author: Stone, J.

text:
    LAYZELL v. J. H. SOMERS COAL CO.
    Master and Servant — Competency op Employes — Negligence_
    Fellow-Servant — Incompetent Engineer — Mines and Mining. Evidence offered to show the incómpetency of an engineer employed in defendant’s coal mine examined, and held, to require the direction of a verdict for defendant.
    Error to Saginaw; Gage, J.
    Submitted April 11,1911,
    (Docket No. 73.)
    Decided February 10, 1912.
    Case by Charles Layzell against the J. H. Somers Coal Company, for personal injuries. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      E. E. Emerieh and W. J. Nash (James H. Davitt, of counsel), for appellant.

      Walter J. Lamson (Fred L. Vandeveer, of counsel), for appellee.
   Stone, J.

This case is before this court for the second time. When here before (156 Mich. 268-277 [117 N. W. 179, 120 N. W. 996] ), the principal question discussed and considered was the construction of section 3 of Act No. 100 of the Public Acts of 1905, which provides—

“ That only a competent and trustworthy engineer shall be permitted to operate the cages and hoisting devices in all coal mines of this State,”

—and a judgment entered on a directed verdict for the defendant was reversed, and a new trial ordered. The suit is brought to recover damages for personal injuries received by the plaintiff on account of the claimed negligence of the defendant. Defendant was operating a certain coal mine in St. Charles township, Saginaw county, on March 2, 1906; and had been for several years before. The injury sued for occurred on the date above stated at about 9:30 o’clock p. m. At the date named, and for some months prior thereto, the plaintiff was employed at the mine as a pumpman, and on the evening named he was required by his duties to go down into the mine. In company with his helper, named McDonald, plaintiff entered the cage at the top of the shaft, and it is claimed gave the proper signals to the man operating the levers in the engine room to be lowered into the mine. This operator, named Saunders, instead of manipulating the machinery so as to lower the cage into the mine, did exactly the opposite, and pulled the lever so as to cause the cage suddenly and violently to be elevated some thirty feet up into the tipple, whereby the occupants were dumped out, with the result that the plaintiff was seriously injured.

The basis of the plaintiff’s claim is that Saunders, who made the error causing the plaintiff’s injury, as stated, was not a competent and trustworthy engineer, as required by the statute above referred to, and that the plaintiff did not assume the risk resulting from defendant’s violation of this statute, and that Saunders’ incompetency and untrustworthiness, as an engineer, caused plaintiff’s injury. The defendant denied this, and also claimed that plaintiff was guilty of contributory negligence in getting into the cage at the time, and in the manner he did, and also in riding in the cage, because he had some previous knowledge, or information, that on prior occasions Saunders had improperly operated the cage. This record shows that the evidence took a wide range upon both of the main questions involved. We have not only read with great care the record before us, but we have also carefully examined the record in the case when it was in this court before. We are impressed with the fact, that the record now here contains much more evidence than did the former record, tending to show the competency and trustworthiness of Saunders as an engineer. It is worthy of note that Saunders was not examined as a witness at all upon the former trial; neither was Phillips, the superintendent of defendant. The court submitted to the jury the above questions; i. e., whether or not Saunders was a competent and trustworthy engineer, and whether the plaintiff was guilty of contributory negligence. The trial resulted in a verdict for the defendant, and the plaintiff has brought the case here, assigning error mainly upon the charge of the court on the subject of contributory negligence.

The trial having resulted as it did, we will first inquire whether there was any evidence of neglect to perform the statutory duty on the part of the defendant; for, if it shall turn out that the evidence did not warrant the submitting of the case to the jury because no such neglect or omission was shown, then the case should not be reversed, the proper result having been reached, unless other prejudicial error shall be discovered in the record.

The following evidence in the case appears to be uncontradicted. The witness Saunders testified that he was 56 years old; that he had had previous experience in engineering from the time he was 19 years old; that he had run stationary engines, hoisting engines, had hoisted coal, and that he was an engineer on a freight train and a passenger train on the Michigan Central Railroad; that he had' run a locomotive six years between Detroit and Buffalo, on freight trains five years and passenger trains one year; that he also ran a fire engine in Toledo and Marion; that he worked in a stave and heading mill, and that at Toledo he had run an engine unloading ore out of vessels, where he had six levers to handle; that he started in millwork 12 miles east of Toledo and worked three years learning to be an engineer there, and was 19 years old when he started; that at St. Charles he helped the fireman, usually fired two boilers; that his work in the engine room was taking care of dynamo engines, keeping them oiled, taking care of the fan engine and suction pump, and did all that an engineer should do, and continued that work 18 months; that he frequently used the cages for lifting material and coal; that he had worked for A. T. Bliss at Lindennan 20 months, running an engine in a shingle mill; that he had papers as marine and stationary engineer when he went to work for defendant; that, while his eyesight was not very good, yet he had no trouble with the levers when he had a light, and that they always had a good light at the levers at the defendant’s mine.

The witness C. F. Beecher testified, in substance, as follows:

“I reside in Ohio; am engineer in a coal mine; was formerly chief of the Somers mine at St. Charles, for six years, acted as hoisting engineer for three years. It was a part of my duties to look after the engineers and firemen of the different mines there, to see that they did their work properly. I hired and discharged them. I knew Saunders and William Eolfe. I hired Saunders, and inquired of Eolfe as to Saunders’ ability as an engineer, whether he was competent and reliable, and as to his age. I said: ‘We don’t want a man that drinks or lays off here. We have got to have a steady man we can depend on.’ And he told me the man was reliable and everything in that respect, and said he had several years engineer’s experience. So the man came down and was put to work. He told me Saunders had run a locomotive, that he was a sober and steady man. * * * He was first put to firing on the tail end. He appeared to be a competent fireman. He worked at that three or four months. Then I advanced him. I stood and watched him run the cages, and showed him around the plant and engine and pumps, and everything that a man has to know in order to operate the plant. I instructed him relative to running the cages, and watched him until I was satisfied he thoroughly understood running the cages up and down. That was before I put him on as night engineer. That is the way they all learn. They start in at the tail end and run the cages when there is no one on, and practice on them. After I advanced him, I watched how he did his work, and, so far as I could see, everything was in good order. I rode down often with him, and at such times did not discover' anything which would indicate that he was not competent to handle them. No one ever made a complaint to me that the man was not all right. I never knew or heard of his drinking liquor, and never saw him have liquor around, nor when he appeared to have been using liquor. Saunders was regular at his work, except when he was sick.”

On cross-examination he testified as follows:

“ I was a witness in the former trial. I now refer to Saunders as night engineer. In the other case I might have called him the head fireman. There are several things that make a man skillful and competent. He must be careful to exercise good judgment at all times and not act upon the impulse of the moment, and must realize that he is handling human lives.”

John T. Phillips testified that in 1905 and 1906 he was with the defendant at St. Charles as superintendent of the mines there; that he had had experience all his life in mining in Ohio and other places; that his experience as such superintendent would lead him to observe and know of the men working around the engines, the operating of the levers, the raising and lowering of the cages, and so forth; that his work took him constantly around the mines; that he had occasionally operated the cages in coal mines himself; that the plaintiff had said to him before his injury that he was fully satisfied with Mr. Saunders, and thought he was a safe man to let him up and down the shaft; that he did object to another person, and suggested that Saunders take his place; that the witness made the change and informed Mr. Beecher, the chief engineer; that after that change Saunders was supposed to be head fireman, or assistant or night engineer; that he would have charge of the boiler room, hoisting and lowering the men; that the men could choose to use the cages or walk up and down the stairway; that they had a good safe stairway to go up and down if they wanted to walk; that witness had sent Saunders to operate the levers, and in his judgment Saunders operated them properly; that he was there after the accident the night it occurred, and he saw no evidence of liquor about Saunders, and never knew of liquor being about the mine; that the regular engineer hoists the coal because of his ability to run the cages steadily and screen the coal; that this was the most important thing about mining, when the engineer gets to the point in the dump so he can control the cage perfectly and screen the coal.

The witness J. O. Somers testified that in 1905 and 1906 he was at St. Charles with the defendant as general superintendent; that Mr. Phillips was assistant under the witness, and Beecher was chief engineer of the three mines; that the witness had had long experience in mining and knew Saunders; that, when he first knew Saunders, he was firing on the tail end; that, “when the witness came back to assume charge in December, Saunders was on the head; that at the time of the accident, Saunders was head fireman and night engineer in charge of the engine; that Saunders did that work 15 or 18 months before the accident; that witness was frequently at the mine during that time, and frequently on the cage with Saunders handling the levers — once every night for a week.

“ He was all right in handling the levers. I didn’t observe anything wrong. * * * No one ever made complaint to me about Saunders. I spent all my time around these mines and mingled with the men. Never saw or heard of Saunders using liquor. After the accident, Saunders was laid off for punishment.”

