting Attorney, and George S. Lovelace, Assistant Prosecuting Attorney, for the people.
   Montgomery, C. J.

The defendant was convicted of the offense of carrying on the business of a retailer of liquor without having paid the special tax. The testimony on the trial showed numerous sales of beer, in quantities of 12 bottles or less, at various times and to various people, unless the transactions are to be treated as part performance of a contract to sell in larger quantities. In some instances, at least, the defendant contends that the testimony shows that the transaction was this: Defendant said to the would-be purchaser, “I cannot sell you less-than 18 quart bottles, but I will deliver to you as you want it, you contracting to take 18 bottles;” that, this arrangement being assented to, the defendant would deliver in less quantities, and receive his pay for the same, and repeat this according to the requirements of the purchaser. The circuit judge left it to the jury to say whether this was a subterfuge, or whether the transaction was in good faith.

The instruction was too favorable to defendant. There was no hint in the testimony that any specific 18 quarts of beer were set apart for the purchaser, with the intent that the property in the beer should presently pass to the purchaser. The whole evidence is to the contrary. There was therefore a sale in quantities of less than one dozen quart bottles, within the meaning of section 5380, 2 Comp. Laws 1897. The question has been decided in other States under similar statutes, and, so far as we are advised, it has been uniformly held that the test is whether the property in the specific article in excess of the prescribed, amount passed at one time. Thomas v. State, 37 Miss. 353; State v. Poteet, 86 N. C. 612; State v. Kirkham, 23 N. C. 385; Richardson v. Com., 76 Va. 1007 (4 Am. Cr. Rep. 480). For a case noting the distinction, see State v. Bell, 47 N. C. 337.

Complaint is made of a ruling permitting names to be indorsed upon the information at the trial, shortly before the jury was sworn. The objection was that it was too late to permit the indorsement of names. No objection appears to have been made to the sufficiency of the showing by the prosecuting attorney. It was within the discretion of the circuit judge to permit the names to be. indorsed. People v. Baker, 112 Mich. 211 (70 N. W. 431).

Complaint is made of a statement made by the prosecuting attorney to the effect that he could make certain proof by witnesses whose names were not indorsed on the information. The statement is one which ought not to have been made, but it is not possible that this statement could have influenced the jury in reaching a conclusion, as there was testimony by a number of witnesses to the material facts, and it stood undisputed. See People v. Ringsted, 90 Mich. 371 (51 N. W. 519).

No prejudicial error is discovered, and the conviction is affirmed.

The other Justices concurred.


text:
    JAMES LEFFEL & CO. v. PIATT.
    1. Sales — New Contract — Supersession op Original.
    Where machinery sold under a written contract proved unsatisfactory, and a new contract was entered into for the same machinery, differing from the first only in that it omitted an express warranty of the machinery, and retained title in the seller until payment of the purchase price, and gave the purchaser a stipulated time in which to accept and approve the machinery, the old contract was entirely superseded, as a matter of law, and the purchaser could not rely on the warranty therein.
    2. Same — Aooeptanoe op Property.
    Where a contract for the sale of' machinery gave the purchaser a certain time in which to accept and approve the same, and, before the expiration of the period, he notified the seller that the machinery was not satisfactory, leading to negotiations and efforts on the part of the seller to have the defect remedied, extending beyond the time limited in the contract, an acceptance by the purchaser will not be implied at the end of the time specified
    3. Same — Agent’s Authority — Evidence.
    Where, in an action for the purchase price of machinery, it appeared that, the machinery failing to work satisfactorily, the seller, with the knowledge of the purchaser, instructed the manufacturer to remedy the defect, and the latter undertook to do so, and finally entered into a contract with the purchaser whereby the machinery was accepted, the authority of the manufacturer to act for the seller was sufficiently shown, and the purchaser was bound by the contract.
    4. Same — Contracts—Consideration—Merger of Oral Agreements — Acceptance of Property by Purchaser.
    A purchaser of machinery complained that it did not work satisfactorily, and the seller undertook to remedy the defect. After extended efforts in that direction, the parties executed an agreement whereby the purchaser was to accept or return the machinery within 30 days. Held:

    (1) That there was a sufficient consideration for the agreement.
    (2) That prior oral understandings were merged therein.
    (3) That the retention of the machinery beyond the time stipulated amounted to an acceptance.
    5. Same — Judgment for Purchase Price — Interest.
    Where a contract for the sale of machinery provided that deferred installments of the purchase price, to be represented by promissory notes, should bear interest from the date of the contract, and by addendum it was provided that notes to a specified amount should remain unexecuted for a given time, awaiting the acceptance and approval of a certain portion of the machinery, a judgment for the purchase price of such portion properly included interest from the date of the contract.
    Error to Ingham; Wiest, J.
    Submitted December 5, 1900.
    Decided May 7, 1901.

      Assumpsit by the James Leffel & Company against Alamanzo A. Piatt to recover the balance of the purchase price of certain machinery. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Bussell C. Ostrander, for appellant.

      Cahill & Wood, for appellee.
   Montgomery, C. J.

On the 6th of May, 1897, plaintiff made a contract with defendant to sell him a quantity of machinery, including turbines, wheels, and appurtenances, and one Reynolds governor, at the agreed price of $3,759, in payments of $800 cash, and the remainder in installments of $150 per month, to be represented by notes bearing interest at 7 per cent. This contract contained a guaranty of the governor, reading as follows:

“We guarantee the governor to be of proper construction and design for the duty required of same. With ordinary running of your water-wheel plant, speed not to exceed 1-J- per cent, above or below normal; with changes of load not exceeding 25 per cent., speed not to vary more than 4 per cent, above or below normal; with change of load not exceeding 50 per cent., speed not to vary more than 6 per cent, above or below normal. This governor is of latest and most improved patterns and of special design for the duty required of same, when placed and operated in combination with the turbines and machinery, as specified above, and as per our plans and specifications.”

The machinery was delivered to defendant under this agreement. The Reynolds governor was installed October 30th, but the one first delivered did not work as expected, and on February 9, 1898, another governor was substituted for the first. Both these governors were put in place by representatives of the Reynolds Turbine Governor Company. Meantime the plaintiff, through Mr. C. C. Wood, its attorney, and by correspondence, was asking for a settlement. On December 9th a contract of sale of the identical machinery named in the original contract was drawn up and signed by plaintiff, by O. C. Wood, its attorney, and was also signed by defendant. This contract bore date of September 8, 1897, and differed from the original contract in the following particulars: It provided that the title to the property delivered should remain in plaintiff until paid for. It omitted the warranty of the governor contained in the first contract, but had an addendum indorsed thereon as follows:

“It is hereby understood and agreed by and between the parties to the foregoing contract that the governor hereinbefore mentioned has not been at this date accepted or approved by the party of the second part, and that notes to the amount of seven hundred nine dollars ($709.00) are reserved and left unexecuted until a reasonable time shall have been allowed, not to exceed seven months from this date, for such acceptance and approval.”

