text:
    ALLINGTON & CURTIS MANUFACTURING CO. v. DETROIT REDUCTION CO.
    1. Sale — Construction of Contract — “Manufactured State.”
    Under a contract for the sale of dust collectors for ore pulverizers, providing that the apparatus should be shipped in “manufactured state,” a failure to rivet the joints of the pipes before shipping was not a breach, where it appeared that the seller followed its usual practice in that respect.
    2. Trial — Cross-Examination—Statements of Counsel.
    On the cross examination of a witness called by defendant as an expert on the manufacture and shipping of sheet iron, the witness testified that he had had experience in a certain manufacturing institution; and, on objection to a question as to what had become of that institution, counsel stated in the presence of the jury that, to test witness’ expert knowledge, he proposed to show that the company was wrecked by his mismanagement, that two other companies were similarly wrecked, and that every other institution with which he had ever been connected had been -ruined. The objection to the question was- sustained. Held, that such statement was not sufficient cause for reversing a judgment for plaintiff.
    3. Sale — Breach of Warranty — Instructions.
    In an action for the purchase price of dust collectors for ore pulverizers, warranted both to convey and separate ore, an instruction that, if the machine failed to do both, there was a breach of the warranty, was not objectionable as requiring a failure both to convey and separate in order to constitute a breach.
    4. Same.
    In an action for the purchase price of a machine, an instruction basing the right to recover on whether the machine could, under proper management, have been made to do the work contemplated, sufficiently covered defendant’s claim that the machine was “impractical, and mechanically impossible” of successful operation.
    5. Same.
    In an action for the price of a machine, in which the buyer . claimed a breach of a warranty that the machine would do certain work, an instruction whereby the case was made to turn on 'whether or not the machine had done the work, regardless of whether it would under proper management, was properly refused.
    6. Same.
    In an action for the price of dust collectors for ore pulverizers, in which it appeared that the seller had warranted the collectors to take the ore out of the pulverizers, an instruction that there was a breach of the warranty if plaintiff’s agent had certain knowledge at the time the contract was made, and contemplated the delivery of the ore by the pulverizers to the collectors, was properly refused.
    7. Trial — Evidence—Harmless Error.
    The admission of testimony in support of a claim which the court afterwards ruled against in the charge was harmless.
    8. Same — Instructions.
    The submission to the jury of an undisputed item of charge is not prejudicial, where the verdict shows that they allowed it.
    9. Corporations — Directors — Evidence — Admissions — Res Gestas.
    In an action for the price of a machine sold to a corporation, in which defendant claimed a breach of warranty as to the work the machine was capable of doing, admissions by a director of defendant corporation as to the manner in which the machine was operating, not made in connection with the performance of any duty devolving upon him, were not binding on the corporation, though it appeared that he was present, giving directions, at the installation of the machinery, and was authorized to make some arrangement as to settlement therefor.
    10. Sale — Breach of Contract — Damages.
    Defendant in an action for the price of a machine, having set up the claim that plaintiff’s agent, after repeated attempts to make the machine do the work guaranteed, “gave it up as a bad job,” and went away, could not complain that he was not permitted to recoup the cost of subsequent efforts made by himself in the same direction.
    Error to Wayne; Hosmer, J.
    Submitted January 15, 1903.
    (Docket No. 45.)
    Decided June 23, 1903.

      Assumpsit by the Allington & Curtis Manufacturing Company against the Detroit Reduction Company for goods sold and delivered. From a judgment for plaintiff, defendant brings error.
    Reversed.

      John W. Beaumont and Bayard T. Brown, for appellant.

      Humphrey & Grant, for appellee.
   Hooker, C. J.

The plaintiff contracted with the defend-. ant to manufacture and deliver certain machinery for collecting the product from its ore pulverizers in use at Cripple Creek, or, to state it more accurately in the language of the contract:

“ The contractor is to furnish all of the sheet-metal material and iron hangers for pipes, dust collectors, centrifugal traps, grading chambers, valves, and fans, in manufactured state, for two complete dust-collecting systems, to be connected to your two pulverizers. The systems to be of the return type, which is practically dustless, and to be substantially like pencil sketch submitted for approval. All of the material, except the fans,, is sold f. o. b. cars Saginaw, Mich., and the fans, which are to be No. 10 Sturtevant Monogram pattern, are furnished f. o. b. cars Boston. All of the sheet-steel work is to be of No. 16 gauge galvanized steel, except the first joints in the delivery from the pulverizers, which is to be 13 gauge. The contractors are to furnish a mechanic to superintend and help install the plant, and all other labor is to be furnished by the purchaser .-
“The'- contractor is to design the working drawings for constructing and installing the system, and guarantees that each plant will convey all of the material pulverized to a fineness of 100 mesh and finer, and catch the greater bulk of the same in the centrifugal trap interposed between the pulverizer and the fan, thus saving wear and tear on the fan. The contractor further guarantees that the greater portion of the remainder of the material which passes through the fan will be caught in the dust collector, from which the air is finally returned to the pulverizer. A small portion of the volume of air will be allowed to escape from the dust collector to a small supplemental collector, to compensate for a small amount of fresh air continually taken into the pulverizer.
“ Each pipe leading from the delivery of the pulverizers is to be supplied with an enlarged grading chamber, which is to be adjustable so as to prevent particles coarser than 100 mesh from passing through and into the pipe system.
‘ ‘ The purchaser is to prepare return openings 12" in diameter or an equivalent. On each side of each pulverizer the return pipes for the air are to be attached to these openings. The purchaser is to drive the fans to the required speed for handling the material, and pay the contractor eighteen hundred dollars for the fans and material furnished f. o. b. cars Boston and Saginaw, and pay the railroad fare, board, and $4.00 per day for mechanic’s time. The contractor is to furnish material for soldering, riveting, etc., and the purchaser is to furnish scaffolding and permanent supports for heavy parts. Payments are to be made to the contractor as follows: One-third on delivery of material, one-third when system is installed, and one-third thirty days after installation. Shipment to be made within two weeks.”

At the time this contract was negotiated, blue prints of defendant’s pulverizers were furnished to the plaintiff. The apparatus was duly received at Cripple Creek, and set up under the supervision of plaintiff’s expert. According to the defendant’s claim, repeated experiments, both by the expert while there and by defendant after his departure, failed to make the apparatus do the work as guaranteed. Being sued for the contract price, the defendant set up the warranties, and sought to recoup damages for a failure to perform the contract. A verdict was rendered for the plaintiff, and defendant has appealed.

The defendant was in the possession of' two ore pulverizers when it made its contract, as the contract shows. It sought to have the product of the pulverizers conveyed from them, and to that end the parties made the contract. The alleged warranties were; “(1) that each plant will convey all of the material pulverized to a fineness of 100 mesh and finer;” (2) that it will “catch the greater bulk of the same in the centrifugal trap interposed between the pulverizer and the fan, thus saving wear and tear on the fan;” (3) that “each pipe leading from the delivery of the pulverizers is to be supplied with an enlarged grading chamber, which is to be adjustable so as to prevent particles coarser than 100 mesh from- passing through and into the pipe system.” It also provided that' “the contractor is to furnish all of the sheet-metal material and iron hangers for pipes, dust collectors, centrifugal traps, grading chambers, valves, and fans, in manufactured state, for two complete dust-collecting systems, to be connected to your two pulverizers,” as already stated.

The apparatus was shipped to, and arrived at, Independence, Colo. The defendant asserts that it was not shipped in a manufactured state, for the reason that the joints of pipe were not riveted together, and complains of the charge, in which the jury were told that the contract was complied with in that" particular. The testimony of the plaintiff showed that it followed the usual practice of its factory in "this respect, and, this being uncontradicted, we think the judge committed no error in his charge. He might have said to the jury that the contract contemplated the “manufactured condition” adopted by the plaintiff in its business. There was no testimony showing that such pipes were shipped by other factories in any other condition, if it would have been pertinent.

One of defendant’s witnesses testified that he had experience as a manufacturer of sheet iron, and it was the uniform custom to ship smokestacks in car lengths, joints being riveted. On cross-examination, counsel drew from him that he had experience in the manufacture of sheet iron in a Michigan institution. He was asked what had become of the institution, and, upon objection being made, •counsel stated to the court, in the presence of the jury:

“In connection with this, I offer to show by the cross-examination of this witness, who is testifying as‘an expert on this business, as he has testified, that he was the purchasing.and the selling agent <3f that company. I propose to show that that company was wrecked by his management, and became insolvent; that the Lansing Lumber Company and the Capitol Lumber Company were wrecked by him; and that every institution with which he has become connected since he was in business has been wrecked and ruined, — for the purpose of testing his expert knowledge in any or all business. ”

The court sustained the objection. We think this statement not a sufficient cause for reversing the judgment.

Defendant’s counsel claim that the court erred in his charge upon the subject of the warranties. It is truly said that a failure to install machinery which should both convey and separate the grades of ore would be a breach of the warranty, and, if the instruction was that a failure to both convey and separate was essential to a breach, it was error. In our opinion, however, the charge is not open to such a construction, for it clearly states that a failure to do both was a breach of the warranty. It is clear that a failure to do one is a failure to do both, in the sense meant, and doubtless understood.