In the light of this record it does not appear to us that the plaintiff made out a case that warranted him in going to the jury upon the question of the incompetency and untrustworthiness of Saunders as an engineer. After he was employed, his qualifications as an engineer were carefully inquired into. He was instructed as to the workings of defendant’s plant, and how to manage and operate the cages. It appears that for 18 months prior to the accident he occupied the position of night engineer at defendant’s mine, where the accident happened. It will be noted that this accident occurred at night. Mining was not conducted except during the daytime. The salt pumps were kept in operation, and men went down to look after them at night. The hoisting and lowering of these men and keeping the engines and pumps in operation were all that was required. Saunders’ work as such engineer was to take care of the dynamo engine, the fan engine, the suction pump, raise and lower the men, and such other work as was required during the night when mining was not being done. During this entire period not a word of complaint was made against him to any of the officers, master mechanic, superintendent, or pit boss as to his habits or character as a man or an engineer. The plaintiff does not claim that he made any complaint of the alleged incompetency or untrustworthiness of Saunders, but testified that he would rather be discharged than do so. While he was acting as engineer at this mine, Mr. Somers, the superintendent, Mr. Phillips, assistant superintendent, Mr. Beecher, master mechanic, and Mr. Jenkins, the mine foreman, frequently rode on the cage when it was operated by Saunders, and each one of these witnesses testified, without contradiction, that there never was anything amiss with him as an engineer to their knowledge or information; and that they were never told by any one that he was otherwise than a competent and trustworthy engineer.

We are led to the conclusion that the trial court would have been warranted in directing a verdict for the defendant upon this record. That being so, the other errors complained of were without prejudice to the plaintiff; and, the trial having resulted in a verdict and judgment for the defendant, we are satisfied with the result, and find no prejudicial error in the record.

The judgment of the court below is affirmed.

Moore, C. J., and Steere, McAlvay, Brooke, Blair, and Ostrander, JJ., concurred.

Bird, J., did not sit.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    INGERSOLL v. DETROIT & MACKINAC RAILWAY CO.
    1. Railroads — Master and Servant — Logging Roads.
    On a spur used for logging purposes less than twelve miles in length, having no switches, stations, or regular stopping places, telephones, telegraph, or schedule trains, the general rules in use for the operation and maintenance of main lines of railroad are impracticable and inapplicable.
    2. Same — Negligence—Risks Assumed — Directing- Verdiot.
    It was error, in an action for the death of a railroad employé, killed in a collision between a work train on which he was riding along such spur or branch line, with a loaded car left on the track, at night, to refuse to charge the jury that the notice and warning possessed by plaintiff’s decedent, relative to the conditions and system of operating the branch line, and the custom of leaving cars on the line without lights or warning signals, barred plaintiff’s recovery.
    Error to Ogemaw; Sharpe, J.
    Submitted June 20, 1911.
    (Docket No. 42.)
    Decided February 10, 1912.
    Case by Elbert Y. Ingersoll, as administrator of the estate of William Quigley, deceased, against the Detroit & Mackinac Railway Company for the wrongful killing of decedent. Judgment for plaintiff. Defendant brings error.
    Reversed and no new trial ordered.
    For previous decision in this case, see Ingersoll v. Railway Co., 163 Mich. 269 (134 N. W. 441).

      Charles R. Henry and Guy D. Henry (James McNamara, of counsel), for appellant.

      Hall, DeFoe & Henry, for appellee.
   McAlvay, J.

This suit was brought to recover damages for the-death of plaintiff’s decedent, claimed to have been caused by the negligence of defendant. The facts of the case are as follows: Plaintiff’s decedent, William Quigley, was on November 6, 1906, at work as a brakeman for defendant company on a spur branch of its railroad known as Gates’ branch, which extended from a station on its main line called South Branch, into the timber towards the north about 10 or 12 miles. The sole purpose of this spur track was to bring out forest products to the main line, and on it no regular trains or trains of any kind were operated according to any schedule or timetable. This spur track was connected with the main line by a switch and all along its line it had been customary at any time, when requested, to take in cars which had been ordered for loading, and place them at any place where the person ordering the car might designate. It was a single track its entire length, except at one place towards the upper end where there was a switch. There were loading grounds wherever the forest’s products might be placed throughout its entire length. This placing of cars for loading was usually done by the freight engine and crew which ran a freight train regularly between Rose City and Emery Junction on the main line. On the day when the accident occurred, a gondola car which had been ordered was placed on this track for the man who had ordered it for loading, and it had been loaded with mine props and left on this track. The loading had been finished about 4 o’clock in the afternoon. It appears that it had always been the custom to leave cars along this track without lights or other warning, and this car had no lights or warning, upon or near it to indicate its presence.

On this day the work train and construction crew had been engaged in extending this spur track further north towards a mill, and had been so employed for two or more days. This work train contained cars for sleeping and eating accommodations for the construction men and train crew, and for the purpose of keeping them supplied with food it was necessary to go to South Branch for supplies. The engine tender and way car were making a trip for this purpose at the time of this accident. The way car was being pushed by the engine which was headed towards South Branch. This could have been changed when this one switch was reached and the engine and tender placed ahead, but it was decided before starting that the engine should push the way car the entire distance. Plaintiff’s decedent had ridden down with this train with the cars in the same order two days before when loaded cars were found on the track and taken to South Branch. He also knew that while they were extending the branch, cars would from time to time be put in on this track as usual. On the night in question he was told by the engineer who was in charge of the train to keep a sharp lookout for cars or anything else on the track. He rode on the platform in front of the way car with a hand lantern, acting as a lookout for cars on the track, and had signaled when they left camp, and gave the signal to back up. His signal could be seen from the engine. The train was going between five and eight miles an hour. Mr. Wrobleski, the foreman of the construction men, was also at the time riding on the platform with deceased. The record shows that on this evening it was not very dark; that one on lookout with a lantern could see several car lengths ahead; also, that some light was given by the headlight of the engine, which was immediately behind the way car, shining through the windows in each end of the car. This train had proceeded two or three miles when without notice or warning of the approaching danger from the lookout to the fireman or engineer the front end of the way car struck the loaded gondola. Plaintiff’s decedent was crushed, and died a few days later from the injuries he received.

The trial resulted in a verdict for plaintiff, upon which a judgment was entered. Defendant asks this court for a reversal of this judgment, assigning errors upon certain rulings and instructions of the trial court during the trial.

The contentions of the defendant, are:

(1) That such a logging branch of a railroad as the one in this case is inherently different from a railroad in general use; that it does not come within the ordinary rules and principles governing main traveled lines of a commercial road; that a railroad company is not held to so great a degree of care to employés working upon such a branch as to those who work upon the main line of the road.
(2) That as a matter of law upon the undisputed facts in the case plaintiff cannot recover because of the contributory negligence of plaintiff’s decedent.
(3) That plaintiff’s decedent, because of his familiarity with the work, the instructions he had received, and the notice he had of existing conditions, assumed this as one of the risks of his employment.

The negligence relied upon by the plaintiff is not because of any unsafe condition of the track, but in leaving upon this track a loaded car without lights or other warning to notify the crew of the work train of its exact location. It is apparent that in case of a woods or logging spur like this Gates’ branch, consisting of a single track without switches, running its entire length through practically a continuous loading ground, without stations or regular stopping places of any kind, without any regular trains or schedules, and without telephone or telegraph system or general rules or orders, and conducted in the manner and for the sole purpose as stated, the general rules applicable to the conduct of general railroads as to the degree of care to be used for the safety of employes cannot be applied. To require the same care obviously would be requiring the performance of the impossible. This court has several times held that railroad companies are not held liable to the same degree of care in maintaining their side tracks, as in maintaining their main lines. Michigan Central R. Co. v. Austin, 40 Mich. 250; Batterson v. Railway Co., 53 Mich. 125 (18 N. W. 584); Hewitt v. Railroad Co., 67 Mich. 61 (34 N. W. 659). In so doing the court has recognized a difference in importance and general uses between the main lines and the side tracks. Such distinction is all the more apparent when the difference between the uses and necessities of the main line of a railroad and a spur branch used only at irregular intervals for bringing out forest products is sharply presented as in this case.

It appears undisputed from this record that the universal custom and practice in operating trains upon spur branches similar to this one is wholly different from that upon main lines, and is identical with the manner in which this spur branch was operated; that it is customary to leave cars standing upon the track as in this case without lanterns or other markers upon them, without torpedoes or fuses on either side of them, all of which are usual and required upon lines with scheduled trains, stations, depots, etc. The reasons for such custom and practice are obvious. The cars are isolated in a region sparsely inhabited or entirely uninhabited. It would not be practicable to put men on to maintain flags, lanterns, and other markers or warnings along such a line, and without men so employed lights would go out, and other markers would be subject to removal and destruction. In the instant case it appears that plaintiff’s decedent was informed and knew of these conditions from statements made in his presence and from personal experience shortly before the accident. It further appears that on the day in question with this knowledge of the conditions along the track he desired the train to be run in the order in which it did proceed, rather than to have the way car put behind the engine; that, before starting, he was charged by the engineer to look out for cars on the track, and then took his position where he was in full control of the situation. The dangers before him, of which it appears he knew, were incident to his employment. He gave the signals for starting and backing and the train proceeded.. In so doing with full knowledge he assumed the risk of all such dangers incident to the employmentwhich he knew to exist. Harrison v. Railway, 137 Mich. 78 (100 N. W. 451); Bradburn v. Railroad Co., 134 Mich. 575 (96 N. W. 929). The court refused to charge, as requested, that this spur branch was not of such a character as required the same degree of care to employés operating it as to those employed on the main line, and that the notice and warning given to plaintiff’s decedent was sufficient, and relieved defendant from liability.