This was signed, like the main agreement of the same date, by defendant and by plaintiff, by C. C. Wood, attorney. The purpose of this agreement is made more clear by the following correspondence, which preceded it:

“Lansing, Mich., November 3, 1897.
“Jas. Leffel & Co.,
“Springfield, Ohio.
“Gentlemen: Mr. Reynolds was here on Saturday, and installed the governor. He was quite surprised to find that we were to do street-car work. We told him that, if we had to run an engine for the purpose of governing our load, we would not expect to keep the governor. He consented to that, and put it in. With such means as we had to make a test, it was not satisfactory. However, will give it further trial a little later, and see what it will do. A. A. Piatt.”
“Springfield, Ohio, U. S. A.,
“November 3, 1897.
“Mr. A. A. Piatt,
“Lansing, Mich.
“Dear Sir: We have your favor of the 3d inst., and note contents. We are pleased to learn that you have the governor installed, and we shall hope that you will have no cause for complaint when you have been able to give it a fair test under favorable circumstances, which you state it has not yet had.
“We note that you made a call on our Mr. Wood to make settlement, but he was out of the city. We, of course, regret this, as we are' very anxious indeed to get this season’s sales closed up as promptly as possible; but we have written them a line today to give the matter attention immediately on his return.
“Trusting that everything will turn out satisfactorily, we remain, Yours truly,
“ The James Leffel & Co.,
“Per K.”
“Springfield, Ohio, U. S.-A.,
“December 6, 1897.
'“ Mr. A. A. Piatt,
“Lansing, Mich.
“Near Sir: We are just in receipt of a letter from Messrs. Wood & Wood, inclosing your check for $300.88, to apply on your account, and for which please accept our -thanks. They state that you claim the governor is not .giving satisfaction, and we wish that you would please .submit to us a statement of just wherein the governor is not satisfactory. Give us all the information you possibly can concerning it, as we desire to submit it to the manufacturers of the governor, so that they can take the matter up with you, and have the matter straightened up, if possible. We have also written our attorneys concerning the matter of final settlement with you, and we would be obliged if you would give it your early attention, as we would like to have the papers back here at least before the 14th inst., as we close up our books on that date for this present year, and, of course, are anxious to get as many accounts as possible closed up.
“Trusting this will receive your prompt attention, we Temain, Yours truly,
“The James Leffel & Co.,
“PerK.”

The seven months provided by the contract of September 8, 1897, expired April 8, 1898. On January 13, 1898, defendant wrote, stating that the governor did not do its work, and that he had been obliged to discontinue its use. On the 14th the plaintiff replied that they had taken the matter up with the Reynolds Turbine Governor Company, with instructions to them to communicate with defendant at once, so that they (the governor people and defendant) could get together and devise some means by which the trouble might be overcome. On May 30, 1898, defendant wrote plaintiff as follows:

“We are unable to use the governor installed by the Reynolds people, after giving it a thorough trial, and have •discontinued its use some time ago, in disgust, and advise you that it is here, subject to your order.”

On the 31st of October plaintiff wrote defendant, referring to this governor, as follows:

We have been advised by the Reynolds Turbine Governor Company, of Albany, N. Y., of the recent installation and test of their governor, and they send us copy of your letter to them, dated October 20th, and they state that they are giving you 30 days in which to test the governor; testing date from Tuesday, October 18th. We shall hope that the governor will meet your requirements- and prove entirely satisfactory,' as we are very anxious, as well as the governor people, to have the matter adjusted, as, no doubt, you are, also.”

It appears that a representative of the Reynolds Turbine-Governor Company came on to Lansing, and spent considerable time in making changes in the governor and putting it in condition. Finally, on the 12th of December,, 1898, defendant made the following agreement:

“Lansing, Mich., December 12, 1898.
“To the Reynolds Turbine Governor Company,
“95 State St., Albany, N. Y.
“Gentlemen: I herewith agree to run the governor you have installed here for a period of 30 days from date, and if at the expiration of that time (January 12, 1899) it proves itself satisfactory to me, and you will furnish me with a written guaranty for one year, I will send you a written acceptance for the machine. If, however, the machine does not prove itself satisfactory by January 12, 1899, I will remove, pack, and ship it to New York at my own expense, you paying freight.
“ Y ours faithfully,
“A. A. Piatt.”

On the 10th of January, 1899, the Reynolds Turbine Governor Company forwarded to defendant a warranty for one year that the governor would not develop any inherent mechanical defects, other than those caused by ordinary wear and tear, and that any new parts made-necessary through such wear and tear, other than those occasioned by the elements or by accident, would be furnished free of charge.

Defendant testified that, at the time of the agreement' of December 12th, it was agreed by Mr. Sturgess, the representative of the governor people, that he would send some additional attachments. It does not appear that these additional attachments were material to the working of the governor, or to aid the defendant in determining whether he would be willing to accept it. The correspondence following upon this indicates that they were not.

On January 12, 1899, defendant wrote the Reynolds Turbine Governor Company as follows:

“Gentlemen: We have had the governor in use since your Mr. Sturgess was here, and with the load that we had when he was here. It has worked quite satisfactory, indeed. The capitol people have not had their pump load ready to start, which we expected to start at the time Mr. Sturgess was here, but they say they will be ready to start tonight; and, if the governor handles that load as we expect it will, we shall be pleased with, and hope to report definitely by tomorrow, or next day at furthest. Shall be pleased to show this machine to any parties you may refer here, and, anything can do for you, glad to do it. Yours truly,
“A. A. Piatt.”

Nothing further was done until March 4, 1899, when he wrote to the plaintiff, again stating that the governor would not do its work.

The declaration counts on the agreement of September 8, 1897, and, in the first count, avers that the seven months stipulated in the addendum' have elapsed, and that defendant did not reject the governor in that time, and became liable to pay for the same. In the second count the agreement of December 12, 1898, addressed to the Reynolds Turbine Governor Company, is set up, and averred to have been made on behalf of plaintiff; and it is averred that defendant has, under the terms of said agreement, accepted the governor. The circuit judge directed a verdict for plaintiff, and defendant brings error.

The important questions are whether the contract of date September 8, 1897, superseded the first contract of purchase, and whether, if, it did, there has been an acceptance of the governor. While there are numerous assignments of error, the counsel for defendant, in his main brief, has very properly sought to treat the case in its entirety and with reference to the controlling questions above stated, treating the other questions involved as incidental to or controlled by these.