It is also said that the court erred, inasmuch as he failed to present the defendant’s theory and allow the jury to pass upon it. This theory appears to have been that it was mechanically impossible that the machine should do the work contracted. It is claimed that the evidence showed this; i. e., there was evidence that it never did it. And it is claimed that it was shown that it was not so constructed as to be capable to do so, that it was an experiment, and that it was not designed to take ore out of the pulverizers, but only to convey it after being delivered by them. On the other hand, there was testimony tending to show that it did this work satisfactorily to the defendant, and that it was admitted, and accepted by its officers as a compliance with the contract. In this connection, defendant’s counsel say that while the court evidently intended to sustain their contention, viz., that the contract required the machine to take the ore out of the pulverizers, he failed to clearly state that in his charge. An examination of the charge has led us to a different conclusion. He said:

“ I cannot give the interpretation to the contract which the counsel for plaintiff seeks to have me give, and I therefore charge you, with reference to this system, the phrase which is embodied in the contract, ‘ the contractor guarantees that each plant will convey all of the material pulverized to the fineness of 100 mesh and finer,’ means, gentlemen of the jury, that that material should be taken from the pulverizer itself and removed to the bins. I think, gentlemen of the jury, that that is the natural import of the language, when the contract is construed as a whole.”

The jury must have found that the machine actually, did, or was capable of doing, what was contracted, according to the construction „claimed for the contract by defendant, or that it was so accepted by the defendant. The broad question of the ability of the machine to do the work required was left to the jury. That included the question of whether it was a mechanical impossibility or not. He told the jury that the machine had not performed the work guaranteed, and said if the machine could not, under any operation, have been made to do the work, it was not a compliance with the contract. This covered the question as well as though the jury had been directed in other language to inquire whether the principles upon which it was planned were wrong, and the machine necessarily ineffective. The question was whether the machine did, or could be made to do, the work. The jury evidently found that it could have been made to do it under proper management.

The twenty-eighth request offered by defendant’s counsel should not have' been given, because the case was thereby made to depend upon whether the machine had done the work required, regardless of the question of management. The twenty-ninth was objectionable because it asked the court to decide that there was a breach of warranty if plaintiff’s agent had certain knowledge at the time the contract was made, and contemplated delivery of the ore to the conveyor by the pulverizer. We are unable to say that the evidence was conclusive that plaintiff’s dust system was ‘£ impractical, and mechanically impossible ” of successful operation.

Testimony was offered by the plaintiff to show that the first joint of the conveyor was not an “operative part.” This was apparently under plaintiff’s claim that the contract did not require it to take the dust out of the pulverizer. We attach little significance to the question, but inasmuch as the court afterwards held, and charged the jury, against plaintiff’s claim, no injury was suffered by the defendant from the testimony.

- The same may be said about the evidence of what this conveyor could do when attached to the Ball pulverizers. Defendant says that with these machines the product was discharged through a funnel. The court told the jury that something more was required, when he ruled upon the question of construction. The testimony was of some value under the plaintiff’s theory, although it may have become immaterial later. It may have been admissible when offered. It certainly was not injurious.

The next question relates to the testimony of Allington as to the effect of beating free gold. It was called out in answer to the testimony of Barnes. We think the court committed no error in admitting the proof. It was harmless, at all events.

A point is made that the plaintiff was permitted to contradict the written contract. The contract provided for some supplemental collectors, which were not sent, but were made afterwards. Defendant’s counsel claim that the jury were not permitted to allow the defendant com-pensation for them. It is admitted that the court left this to the jury as a disputed fact, while counsel for plaintiff had conceded it to be a proper charge. We think that the proceedings show pretty conclusively that the item was allowed, and therefore that the judgment should not be reversed upon this ground, if the assignment of error is sufficiently specific, which plaintiff’s counsel deny.

Error is assigned upon the admissions of Rowley, a director, who is said to have stated, while en route from Colorado to Chicago with plaintiff’s representative, that he had received a telegram from his people at Cripple Creek stating that “they had made a thorough run that day, and had made good success with it; a good, successful run that day; everything satisfactory,” —and to have made •a similar statement to him after arriving at Chicago. There was further evidence as to the relation of Mr. Rowley to the work at Cripple Creek, and plaintiff’s •counsel claim that this shows .that he was, with Barnes, in charge, and exercising authority consistent with, the power to speak for the company. This testimony was undisputed, and was received under objection, and upon the undertaking to show that Mr. Rowley was really in charge of the work, and this was not done. These admissions were not a part of the res gestos. They did not occur in connection with the performance of any act relating to defendant’s business, within the scope of Rowley’s authority. He was a director. As such, he had no power to •accept this work, or to bind the company by an agreement in relation to it. The testimony that he was at Cripple Creek, giving directions, and that Barnes told Fralick that Rowley was going to Chicago, and would fix the matter up with Allington, even if Rowley was authorized to do that, would not make the admissions of Rowley to Fralick binding upon the company. While a corporation may be bound by the acts of one who is held out as having authority to act for it in its business, it does not thereby subject itself to liability for admissions made by such person, disconnected with the business of the principal. See Mechem, Agency, §§ 714, 715. In a note, the author says:

“ ‘ The acts of an agent,’ said Mr. Justice Harlan in a recent case, ‘ within the scope of the authority delegated to him, are deemed the acts of the principal. Whatever he does in the lawful exercise of that authority is imputable to the principal, and may be proven without calling the agent as a witness. So, in consequence of the relation between him and the principal, his statement or declaration is, under some circumstances, regarded as of the nature of original evidence, “ being,” says Phillipps, “the ultimate fact to be proved, and not an admission of some other fact.” 1 Phil. Ev. 381. “But it must be remembered,” says Greenleaf, “that the admission of the agent cannot always be assimilated to the admission of the principal. The party’s own admission, whenever made, may be given in evidence against him; but the admission or declaration of his agent binds him only when it is made during the continuance of the agency, in regard to a transaction then depending, et dum fervet opus. It is because it is a verbal act, and part of the res gestee, that it is admissible at all, and therefore it is not necessary to call the agent himself to prove it; but, wherever what he did is admissible in evidence, there it is competent to prove what he said about the act tuMle hé toas doing it.” 1 Greenl. Ev. § 113.
“ ‘This court had occasion, in Packet Co. v. Clough, 20 Wall. 540, to consider this question. Referring to the rule as stated by Mr. Justice Story in his treatise on Agency, § 134, that “where the acts of the agent will bind the principal, there his representations, declarations, and admissions respecting the subject-matter will also bind him, if made at the same time, and constituting a part of the res gestae,” the court, speaking by Mr. Justice Strong, said:
“ • “A close attention to this rule, which is of universal acceptance, will solve almost every difficulty. But an act done by an agent cannot be varied, qualified, or explained, either by his declarations which amount to no more than a mere narrative of a past occurrence, or by an isolated conversation held, or an isolated act done, at a later period.. The reason is that the agent to do the act is not authorized to narrate what he had done, or how he had done it, and his declaration is no part of the res gestee.”’
Vicksburg, etc., R. R. v. O'Brien, 119 U. S. 99 (7 Sup. Ct. 172).
“ That the statements, representations, and admissions of the agent, made while acting within the scope of his authority, and in reference to the business which he is employed to transact, may be received in evidence against the principal, see ” the many cases cited.

The defendant sought to show that it made further efforts to make the machine work after Fralick, plaintiff’s agent, left, with a view to recouping the cost thereof. The court excluded the testimony upon the ground that inasmuch as the defendant claimed that he left, having “given the machine up as a bad job,” the defendant should not make unnecessary expense, and, if it did so, could not recoup for it. We are of the opinion that, upon .this record, the judgment should not be reversed for this reason.

We are constrained to reverse the judgment. Anew trial is ordered.

Moore, Carpenter, and Grant, JJ., concurred. Montgomery, J., did not sit.


source: Caselaw Access Project

author: Hooker, C. J.

license: Public Domain

text:
    COLBURN v. I. STEPHENSON CO.
    Public Lands — Homestead — Timber — Unlawful Cutting— Evidence.
    In an action for the purchase price of certain logs, evidence considered, and held to show conclusively that the logs were unlawfully cut from land held under an unperfected homestead entry, and to warrant the direction of a verdict for defendant.
    Error to Delta; Stone, J.
    Submitted January 16, 1903.
    (Docket No. 55.)
    Decided June 23, 1903.

      Assumpsit by John D. Colburn against the I. Stephenson Company for goods sold and delivered. From a judgment for plaintiff, defendant brings error.
    Reversed.

      F. D. Mead, for appellant.

      Cummishey & Yelland, for appellee.
   Hooker, C. J.