The propositions contained in such request are established in this case. Such spur lines are inherently different from the main lines, or those parts of railroads operated the same as main lines, and the reasons and conditions which require the ordinary rules '.and principles governing the latter relative to care of employés do not apply to the former. A system of warning and notice of dangers to its operatives had been adopted, which appears to have conformed with the general custom and practice upon branches of this character, and commensurate with the requirements of the business. The request was warranted upon the undisputed facts, and the court was in error in refusing to give it.

The question of the contributory negligence of plaintiff’s decedent need not be considered.

The judgment is reversed, and no new trial granted.

By a stipulation Stone, J., is substituted for the late Hooker, J., who sat in the case.

Moore, C. J., and Brooke, Blair, and Stone, JJ., concurred.


author: Steebe, J.

text:
    CASHIN v. PLITER.
    1. Contracts — Legality—Fraud—Violation op Criminal Statute.
    Since the object of Act No. 101, Pub. Acts 1907, is to protect the public from fraud and to provide a means of ascertaining the identity of the owners of a business conducted under a fictitious or trade name, and a violation of its terms is forbidden under penalty, a contract made by a partnership engaged in contracting, etc., under a fictitious name without filing in the office of the county clerk a certificate showing the names of the members of such firm, was unenforceable in behalf of the partnership because tainted with illegality.
    2. Same — Partnership—Innocent Parties.
    As to innocent third parties who have dealt with the firm in ignorance of any illegality, the statute does not take away their rights.
    3. Same — Implied Contracts — Common Counts.
    The statute equally precludes a recovery under the common counts for materials furnished by the copartners without complying with the law.

      4. Same.
    When an agreement has been expressed the law cannot imply one.
    Error to Genesee; Wisner, J.
    Submitted October 18, 1911.
    (Docket No. 122.)
    Decided February 10, 1912.
    Assumpsit by McArthur Cashin and Charles Narron copartners as the Flint Construction & Realty Company, against William C. Pliter for materials furnished and for work and labor performed. A judgment for defendant on a verdict directed by the court is reviewed by plaintiffs on writ of error.
    Affirmed.

      Farley & Selby (William V. Smith, of counsel), for appellants.

      Clifford A. Bishop, for appellee.
   Steebe, J.

In this case a verdict was directed in favor of defendant, for the reason that the contract sued upon was void under Act No. 101, Pub. Acts 1907; the same being entitled “An act to regulate the carrying on of business under an assumed or fictitious name.”

This act prohibits the conduct or transaction of any business in this State under an assumed name, or any other than the real name of each individual owning or conducting the same, unless such person or persons shall acknowledge and file in the office of the clerk of the county in which the business is or is to be conducted, or an office maintained, a certificate setting forth the name under which such business is or is to be conducted, and setting forth the real name of each of the owners of such business, together with the residence and post office address of each of said owners. A copy of such certificate is made evidence of the facts therein contained in courts of law in this State. "Violation of the requirements of this act is declared a misdemeanor, punishable by fine and imprisonment..

The declaration alleges in the first count that plaintiffs are a copartnership, doing business under the firm name of Flint Construction & Realty Company; that on March 14, 1910, plaintiffs, “under the firm name of Flint Construction & Realty Company,” entered into a written contract with defendant to build him a house in the city of Flint for the sum of $835; that the same is fully performed and the house finished; that there is a balance due on said contract which defendant refuses to pay. A copy of said contract is attached to and made a part of the declaration. The declaration also contains the common counts. Defendant’s plea was the general issue.

At the trial plaintiffs proved that they were engaged in the building and contracting business in the city of Flint in 1910, with offices in the National Bank building in that city, doing business as copartners under the name of the Flint Construction & Realty Company; that as such copartners, and under such name, they entered into a certain contract, in writing, with defendant to build a house for him. The contract was identified and offered in evidence. No proof was made or offered that plaintiffs had complied with the requirements of said Act No. 101. The contract was objected to, and timely objection was also made to all other evidence offered in support of the allegations in the declaration, on the ground that plaintiffs had not complied with the requirements of said act, and had been transacting business in violation thereof; that any contract so made under an assumed name was illegal and not enforceable. The objections were sustained. The court also held that plaintiffs were not entitled to recover under the common counts for labor and material furnished in the construction of said building, and, after the parties had rested, directed a verdict as stated. Plaintiffs made a motion for a new trial, which was denied.

The points presented on the motion for a new trial, and upon which error is assigned, are substantially the same as those urged and argued during the trial of the cause. Briefly stated they are: That said Act No. 101 is a penal act, not implying or intending any other punishment or loss to those violating it than that expressly provided by fine and imprisonment; that the act has no application in a case where defendant knows who comprise the members of the concern with which he deals, he being estopped by such knowledge; that, even if the contract be void, inasmuch as the same is fully performed, and defendant has benefited thereby, plaintiffs are entitled to recover, under the common counts, the reasonable value of material furnished and labor performed; and that said act is unconstitutional under section 21, art. 5, of the Constitution of this State.

The last objection is not discussed in appellants’ brief, but is presented in the record. The one object of the act is manifestly to protect the public against imposition and fraud, prohibiting persons from concealing their identity by doing business under an assumed name, making it unlawful to use other than their real names in transacting business without a public record of who they are, available for use in courts, and to punish those who violate the prohibition. The object of this act is not limited to facilitating the collection of debts, or the protection of those giving credit to persons doing business under an assumed name. It is not unilateral in its application. It applies to debtor and creditor, contractor and contractee, alike. Parties doing business with those acting under an assumed name, whether they buy or sell, have a right, under the law, to know who they are, and who to hold responsible, in case the question of damages for failure to perform or breach of warranty should arise.

The general rule is well settled that, where statutes enacted to protect the public against fraud or imposition, or to safeguard the public health or morals, contain a prohibition and impose a penalty, all contracts in violation thereof are void. Pollock’s Principles of Contract (7th Ed.), p. 293; Drury v. Defontaine, 1 Taunt. 131; Myers v. Meinrath, 101 Mass. 366 (3 Am. Rep. 368); Lyon v. Strong, 6 Vt. 219; Harris v. Runnels, 12 How. (U. S.) 79; Gibbs v. Gas Co., 130 U.S. 396 (9 Sup. Ct. 553); Miller v. Ammon, 145 U. S. 421 (12 Sup. Ct. 884), and oases cited. This rule has been recognized and adopted in Re Reidy’s Estate, 164 Mich. 167 (129 N. W. 196), wherein the following language is used:

“It is a well-settled principle of law that all contracts which are founded on an act prohibited by a statute under a penalty are void, although not expressly declared to be so.”

It is urged that the Reidy Case can be distinguished from the one at bar in the particular that the former is directly aimed at a contract which the law prohibits in the interest of public health and safety; the decision being founded on public policy, to protect citizens against unlicensed and unskilled pharmacists and resultant hazard to human life. It is true that the object of the act in question is not to safeguard human life or health; but both laws are founded on public policy. They are acts of the same class, coming within the police power of the State; one being to protect the public health, and the other to protect the public from imposition and fraud. Each prohibits certain acts, and each makes the violation a criminal offense punishable by fine and imprisonment.

In interpreting the statute under consideration, it can be contended with reason, and in harmony with former decisions of this court construing acts somewhat analogous, we are inclined to the view, that it is not the intent to render a contract made in violation of this act absolutely null and void for every purpose. While, as heretofore stated, the general rule is well settled that a contract made in violation of a statute is void when the statute is otherwise silent, and contains nothing from which the contrary is to be inferred, nevertheless the diversity of legislation gives rise to varying exceptions to this rule; and before applying it in full the court should carefully scrutinize the particular statute under advisement, for the purpose of ascertaining, from the subject-matter and language used, the object for which it was enacted and the intent of its makers, to the end that such intent may be rendered effectual and the indicated purpose accomplished. As this act involves purely business transactions, and affects only money interests, we think it should be construed as rendering contracts made in violation of it unlawful and unenforceable at the instance of the offending party only, but not as designed to take away the rights of innocent parties who may have dealt with the offenders in ignorance of their having violated the statute.