It is contended that the defendant was entitled to assert a continuing warranty that the governor would control variations of speed within certain limits, and that it was adapted to the use to which it was to be put. Obviously, the question of whether the defendant had the right to rely upon the express warranty set up depends upon whether the original contract is or is not in force. We think it altogether clear that the contract of date September 8, 1897, superseded the first contract between the parties. There is nothing on its face to indicate that it was intended to be supplemental. It covered all the property mentioned in the first, — contained an additional provision, it is true, and, in the body of the instrument, omitted any warranty. The property had at this time, however, been delivered, and a question had arisen as to its sufficiency. What more natural than that, in place of relying upon a guaranty, the defendant should insist on an opportunity to make a trial? This he did do. The result was the addendum indorsed on the agreement. The entire subject-matter of the first contract was covered, and, when this is apparent, it is held that a second written agreement supersedes the first, as matter of law, and that it is a question for the court. Cocheco Bank v. Berry, 52 Me. 293; Chrisman v. Hodges, 75 Mo. 413; Stow v. Russell, 36 Ill. 18; Mather v. County of Butler, 28 Iowa, 253. The case of Holm v. Colman, 89 Wis. 233 (61 N. W. 767), cited by defendant’s counsel to the point that it was at least a question for the jury as to whether the second contract superseded the first, is quite a different case from the present. In that case the second contract related to another lot of logs than those mentioned in the first. One of the letters which formed a part of the second contract was lost, and the court states that it was in no way definitely proved, and that much of the detail of the contract was left to implication, or inference, and so it became a proper question of fact for the jury. If we grant that the case was rightly decided on its facts, it furnishes no precedent for the one now under consideration.

It is contended by plaintiff that if it be once determined that the contract of September 8, 1897, superseded the first contract, the defendant must be held to have accepted the governor, inasmuch as the seven months provided for the test have expired; and this is the theory of the first count. We think, however, that this position is untenable. The evidence shows that as early as January 12, 1898, the defendant notified the plaintiff that the governor did not work, and the plaintiff took up the matter with the Eeynolds Turbine Governor Company, in the •effort to devise some means by which the trouble could be ■overcome. It does not seem to us that while these negotiations were pending, and the effort being made under plaintiff’s direction, either party understood that the obligation of making the test rested solely with defendant, or that his time for doing so was running.

This leads us to a consideration of the agreement of December 12, 1898. The circuit judge was of the opinion that the agreement was binding on the defendant, and that he, having failed to reject the governor within the time fixed, was bound to pay for it. It is contended that the Eeynolds Turbine Governor Company had no authority to act for the plaintiff in making the contract of December 12th, and that Mr. Sturgess, its representative, •disclaimed such authority. Defendant testified:

“I asked Mr. Sturgess if he had any authority from the Leffel people in regard to that governor, and he said, ‘No;’ he was there for the Eeynolds people, and they told him to bring home the governor if he could not get any ■satisfaction or any settlemént. I told him we would have to have an order from the Leffel people before I could let him take the governor out, and I did it thinking I was responsible to them for it, and he left it alone.”

It is doubtless true that Sturgess had no direct authority to act for the plaintiff. He took his directions from the Reynolds Turbine Governor Company. But this leads to the inquiry as to the authority of that company. As pointed out above, the reason for saying that the retention of the governor beyond the seven months was not an acceptance is that the matter had been referred by plaintiff to the governor company. Again, on the 31st of October the plaintiff wrote defendant, plainly implying authority in the governor company to make arrangements giving time for a test. The agreement fully recognizes the authority of the governor company to act for plaintiff, and the plaintiff ratified it by bringing suit. Defendant had notice from plaintiff that it looked to the governor company to make the governor good, and that it had instructed the company to attempt to do so, and there is no evidence that this authority was withdrawn. We think, therefore, that authority to act for plaintiff was sufficiently shown.

It is contended that no consideration moved between the promisor and promisee. If there was authority to act: for plaintiff, as we have held, there was ample consideration in the adjustment and settlement of differences.

It is claimed that the agreement was executed with the understanding that a trial of the machine with the load of the capitol elevator was to be made; but the answer to this is that, if there was such an oral talk as related to. any time after the 30 days, it was merged in the writing.

It is claimed that the testimony shows that the paper-was executed with the distinct understanding that no rights of the defendant as against the plaintiff were to be-affected. What the defendant testified to was as follows

“He also asked me if I would recommend this governor, as he had parties in this neighborhood that were-wanting a governor. I told him I certainly would, if that governor proved satisfactory; I would be very glad to help him all I could. And I asked him what force this-document would have as between the Leffel people and... myself. He said that was not the purpose; that he wanted it to show his people that he had been here and done a considerable work, and that this paper would help him. The different men that came here — I think, without an exception — pressed me for an acceptance of that governor, stating it was all right and would do the work, although we hadn’t any way of testing it, because we hadn’t any load; and I refused to do it.”

If this testimony is to be received to negative the terms of the writing, it would show equally that the agreement was not binding as between the governor people and defendant. We think it incompetent for such a purpose. Whatever the oral understanding was, it merged in the writing, which was something quite different from a recommend, — something more even than an expression of satisfaction. It was a contract, by the terms of which the defendant engaged to act, — to either accept the machine, or prepare and ship it out. We think it must be held that this contract was a final adjustment of perplexing difficulties, and was broken by the defendant, and he must be deemed, in law, to have accepted the governor, and is bound to pay for it. Deyo v. Hammond, 102 Mich. 122 (60 N. W. 455, 25 L. R. A. 719); Potter v. Lee, 94 Mich. 140 (53 N. W. 1047).

It is contended that the judgment is excessive. There was included in the judgment interest from September 8, 1897. The agreement of that date provided for payment of all unpaid portions of the'purchase price, with interest at 7 per cent, from its date. The addendum provided that the notes should remain unexecuted until a reasonable time, not exceeding seven months, had expired for acceptance. It was contemplated that, when the acceptance should take place, it would constitute an acceptance under the terms of the main contract. This provision for payment is the only one the parties have made.

The judgment will be affirmed.

Hooker, Moore, and Long, JJ., concurred. Grant, J., did not sit.


text:
    GUSTAFSON v. EGER.
    Wills — Contest—Directing Verdict.
    Where, in a will contest, the evidence shows conclusively that deceased was possessed of sufficient mental testamentary capacity, and fails to disclose any undue influence, it is entirely proper to direct a verdict.
    Error to Marquette; Stone, J.
    Submitted December 6, 1900.
    Decided May 7, 1901.
    Frank Gustafson presented for probate the will of Augusta D. Gustafson, deceased. The will was allowed in probate court, and Mary A. Eger and others appealed to the circuit, where a verdict was directed for proponent. Contestants bring error.
    Affirmed.

      Clark & Pearl, for appellants.

      Ball & Ball (George Hayden, of counsel), for appellee.
   Montgomery, C. J.

This case presents a contest over the will of Augusta D. Gustafson, deceased. The will was contested on the ground of mental incapacity and undue influence. The circuit judge directed a verdict sustaining the will, and contestants have brought the case here for review on error.