Colburn owned a shingle mill. He •claims that he loaned some money to Frank Steits for logging purposes, not knowing where he intended to do the logging, paying the money from time to time on orders, and directly to Steits. Steits was to sell the logs to the -defendant, but the money was to be paid to Colburn, under an arrangement made with defendant’s alleged purchasing agent, one Wells, when he purchased the logs. The defendant received the logs, and in April, 1901, a-claim was made by Dwyer, a special agent of the general land office, that the logs were fraudulently cut from government land. The logs were cut from a tract of land which was entered as a homestead in 1900 by one Malcolm Beaton. Steits advanced him about $375, which plaintiff claims to have been used in buying a relinquishment from Mr. Smith, a former entryman, and in building a house, and a road to the premises from the main road, half a mile distant, and in digging a well. It is claimed by the plaintiff that, at the time Steits furnished the money toBeaton, he purchased from him some or all of the standing timber on the lot, which he proceeded to cut, employing several men in the work, paying the expenses from the money borrowed of Colburn, the plaintiff.

Dwyer investigated the transaction, and made the claim that Beaton was not acting in good faith with the government in selling the timber to Steits, that it was not necessary that it be cut for the purpose of cultivating and improving the land, and was in fact a scheme to get the timber. He found that the ’ timber had been sold to defendant, and demanded the price from it, threatening: suit unless it should pay the agreed price to the government, which it did. This action was then brought against the defendant, the declaration being the common counts, with a bill of particulars in the usual form for a quantity of logs sold to defendant by the plaintiff at certain prices. There was no dispute upon the trial as to quantities or prices. Accompanying the plea of the general issue, defendant’s notice alleges the unlawful cutting of the timber, that it was a trespass upon government lands, that it violated the homestead law, that Beaton had abandoned the homestead, that the title to both land and logs was in the federal government at the time the action was commenced, that plaintiff never had a legal title to the logs sold to defendant, and that it had paid the true owner, viz., the government-, for the logs. It was conceded upon the trial that Beaton abandoned the homestead before the action was brought. The plaintiff claimed that the timber cut came from a strip of 15 acres which Beaton intended to clear, and that it was cut in a bona fide effort to clear and improve the land. Steits is said to have testified, however, that one-fourth of the pine and cedar came from other portions of the land. The court left the question of good faith to the jury' and charged that the title to such timber as was cut from other parts of the land than the 15-acre tract belonged to the government. A verdict was returned in favor of the plaintiff for $548.12, the one-fourth of the timber being deducted from the plaintiff’s claim, in accordance with the charge. A request that a verdict be directed in favor of the defendant was refused.

We are satisfied that there was testimony in the case from which the jury might have found that this timber was purchased by defendant from Colburn. It is significant that he should advance to an irresponsible man like Steits $1,100 as a loan without security; and, had the j ury found that Steits was merely his agent, and that they were both engaged in plundering government lands, we could not set aside the verdict for want of evidence. There is ample evidence, therefore, from which it may be inferred that Colburn, and not Steits, was the principal in the sale to the defendant. This eliminates the question of the statute of frauds.

The agency of Wells is supported by, the evidence, especially as the defendant has accepted the benefit of his purchase.

The principal question is whether the judge should have instructed the jury that this cutting of timber was fraudulent and wrongful. Thatthe jury would have been justified in finding that it was is obvious, and, in our opinion, the evidence not only preponderates in that direction, but we cannot say that there was any substantial evidence tending to prove that the timber recovered for was cut in a bona fide effort to cut off and improve a parcel of 15 acres for cultivation. In our opinion, the testimony establishes a clear case of timber stealing, in which Steits and Beaton participated, and there is strong ground to suspect that the plaintiff was not an innocent party in the transaction.

The judgment is reversed, and a new trial ordered.

The other*. Justices concurred.


author: Grant, J.

text:
    BEUNK v. VALLEY CITY DESK CO.
    1. Injuries to Servant — Boiler Explosion — Negliuenoe—Evidence.
    Where, in an action by an employé for injuries caused by the explosion of a boiler, alleged to have been due to overpres- ' sure, it appeared that the boiler had recently been repaired and tested by a competent workman, who had pronounced it safe to be operated under a pressure higher than that carried at the time of the accident, and that it had been successfully operated for several years under such higher pressure, and all of the expert witnesses testified that they should have thought it capable of withstanding it, a verdict should have been directed for defendant.
    2. Same — Instructions—Degree op Care.
    An instruction in such action that it was the duty of defendant to furnish a safe and suitable boiler, and then keep it in that condition, and that defendant was bound, in using it, to keep within the limits of safety, was erroneous as imposing too high a degree of care; reasonable care only being required.
    Error to superior court of Grand Rapids; Newnham, J.
    Submitted January 16, 1903.
    (Docket No. 53.)
    Decided June 23, 1903.
    Case by William Beunk, Jr., against tbe Valley City Desk Company, for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      William R. Me Garry (Knappen, Kleinhans & Knappen, of counsel), for appellant.

      Hatch & Wilson, for appellee.
   Grant, J.

For a statement of this case and the issues involved, see 128 Mich. 562 (87 N. W. 793).

The sole claim of liability is that the boiler exploded from overpressure. This depends solely upon the testimony of one expert witness that, in his opinion, the boiler exploded from that cause. The liability of defendant upon this record must be considered and determined in the presence of the following facts, established by the testimony of the expert witnesses of both sides:

1. Steam boilers may explode, even when all precautions possible have been taken to determine their soundness. One of the expert witnesses for the plaintiff, and the maker of the boiler, testified:

" I think it [the boiler here involved] would be likely to blow up at any time, and liable to blow up at 40 pounds, too. Boilers are liable to blow up from various causes. I consider a boiler as dangerous as a keg of powder with a lighted candle around it. That is the natural way of looking at it. That is true of all boilers.”

Another expert testified :

“There is always danger around a boiler. It is liable to go off at any pressure, and that is as true of new boilers as of old ones. ”

Still another testified:

Explosions in manufactories are of comparatively quite frequent occurrence, and always have been. Occasionally a new boiler explodes, as well as an old one. It is difficult to determine just what the exact cause of an explosion is, there being always a question of possibility one way or another from the nature of the explosion, because quite generally, when an explosion occurs, it takes with it all evidence of its cause.”

The expert testimony on the part of the defendant is to the like effect.

2. “ There is no positive duration to the life of a boiler. It all depends upon its use during the time it is being-operated, and they are all more or less under the control of the engineer, and the various conditions that exist. ”

3. Manufacturers are justified in using boilers when made and repaired by responsible boiler makers, upon the assumption that they are safe, and are not liable for explosions when used in a proper manner.

Plaintiff’s main expert witness testified:

“ If the boiler maker was responsible, I should think you would be warranted in using the boiler he had turned over to you after pronouncing it safe. As a matter of fact, that is the usual custom among boiler manufacturers. All manufacturers defer to the opinion of the boiler maker in accepting a boiler, whether new or repaired, as safe.”

His other expert witness testified as follows:

Q. If a boiler maker had repaired the boiler, and had subjected it to a hydrostatic test, and turned it over to the manufacturer after pronouncing it safe to work at a given steam pressure, would it be allowable and customary among manufacturers to accept the opinion of the boiler manufacturer as binding and conclusive?

“A. It would.”

One of the plaintiff’s expert witnesses testified as follows :

Q. If this boiler, for a period of il years, had been subjected to a steam pressure of 100 or 105 pounds, in constant use, what effect would that have upon the boiler ?
“A. In my opinion, it would practically condemn the boiler for usage.”

Another of his expert witnesses testified as follows:

“Q. What, in your judgment, would be the safe working pressure of this boiler in October, 1898, it having been operated 11 years at a pressure of 100 to 105 pounds, and a year or so after that at 90 pounds ?
“A. That information would not be sufficient to base any judgment on. In fact, a person, to determine or base any judgment on the actual safe working pressure of a boiler after that term of years of service, would of necessity make an examination of the boiler itself.”

The mere fact of the explosion is not, alone, evidence of overpressure. The' only evidence of the pressure at the time comes from two of plaintiff’s witnesses, — Mr. Raynourd, the engineer in charge, who testified that, only four or five seconds before the explosion, the steam-gauge showéd a pressure of 85 pounds, and Mr. Lindeman, who testified that he looked at the gauge from 15 to 20 minutes before the accident, and it was carrying somewhere between 80 and 90 pounds. • There is no reason to discredit the testimony of the engineer, and his is the only testimony showing the pressure immediately before the accident. This engine had been in use about 13 years prior to its use by the defendant, and had been used by it about one year. For four years prior to its use by defendant; the safety valve was set to blow off at 105 pounds, and, while in use by the defendant, at 90 pounds.

The testimony upon the safe working pressure of this boiler is as follows: Henry Balcom, who had run this engine for four years prior to its purchase by the defendant, an engineer of 30 years’ experience, testified: “I considered the boiler safe at 105 pounds steam pressure.” Byron Parks testified: “In my judgment, the safe working pressure of the boiler would be somewhere between 85 and 90 pounds when new.” Mr. Raynourd, the engineer who was running it at the time, testified: “I considered it capable of standing at least 95 pounds per square inch at a safe working pressure.” These three were witnesses for the plaintiff.