In behalf of the plaintiffs, it is urged that, the contract having been performed and labor and material having been furnished, of which defendant retains the benefit, recovery can be had therefor under the common counts, on an implied promise to pay for the same what they are reasonably worth. But they were furnished under an illegal express contract, by virtue of which there can be no recovery. It is an elementary rule that, where there is an express agreement between parties covering the subject-matter, the law will not imply one. If we say that, the contract declared on being unenforceable, there was, as a matter of law, no contract, and so seek to imply one for the labor and materials furnished, then the implied contract, under the allegations of the declaration and proof offered, is not relieved of the infirmity 5 for plaintiffs furnished the labor and material and transacted the business under an assumed name in violation of law. Changing the name or form of pleading does not change the character of the illegal transaction; under whatever guise the claim is presented, its groundwork is a violation of the act. In such a case, the doctrine of estoppel cannot be invoked by the plaintiff; but the law leaves the parties where it finds them and refuses relief. It recognizes the defense of illegality, not as a protection to the defendant, but as a disability to the plaintiff. See Inhabitants of Webster v. Sanborn, 47 Me. 471; Pangborn v. Westlake, 36 Iowa, 546; Jameson v. Carpenter, 68 N. H. 62, 63 (36 Atl. 554); Chattanooga Building & Loan Ass’n v. Denson, 189 U. S. 408 (23 Sup. Ct. 630); 9 Cyc. p. 446, and numerous cases there cited.

We are constrained to hold that the contract sued upon was illegal and unenforceable as to plaintiffs for the reasons above stated. The trial court correctly held that no recovery could be had under the special count or common counts of the declaration and the proof offered in that connection.

The judgment is affirmed.

Moore, C. J., and Brooke, Stone, and Ostrander, JJ., concurred.


author: Brooke, J.

text:
    TABINSKI v. A. HARVEY’S SONS MANUFACTURING CO.
    1. Master and Servant — Infant—Statutes—Duty of Factory Inspector — Conolusiveness of Determination.
    By the provisions of Act No. 285, Pub. Acts 1909, it was not intended by the legislature to constitute the factory inspector sole judge as to what employment is dangerous to the life and limb of a minor under eighteen years of age, hired and set at work prohibited by the act.
    2. Same-^Gearing — Words and Phrases.
    Gearing, within the terms of such statute, includes cog wheels, whereby power is transmitted from one portion of a machine to another; exposed and unprotected gearing- is within the meaning of the law requiring proper safeguards for all gearing and belting.

    3. Same.
    Exposed gears were dangerous within the meaning of such act.
    Error to Wayne; Hosmer, J.
    Submitted November 9, 1911.
    (Docket No. 76.)
    Decided February 10, 1912.

      Case by George Tabinski, by his next Mend, against A. Harvey’s Sons Manufacturing Company, Limited, for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Henry B. Graves, for appellant.

      Thomas W. Payne (George W. Goomer, of counsel), for appellee.
    Plaintiff, a young lad 14 years and 6 months of age, was injured while in the employ of the defendant, which is a manufacturer and wholesale dealer in plumbers’ supplies. On the day of his injury, which was some six months after he started to work, he testified that he was set to work on a pipe-threading machine. After he had been so employed for about three hours, it appears that he went to another part of the shop for a drink of water. Returning, and when near the machine upon which he was working, he claims to have tripped over a valve lying upon the floor, and to have fallen upon the exposed gears or cogs of the machine. He lost three fingers of his left hand; the thumb and first finger remaining intact. A photograph of that part of the machine in which plaintiff received his injury appears on the page following.
    Plaintiff brought his action under the provisions of Act No. 285 of the Public Acts of 1909, the applicable provisions of which are as follows:
    “Sec. 11. No female under the age of 21 years, and no male under the age of 18 years shall be allowed to clean machinery while in motion, nor employed in or about any distillery, brewery or any other establishment where malt or alcoholic liquors are manufactured, packed, wrapped or bottled, nor in any other employment which may be considered dangerous to their lives and limbs or where their health may be injured or their morals depraved, nor shall females be unnecessarily required in any employment to remain standing constantly.
    “Sec. 15. It shall be the duty of the owner of any factory, storehouse or warehouse, or his agent, superintendent or other person in charge of the same, to furnish or supply or cause to be_ furnished or supplied, in the discretion of the factory inspector, where machinery is in

    use, proper ~hiftors or other mechanical contrivances for the purpose of throwing belts on or off pulleys. All gearing or belting shall be provided with proper safeguards, and whenever possible machinery shall be provided with loose pulleys. All vats, saws, pans, planers, cogs, setscrews, gearing and machinery of every description shall be properly guarded when deemed necessary by the factory inspector.”
    Defendant offered evidence of experts tending to show that the machine in question was not considered dangerous to life and limb. It also offered the evidence of the deputy State factory inspector, from which it appears that he had inspected defendant’s premises in the year 1909, and had made no order respecting this machine, because he did not consider the gears exposed.
    The learned circuit judge submitted the case to the jury under instructions to the effect that, before plaintiff could recover he must show by a fair preponderance of the evidence, first, that he received the injury in the manner testified to by him; second, that he was guilty of no negligence contributing to his injury; third, that in placing the boy at work upon the machine .in question defendant placed him at employment which might be considered dangerous, within the meaning of the language of the statute. Plaintiff recovered a judgment for $1,500. Defendant has brought the case to this court for review.

       What is comprehended in expression “machinery of every description,” in statutes imposing duty on master as to placing guards, see note in 30 L. R. A. (N. S.) 36.
      Common practice as the measure of master’s duty to guard machinery, see note in 16 L. R. A. (N. S.) 140.

   Brooke, J.

(after stating the facts). Three questions are stated and argued in the brief of counsel for defendant, as follows:

“First. Was the decision of the factory inspector conclusive ? ”

It is pointed out that the legislature of 1909, in passing Act No. 385, used language which, it is claimed by appellant, indicates an intention to make the factory inspector the sole judge as to what employment may be considered dangerous to life and limb; and that from his decision there is no appeal. This argument is based upon the fact that in Act No. 113, Pub. Acts 1901 (section 3), the words used are, at employment whereby its life or limb is in danger,” and in Act No. 169, Pub. Acts 1907, the words used are, “at employment whereby his or her life or limb is endangered,” while in the statute of 1909 the words used are (section 11), “ nor in any other employment which ;may be considered dangerous to their lives or limbs.” A like argument is predicated upon the fact that the title of the act of 1909 is much broader than those of the acts preceding it. We are of opinion that the language “may be considered dangerous to life and limb ” cannot be construed to imply that such consideration shall be indulged in by the factory inspector alone; and that his determination as to any given situation must be considered final.

We are, of course, unable to say what induced the legislature to change the wording of the law in this respect. The intention may have been simply to declare the law in conformity to decisions of this court, as under the earlier statutes it had been held that in doubtful cases the question as to whether a given employment was “dangerous to life or limb ” was for the jury. Braasch v. Stove Co., 147 Mich. 676 (111 N. W. 197) ; Syneszewski v. Schmidt, 153 Mich. 438 (116 N. W. 1107). In any event, we are satisfied that, by this enactment, the legislature did not intend to create an independent tribunal for the determination of this important question, from whose decision there should be no appeal.

It should, perhaps, be noted that in 1911 (Act No. 220) the language was again changed; the words used being “nor in any hazardous employment.”

It seems to us sufficiently obvious that the controlling motive in all these enactments is to throw certain safeguards about young children who, by reason of their circumstances, are obliged to seek employment while yet immature and inexperienced. All employment is not prohibited, but only such as may be considered dangerous to life and limb. No definite standard is set; no hard and fast rule is enunciated. In doubtful cases, the responsibility is placed upon the employer himself who,.if harm comes to the child, that child at the moment of injury exercising such reasonable care and prudence as his age and experience will permit, must feel himself able to satisfy a jury that such employment does not come within the inhibition of the statute.

“Second. Was there any evidence at all that the machine in question was dangerous ? And, third, granting, for the sake of argument, that there was evidence that the machine was dangerous, was not the overwhelming weight of the evidence to the contrary ? ”

We will consider these two questions together.

The fact that plaintiff lost a portion of his hand in the course of his employment, accidentally or otherwise, need not, we think, in this case be considered as bearing upon the character of that employment. A glance at the machine upon which plaintiff received his injury shows that it is operated by means of two sets of gears; and that both are unprotected. The statute (section 15, Act No. 285, Pub. Acts 1909) provides “all gearing or belting shall be provided with proper safeguards.” That the mechanism here considered comes within the definition of “gearing ” cannot be doubted.

Here, then, is a positive duty imposed upon the master, a breach of which would render him liable if, by reason of such breach, injury resulted to a child exercising due care at the time of the accident. We do not overlook the recurrence of the word “gearing” in the latter part of the section, where the determination of necessity for protection is left to the judgment of the factory inspector. We do not think the use of the word here can be permitted to modify the effect of the express mandate contained in the earlier part of the section. If we are correct in so holding, it follows that the learned circuit judge, in submitting the whole question to the jury, took a position more favorable to defendant than it was entitled to demand. A careful review of the entire record convinces us that there is no reversible error.

The judgment is affirmed.