When the evidence shows conclusively that deceased possessed sufficient capacity to make a will, and when the record fails to show undue influence, it is entirely proper for the trial court to direct a verdict. O'Connor v. Madison, 98 Mich. 183 (57 N. W. 105). Inasmuch as,, upon a careful reading of the record, we are all agreed that the state of the record justifies the action taken by the circuit judge in this case, we do not deem it of advantage to the profession to enter into a detailed statement of the evidence adduced on the trial.

The judgment will be affirmed.

. The other Justices concurred.


text:
    THOMPSON v. BRONK.
    Contracts — Convict Labor — Void Commitment — Implied Promise op Payment.
    Where, under a contract between defendants and the warden of the State prison by which the warden was to furnish them with the labor of 800 convicts at a stated price per day, the plaintiff, while a convict, was required by the warden to work for defendants, and they paid the State the contract price for his labor, after plaintiff’s discharge from prison he could not recover the value of his work from defendants, even if his commitment to prison was void, since he had no contract relations, express or implied, with them.
    Error to Jackson; Peck, J.
    Submitted December 6, 1900.
    Decided May 7, 1901.

      Assumpsit by Frank J. Thompson against Edgar Bronk and Edgar A. Buffington, copartners as the Bronk-Buffington Shirt Company, for work and labor. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      W. D. Fuller, for appellant.

      Wilson & Cobb, for appellees.
   Montgomery, C. J.

The defendant Bronk had a contract with the warden of the State prison at Jackson, by the terms of which the warden was to furnish to defendant the labor of 300 convicts, to be employed in manufacturing shirts, at a stated price per day. The defendant Buffington is a partner of Bronk, and stands in the same relation to plaintiff. Under the contract, the selection of men was left with the warden, and the contractor was bound to accept such able-bodied men as were supplied him. The plaintiff was committed to this prison by the circuit court for the county of Newaygo, and was detained under a commitment claimed to be void on its face. The plaintiff was by the warden assigned to work on defendants’ contract. He continued on this contract for the period of 576 days. Defendants paid the State for plaintiff’s labor at the agreed price. Under a rule of the prison, plaintiff was permitted to receive pay from the defendants for overtime, and for doing good work, amounting, in the aggregate, to $58.49. The plaintiff, on obtaining his discharge from the custody of the warden, brought this action against defendants to recover for the value of the services rendered. The declaration contains the labor and quantum meruit counts. The circuit judge, after finding the above facts, entered judgment for defendants, and plaintiff brings error.

If the law raises an implication of a promise to pay plaintiff for these services, it cannot be an implication of fact, but a fiction. It is clear that defendants had no thought of accepting services from plaintiff, to be compensated in any other way than under their express contract with the warden. It is said in some cases, where the defendant is guilty of a wrong, that the law will recognize an implied, or, more accurately speaking, a constructive, contract, and enforce it. Hertzog v. Hertzog, 29 Pa. St. 465. But, where the circumstances repel all implication of a promise in fact, the law will not imply a promise, unless something has been done on which an implication of a promise can be rested, as in the case of a sale of personal property by a tort feasor, who then became liable to an action for money had and received.. Watson v. Stever, 25 Mich. 386. These defendants contracted with a third party for laborers.- Under such contract, the third party furnished certain laborers, — among them, the plaintiff. The defendants paid to the third party the contract price for the labor so supplied. No contract relations existed between the parties to this suit. There was no privity between them. They were not consenting bargainors, coming together in contract relations manifested by some intelligible conduct, act, or sign; and the whole transaction was brought about and is accounted for by circumstances repelling every possible implication of contract relations.

Two cases are cited in support of plaintiff’s contention, which at first reading might appear to give support to his claim; but we think these cases may be distinguished. In Patterson v. Crawford, 12 Ind. 241, a recovery was had, by a convict improperly imprisoned, against the contractor with the prison authorities, for services rendered while unlawfully in prison. In that case the contract was for the services of all convicts, at a gross sum. This, of course, meant all convicts lawfully confined. The services of plaintiff were not, therefore, contracted for or paid for by defendant under his contract with the State. The defendant therefore had the benefit of the plaintiff’s services. In the present case the defendants paid for all services rendered, and this distinguishes the case. We express no opinion as to whether the case of Patterson v. Crawford was rightly decided.

The other case is Greer v. Critz, 53 Ark. 247 (13 S. W. 764). In that case the county court undertook to 'enter into a contract with defendant for plaintiff’s services while he worked out a‘fine imposed by the court. The county judge had no power to make such a contract, and defendant, being a party to the contract, was held bound to know of this lack of authority, and that, as he had the benefit of, plaintiff’s services, he was obliged to pay for them.

In the present case the defendants were not responsible for the plaintiff’s status as a convict. They accepted his services under a perfectly valid contract with the warden. They have paid for such services, and we think the law will imply no promise to pay for them again.

Judgment affirmed.

The other Justices concurred.


text:
    CARVER v. DETROIT & SALINE PLANK-ROAD CO.
    1. Certiorari — Sufficiency of Evidence — Estoppel.
    Plaintiff in certiorari is estopped to assert that there was no-testimony to a certain point, where such testimony is plainly set out in his affidavit for the writ.
    2. Same — Technical Objections.
    On certiorari to a justice, technical objections to the admission- or exclusion of testimony, not affecting the merits of the-case, should be disregarded.
    3. Vexatious Appeal — Costs.
    The appeal being wholly without merit, the appellee was-awarded $25 additional costs.
    Error to Wayne; Donovan, J.
    Submitted December 6, 1900.
    Decided May 7, 1901.
    Case by Walter Carver against the Detroit & Saline-Plank-Road Company for an injury to plaintiff’s horse caused by a defect in defendant’s toll road. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.

      Hamilton Baluss, for appellant.

      J. Emmet Sullivan and Edward M. Vining, for appellee.
   Montgomery, C. J.

This case originated in justice’s-court, where the plaintiff recovered a judgment for $10 for damage to a horse by reason of the defective condition of defendant’s road. The defendant removed the case to the circuit court by certiorari, and, on the judgment being there affirmed, has brought the case here on error.

It is alleged that the proof was insufficient to support the plaintiff’s averments, and it is said there was no proof, except an inference, that plaintiff’s horse had stepped into a hole in defendant’s road. But the affidavit for certio rari sets out plaintiff’s testimony, in which he testified, “My horse slipped into a hole on the defendant’s road on the 30th day of March.” The defendant is bound by the averments in its own affidavit.

It is also said in the brief of counsel that the declaration is not sufficient to admit the proof. The particular defect is not pointed out, nor have we been able to discover it.

The other questions relate to rulings on the offer of testimony. There was no conflict in proof as to the fact of the horse stepping into a hole in defendant’s road. The rulings on the admissibility of testimony did not affect this question, and we are not able to see that any injury was done the defendant. The language of Justice Campbell in Cheney v. Russell, 44 Mich. 620 (7 N. W. 234), which need not be here repeated, is quite appropriate to this case.

This appeal is wholly without merit, and the judgment will be affirmed, with $25 additional costs.