For the defense, Mr. Meyer, superintendent of the board of public works of the city of Grand Rapids, formerly chief engineer of the street-railway company, who had been for 12 years the chief engineer of manufacturing concerns, had run locomotives, had an actual experience of 20 years in running boilers, and was familiar with the tensile strength entering into the construction of boilers, testified that the safe working pressure was 103 pounds and a fraction. This witness also made the same examination that plaintiff’s expert witness Mr. Brobst made after the explosion, and testified that, in his judgment, “the boiler did not explode from overpressure.” Mr. Peterson, the engineer and boiler maker who repaired it, as hereinafter stated, testified that the boiler “was capable of withstanding a safe working steam pressure of between 90 and 100 pounds, and that it would be safe at that pressure for several years. ” He also testified that he had made a computation, according to the rules, and ascertained the safe working pressure to be 103 4-10 pounds.

The only other testimony which could be considered as having any bearing upon the pointjs that of plaintiff’s witness Brobst, who manufactured the boiler. He testified that the boiler was a 75 horse-power boiler, and when built he thought it was for 75 pounds of steam, which he considered a safe working pressure.

Mr. Peterson testified:

“ After repairing .the boiler, and before turning it over to Mr. Hodges, I pronounced it safe, and, according, to my experience, it would be safe to work every day at between 90 and 100 pounds, and I so reported to Mr. Hodges.”

This testimony of Mr. Peterson is undisputed. After repairing the boiler and applying the hammer test, Mr. Peterson applied the hydrostatic test of 125 pounds pressure. The experts agree that the hydrostatic test is one of the surest and best. •

As to the working of the boiler on the day of the accident, Mr. Raynourd testified:

“ When regulating the valve by the two levers and weights, I observed the steam-gauge register 75, 80, and 90 pounds, respectively, according to the adjustment of the weights at various distances from the fulcrum. It blew off at 90 pounds, according to the steam-gauge when so regulated, and remained in that condition all the time up to the accident. * * * The valve operated freely that day, and blew off at a pressure of 90 pounds the middle of the forenoon.”

It conclusively appears from tbe record now presented to us that the defendant had performed its full duty towards its employes in furnishing a safe boiler, a competent engineer, inspectors, repairers, and testers of the boiler; that after being informed by the repairer, a man thoroughly competent and experienced, that it was safe to work under a pressure of 90 to 100 pounds, the safety valve was set to blow off at the lowest limit of safety, rather than the highest; that the boiler actually exploded at or about the pressure of 85 pounds; that, for several years prior to its use by defendant, the safety valve was placed at a pressure of 105 pounds, and that immediately upon its showing signs'of leaking, a few months before the accident, the defendant caused it to be properly repaired and tested, and that it had shown no signs of weakness prior to the explosion. The sole basis for any liability is that the defendant used this engine at too high a pressure, and that it should have been known that its use under such a pressure was dangerous.

Unless it was negligent to run this engine under a pressure of 85 pounds, the defendant is not liable. Was not the defendant justified in relying upon the statements of the engineer who repaired and tested the boiler, upon its previous record, and upon the opinion of the competent engineer whom it had placed in charge ? If it was not so justified, then it becomes the absolute insurer of the safety of the boiler. This court, speaking through my Brother Montgomery, in Woods v. Railway Co., 108 Mich. 396 (66 N. W. 328), defined what a reasonable inspection was, in a case where a locomotive boiler had exploded. The instruction by the trial court, which was held to state the correct rule, is as follows:

“If you believe from the evidence given you in the case that these tests were made — actually made — by the defendant; that is, that this engine was overhauled and inspected, and subjected to the hydrostatic test, by competent men, within two years of the time of the explosion, and also thoroughly and carefully tested by the hammer test, by competent testers, within 30 days from the time of the explosion, — I say, if you find these tests were made, then defendant has done all that it can be asked to do, and would not be guilty of negligence, and ought not to be held in this action.”

Applying that rule to this case, the defendant had done all the law required. To hold it liable would be to say that it was negligent in running the engine at a pressure fixed by competent engineers as safe, and found by an experience of several years to be safe. Where a railway company purchased a locomotive from a firm of locomotive builders of recognized high standing and reliability, and had made a trial trip as- a test, and the locomotive had operated safely in active work for a distance of over 7,000 miles, during a period of five or six months, it was held that the company had complied with the full measure of duty. Clyde v. Railroad Co., 65 Fed. 482. In a case where the facts were much stronger for the plaintiff than in this case, the supreme court of Illinois held that there was no liability. Indianapolis, etc., R. Co. v. Toy, 91 Ill. 474 (33 Am. Rep. 57). See Smoot v. Railway Co., 67 Ala. 13. Where a boiler exploded and recovery was sought by an employe upon the ground that the boiler was defective and unfit for use, and that such defect and unfitness were known, or by reasonable care might have been known, to the servants of the company whose duty it was to keep such machinery in repair, it was held incumbent upon the plaintiff to show that the boiler exploded by reason of the particular defects insisted on by the plaintiff. Texas, etc., R. Co. v. Barrett, 166 U. S. 617 (17 Sup. Ct. 707). See, also, Gohen v. Railway Co., Fed. Cas. No. 5,507. Where an employé received an injury caused by an explosion of the crown sheet of a boiler, and a week before the accident a careful examination was made and no weakness discovered, and the boiler was afterwards subjected to a test of 145 pounds pressure, —its proximate capacity,— and resisted that pressure, and subsequently exploded under a pressure of only 110 pounds, it was held that there was not sufficient evidence of defendant’s negligence to be submitted to the jury. Racine v. Railroad Co., 70 Hun, 453 (24 N. Y. Supp. 388). See, also, Ballard v. Manufacturing Co., 51 Hun, 188 (4 N. Y. Supp. 940); Reiss v. Steam Co., 128 N. Y. 103 (28 N. E. 24). Where a party, in the face of warning and of an apparent defect, chose to rely upon the assurance of the manufacturer, he is not excused from liability. Spencer v. Campbell, 9 Watts & S. 32.

The engineers employed to control and examine this boiler were daily about the engine. The officers of the defendant, who were its alter egos, were also frequently around it. That they considered it safe is apparent, else they would not have risked their own lives in its vicinity. A due regard for their own lives and property would naturally lead them to the exercise of due care. No one had even intimated to defendant that there was any danger to he apprehended from a pressure of 90 pounds or less.

This disposal of the case renders it unnecessary to discuss the question of the alleged negligence in placing a second lever upon the safety valve, because the boiler exploded under a pressure lower than that at which it was set to blow off.

In view of a new trial, it is proper to say that we think the court erred in charging the jury as follows :

“And if an employe is injured by reason of defective or unsuitable machinery, the master will be liable in damages, unless he can clearly show due care and caution in the providing and keeping of the same. * * * It was the duty of the defendant, first, to furnish a safe and suitable boiler, and then to keep it in that condition. * * * In the use of this boiler, the defendant was bound to keep within the limits of safety.”

These portions of the charge imposed a greater degree of care than the law requires. Reasonable care is all that the law requires. This reasonableness is to be measured, of course, by the dangers incident to the business and the machinery in use.

Judgment reversed, and new trial ordered.

The other Justices concurred.


text:
    WILLIAMS v. MICHIGAN CENTRAL RAILROAD CO.
    1. Landlord and Tenant — Re-entry—Rights and Liabilities oe Subtenants.
    A provision in a lease that, on re-entry for nonpayment of rent, the subleases shall belong to the lessor, does not create such a relation between the landlord and a subtenant as to entitle the latter to hold the premises during the term, or make him liable to the landlord as tenant.
    2. Same — Surrender by Tenant.
    Where a landlord accepts from his tenant a surrender of the premises, and an assignment of the tenant’s interest in subleases, but there is no reservation from the surrender, and .no confirmation of the subleases, such assignment does not entitle the landlord to hold the subtenants.
    3. Same — Termination oe Tenancy — Notice to Quit.
    The relation of a subtenant to the original lessor cannot be affected by an agreement made between the lessor and the lessee after the termination of the latter’s rights by notice to quit, though before a relinquishment of possession.
    Error to Wayne; Hosmer, J.
    Submitted February 3, 1903.
    (Docket No. 62.)
    Decided June 23, 1903.

      Assumpsit by John R. Williams and others against the Michigan Central .Railroad Company for rent. From a judgment for plaintiffs on verdict directed by the court, defendant brings error.
    Reversed.

      Henry Russel and Wells, Angelí, Boynton & McMillan (Ashley Pond, of counsel), for appellant.

      William J. Gray and Robert T. Gray, for appellees.
   Hooker, C. J.

Plaintiffs, being owners of a business block in Detroit comprising 10 or 12 stores upon the first floor, and a corresponding area devoted to offices op other floors, leased said block, on April 30, 1894, to Friend Palmer, for a period of 40 years, at an annual rental of $16,000. On April 1, 1897, Friend Palmer leased one of the stores to the Michigan Central Eailroad Company, the defendant, for the period of one year from May 1st, at an annual rental of $3,000, with an option to the defendant for the renewal of the lease for the further period of one year, and on April 1, 1898, it wrote Mr. Palmer a letter electing to renew the lease for a year. On December 27, 1898, Friend Palmer was indebted to the plaintiffs on his lease in the sum of $9,500, and upon that day they filed a complaint with the circuit court commissioner to recover the possession of the block. A summons was served upon Palmer on December 28th. On December 31st the case was adjourned, and on January 3, 1899, a judgment of restitution was rendered by the commissioner.