Moore, C. J., and Steers, Stone, and Ostrander, JJ., concurred.


author: Blair, J.

text:
    SHERWOOD v. DAVIS.
    1. Trusts — Vendor and Purohaser — Resulting Trusts.
    Under the provisions of 3 Oomp. Laws, § 8835, abolishing resulting trusts where the title of real property is taken in the name of another than the person who furnished the consideration, no trust was created by the purchase of a farm with money of complainant, who caused the title to he conveyed to his daughter, intending that she should reconvey to him if he should so desire. 3 Comp. Laws, § 9509.
    2. Same — Conveyances—Evidence oe Lost Written Instrument.
    In order to satisfy the provisions of section 9509, 3 Comp. Laws, a written instrument granting or vesting some estate in complainant must be produced or its loss accounted for and contents established by competent evidence.
    8. Same.
    Evidence of general statements of a decedent that she had agreed to execute a conveyance at a later time, do not establish the execution and existence of such an instrument.
    Appeal from Washtenaw; Kinne, J.
    Submitted November 15, 1911.
    (Docket No. 126.)
    Decided February 10, 1912.
    Bill by George F. Sherwood against Fred L. Davis, administrator of the estate of Jennie L. Davis, deceased, and others, to set aside a certain deed of land and for further relief. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Frank A. Stivers, for complainant.

      Arthur Brown, for defendants.
   Blair, J.

Complainant, a resident of New Orleans, La.,'contemplating the purchase of a small tract of land in Ann Arbor, in this State, for the purpose of assisting his daughter, who was in straitened circumstances, and to provide a home for himself in his declining years, appointed his daughter, Jennie L. Davis, his agent to represent him in carrying out his purpose. All communications between complainant and his daughter were by letter.

June 19, 1909, complainant wrote:

“I appoint you my agent in all matters appertaining to it, and expect you to take charge of the property for me. About the rent you are to pay, we will let that matter rest until such time as we see what can be done with it. I will see that you have a cow and horse and other things necessary to run it, so far as I can, and want you to keep me informed as to taxes, insurance, etc. I won’t listen to any one else having a word to say in the matter and leave everything in your hands as my agent for which I will pay accordingly for services rendered.
“I, of course, expect you to live on the place and táke care of it, until such time as I shall want it myself, when other arrangements can be made with me, and me only. If anything happens to me the place belongs to you. Keep this letter until I ask for it. Make a draft on our company for $1,500 and we will meet it at once. In the meantime if anything should happen to you, and I am alive, it of course will be for me to decide.”

On June 28, 1909, he wrote, among other things:

“ Have everything made out in my name as you understand I would not have the right to give it to you by law, without a will and I am buying it for two reasons. One, I may want it later on when I get through work, and also for a place for you, so you won’t be paying out rent. * * * I don’t want any trouble with the rest of them, and I am simply getting the ready money I have on hand into something for the future. In any case you will be better off and not be bothered every month for rent.
“ I believe it can be made to pay and furnish you a good healthy living and I may never want it, but if I do, we can make arrangements so as not to make any trouble.”

July 7th he wrote:

“ I think we have made a good bargain and I don’t want you to think you are going to get rich on it, for I am looking at it in this light, it will make an independent place for you and if I want to live on it later on I can do so, and not be holding to any of them.”

In accordance with her father’s instructions, Mrs. Davis employed Mr. Stivers, a member of the Ann Arbor bar, to perform the necessary legal services in examining the title and making the transfer. Mr. Stivers prepared a deed from the owners, conveying the land directly to complainant, which was deposited in a bank, to be delivered upon receipt of $1,500 in cash and a mortgage for $1,500, the balance of the purchase price. Mr. Stivers, having prepared the note and mortgage, forwarded them to complainant for execution and return July 3, 1909.

July 8, 1909, complainant wrote:

“The papers came this morning from Mr. Stivers, your attorney, and I placed them in the hands of my attorney, Mr. Buchmann. Now, Jennie, I have decided to have the property deeded to you, so you can sign the mortgage, and assume the whole business. It will be made out in your name. Of course, I will attend to sending you the payments as they come due, 1st of July and 1st of January, semi-yearly.
“Mr. Buchmann, my attorney, will write to Mr. Stivers so he will understand what to do. You of course and I expect Fred will have to sign the note and everything just as if you bought the property. If it is not necessary for Fred to sign it you need not have him do so. When everything is finished up I will get you to deed it back to me, and I expect you to agree to this. In this way I can control the property and keep it for you alone and not let any one bother you. A little later I will make a will and take good care that the others can’t bother you. Don’t let this letter lay around for anybody to read but yourself. I’m sure this is the best way and takes less time. I will see the bills paid, note and interest, etc., and send you money as I get to doing some business. You can get Mr. Stivers’ bill when he gets through and send it to me. * * * I have enclosed your letters to Mr. Stivers and he will see that the business is carried out and recorded properly. Get everything straight and we can attend to the transfer back to me later on.”

On the same day, complainant wrote to Mr. Stivers:

“I have decided to have the Grose property lately purchased by me deeded to my daughter, Mrs. Fred L. Davis of your city, and she is hereby authorized to do all the business attached to same.
“ My attorney, Mr. Buchmann, of New Orleans, will write you full particulars at once.
“Please see that the transfer and everything is properly attended to, and when finished send your bill to me.”

July 9th complainant’s New Orleans attorney wrote to Mr. Stivers:

“ Mr. George F. Sherwood, of this city, to whom you sent for signature the enclosed mortgage and note, requests that you have the documents changed so as to have the property conveyed to his daughter, Mrs. Jennie L. Sherwood, wife of Fred L. Davis, who resides in Ann Arbor, instead of to himself. She will also execute the mortgage and note forming part of the sale. Mr. Sherwood has written to Mrs. Davis today advising her of his wishes in the matter, and also instructed the Farmers’ & Mechanics’ Bank to pay over to Mr. and Mrs. Grose the $1,500 which it has to his credit, to them, upon their execution of deed to property to his daughter just as it would have done had the deed been made in his favor. * * * I would also request that you insert in mortgage, clause corresponding with note showing that purchaser has the privilege of paying multiples of $50 at any interest paying date. ”

July 14th complainant wrote

“Your letter of the 11th just came and in relation to my changing my mind, I did it at the advice of my attorney and I know he is right. The idea is that I won’t have you bothered by any of them, and when I want it deeded back to me (if I ever do) I will let you know and even then it will not make the slightest difference to you. I will take care of the mortgage and payments as they come due, and you must keep me posted a little ahead. * * * I thought the trouble would be less to have it and everything else put in your name, of course I will protect that a little later on with a will, for even as it is with you in possession you have a fight on your hands. * * * See that everything is all right and send the lawyer’s bill to me, you have nothing to worry about. * * * You can rest assured that I am not staying down here by choice, and when I leave I intend to get enough to be fairly comfortable, with what can be dug out of the farm. If you like it, when it is paid for we will add to it and be ‘big Ingen farm.’”

July 25th he wrote, in part:

“You are all right, Jennie, and you understand that you have bought the farm, have the notes and everything in your name and I will give you the terms of payment soon enough and make you pay it, too, so don’t worry about any gift enterprise. Don’t worry and don’t work yourself sick, and you will have the nicest, cleanest little farm in existence, and I’ll help you make the Davis farm a model.”

September 13, 1909, complainant wrote, in part:

“After a while I will consult my attorney of the one at Ann Arbor who attended to your work and arrange in some way by notes or will that will leave you safe to pay for the place, when I see fit to make the terms. As it is I doubt if I could buy it for you myself, and you understand that you are buying, in fact have bought it and I am simply your security.”

In accordance with the changed plan, the $1,500 furnished by complainant was paid, the deed of the premises was made directly to Mrs. Davis, and she executed the note and mortgage to the bank; the vendor having received the money therefor from the bank. On the 25th of September, 1909, Jennie L. Davis died, leaving surviving her four infant children and her husband, Fred L. Davis, who was afterwards appointed administrator of her estate.

The bill of complaint prays:

First. That said paper, purporting to be a deed, made the 14th day of July, A. D. 1909, and recorded in the office of the register of deeds in and for the county of Washtenaw, in Liber 175 of Deeds, at page 308, from Lorenzo D. Grose and wife to Jennie L. Davis, a copy of which is hereunto attached, marked ‘ Exhibit A,’ as aforesaid, be declared null and void and inoperative for the conveyance of any of the real estate and property therein mentioned; that your orator be subrogated to the rights which the grantors in said deed, the said Lorenzo D. Grose and wife, formerly had in the said premises; and that your orator be declared to be the legal owner in fee of said land and premises, subject only to the mortgage in favor of said Farmers’ & Mechanics’ Bank of Chelsea, Mich.
“Second. That if the relief prayed for in the foregoing paragraph be not granted by the honorable court, that your orator may be subrogated to the former rights of said Lorenzo D. Grose, so far as relates to that part of the consideration advanced by your orator towards the purchase of said premises, to wit, the sum of fifteen hundred dollars ($1,500), with interest thereon at the legal rate from the 14th day of July, A. D. 1909, and that your orator be declared to have a lien upon the said premises for the said amount and interest thereon, subject only to the prior incumbrance in favor of the said Farmers’ & Mechanics’ Bank of Chelsea, Mich.
“Third. That a receiver be appointed by the order of this honorable court to have charge of the said land and premises, and to collect the rent and income therefrom, pending the termination of this suit.”