The other Justices concurred.


author:
Grant, J. Moore, J.
      Hooker, J.

text:
    BOARD OF WATER COMMISSIONERS OF DETROIT v. COMMISSIONERS OF PARKS AND BOULEVARDS.
    1. Municipal Corporations — Water Rates — Public Parks.
    The board of water commissioners of the city of Detroit is not bo.und, under the statute, to furnish water free of charge for the parks and public grounds under the management and control of the commissioners of parks and boulevards of said city. Moore, J., and Montgomery, C. J., dissenting.
    2. Same — Mandamus—Defenses—Lack of Funds.
    However, on application for mandamus to compel the park board to audit the claim of the water board for water supplied, Hooker, J., concurred with the above-named Justices in denying the writ, on the ground that no appropriation for that purpose had been made by the common council, and the park board is forbidden by the statute to incur any obligation not so authorized; Grant and Long, JJ., favoring the issue of the writ.

      Certiorari to Wayne; Hosmer, J.
    Submitted October 12, 1900.
    Decided May 7, 1901.

      Mandamus by the board of water commissioners of the city of Detroit to compel the commissioners of parks and boulevards to audit relator’s account for water furnished. From an order denying the writ, relator brings certiorari.

    Affirmed.

      Gray & Gray, for relator.

      Timothy E. Tarsney, for respondents.
   Grant, J.

The main question in this case is, Must the board of water commissioners of the city of Detroit furnish water for the public parks of the city without charge ? The relator is a corporation organized under Act No. 90, Laws 1853. By the terms of the act, the possession and control of the waterworks are vested in the relator. It is vested with the sole power to assess the water rate to be paid by the owner or occupant of each house or other building having or using water. It is also authorized to purchase such land and materials, and to construct such reservoirs, etc., “as shall be deemed necessary or desirable to furnish a full supply of water for public and private use in said city. ” It is also required to invest any surplus, not required for the payment of running expenses or the extension of its works, so as to make the same available for the payment of interest and principal of the bonds issued in pursuance of the act. It is also vested with power “to construct reservoirs, jets, and fire hydrants at such localities in said city as they may deem expedient and necessary, and to lay pipes in and through all the alleys and streets of said city; and also to construct in such localities as they may deem expedient, not exceeding one to each block, hydrants for public use, and to keep the same in repair; and also, with the consent of the common council of said city, to construct fountains in the public squares, or such other public grounds of said city as they shall deem expedient.”

The theory of the act seems to be that it is to be maintained by the consumers of water.- It was not contemplated that it should be supported by a tax upon the city. There is nothing in the act to indicate that it was the intention of the legislature to require water to be furnished to the public parks, buildings, etc., in the city, free. It is manifest, therefore, that, if the contention of the respondent be maintained, the cost of water furnished to the parks and for other public purposes will not be paid by a tax upon the inhabitants of the city, but must be paid by the consumers of water. These water rates are not taxes. Jones v. Board of Water Com’rs of Detroit, 34 Mich. 273; Preston v. Same, 117 Mich. 589 (76 N. W. 92). If a private corporation had been authorized to supply the city and its inhabitants with water for public and private use, and in granting the franchise the city made no provision that water should be furnished free for public uses, it would hardly be contended that such corporation could be compelled to furnish it free for those purposes. The relator was evidently established in the interests of economy, and for that reason the exclusive power was vested in a board consisting of five persons.

The fact that the legislature, by Act No. 303, Laws 1873, authorized an annual levy of a tax of $75,000, to be used in payment of interest upon, the bonds issued by said board, does not detract from or add to the powers of the board under its act of incorporation. It in no manner affects the right of the board to fix the water rates, or implies that water must be furnished free for public purposes. We are therefore of the opinion that relator is empowered to charge reasonable rates for water furnished for public purposes, and that the legislature alone possesses the power to exempt the city from the payment of water rates.

It is also urged as a defense that the board of estimates made no provision for raising the money, and that therefore there are no funds out of which to pay. We think this defense is not available. The prayer of the petition is that the respondents audit the account. The respondents are not the custodians of the moneys. By Act No. 380, Local Acts 1897, the bills must be audited by the respondents, after which they are delivered to the controller, who is authorized to submit the same to the council with his approval or disapproval. Should the authorities whose duty it is to pay refuse to pay after the bill is audited, this question might arise. We presume, however, there will be no difficulty, inasmuch as the main object of this suit was to settle the power of the relator.

The writ should issue.

Long, J., concurred with Grant, J.

Moore, J.

I cannot agree with the conclusion reached by Mr. Justice Grant. Section 3 of the act approved March 8, 1873, being section 540 of the laws relating to the city of Detroit, requires the common council to include in the general tax, annually, the sum of $75,000, to be paid over to the water board, to be used in the payment of the interest, so far as may be necessary, on any outstanding bonds issued for the purposes of the board; the balance to go into a sinking fund, to be used in paying the bonds when they mature. Section 538 of the laws relating to the city requires the council to assess on all the taxable property of the city such sums as the board of water commissioners need, over and above the revenue of the board, to meet the payment of the principal and interest of the bonds issued.

It is shown in Preston v. Board of Water Com’rs of Detroit, 117 Mich. 589 (76 N. W. 92), that from 1883 to 1895, inclusive, there was received from water rates $4,953,959.30, while there was paid by the city during the same time $1,036,533.81 of money raised upon all the taxable property of the city. It was also shown that the water used by the fire department, the park commissioners, and for all other purposes which may be called water used for .public purposes, was only 4 per cent, of the pump-age of the waterworks. The city, then, has paid, by tax levied on all the taxable property of the city, upwards of 18 per cent, of the entire receipts of the water board, while it has used only about 4 per cent, of the pumpage.

Section 430 of the laws relating to the city of Detroit ■requires the park and boulevard commissioners, annually, to submit to the common council an estimate of the needs •of the board for the ensuing year, which estimate shall specify the sums desired for each of the several objects of expenditure. The following section provides for the raising of this money by a general tax, and that, when raised, it shall be paid out only for the purposes approved by the ■common council and board of estimates. By the next section, the commissioners are forbidden to incur any liability during any fiscal year in excess of the money in ■any fund, or not authorized by the common council.

By section 511 of the laws relating to the city of Detroit, it is made the duty of the board of water commissioners, when the necessary funds are supplied, to make •such provision as shall be necessary to furnish a full supply of water for public and private use. The following section requires the board to provide fire hydrants at such localities as may be ordered by the fire commission or the common council; the expense thereof to be paid from the funds of the fire commission, when ordered by it, and from'the appropriate fund of the city, when ordered by the common council. It also provides that the board may erect drinking hydrants for public use in each block of said city, and, with the consent of the common •council, may erect fountains in such public grounds of the city as they may deem expedient.