The defendant vacated the store in the month of December, 1898, and on January 11, 1899, it wrote to'plaintiffs’ solicitors as follows, viz.:

Gentlemen: Deferring to the room in the Merrill Block, so called, in this city, which this company lately occupied for a ticket office under contract with Friend Palmer: I am informed that Friend Palmer’s right of possession to said office was terminated by the judgment which your clients, the said John E. Williams et al., recovered against him on the 3d inst., before William A. Hurst, circuit court commissioner. That being the case, and as the rights of this company in said room as subtenant of said Palmer were necessarily terminated by such judgment, this is to advise you that this company has already vacated said premises, and that no proceedings on behalf of your clients to recover possession of said premises will be necessary so far as this company is concerned.”

On the same day it wrote to Thomas W. Palmer, who claimed the rent due from it to Friend Palmer, as follows, viz.:

“Hon. Thomas W. Palmer,
“Detroit.
Dear Sir: Deferring to the bill preserved by you to this company for $250 rent of office in the Merrill Block, this city, for January, 1899, as per terms of lease from Friend Palmer to this company, dated April 1,1897, I am informed that Friend Palmer’s right of possession to said ■office, and all other right, title, and interest of said Friend Palmer therein, ceased on the 3d inst.; the same having been terminated and ended by a judgment of William A. Hurst, one of the circuit court commissioners for the county of Wayne, of that date, in favor of John R. Williams et al., and against the said Friend Palmer, and that such judgment also terminated all rights which this company, as subtenant of said Friend Palmer, had at that time in said office. That being the case, I am advised that all obligation on the part of this company to pay rent for said office after January 3, 1899, has ceased.”

It sent a letter of like import to Friend Palmer on the same day.

The keys of the store were tendered to plaintiffs’ attorneys on January 12, 1899, by defendant. The plaintiffs were entitled to have a writ of restitution issued against Friend Palmer on January 9,1899. Whether the writ was issued or not is uncertain. At all events it was not seiwed; Friend Palmer agreeing to surrender possession, as shown by the following letter, viz.:

“Friend Palmer and Hon. Thomas W. Palmer,
“City.
“Gentlemen: My clients being now entitled to a writ of restitution for the Merrill Block, so called, leased to Friend Palmer under date of April 30, 1894, it is arranged, in order to avoid actual execution of a writ of restitution, that possession shall be voluntarily surrendered to them, and accordingly you have given us an order for the collection of the rents from January 1st out. It is understood that this is without prejudice to either of us as to the rents prior to that date, and without prejudice to any claim that we may have against you or either of you in the premises. Yours truly,
“William J. Gray.”

On January 13, 1899, Friend Palmer executed the following assignment, viz.:

“I hereby assign and transfer to John R, Williams, G. Mott Williams, and Josepha W. Douglas all my right, title, and interest in and to a certain lease made by me to the Michigan Central Railroad Company for store room, northeast corner of Jefferson and Woodward avenues, Detroit, Michigan, and in and to all moneys now due or hereafter to become due. Lease attached hereto.
[Signed] “Friend Palmer.”

No consideration was paid, nor was any credit given to Friend Palmer on the plaintiffs’ claim, for this assignment.

Plaintiffs’ counsel declined to receive the keys when tendered by the defendant; but later, and on February 1, 1899, they consented to receive them, without prejudice to the rights of either party, and with the understanding that counsel, as the agents of the owners, should take charge of and rent the property, if possible, and whatever should be received during the period of defendant’s lease should be credited to it upon its rent, if it should be after-wards held that any rent was collectible under that lease. On March 15th, plaintiffs were offered $60 a month for ■the eastern portion of the store, and $100 for the remainder. They began making repairs about March 15th, but did not get the store ready for occupancy until May 1st.

This action was brought against the defendant to recover rent due upon the lease from Palmer. The declaration counted specially upon the assigned lease, and the common ■counts, including a count for use and occupation, were ■added. Counsel requested the court to direct a verdict for defendant, and, in the event of a refusal of such request, that the plaintiffs should not recover for rent later than January 12, 1899. These requests were refused, and ■a verdict was directed for the plaintiffs for the full amount ■claimed, less $160, allowed for rent which would have been earned after March 30th; the counsel for plaintiffs conceding that two weeks after March 15th would have been a reasonable time for the completion, of the repairs, and refusing to give credit from March 15th.

By the terms of the original lease, it was agreed that, upon re-entry, the subleases should belong to the lessors. There is also testimony that, before restitution, Mr. Palmer promised to surrender possession without process, and possession was yielded and taken two days after the-writ of restitution could have been issued. This promise was made by a Mr. Scott, said to be an agent of Mr. Palmer at the building; but the character of his agency was-not shown, nor does it appear that the conversation occurred before the time limited by the notice to quit had expired. If there is any inference to be drawn from the-testimony, it is that the talk occurred after that time; for the witness stated that it was known that plaintiffs intended to commence proceedings to obtain possession.

There is no dispute as to the character of the defendant’s holding. It was clearly that of a subtenant, and there was no privity between it and the plaintiffs, unless such privity is to be predicated (1) on the provisions of the lease to Friend Palmer; (2) on the assignment, and the previous-arrangement with Scott. Ordinarily a subtenant is not liable to the original lessor, there being no privity. 7 Enc. Laws Eng. 253; Brewer v. Hill, Anstr. 413; Pleasant v. Benson, 14 East, 237; Holford v. Hatch, 1 Doug. (Eng.) 183; Earl of Derby v. Taylor, 1 East, 502; 1 Platt, Leases, p. 103; 1 Wood, Land. & T. §§ 81, 89-92, 94, 322; 1 Taylor, Land. & T. §§ 109, 111; 18 Am. &r Eng. Enc. Law (2d Ed.), p. 682, and cases cited; Fulton v. Stuart, 2 Ohio, 215 (15 Am. Dec. 542); Davis v. Morris, 36 N. Y. 569; Austin v. Thomson, 45 N. H. 113; McFarlan v. Watson, 3 N. Y. 286; Robinson v. Lehman, 72 Ala. 401; Jackson v. Davis, 5 Cow. 123 (15 Am. Dec. 451); Marshall v. Lippman, 16 Hun, 110; Carver v. Palmer, 33 Mich. 342; Doty v. Gillett, 43 Mich. 203 (5 N. W. 89); Fisher v. Pforzheimer, 93 Mich. 650 (53 N. W. 828); Shannon v. Grindstaff, 11 Wash. 536 (40 Pac. 123). Neither the agreement in the lease that the landlord should be entitled to the leases outstanding in case he should take possession by reason of nonpayment of rent by Palmer, nor the promise to Scott not to disturb the subtenants, created such a relation between plaintiffs and defendant as to entitle the latter to hold the premises during its term, or to make it liable to the plain tiffs as their tenant. That such a relation might have been created by the mutual assent of these parties is not denied, but there is nothing to show it. 2 Taylor, Land. & T. § 517; Clark, Cont. § 75.

Counsel for the plaintiffs endeavor to support their claim by the contention that defendant’s estate was not terminated, and that the plaintiffs are the assignees of Palmer.’s right to rent; and authorities are cited holding that a subtenant cannot be cut off by the surrender of his immediate lessor. The case of Beal v. Car-Spring Co., 125 Mass. 159 (28 Am. Rep. 216), is cited as in point. In that case the landlord accepted a surrender subject to the rights of the subtenants in their subleases, of which he took an assignment, and which he confirmed and promised to .respect. It was held that the privity of contract was transferred, and that the assignee might sue for the rent accrued, although the subtenant had ceased to occupy the premises. If we were to admit the correctness of this holding, it cannot apply here; for there was no reservation from the alleged surrender, nor was there any confirmation of the subtenant’s lease. The original lease did not obligate the lessors to recognize the validity of subleases after forfeiture, although it provided that they ¡should inure to the lessors’ benefit. Scott was not shown to have had authority to bind Palmer in the arrangement with plaintiffs, whatever it may have been. Neither is it shown that Palmer had any interest in the premises at that time, but there is an inference to the contrary. The case of Smith v. Building & Loan Ass’n, 115 Mich. 347 (73 N. W. 395, 39 L. R. A. 410, 69 Am. St. Rep. 575), holds that, after the expiration of the time limited by the notice for the payment of rent, the lessee is a trespasser. If, as seems probable, this alleged agreement with Scott was made after that time expired, Palmer had no leasehold to surrender, but only a bare possession, and that wrongful. In any event, he did not surrender any estate, but waited until the forfeiture was judicially declared, and judgment of restitution made, when, to avoid eviction by writ of restitution, he gave up the possession.

We are of the opinion that a verdict should have been directed in favor of the defendant.

The judgment is reversed, and a new trial directed.