A decree was entered dismissing the bill; the circuit judge saying in his opinion:

' There is no real controversy as to the facts in this case. This transaction was intended for the benefit of both the daughter and the father; the daughter to enjoy it always, and the father to have it as his home, when he desired to retire from business. If the daughter had lived, there probably would have been no misunderstanding about their respective rights and interests in this property. The evidence abundantly proves the fidelity of the daughter to the trust reposed in her by her father, even to the last act in her life. She undoubtedly understood that it was her duty, and she stood ready at all times, to re-deed this property to her father upon his request. Hence it must follow that all the equities of this case are with the complainant, and he is entitled to the relief sought, unless his rights and remedies are barred by the statutes of this State. In my opinion, such is the case. The mere intention of the parties cannot prevail against the express enactments of the statute. I think that sections 8835 and 9509 are prohibitive against the bill of complaint in this case. It may be assumed that if the daughter had lived she would have carried out the wishes of her father; but he allowed this title to pass unconditionally to her, and with her death it passed, in my opinion, to her heirs, and he is without remedy.”

Complainant has appealed to this court.

Counsel for complainant contends that the statutory requirement of a written agreement was fully complied with. In support of this contention, he cites declarations of Mrs. Davis to the effect that she had agreed to reconvey to her father, which agreement must necessarily have been in writing, arguing that secondary evidence is admissible to prove the agreement evidenced by lost letters. Conceding that the declarations of Mrs. Davis establish the fact that she had agreed with her father to recónvey the land, and that such agreement must have been contained in a letter, is this sufficient to satisfy the statute ? The deed was made with the full knowledge and consent, and by the express direction of, complainant, and the transaction was carried out by Mrs. Davis precisely as he wished her to carry it out. We are satisfied that complainant did not contemplate that his daughter should execute a formal paper, contemporaneous with the deed, or furnish Mr. Stivers with any information to enable him to protect complainant in that regard, since the letter of Mr. Buchmann, the contents of which he knew, contained no such instructions. The instructions, relative to getting everything straight, related to the conveyance of a perfect title. We are also satisfied that Mrs. Davis violated no trust or duty of any kind which she owed to complainant in taking the conveyance; and that the title vested in her, under the provisions of 3 Comp. Laws, § 8835, unaffected by the provisions of section 8837.

We are also satisfied that some kind of an arrangement existed as to a reconveyance of the land to complainant by Mrs. Davis, and that this arrangement was evidenced by the letters of the parties; but only one of the many letters of Mrs. Davis was produced, and that said nothing on the subject. Complainant testified that this was the only one of her letters which he could find, and no attempt was made to prove by secondary evidence the contents or substance of any of the other letters.

To satisfy the provisions of 3 Comp. Laws, § 9509, an instrument in writing must be produced, or its loss must be satisfactorily accounted for, and its contents established. General statements, such as those made by Mrs. Davis that she had agreed to reconvey the land when her father came to see her in the fall, are not sufficient. This is one of those unfortunate cases where the courts can furnish no relief. See Wipfler v. Wipfler, 153 Mich. 18 (116 N. W. 544, 16 L. R. A. [N. S.] 941). This arises largely, however, through the carelessness of the complainant in failing to observe the care which his daughter exercised in keeping important business letters.

The decree is affirmed.

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


author: Steere, J.

text:
    AMMER v. POSTAL.
    1. Master and Servant — Negligence — Defective Elevator — Inspection — Evidence.
    In an action for personal injuries charged to have resulted from the fall of defendant’s elevator that plaintiff claimed had previously given evidence of a defective and unsafe condition, the trial court erred in excluding answers to questions asked of plaintiff’s expert witness, in support of the charge contained in his declaration as to defendant’s failure to inspect the elevator, whether an inspection would have disclosed certain defects, how often the brakes and safety devices ought to be inspected, and how the inspection should be made.

      2. Same.
    Nor should the court have directed a verdict for defendant for the alleged reason that there was no sufficient evidence of any neglect, upon testimony having a tendency to show that the elevator had failed to stop some four weeks prior to the injury, that the safety catch had been jarred and was fastened back, that the elevator twice dropped during the week before the accident, and also a few hours previously.
    8. Same.
    Plaintiff could not be required to show by direct testimony what was the specific defect that caused the improper working of the elevator.
    Error to Wayne; Rohnert, J.
    Submitted November 21, 1911.
    (Docket No. 156.)
    Decided February 10, 1912
    Case by Christian W„ Ammer against Fred L. Postal and Austin E. Morey for personal injuries. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Eugene L. Mistersky and James A. Murtha (John H. Dohrman, of counsel), for appellant.

      human W. Gfoodenough, for appellees.

       Duty to employés as to inspection of elevator, see note in 21 L. R. A, (N. S.) 592.

   Steere, J.

This action is brought by plaintiff to recover damages for personal injuries sustained on July 16, 1905, while in the employ of defendants, engaged in running an electrical passenger elevator in the Griswold House in the city of Detroit, of which hotel defendants were proprietors.

Plaintiff’s declaration, is in proper legal form, with the usual allegations and averments in general terms, charging failure on the part of defendants to provide reasonably safe appliances with which to operate the elevator, failure to inspect and keep the same in repair, a generally unsafe and defective condition, and particularly that the brake and safety catch appliances of said elevator became out of repair, defective, and unsafe, of which fact defendants had due notice, by reason of which, while plaintiff was operating the elevator in a proper manner and with due care, it dropped a distance of five stories to the basement, inflicting on him serious and permanent injuries.

Defendants pleaded the general issue with the statute of limitations added, against objection, at the trial. The latter plea was not passed upon by the trial court, and is not properly presented by the record or briefs for consideration here.

The case was tried in the Wayne county circuit court before a jury. At the conclusion of plaintiff’s testimony,' the trial judge, of his own motion, directed a verdict for defendants on the ground that plaintiff had failed to produce sufficient evidence of defendants’ negligence to justify submitting the same to a jury, stating that it would be absolute speculation and conjecture on their part as to what caused the accident. Plaintiff’s assignment of error is the ruling of the court that the testimony was only speculative, followed by taking the case from the jury and directing a verdict in favor of defendants. It therefore becomes necessary to ascertain if there was any competent evidence produced by plaintiff of defendants’ negligence in the particulars alleged in the declaration.

Plaintiff testified that he had worked on elevators off and on for 16 years, had operated electric elevators before, but was not a mechanic and did not understand their construction and machinery, except that he knew how to start and stop them, and cut off the electric current, and do other things proper for their operation. He first had trouble with this elevator four weeks before the accident, when he could not get down from the sixth floor without help from the engineer, having gone up against the beams, which jarred or sprung the safety catch. He told the manager and informed him that he did not know how to set the safety catch; reported it to the engineer, who looked after the elevator. The catch was tied back with a piece of rope and wire. He was shoved up against the beams four different times. About two weeks after the first trouble, he wanted to stop at the dining-room floor and could not, but slid to the basement at about full speed, breaking mirrors on each side of the car: on day of accident picked up a passenger on fifth floor, tried to stop at fourth, but brake did not act, worked controller to stop, and turned off the current without effect, and dropped five floors to the basement: on Saturday before accident had trouble with the car. It slid too much even without anybody in it but himself. After the accident, two cables were loose at the top of the car, hanging down, and later on the elevator man opened the controller box, and about two handfuls of copper dust fell out of the box.

A witness named James Luck testified that he worked at night on the Griswold House elevator in July, 1905; that it did not run the night following the accident to the plaintiff. It slid with him two or three days before the accident, slid from the second floor to the basement and went down with a bump. Reported this occurrence to the head clerk of the hotel.

A witness named Harry Byam was bell-boy at the hotel, and among other things it was his duty to run the elevator when it was necessary to relieve plaintiff. He operated it two or three times at intervals on the day of the accident, relieving the plaintiff for from five to fifteen minutes at a time. While coming down from the sixth floor with a passenger, he tried to stop at the dining-room floor, but the elevator would not stop and ran down to the basement, from whieh it had to be pushed up. Witness was in the car with plaintiff at the time of the accident, getting on at the fifth floor: noticed that the elevator was uncontrollable when the plaintiff tried to stop it at the fourth floor, throwing the lever back in position to stop the car, and then throwing it the other way and back up again, and then turning off the electricity, but the car went on down just the same as fast as it could go. After that the machinery was repaired. Witness saw them take part of the clutch on the pulley wheel apart, on top and underneath — the friction plate.

Thomas West, an electrician, testified that he had been engaged in the business for 14 years; understood the construction of the Otis electric elevator; had been employed as electrician by the Public Lighting Commission and the Majestic Building. After qualifying as an expert witness, he was examined at length regarding the construction of electric elevators in general, and the one in which the accident occurred in particular; he having personally examined it. During his examination he demonstrated the construction and action of the brake and some other parts of the elevator on the blackboard before the jury. To a hypothetical question as to what condition would cause the car to drop, he said:

“ If the friction plate is not properly adjusted to allow the springs to work so that it will pull it up against the pulley, the weight of the car will have a tendency to overcome the friction on the pulley, and the car would slide. That is caused by improper adjustment of the largest nuts or the wearing out of the leather on the inside of the clutch. * * * Also, if the brake or clutch spring refused to work, and the car got to a speed sufficient to throw the clutch in on the bottom of the car, that would stop it. If the clutch did not work, or the brake did not work, it would show a defective covering of the clutch; a defective covering, or a defect in the clutch itself, or both.”