It will be observed, the erection of fountains is impossible, either by the board of park commissioners or the board of water commissioners, without the consent of the common council. The erection of fire hydrants is impossible .except by the consent of the fire commission (whose funds must be provided by general tax) or by the common council. It is also clear that fire hydrants, without an adequate supply of water, would be of little use, while drinking hydrants and fountains would be such only in name unless supplied with water.

The provision for the assessment of water rates by the board is found in section 513 of the laws relating to the city of Detroit. It reads as follows:

“Said commissioners shall, from time to time, cause to be assessed the water rate to be paid by the owner or occupant of each house or other building having or using water, upon such basis as they shall deem equitable; and such water rate shall become a continuing lien, until paid, upon such house or other building, and upon the lot or lots upon which such house or other building is situated.”

It will be observed that authority is nowhere given to assess the fire department, or the board of park commissioners, or the city of Detroit for water used by these various departments. In view of the fact that the city is paying for the water used by its various departments three or four times as much as is paid by the ordinary consumer, this failure to confer authority upon the water board is very significant.

Section 428 provides that the commissioners of parks and boulevards shall have the control and management, and shall have charge of the improvement and maintenance, of all the parks and public grounds of said city, including Belle Isle Park, and shall have control of the improvement and maintenance of the boulevards. The commissioners, then, having the right, in the improvement of the parks and boulevards, to erect fountains, when the funds are raised by the board of estimates and the common council, it would seem to follow, by implication, that the water necessary to be used to supply these fountains should not be made a charge against the park and boulevard commission. The property under the control of these boards is the property of the city of Detroit. The boards are part of the municipal machinery, called into being for the purpose of managing the several departments placed under their control, not for their own benefit, but for the benefit of the city of Detroit and its citizens.

I think the writ should be denied.

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

Hooker, J.

I am unable to find in the water-board act any provision that makes the furnishing of water free for drinking hydrants or fountains, except when they are erected by the water board under the terms of said act. The park board may doubtless erect fountains, under the provisions of the park-board act, without the concurrence of the water board; but it is nowhere made the duty of the water board to supply them without compensation. The act providing for a board of park commissioners contains no implication that such board may impose the expense of improving or maintaining the parks upon any other board or department of the city government, but, on the contrary, contemplates that provision for such expenditures shall be made by general tax, and the board is limited to such expenditures as the council may authorize.

The board of water commissioners is not under obligation to furnish water without pay. The park board is prohibited from incurring obligations beyond the amount appropriated for specific purposes. It does not appear that an appropriation has ever been made for water, or that any such item has ever been allowed or paid. On the contrary, the council has refused such appropriations, upon the claim that it is the water commissioners’ duty to furnish the water without charge.

The writ should be denied.


author: Montgomery, O. J.

text:
    GRUNER v. BROOKS.
    Fraudulent Conveyances — Husband and Wife — Solvency of Grantor.
    Evidence reviewed, and held not to show that, at the time of a voluntary conveyance by a debtor, to his wife, he retained sufficient property to satisfy the claims of his creditors.

      Appeal from Ogemaw; Sharpe, J.
    Submitted January 9, 1901.
    Decided May 7, 1901.
    Bill by Leonhard Gruner and Caroline P. Ellis, executors of the last will and testament of Joseph J. Ellis, deceased, against Hiram Brooks and Sarah Brooks, in aid of execution. From a decree for complainants, defendants appeal.
    Affirmed.
    - Boss & Harris, for complainants.

      Merrie H. Abbott and Charles S. Abbott, for defendants.
   Montgomery, O. J.

This is a bill filed in aid of an execution issued on a deficiency decree. From a decree in favor of complainants, defendants appeal.

The facts are not complicated. In August, 1896, complainants filed a bill to foreclose a mortgage on the N. W. i of section 19, town 24 N., range 3 E., known in these proceedings as the “Stottle Farm.” Defendant Hiram Brooks testified as to his purposes at this time as follows:

“I presume there was some talk of foreclosing the mortgage. I talked with French several times. I was paying 10 per cent, interest on that mortgage, and I paid 10 per cent, interest on that mortgage for 10 or 12 years.
“Q. And you got about tired of it?
“A. Yes, I got tired of it. You bet your life I got tired of it. I paid 10 per cent, interest on that mortgage, and I tried to get French to come down on the interest, and I couldn’t make anything of it; he wouldn’t. If he had come down to 8 per cent, interest, I would have paid the interest, and probably I would have been paying the interest yet. But when I had to pay 10 per cent, interest, I couldn’t stand it, and I finally told him that I wouldn’t pay any more interest.”

At this date defendant Hiram Brooks owned 160 acres, upon which he lived. One 40 constituted his homestead. Another 40 is shown by the testimony to have been worth $100 to $150, and was, on the 16th of January, 1897, mortgaged to Tolfree, Livingstone & Co. for $350. The Temaining 80 is the subject of this suit, and was transferred to defendant Sarah Brooks on the 18th of December, 1896, admittedly without consideration. The foreclosure case proceeded to a decree and sale, and a deficiency decree was entered on the 3d of April, 1897, for $494.01. This showing on the part of complainants made & prima facie case under Act No. 99, Pub. Acts 1897.

Defendants offered the testimony of the two defendants, and contend that such testimony shows that at the date of the transfer, December 18, 1896, Hiram Brooks was the owner of ample property to cover his indebtedness, and that the complainants were his only creditors. There •can be no doubt that, if the record establishes these facts, the transfer to Mrs. Brooks, though without consideration, is valid. Wooden v. Wooden, 72 Mich. 353 (40 N. W. 460); Michigan Trust Co. v. Adams, 109 Mich. 182 (66 N. W. 1094). We do not, however, find that defendants’ contention is supported by the record. In 1898 .an execution was placed in the hands of an officer, and he found nothing to levy upon. All the real estate, except the homestead, was the 40, worth but $100 to $150, and that was incumbered for more than its value. If Hiram had property sufficient to satisfy his indebtedness when the transfer was made, it is not shown what had become of it. It is true, he testifies that, when this deed was made, he owned 15 head of young cattle, 5 cows, 2 teams of horses, and 1 odd horse; but on cross-examination he testified: “The personal property that I had at this time might have been mortgaged, but I don’t remember whether it was mortgaged at that date or not. It is my best recollection that it was not.” This does not show very clearly that this property was subject to levy. Much less does it show that complainants were his only creditors.

The decree of the circuit judge was fully warranted, and is affirmed, with costs.

The other Justices concurred.


author: Moore, J.

text:
    CAMPBELL v. DAVIDSON-MARTIN MANUFACTURING CO.
    Contracts — Evidence—Appeal.
    There being testimony to support plaintiffs claim of the making of a contract whereby he was to manufacture certain machines for defendant, and defendant’s breach thereof, a judgment for plaintiff was affirmed.
    Error to St. Clair; Vance, J.
    Submitted January 11„ 1901.
    Decided May 7, 1901.