The other Justices concurred.


author: Montgomery, J.

text:
    SPARLING v. SMELTZER.
    1. Replevin — Partnership—Question for Jury.
    In replevin for property claimed by plaintiff as surviving partner, the question of the existence of a partnership was properly submitted to the jury, where there was evidence from which they might infer a purpose to make the property common property, though it was quite as consistent with the theory that no such purpose existed.
    3. Same — Gift—Sufeicienoy of Evidence.
    In replevin for property claimed by plaintiff as a gift from defendant’s decedent, evidence of decedent’s statements, made-during an illness, that he desired the property, then in the-joint possession of plaintiff-and himself, to be placed in the hands of plaintiff for a particular purpose, unaccompanied by evidence of plaintiff’s acceptance of the property, and viewed, f in the light of the fact that for two years thereafter, and up-to the time of his death, deceased exercised the same controL over the property as theretofore, was insufficient to warrant a finding of a valid gift inter vivos.

    3. Same.
    But evidence of his subsequent statements that he had' “given” the property to plaintiff, unless found to have-related to the earlier transaction, was sufficient to justify such finding.
    4. Same — Witnesses — Matters Within Knowledge of Decedent.
    In replevin for live stock claimed by plaintiff as surviving partner of defendant’s decedent, plaintiff’s testimony that,. when stock was sold, the proceeds were divided between him and decedent, and that a certain animal was a part of the common stock, was inadmissible as relating to facts equally, within the knowledge of deceased.
    Error to Benzie; Chittenden, J.
    Submitted February 4, 1903.
    (Docket No. 117.)
    Decided June 23, 1903.
    Replevin by Joseph Sparling against Abel M. Smeltzer and others. From a judgment for plaintiff, defendants bring error.
    Reversed.

      D. 6r. F. Warner and Pratt & Davis, for appellants.

      Thomas Smurthivaite (George Whitbeck, of counsel), for appellee.
   Montgomery, J.

This is an action of replevin for several head of live stock. The plea was the general issue, accompanied by notice that the property in question was in his lifetime the property of one William Smeltzer, now deceased, and that the defendants now hold the same as executors of the estate of said William Smeltzer, deceased. The plaintiff was a son-in-law of William Smeltzer, and in 1896 was living on a farm in Pleasanton, Manistee county, Mr. Smeltzer residing at Joyfield, in Benzie county, some two miles distant. At this time Mr. Smeltzer was upwards of 80 years of age, and plaintiff’s wife and daughter were alternately doing the household work for Mr. Smeltzer. In the fall of 1896, under some arrangement, the details of which aré left in more or less obscurity by the testimony because of plaintiff’s incompetency as a witness, plaintiff moved with his family onto the farm of Mr. Smeltzer, taking with him an amount of stock similar to that which Mr. Smeltzer owned, and up to the time of Mr. Smeltzer’s death the two — that is, plaintiff and Smeltzer — conducted the farm, the plaintiff’s wife looking after the housework, with the assistance of her daughter.

On the trial two theories were put forth by the plaintiff: The first is that the arrangement between himself and Mr Smeltzer amounted to a partnership, and that, as the surviving partner, he had the right, independent of his claim under the alleged gift hereinafter referred to, to possess and control the personal property on the farm for the purpose of closing up the business of the copartnership. The other theory was that there was a gift of all the personal property on the farm, belonging to Mr. Smeltzer, made to plaintiff, in trust for certain purposes. The plaintiff prevailed in the court below, and the defendants bring error.

It is the contention of the defendants that there was no testimony in the case which justified submitting either of plaintiff’s theories to the jury; that is to say, it is urged that there was no evidence of partnership and no evidence of a completed gift. We have examined the record with great care, and we are not prepared to say that the record is wholly devoid of evidence tending to show a partnership. It is not enough that the testimony is to our minds quite as consistent with the theory that the parties intended no community of property. There is in the case evidence from which the jury might have inferred a purpose to make the property common property, and to treat the proceeds as the fruit of a common investment, the result of the original investment and the efforts of the two parties to the transaction. It is very true that there was much testimony in conflict with this theory. Testimony that the property was given in separately, for purposes of assessment, very strongly tended to support the defendants’ theory; but we are dealing with the question as to whether there was any testimony tending to sustain the plaintiff’s theory, and upon this question, without going into the record at length, we think there was such testimony.

The question whether there was evidence of a completed gift is one of perhaps more doubt. There was testimony that in 1898 a Mr. Joy was called in to make some papers for Mr. Smeltzer which disposed of his real estate. Mr. Smeltzer was ill at this time. Mr. Joy testified that, when he got through with the papers relating to the real estate, he asked Mr. Smeltzer if he wanted any papers drawn making a disposition of the personal property, but Mr. Smeltzer replied that he “had perfect confidence in Mr. Sparling, and he would put- it into his hands to do with it as he would instruct him to do with it.

Q. Did you hear what the instructions were that he was to do ?
“A. Well, I heard some instructions. There had been some talk of building a church near there on Mrs. Spar-ling’s land, and, referring to the personal property, Mr. Smeltzer said that Mr. Sparling should dispose of it, and put it in that church, if a church was built; if not, it was to stay in Mr. Sparling’s hands; but I do not remember that Mr. Sparling said anything. I think I have told all that I heard of the conversation in regard to the instructions given to Mr. Sparling. I had no conversation with Mr. Smeltzer relating to the matter after that.”

Another witness, a Mr. Lathwell, testified that Mr. Smeltzer said on this occasion that he wished the stock to be “used in the interest of the church — in building the church — if one was built in that neighborhood. If one Avas not built in that neighborhood, he wished the stock to be used in the interest of the church nearest by, and to be left in Mr. Sparling’s hands for that purpose, and to be used according to his best judgment, disposing of it for that purpose.”

Plaintiff’s daughter testified:

“I heard grandfather say something about personal property, that he gave it into pa’s charge, and if there was a church built at Saile he was to use some of it to help the church, and, if not, he was to have the rest. It was to be left in his hands.”

Another witness testified to a later conversation with Mr. Smeltzer in which he stated to her that he had disposed of the personal property, — that he had given it all to Mr. Sparling. Were it not for this last testimony, we should hesitate to say that there was any evidence to show a gift in prcesenti. There was no manual delivery of property, and while, under the circumstances of this case, this may not have been possible, and therefore not necessary, there was, according to the testimony of Mr. Joy, no acceptance of the property by word. A fair construction of this language would import an expression of a purpose which might possibly amount to a gift causa mortis; but, after this conversation occurred, Mr. Smeltzer recovered sufficiently to be about and again attend to his duties on the farm, and for some two years the business appears to have been conducted precisely as before, and, when anything was sold upon the farm, the money was in whole on in part paid into the hands of Mr. Smeltzer. This is seemingly wholly inconsistent with the theory that the title to-this property had passed to plaintiff under a completed gift in May, 1898. Under the authority of Davis v. Zimmerman, 40 Mich. 24, it may be said that there was some evidence in the testimony of Mrs. Albertson that there had been a gift of this property. But as this-was controverted, and we are not to pass upon a question of fact, this question was properly one for the jury, although we think it would have been proper to instruct the jury that, if all that the alleged admission testified to by Mrs. Albertson referred to was the transaction of 1898, this should not be deemed to have constituted a completed gift.

It will be gathered from what has already been stated that the case is a very close one on the facts, and that the rules in relation to the admission of testimony should have been very strictly adhered to. -A theory was put forth, and evidently accepted by the jury, wholly at variance with many of the acts of the parties, and, before such verdict should be sustained, it should be clear that the jury were not controlled by any incompetent testimony. The plaintiff himself was a witness, and testified that, “when we had any stock fit to sell, I sold it. Q. What was done with the proceeds ? A. Divided it up between us.” Defendants’ counsel moved to strike this statement out as relating to a fact equally within the knowledge of the deceased, and the motion was overruled and exception taken. Again, when recalled on re-direct examination, he was asked: “Q. This heifer was part of this common stock?” This was objected to for the same reason, and the objection was overruled. We think each of these rulings was error. It is very clear that, upon the theory of the plaintiff, the deceased must have known what was the common stock or common property on the farm. He certainly must have known whether or not the proceeds of the sale of stock were divided between himself and plaintiff. The plaintiff, therefore, was permitted to testify to facts which, if true, were equally within the knowledge of the deceased, and this testimony went to the very gist of the case. The testimony may have been, and we are constrained to think it was, controlling of the issue.

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

The other Justices concurred.

       I. e., Mrs. Albertson.


text:
    EWING v. McINTYRE.

    1. Probate Courts — Jurisdiction—Lost Wills.
    Under 1 Comp. Laws, §§ 650, 651, conferring general authority on probate courts to probate wills and settle estates, a probate court may admit to probate a lost or destroyed will.
    2. Same — Appeal—Amendment oe Petition.
    A petition for the probate of a lost will may be amended in the circuit court on appeal by setting up the contents of the alleged will, the case having been fully tried in the court below.
    Error to Wayne; Donovan, J.
    Submitted February 4, 1903.
    (Docket No. 70.)
    Decided June 23, 1903.