. In the examination of this witness the court took an active part, asking numerous leading and sometimes argumentative questions, to which counsel at times objected. During the examination of the witness as to what conditions might cause the accident, the following occurred:

The Court (continuing): Then either the car did not go fast enough to throw it out — just a moment — either the car did go fast enough to throw the governor out, or else there was no covering there, or it was out of repair ?
“A. Yes, sir.
The Court: One of those three conditions ?
“A. Yes, sir.
The Court: And you don’t know which one ?
“A. No, sir.
The Court: Now, you see that is what I am trying to illustrate; it is speculation. * * *
“Juror: Can I ask a question ?
The Court: Yes.
Juror: Does the controlling lever ever get out of repair so that it don’t shut the current off as they move it from one position to another ?
“A. Yes, sir.
“Juror: What effect does that have upon the elevator, if the current was not shut off on the way down ?
“A. Well, it would strike pretty hard; at the bottom it would stop itself automatically.
“Juror: What makes it stop there,?
“A. There is an automatic trip.
“Juror: Suppose the controller did not shut off the current, would that still shut it off ?
“A. Yes, sir.
“By Mr. Goodenough: Suppose the automatic were out of order too, what then ?
“A., Well, then it is time they had them fixed, if they are both out of order.
“The Court: That is what I call a smart answer. You are too bright a man to give such an answer as that. The question is what would happen ?
“Mr. Goodenough: What would be the effect if the automatic were out of order ?
“A. The brake would set itself; you could not run the car with the automatic out of order.
“Q. If the automatic was out of order and the controller was out of order and did not shut the current off—
“The Court: There are two automatics — one is controlled from the car and the other is controlled by pulling a-cable. * * *
“The Court: Mr. West, I want to ask you one question. The safety brake that stops the car, that is not a safety brake, but a regular brake and gears — that may not work because it may be out of order or not properly adjusted.
“A„ Yes, if it is not properly adjusted, it is out of repair. * * *
“The Court: Suppose there is something wrong with the controller by which the motor could not stop, that would have a tendency to let it go down faster ?
“A. There is a controller with safety device to overcome that.
“Q. There might be something wrong with the controller by which the power would be put on, and you could not shut it off, and the car would continue to go down?
“A. Yes, sir.
“Q. So that might cause the car to go down ?
“A. Yes, sir.”

While the court was conducting a somewhat lengthy examination, the following occurred: Mr. Dohrman, objecting, said:

“ I don’t believe your honor understands this man.
The Court: I understand him fully if I understand anything. In the first place, let me ask you a few questions. In the first place, witness, if the clutch is out of repair, it would not permit the clutch to grab and stop the elevator, would it, and it would slide down if the clutch—
“A. Do you mean the brake or the safety clutch ?
The Court: If it was not adjusted properly, it would tend to let it go down ?
“A. Yes.
The Court: So, also, if there was — there might have been something in the controller which was out of kilter and which would prevent the controller from controlling the descent of the car, or the current, and that, might bring it down. Now, there are three conditions. * * * ”

There are several pages of the record indicating that the court trespassed upon the province of counsel in the examination of this witness, and was obliged to make rulings upon his own questions, manifestly finding it difficult to be impartial in that particular.

One of the allegations of negligence in plaintiff’s declaration is failure to make proper inspection. To sustain that allegation, the following questions were asked of the witness West, and objections thereto sustained:

“Q. I ask you with reference to an inspection, the causes which you have mentioned — and mentioned by the court — could they be discovered upon inspection ?
‘ ‘ Q. What is your experience as to inspection of braking devices and safety devices on Otis elevators ?
“Q. How often do you inspect brakes and safety devices on elevators ?
“Q. How often in your opinion should brakes and safety devices on elevators be inspected to render them safe and reliable ?
“Q. Do you know, Mr. West, the manner and method of the inspection of elevators ?
“Q. Do you know how often such devices should be inspected ?
“Q. Would an inspection have disclosed the defects which you have mentioned in your answers ?
‘ ‘ The Court: They would if they had been there at the time of the inspection; I will answer that for you. If they were not there at the time of the inspection, it would not have disclosed it. They would if they were there at the time of the inspection. If they were not there, they would not be disclosed. I will answer for you.”

To these rulings of the court exception was duly taken. We think the proposed testimony should have been allowed, and its exclusion was error.

We think there was testimony to go to the jury under the claim of plaintiff that the cause of the accident was a defective condition of the friction brake and safety clutch —one or both. The record contains testimony that four weeks before the accident complained of plaintiff was “shoved up above the limits” and against the beams so that he could not get down without the aid of the engineer; that this jarred the safety catch; that this was reported to the manager and engineer whose duty it was to look after the elevator; that at that time the safety catch was tied back with a rope and a loop of wire; that later the elevator slid from the dining-room floor to the basement, breaking mirrors on each side of the car; that the Saturday before the accident it slid again, and again some few hours before the accident, while Byam was operating it, it slid three floors to the basement, where it stuck so that he had to be pushed up. Luck testifies that two or three days before July 16th it slid from the second floor to the basement while he was operating it, which occurrence he reported to the head clerk. This is not a case in which the machinery worked well before and after an accident which was unexpected and unexplained. There is some evidence in the present case tending to show that the elevator had been out of order, that its working was spasmodic and unreliable, and that defendants had notice of it; even though it may be slight, it was sufficient to carry the case to the jury, whose province it is to determine, under proper instruction, what reasonable inferences, if any, it affords as to defendants’ negligence in not inspecting and keeping the same in repair. Redmond v. Lumber Co., 96 Mich. 545 (55 N. W. 1004).

While negligence cannot be inferred from the bare accident, or guilt found upon mere speculation and conjecture, without facts from which reasonable and logical inferences can be drawn, recovery is not limited to those cases where plaintiff can produce direct testimony of the specific defect in a certain part of the mechanism, or “diagnose the particular cause of inefficiency and prescribe the remedy.” Casterton v. Blower Co., 142 Mich. 407 (106 N. W. 61); Wilson v. Woodenware Co., 152 Mich. 540-546 (116 N. W. 198).

The judgment is reversed, and a new trial ordered.

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


text:
    GEEL v. GOULDEN.
    Vendor and Purchaser — Notice—Contracts.
    Knowledge of the fact that a land contract was never signed • by the vendee will be imputed to the vendors of land who held in their possession one of the original written instruments that were prepared in duplicate, for a period of several years, accepting numerous payments on the instrument.

      2. Same — Principal and Agent — Imputed Knowledge.
    And when a real estate broker, acting for the vendors, knew that the instrument was drafted with the name of an officer as grantee of the defendant, a partnership association, and that the officer had no personal interest in the deal, and that he assigned the oontract to the association immediately thereafter ; 'the broker being an agent of complainants, they were chargeable with the knowledge that he had.
    3. Same — Estoppel.
    As to suoh defendant assignor, oomplainants’ bill to foreclose the land contract was properly dismissed.
    4. Partnership Associations — Limited Liability — Statutes — Debtor and Creditor — Officers and Agents.
    A single manager or agent of a limited partnership association cannot by a contract in its name render the association liable in an amount exceeding §500. 2 Comp. Laws, § 6083.
    6. Same — Land Contract — Mutuality.
    Under a land contract, conveying to an officer of a partnership association real property that thereafter he assigned to the association, which surveyed and platted it, paying taxes on the premises and installments on the contract, the partnership was not bound unless the contract was signed and executed by two managers as required by statute.
    6. Same — Estoppel.
    In the light of the express prohibition of the statute, the association was not bound by estoppel to pay the contract debt, and could, at any time, invoke the aid of the statute to avoid liability.
    7. Same — Affirmative Relief. .
    But the partnership association is estopped in equity from attempting to recover back any of the consideration paid voluntarily to the vendor, and its cross-bill is dismissed.
    Appeal from St. Clair; Tappan, J.
    Submitted November 22, 1911.
    (Docket No. 170.)
    Decided February 10, 1912.
    Bill by Amanda J. Geel and others against Theophilus A. Goulden, the Factory Land Company, Limited, and Charles Wellman, trustee, to foreclose a land contract. The Factory Land Company, Limited, by cross-bill, prayed for affirmative relief. From a decree for complainants against defendant the Factory Land Company, and for the other defendants dismissing the complainants’ bill, defendant the Factory Land Company appeals.
    Reversed and bill and cross-bill dismissed.

      Thomas Wellman, for complainants.

      W. L. Jenks, for defendants.
   Steere, J.

The bill of complaint was filed in this suit by complainants for the purpose of foreclosing a certain land contract, dated October 22, 1902, for the sale of a tract of land, described by metes and bounds, located in the southern portion of the city of Port Huron, St. Clair county, Mich.