      Assumpsit by Robert Campbell against the Davidson-Martin Manufacturing Company for the breach of a contract to purchase certain machines. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      John B. Mcllwain and A. E. Chadwick, for appellant.

      Law & Moore, for appellee.
   Moore, J.

The plaintiff recovered a judgment against the defendant for $1,210. The defendant has brought the case here by writ of error. I cannot state the questions involved in the case better than to quote from the language of the trial judge, the late Judge Vance, in his* charge to the .jury, which is as follows:

“The plaintiff claims that on or about April 6, 1894, the defendant, through its president, A. S. Martin, gave the plaintiff an order to manufacture for it twelve 15-inch Wizard purifiers of whitewood; that the defendant gave plaintiff about the same time an order to manufacture five small machines for agents’ samples; that no written contract or specifications were made, but that plaintiff had a model machine to work from on these orders, furnished by the defendant; that plaintiff made the above machines, and finished these orders some time in June, 1894.
“That during the month of April, 1894, or early in May, 1894, meetings of the directors of the defendant company were held, and the matter of using elm in the manufacture of these machines was talked over, and that •at one or more of these meetings plaintiff was present; that one Webster advocated the use of elm at one of these meetings, and that the defendant ordered plaintiff to make a 24-inch elm machine; that plaintiff began work on this machine prior to May 14, 1894, and that said machine was set up by Charles Keyes, and was completed, or nearly completed, so far as the woodwork was concerned, on May 25, 1894, and that at that date it stood on the second floor of plaintiff’s factory. This is the high 24-inch machine spoken of in plaintiff’s declaration. The officers and directors of defendant saw this machine, and approved it, prior to May 25, 1894. That on May 25, 1894, Abram S. Martin, the president of the defendant company, came to plaintiff’s office, and gave plaintiff an order for fifty 15-inch, forty 24-inch, and ten 30-inch elm machines; and one Wallace was present. They all ■examined the 24-inch sample machine then on the floor of the factory. The new machines to be manufactured under the order were to be like the 24-inch sample in timber and workmanship, but the new 24-inch machines were to be about four inches lower. That the plaintiff immediately caused the order to be entered in his book, and proceeded to purchase elm lumber, as he did not have enough in his factory to fill the order. He at once proceeded to cut up lumber for the order, as A. S. Martin .had said to him the defendant was in a hurry for the machines.
“That on June 6, 1894, the board of directors of the ■defendant company held a meeting, at which plaintiff was present, and an attempt was made to embody in writing, specifications and in a written contract, the agreement made with the president, A. S. Martin, on May 25, 1894. This attempt failed for the reason that plaintiff objected to some of the details of specifications as too stringent. That at this time the officers and directors present ratified the contract entered into with the president, Abram S. Martin, on May- 25, 1894, and supplemented it with the further provision that plaintiff should ■complete one 24-inch machine of the lower design, being ■one of the order of May 25, 1894, which was well under way on June 6, 1894, and that this machine should stand on the floor of plaintiff’s factory as a model as to finish •and minor details, but that plaintiff should finish work on the whole order as he had done between May 35, 1894, and June 6, 1894.
“The plaintiff claims that after May 35, 1894, and after he had begun work on the order of that date, the different officers and directors of the defendant were constantly coming to the factory and watching the progress-of the work on the order; that David J. Davidson personally supervised the work, and was there once or more every day; that other officers and directors gave orders about the work, and that on June 6, 1894, they were all aware of the work he had been doing on this order; that plaintiff proceeded with the work during the months of June and July, 1894, and that it was-supervised and overlooked nearly every day by the officers and directors of the defendant; that defendant agreed to furnish ironwork, as plaintiff did not want to furnish money, and wait for them to take the machines, and the defendant did furnish ironwork for three machines; that on July 19, 1894, the defendant accepted two 34-inch elm machines, one of which went to Davison, Michigan, and one to McMorran’s mill, in this city; that on August 34th the defendant accepted a 15-inch elm machine, shipped to Metzgar, at Waterfield, Ohio.
“That on or about August 34, 1894, the defendant repudiated this contract with plaintiff, through its president, Abram S. Martin, and ordered plaintiff to cease making machines under the order, as they had found elm to be unsuitable, and would tako no more machines; that on February 19, 1895, the defendant paid $93.03 on this account of machines which plaintiff had in progress of manufacture at his factory, by allowing him to take a lot of lumber which was worth this amount; that negotiations, have been had at different times for a settlement of the claim sued upon. On April 35, 1895, the plaintiff attended a meeting of the directors of the defendant, and they then and there directed him to furnish them with a. list of the machines in progress of manufacture at his factory, and that the defendant would furnish irons, and have him complete the machines, and take and pay for them under the contract. That plaintiff furnished such lists, but defendant never furnished irons as it had agreed to do, and he claims to recover upon that theory of the case.
“The defendant claims as its theory of the case as follows : That it never made any such contract as is claimed by the plaintiff; that, about the 28th day of May, defendant’s president, A. S. Martin, went to plaintiff’s mill to obtain prices from plaintiff of what he would manufacture whitewood purifiers of different sizes for; that said Martin obtained plaintiff’s prices on the basis of an order for 100 whitewood machines; that it was understood at that time by Mr. Campbell and Mr. Martin and Mr.' Chadwick, who were present, that a written contract', with complete specifications, was to be prepared, agreed to, and signed by the parties, before there would be any contract between them; that the terms and conditions of said contract would have to be approved by the board of directors of the defendant company; and that Mr. Chadwick was then and there requested to proceed with the preparation of the contract and specifications; that said contract and specifications were prepared in writing, and a meeting of the board of directors called on or about the 1st of June, 1894, at which Mr. Campbell was present; that the object and purpose of the meeting was to see-if a satisfactory contract could be made with Mr. Campbell for the manufacture of whitewood machines on the line of the prices obtained from him; that defendant did not desire to bind itself to take 100 machines in any one order, but desired the right to elect to take a less number; that the parties failed to agree upon the terms of the contract and specifications for the building of whitewood machines, and Mr. Campbell then suggested that the cost of the machine could be cheapened if built out of elm, which, he assured the board of directors, would be entirely suitable if the first quality of elm was used, and properly kiln-dried, and, in support of the suitability of elm, drew the attention of the directors to the back of an elm chair then in the office, which he claimed was made out of elm; that, for the purpose of testing the suitability of elm, it was then agreed that plaintiff should go on and build three elm machines,, one of each size; that they were to be built according to the directions and to the complete satisfaction of David J. Davidson, the inventor of said machines, and that if, after being so completed and tested, elm lumber was found suitable for the construction of those machines, and the machines were so constructed as to make them durable, and perform the work for which they were intended, and if in all things they were built to the satisfaction of Mr. Davidson, then said machines would stand as models as* to style, workmanship, and material for any orders that might subsequently be given plaintiff for the construction of the machines; that that was the sole and only order given by the board of directors to plaintiff, and the only agreement reached between the parties; that plaintiff had no authority from defendant to cut up any material for any other machines than the three elm machines that defendant had agreed to take whether they were found suitable or not.
1 ‘ That, before the models were completed, the directors learned the plaintiff was cutting up more elm than was necessary for the construction of the three elm machines as agreed upon, and the defendant’s president, upon learning the same, and after an informal meeting of the board of directors, went to plaintiff’s mill, and inquired by what authority he was cutting up more material than was necessary for the construction of the three elm machines which he had been ordered to build; that plaintiff did not, at that time, claim that he had any order from defendant’s president to cut up said material, or to build any more machines but the three, but claimed he got the order from Mr. Davidson, which Mr. Davidson, on learning of the same, promptly denied; that a meeting of the board of directors was called within a few days, at which Mr. Campbell was present, and Mr. Davidson notified the plaintiff and defendant’s board of directors that elm lumber was entirely unsuitable for the building of said machines; that they would not hold up under it; that the thickness of the material which Mr. Campbell was using was insufficient, and would not make the machines durable; that his directions were that the machines should be built flush inside, while they were not being so built; that the workmanship was not satisfactory; that he could not and would not accept any of said machines if completed. That the plaintiff made no claim at this meeting of the hoard of directors that he had any order to cut up the material by the authority of the defendant, or by the authority of anybody, but’that he thought the machines would be entirely satisfactory, and, by cutting up a lot of material at the same time he cut up the material for the three machines, he could save labor and expense to himself; that the decision of Mr. Davidson was accepted and acquiesced in by both parties as final; that the plaintiff was then informed by the board of directors that they had agreed to take three machines of him, one of each size, and to go on and finish up' three machines, substituting the high 24-inch machine for the 30-inch, and they were to take them. The plaintiff did subsequently finish up the three machines, and defendant furnished the ironwork for the same, and, after he had completed said machines, the defendant took them under said agreement to take three machines. The ■plaintiff, on August 30, 1894, rendered a bill to the defendant for all his work and labor done and indebtedness due from the defendant to him up to that time, which defendant paid, and plaintiff thereupon balanced up his hooks in full with the defendant.. That, at the time defendant paid said bill of August 30th, it had no knowledge that Mr. Campbell was making any claim, or going to make any claim, for any elm material now claimed to have been cut up by him previous to that time, and that, when bills were subsequently rendered, they were repudiated by fhe defendant.”