      Petition by Augusta Ewing for the probate of a lost or destroyed will, alleged to have been executed by Archibald P. McIntyre, deceased. The petition was denied in the probate court, and proponent appealed to the circuit. From a judgment for contestants, Delos McIntyre and others, on verdict directed by the court, proponent brings error.
    Reversed.

      Maybury & Lucking (Dohany & Dohany and Bichará I. Lawson, of counsel), for appellant.

      Bowen, Douglas, Whiting & Murfin and 8. S. Babcock, for appellees.

       Rehearing denied October 5, 1903.

   Hooker, C. J.

We are asked to decide in this cause whether there is jurisdiction in our probate courts to probate a lost, suppressed, or destroyed will, when the citation of such a court is ineffective to compel its production before the court.

One Augusta Ewing made the petition for probate, as a beneficiary. It states the decease of one Archibald P. McIntyre, in May, 1900, leaving a will, and an estate of •about $200,000 in real and personal property. The names of the heirs at law are given, all being collateral. It also names some heirs of his wife, who are said to be beneficiaries under the alleged will. Petitioner is a niece, and her petition states, upon information and belief, that testator duly executed the will after September 1, and before October 31, 1896; that his brothers were given nothing by the will; that the will was placed in- his private box, with his papers, and kept in his desk up to the time of his death; that while he lay dead, and on May 14, 1900, — as she is informed and believes, — two of the persons named examined these papers, and removed them all, including the will, and, immediately after the funeral, hastily and unexpectedly departed for New York, with the papers and other property, and have not returned the will, but instead, on petition of one Helen Lamphere, have been and are proceeding with the administration of the estate in their own interest, as heirs at law of- the deceased, ignoring the rights of the beneficiaries under the will, who are entitled to it. The petition prayed that the will be admitted to probate, and for citations and processes necessary for its discovery and production, and special administration meantime. The printed record contains nothing to show what was done in probate court, but counsel for the appellees state in their brief that citations were issued, and no will was discovered, and the petition was denied. An appeal was taken, and came on to be heard before the circuit court, and, after a statement of proponent’s case, the judge directed a verdict for the respondents (or contestants), whoever they may be. The printed record does not seem to show who made the defense, or who appeared and answered, or the nature of the answers, if any were filed. The proponent has appealed.

Objection was made to the introduction of proof under the petition, for the reasons:

1. Because it shows the alleged will to have been stolen, and that no effort has been made to bring in the persons who are alleged to have taken it.
3. That the contents and provisions of the alleged will are not stated.

Counsel for the proponent admitted the insufficiency of the petition, and asked to amend. It was stated that the point was raised in probate court, where the merits of the case were apparently litigated. The court .declined to permit an amendment, and appears to have held not only that the petition was inadequate, but that under the statement of counsel in opening; which was quite full, a valid will had not been shown, and therefore directed a verdict for the respondents. Counsel supplemented the statement before the ruling, by offering to prove the “ due execution of a will by the deceased in October, 1896, or facts sufficient to go to the jury;” that it was abstracted and removed, if not destroyed, by interested parties; that it existed when testator died; and to prove fully its contents as a complete will, which contents they offered to make a part of the petition by amendment.

If the probate court had jurisdiction to permit the establishment and probate of a lost or destroyed will, we think the court had power to permit the amendment under the circumstances, the case having been fully tried in probate court, and that he would have done so but for his belief that the verdict should be directed for other reasons. We understand from the record and from the briefs that the real point upon which the action was taken was that it was not within the jurisdiction of a probate court to ádmit to probate a lost or destroyed will.

The jurisdiction to admit wills to probate is now quite generally conferred upon probate courts, and in other States this extends to lost and destroyed wills, in some cases depending upon statutes expressly conferring such jurisdiction, in others, under general statutes authorizing the probate of wills and administration of estates. We are of the opinion that the weight of authority sustains the jurisdiction under such general statutes, notwithstanding the case of Buchanan v. Matlock, 8 Humph. 390 (47 Am. Dec. 622), which holds the contrary. Morningstar v. Selby, 15 Ohio, 345 (45 Am. Dec. 579); Gaines v. Chew, 2 How. 619; Gaines v. Hennen, 24 How. 553; Waters v. Stickney, 12 Allen, 1 (90 Am. Dec. 122); Clark v. Wright, 3 Pick. 67; Davis v. Sigourney, 8 Metc. (Mass.) 487; Happy’s Will, 4 Bibb, 553; Graham v. O’Fallon, 3 Mo. 507; Apperson v. Cottrell, 3 Port. (Ala.) 51 (29 Am. Dec. 239); Thornt. Lost Wills, §§ 5, 6, where the above cases are reviewed. Extended discussions of the' subject will be found in several of these cases, especially Adams v. Adams, 22 Vt. 50, and Dower v. Seeds, 28 W. Va. 113, 139, 143 (57 Am. Rep. 646).

In Michigan the statute confers in general language upon probate courts authority to. probate wills and settle estates. 1 Comp. Laws, §§ 650, 651. In Lloyd v. Wayne Circuit Judge, 56 Mich. 243 (23 N. W. 31, 56 Am. Rep. 378), Mr. Justice Campbell says:

“There has never been any proceeding known to our laws for the mere purpose of establishing the will even of a deceased person. The probate of wills under our statutes is merely a part of the proceedings to administer the estates of deceased persons in the court that has jurisdiction and charge of such estates. This rule is so general that in some States devises are not probated at all, and in some the probate is not conclusive, because controversies concerning land are usually tried in other courts. We have enlarged the jurisdiction in probate so as to reach lands for some purposes, and have made all wills subject to probate. But there is no case where an original probate can be granted here, except in the court having jurisdiction over the estate; it cannot be done separately. ”

See Gary, Prob. Law, § 189, and note.

The question has not been squarely raised in many, if any, Michigan cases, though it was involved in the recent case of Lincoln v. Felt, 132 Mich. 49 (92 N. W. 780). There a destroyed deed was admitted to probate as a will on appeal from probate court, and the order was affirmed. For other cases bearing upon the question more or less directly, see Lawyer v. Smith, 8 Mich. 423 (77 Am. Dec. 460); Harring v. Allen, 25 Mich. 505; In re Hope, 48 Mich. 518 (12 N. W. 682); In re Lambie’s Estate, 97 Mich. 49 (56 N. W. 223); Cheever v. North, 106 Mich. 390 (64 N. W. 455, 37 L. R. A. 561, 58 Am. St. Rep. 499).

Assuming that an order followed the verdict, the same will be reversed, and a new trial ordered.

Carpenter, Grant, and Montgomery, JJ., concurred. Moore, J., did not sit.


author: Moore, J.

text:
    McCULLOUGH v. GREENFIELD.
    1. False Imprisonment — Illegal Arrest — Misdemeanor—Warrant.
    Arrest for a misdemeanor at one place, by direction of an officer who is at another place with the warrant, is illegal.
    2. Same — -Waiver—Pleading Guilty.
    Liability for an illegal arrest is not'waived by the person, when arraigned, making no objection to the manner of the arrest, and pleading guilty.
    3. Same — Damages.
    Where an arrest was made within the jurisdiction of the court issuing the process therefor, and was illegal only because the officer having the warrant was not present, but it was made by his direction, damages could be recovered only to the time he took the prisoner into his custody.
    4. Same— Handcuffing Prisoner.
    Where an officer has two prisoners, strangers to -him, and it is long after dark, and he has a considerable distance to go with them, his liability for an illegal arrest is not increased by his handcuffing them.
    Error to Kalamazoo; Adams, J.
    Submitted February 18, 1903.
    (Docket No. 87.)
    Decided June 23, 1903.
    Case by Robert McCullough against Burr Greenfield for false imprisonment. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Harry C. Howard, for appellant.
    Thomas, Cummins & Nichols, for appellee.
   Moore, J.

This is a case for false imprisonment. In the spring of 1901, while engaged in distributing advertising matter in the city of Kalamazoo, the plaintiff was stopped by one of-the city policemen, and referred to the city clerk’s office for a license to distribute advertising matter, which he applied for and obtained. The defendant claims that, at the time the plaintiff was applying for the license, the defendant explained to him there was an ordinance of the city of Kalamazoo against nailing advertising matter on telephone poles, and the plaintiff promised, if he was permitted to have the license for distributing advertising matter, he would not tack placards upon the poles. The plaintiff denies having this conversation.

The plaintiff, after obtaining his license, distributed his advertising matter, and, on the last day of his sojourn in Kalamazoo, nailed placards on a very large number of telephone, telegraph, and municipal lighting poles throughout the city, and immediately left for Battle Creek. The defendant reported the matter to the city attorney, and under his advice complaint was made, a warrant issued, and placed in the hands of • the defendant for service. After the defendant obtained the warrant, he telephoned to the police clerk at Battle Creek that he had a warrant for the arrest of the plaintiff and one McBride, and, if they were in the city of Battle Creek, to detain them until he could arrive.

The plaintiff and McBride were arrested by Officer Hamilton, of Battle Creek,, and detained at the police station for about three hours, when Mr. Greenfield, with his warrant, arrived and took the men into custody. About 8 o’clock, it being after dark, the defendant put upon the plaintiff and McBride handcuffs, boarded the interurban car for Kalamazoo, and, after changing cars twice en route, reached their destination late in the evening, about 10 or 11 o’clock. The plaintiff and his companion were detained at the jail at Kalamazoo until morning, when they were taken before Recorder Browne, where they each pleaded guilty, paid their fine, and left the city. Some months later the plaintiff instituted this suit. It was conceded the plaintiff was guilty of a violation of a valid ordinance, and no question is raised about the regularity of the warrant.

The trial judge charged the jury, among other things, as follows:

‘ ‘ I charge you that, under the undisputed evidence in the case, the arrest of the plaintiff at Battle Creek on April 25, 1901, by Police Officer Hamilton of that city, and his detention in the jail at that place for the space of three hours or thereabouts, was illegal and without authority of law, and constituted a false imprisonment of the plaintiff. If this unlawful imprisonment of plaintiff at Battle Creek was at the request of and under the instructions of the defendant, Greenfield, it became and was in law'his act, just as much as though he had done it himself, and he, defendant, Greenfield, is responsible to plaintiff, McCullough, for all such damages as you may find he suffered during the time of such illegal detention.”
‘ ‘ The arrest and detention of the plaintiff at Battle Creek having been illegal, as I have charged you, and it being conceded by the defendant that the plaintiff was not restored to his liberty before being taken into custody by Mr. Greenfield, I instruct you that the illegal character of the detention continued until the arraignment of the plaintiff in the recorder’s court of this city on the forenoon of April 26, 1901.”
“An officer, in making an arrest, should avoid unnecessary harshness or violence. He has no right to use handcuffs, unless, in his honest judgment, under all the circumstances of the case, he is apprehensive of the escape of his prisoner if he does not use them. In this case, under the proofs offered by the defendant himself, I charge you that no justification is shown for handcuffing the young men together, and the act of doing so constituted an unjustifiable assault upon the plaintiff, for which defendant is liable to him in damages.” ■
“Now, I feel warranted in instructing you, as a matter of law, in this_ case, that the injury complained of is not technical, but real. The illegal deprivation of liberty in this case, and the illegal imposition of handcuffs, were real personal injuries, and require that you award plaintiff something more than nominal damages. How much more, it is for you to say, in the exercise of your best judgment. I can only say that it should be such a sum as will fairly-and fully compensate him for the injuries received. Beyond such a sum you should not go, nor should you stop short of that.”

The jury returned a verdict for $50. The case is brought here by writ of error.

{HTiefirst question presented is, Was the arrest at Battle Creek by the direction of the defendant illegal, when the warrant was in the possession of the defendant at Kalamazoo? In the case of People v. McLean, 68 Mich. 480 (36 N. W. 231), it was said:

was charged simply a misdemeanor, and he could not be arrested for the crime, after the commission of the act, without a proper warrant. The warrant was issued and delivered to the sheriff. The sheriff is authorized to take such assistance with him in making an arrest as he may deem necessary, and the warrant in his possession, while present and pursuing his object, will be a justification to his assistants in making the arrest. But he has no authority to send an undersheriff or deputy to one place to make an arrest without a warrant, while he goes to another for the same purpose with the warrant. He cannot send his deputy into one town or county while he gives pursuit in another. Under the ancient practice of hue and cry, before warrants were issued, this might be done in the pursuit of felons,,but no hue and cry could be raised for a misdemeanor. |We think it clear that, in cases Of misdemeanors, the sheriff must be present, either in sight or hearing, directing the arrest, to justify a. person not armed with the warrant to make the arrest.”]

See, also, Drennan v. People, 10 Mich. 184; People v. Johnson, 86 Mich. 175 (48 N. W. 870, 13 L. R. A. 163, 24 Am. St. Rep. 116); Smith v. Clark, 53 N. J. Law, 197, (21 Atl. 491).

| It is claimed by defendant that as the plaintiff, when arraigned, made no objection to the manner of his arrest, but pleaded guilty to the. charge, by so doing he waived any irregularity in the*1 arrest, and cannot recover. The authorities upon this, proposition are not harmonious. In 12 Am. & Eng. Enc. Law (2d Ed.), p. 743, it is said:

“It has been held by a court of high authority that a party cannot maintain a civil action for damages for false imprisonment where his arrest has been followed by conviction in a criminal court, and that conviction remains unreversed, unless such person establishes the fact that his. conviction was obtained by fraud and conspiracy. But it is believed that this means no more than that, where there has been an arrest without warrant, conviction on the charge is, in general, prima facie evidence of probable cause. If more than this is intended, it is contrary to the weight of a majority of the best-considered cases. Indeed, the converse of the proposition, it would seem, has been expressly denied in the same State, viz., where there has been an arrest without warrant, a discharge by the police justice is prima facie evidence of want of-probable cause.” 1

See, also, cases cited in the notes.

We think the weight of authority does not favor the-conclusion that the liability for the illegal arrest is waived by pleading guilty to the offense charged in the warrant. ¿Did the court err in holding that, after defendant personally took plaintiff into custody, his warrant did not protect him from that time until, the plea of guilty was entered There is a dearth of decisions in point, and the authorities upon this proposition are also disagreed. The case of Mandeville v. Guernsey, 51 Barb. 99, cited in-support of the charge of the court, was one where a sheriff from the State of Pennsylvania arrested the accused in the State of New York, and carried him into the State of Pennsylvania. The court held that not only did the sheriff have no authority to make the arrest in New York, but that he committed an offense against the laws of the State of New York when he removed the prisoner to the State of Pennsylvania. The case is very different from the one at bar. In that case the accused was beyond the reach of the process of arrest, and could be lawfully brought within the jurisdiction of the court issuing the warrant only by obtaining the requisition, of the governor of Pennsylvania. In the case at bar the plaintiff was within the reach of process, and might be arrested by any person having a lawful warrant. The case was removed to the court of appeals (50 N. Y. 669), and affirmed by a divided court. No opinion was filed.

In Cabell v. Arnold, (Tex. Civ. App.) 22 S. W. 62, where an illegal arrest had been made, and the accused was afterwards delivered to an officer having a legal warrant, a judgment for damages for the illegal detention of the accused to the time he was delivered to the officer having the warrant was sustained.

Many of the cases cited by counsel are civil cases, in which a different rule obtains than the one applicable to criminal cases.

In Holley v. Mix, 3 Wend. 350 (20 Am. Dec. 702), it is said:

“The warrant against John Doe did not authorize the •arrest of any person other than John Doe. It was altered •by inserting the name of the present plaintiff, and then it ■was a justification for all subsequent regular acts of all 'concerned in its execution.”

In Harris v. McReynolds, 10 Colo. App. 532 (51 Pac. 1016), which was an action for false imprisonment, the -court used the following language:

'“But it is contended for the defendant that the false imprisonment of the plaintiff lasted only from the time of his arrest at the verbal direction of the defendant until the making of the complaint and the issue of the warrant, and that his detention in custody afterwards was not false .imprisonment. The court was requested to so instruct the .jury, but the request was refused, and error is assigned upon the refusal. If the process by which it was assumed to hold the plaintiff in custody was valid process against him, the instruction should have been given.”

\As before stated, the plaintiff, when taken into custody in the first instance, was within the jurisdiction of the court issuing the process. If the defendant in person had made the arrest, instead of procuring it to be made by a police officer at Battle Creek, it would have been a valid •arrest; or if no arrest had been made in fact until the defendant took the plaintiff into custody, its validity could not have been questioned. I think it unreasonable to say that, because the first arrest was invalid, the second one was also invalid, and that the jury should have been instructed that plaintiff could recover damages only to the time of the lawful arrest.X

Did the trial judge correctly instruct' the jury in relation to putting the handcuffs upon the plaintiff ? The record does not disclose any undue harshness or discourtesy done to the plaintiff by the officer, unless putting the handcuffs upon him is to be so regarded. In Firestone v. Rice, 71 Mich. 377 (38 N. W. 885, 15 Am. St. Rep. 266), it is said:

“ The sheriff cannot stop when the man is unknown to him, at the moment of arrest, to inquire into his character, •or his intentions as to escape, or his guilt or innocence of the offense charged against him. His duty is to take him, to safely keep him, and to bring his body before a magistrate. If he does this without wantonness or malice, it is not for a jury to find that his precautions were useless and' unnecessary in the light of after-acquired knowledge of the true character and intent of the accused, and to punish the sheriff in damages for what honestly appeared to him at the time to be reasonable and right.”

See, also, Butler v. Washburn, 25 N. H. 257.

The officer had two prisoners, who were strangers to him, under arrest. It was long after dark. He had a considerable distance to go with them. It was his duty to follow the mandate of his warrant. There was nothing in his conduct to indicate wantonness or malice, and the jury should have been so instructed, and that they should not find any additional damages because the prisoners-were handcuffed.

The judgment is i’eversed, and a new trial ordered.

The other Justices concurred.