The testimony offered in support of these claims was as contradictory as it could well be. The defendant asked for the submission of special findings, which, with the answers returned thereto by the jurors, were as follows:

“Was there a partly finished elm machine set up on fhe floor of plaintifPs mill, and shown to defendant’s president, A. S. Martin, on the 25th day of May, 1894?'
“A. Yes.
“Was it understood between plaintiff and A. S. Martin, at the time the figures were made on May 25, 1894, as alleged by plaintiff, that a written contract with complete specifications should be prepared, and signed by the parties, before there would be any binding contract between them?
“A. No.
“Was there any other agreement made between the plaintiff and defendant’s board of directors at the alleged meeting of June 6th than that plaintiff should build for the defendant, at its expense and risk, one or three elm model machines according to the direction of defendant’s •expert, David J. Davidson, and to his satisfaction, acceptance, and approval,, which, when so completed, accepted, •and approved, should be a model or pattern for any other machines built by the plaintiff for the defendant ?
“A. Yes.
“ Did David J. Davidson notify the plaintiff and defendant’s board of directors, at a meeting of the latter, at which Campbell was present, before the models were completed, that they were entirely unsatisfactory to him in workmanship and material, and he would not accept them ?
“A. No.
„ “Did the defendant order plaintiff to cut up any material, or complete any machines other than said models, after the 6th day of June, 1894?
“A. No.”

The defendant then moved for a new trial, assigning many reasons therefor. The judge filed a written opinion of very considerable length, overruling the motion.

The defendant contends there is a fatal variance between the contract counted on .and plaintiff’s proofs, and that is a question of law for the court, and not one of fact for the jury; citing Kroll v. Ten Eyck, 48 Mich. 230 (12 N. W. 164); Martin v. Boyce, 49 Mich. 122 (13 N. W. 386); Reynolds v. Reeder, 104 Mich. 265 (62 N. W. 355). Under this contention counsel quote from the testimony at great length; but we cannot reach the same conclusion arrived at by them. On the other hand, we think the testimony offered on the part of the plaintiff, if believed by the jury, sustains the cause of action as stated in the declaration.

The defendant contends there is an entire failure of proof, under plaintiff’s own testimony, to establish either-the contract declared on or any completed contract with, defendant for the labor and material involved in this suit,, and the court erred "in submitting the question to the jury to find — First, whether there was a completed contract-with Martin on May 25th; and, second, whether it was-ratified by the defendant on June 6th. The testimony upon this branch of the case was conflicting. We cannot agree at all with counsel that there was an entire failure of testimony tending to prove a contract. Both branches of that feature of the case were carefully submitted to the-jury, who found in favor of the plaintiff, and, in view of the testimony, we think it was the duty of the trial judge to submit the question to them.

It is insisted:

“The plaintiff’s testimony clearly shows there was no meeting of the minds of the parties on anything more than to build the model or. models. The rest of the talk and negotiations is too uncertain and incomplete to be enforced as a contract against the defendant. No such contract as claimed could be enforced by defendant against the plaintiff. The case is within the rules laid down in the following cases: Dayton v. Stone, 111 Mich. 196 (69 N. W. 515); Gates v. Gamble, 53 Mich. 181 (18 N. W. 631); Wardell v. Williams, 62 Mich. 50 (28 N. W. 796, 4 Am. St. Rep. 814); Gault v. Stormont, 51 Mich. 636 (17 N. W. 214); Peek v. Novelty Works, 29 Mich. 313.”

If isolated portions of the testimony of the plaintiff are taken, such a conclusion as stated above can be reached; but, if all the testimony offered by the plaintiff is taken into consideration, it will lead to quite a different conclusion.

Defendant contends:

“There is no reliable basis afforded by plaintiff’s proofs upon which to find damages, and, in any event, the verdict is greatly excessive. The law is well settled that, before plaintiff is entitled to recover damages, he must prove his damages. In a case of this kind there ought not to be very great difficulty in proving the amount of labor done and material cut up in whatever work plaintiff has done,” — citing Meyers v. McQueen, 85 Mich. 161 (48 N. W. 553).

This again raises the question of the effect of the testimony which was given upon that branch of the case. If the jury believed the testimony offered by the plaintiff,— as they evidently did, — it cannot- be said there was no basis for their verdict. It was well within the range of the testimony offered by the plaintiff. Balch v. Railroad Co., 78 Mich. 654 (44 N. W. 151).

We do not deem it necessary to refer to the other assignments of error further than to say we do not think they are well taken.

Judgment is affirmed.

Montgomery, C. J., Long and Grant, JJ., concurred. Hooker, J., did not sit.