The contract purports to sell the land to T. A. Goulden, and is signed by the vendors only, who are the complainants herein. The consideration stated is $5,000, to be paid as follows:

“$1,000 down on the signing of this contract, and the balance on or before five years, with the privilege of paying $1,000 or more, at any time, on the principal of this contract, interest to cease on amount so paid at time of payment, with interest on all sums at any time unpaid hereon, at the rate of six per cent, per annum payable annually.”

The purchaser is required to pay all taxes, ordinary and extraordinary, assessed against the land, and is to have immediate possession.- The contract also contains the usual covenant to deed and forfeiture clauses. It was made in duplicate. On the original retained by complainants is the following indorsement:

“For value received I hereby assign the within contract to the Factory Land Company, Ltd.
“T. A. Goulden.
“Port Huron, Oct. 31, 1902.”

In complainants’ prayer for relief, they ask for an accounting, make tender of deed upon payment of amount adjudicated, and in default thereof ask for decree of foreclosure and sale in the usual manner; and, further, that, in case of sale, should said land fail to produce a sufficient sum to pay the amount found due, said defendants shall be adjudged personally liable for the deficiency, and complainants have execution therefor.

The Factory Land Company, answering, alleges that, although its secretary caused the assignment of October 31, 1902, to be prepared, and requested defendant Goulden to sign the same, no consideration was paid him therefor, and no legal obligation was incurred thereby. It further alleges that the money paid to complainants on the alleged land contract was paid by the secretary, without consideration, and in violation of law, and prays that its answer be considered in the nature of a cross-bill, under which it seeks to recover the amount of money thus unlawfully paid complainants, asking a decree in its favor for the same.

Defendant Goulden, answering separately, denies that he was a party to the contract in question; denies that he ever entered into occupation or possession of the land mentioned therein; alleges that he has no interest whatever in said land, or in the contract therefor, and avers that no consideration ever passed from him to complainants, or to him from the land company for his assginment; denies that the other defendants can have any right or interest in the land through or under him; alleges that he executed the assignment indorsed upon the contract at the request of the Factory Land Company, with no other or further interest in the transaction.

Defendant Wellman, trustee of the land company, denies any interest of any kind in the premises described, and prays that the bill be dismissed as to him.

The testimony discloses that E. F. Percival, a real estate agent of Port Huron, was authorized by complainants to act as their agent in dealing with the purchaser for this property, and so acted as their agent and representative. He negotiated the deal with E. L. Moak, who was secretary and one of the executive officers of the defendant Factory Land Company, a partnership association, limited, organized under chapter 160, 3 Comp. Laws, “for the purpose of purchasing, improving and selling of land, encouraging manufacturing, building and renting houses, warehouses, docks, factories and stationary ship machinery.”

Moak, as secretary, had active management of the company’s affairs, making purchases, sales, and collections for it. He bought a great deal of property for the company, under contract, having in fact, as he states, charge of practically all the work and making of contracts with different individuals. He testifies:

“I have authority sufficient to appropriate the money of the company to purchase land, and have general authority in that direction.”

Several members of the land company, including Moak, became interested in, and desirous of, purchasing the property in question for the company, and decided to do so. Satisfactory terms having been reached by Percival and Moak, each representing his respective principal, the contract under consideration was prepared. At the instance of Moak, and because, as he testifies, it was thought advantageous to the plans of the company, T. A. Goulden, treasurer and one of the executive officers of the company, was named as vendee. He was not a party to any of the negotiations, and first learned of the transaction, and use of his name in that connection, just before the papers were drawn up, at which time it was brought to his attention by Moak and Percival, who informed him that the land was being bought for the company, and it was deemed advisable to take the title in his name.

On the day the contract was executed by complainants, Goulden, at the request of Moak, executed the assignment indorsed on the original contract, which was delivered to complainants, and subsequently he made a similar indorsement on the original copy retained by the company, for the purpose of completing its record of the transaction. His indorsement was without consideration, and simply made at the suggestion and request of Moak.

On October 31, 1902, Percival receipted to the land company, in behalf of complainants, for $500. Indorsements on the contract show the payment, on December 12, 1902, of $500 more, making the $1,000 to be paid down on the execution of the contract. Further indorsements show the annual payment of interest, amounting to $240 each year, up to and including November 4, 190?, making a total of $2,201 paid complainants. Moak testifies that he made these payments out of the funds of the company, and also, from the same source, paid $758.87 in taxes; that he drew the money for the purchase of the property from the funds of the Factory Land Company, drawing checks on the treasurer, who was Mr. Goulden; the checks being drawn so that they could be cashed at the bank.

The duplicate contract prepared for the vendee was taken by Moak and kept among other papers of the company in its office. Entries of the payments to complainants were made in the books of the company, which were open to the inspection of the directors and stockholders. Moak presented and filed, at the annual meeting of the company of that year, a statement, showing the payment of this $1,000 on the contract. The annual meeting was held in August, 1903, so that the directors had opportunity to know how much money was invested in the property at that time. The property was carried upon the books of the company, and known as the Geel property. The company had possession of the property, from the time of its purchase, to the extent that it controlled and exercised the same dominion over it ordinarily exercised by owners over land in like condition; it being vacant and unfenced. It was surveyed by the company, though no stakes were driven; a plat was made of the lands of the company in that locality, known as the Buena Vista plat, including this property with contiguous land purchased from other sources.

Neither duplicate of the prepared contract was signed by any one as purchaser or vendee. Complainants, during all the intervening years, were in possession of one of the originals, and cannot plead ignorance of this palpable imperfection. Knowledge of the legal rights and responsibilities of both parties, under such conditions, is imputed to them.

It is claimed in their behalf that the doctrines of part performance and estoppel relieve this contract from the statute of frauds, and preclude defendants from denying its validity.

It is charged that defendant Wellman, as a trustee of the land company, claims some right or interest in the premises. This is denied by him, and there is no evidence of any kind tending to show that he ever made such claim, or in any manner became personally a party to, or participated in, the transaction.

Defendant Goulden’s name appears on each of the duplicates, under an indorsement assigning the same to the land company. It is claimed that this, in legal effect, is equivalent to signing and accepting the contract, and makes him personally liable according to its terms. So far as these indorsements speak for themselves, they indicate a transaction between him and the land company, not between him and complainants. Percival, who was complainants’ agent, participated in and had full knowledge of all the facts and circumstances attending this assignment. He knew Goulden took no part in the negotiations, was not personally interested in them, was not the purchaser, and knew nothing of the matter, until the terms had been agreed upon between Percival and Moak for the sale of the premises by complainants to the land company. He knew Goulden paid nothing for the contract, and received nothing in payment for his assignment, only signing the same as an accommodation, at the request of Moak, with the approval of Percival, for some purpose Moak considered in the interest of the company, which was known to be the actual purchaser.

No question of undisclosed principal is involved. Percival’s knowledge was complainants’ knowledge. They cannot claim to have been deceived or misled by things done with his knowledge and consent.

Between complainants and defendants Goulden and Wellman, the testimony discloses no facts at the time of the negotiations, and no subsequent conduct, under which the elements of mutuality essential to a contract are discernible, or under which the doctrine of estoppel can be invoked. As to those two defendants, the bill of complaint was properly dismissed.

Between complainants and the defendant land company, an entirely different situation presents itself. It is urged with much reason that the land company, by reason of having, through its agent, negotiated to purchase the property, accepted and retained a contract, signed by the vendors, made payments on said contract, surveyed, platted, and paid taxes on the premises, has established the elements of mutuality which make the agreement valid and binding on both parties, and is estopped from denial, under the ruling in Mull v. Smith, 132 Mich. 618 (94 N. W. 183). Were the defendant company a natural person, with unlimited power to contract, we think the authority cited would be controlling. The Factory Land Company is an artificial person, with its powers and duties limited and prescribed by statute. In its behalf, the contention is made that part performance and estoppel cannot be invoked against it in the face of a positive statutory prohibition.

The statute relied on, and under which the company is organized, provides, in part, as follows:

“ No debt shall be contracted nor liability incurred for said association except by one or more of said managers, and no liability for an amount exceeding five hundred dollars, except against the person incurring it, shall bind the said association unless reduced to writing and signed by at least two managers, except in case of associations for the purpose of buying and selling merchandise,” one manager may be authorized to make contracts and sign notes for the same. [§ 6083, 2 Comp. Laws.]

It is well settled by previous decisions of this court that a single agent or manager of a partnership association, limited, organized under said statute, cannot, by a contract in its name, make it liable in an amount exceeding $500; and that the statute may be interposed as a defense in any suit brought to enforce such contract. Citizens’ Sav. Bank v. Vaughan, 115 Mich. 156 (73 N. W. 801); Rhoades v. Pure Wood Co., 149 Mich. 235 (112 N. W. 940); Hoyt v. Grape Juice Co., 158 Mich. 619 (123 N. W. 529); Beach v. Publishing Co., 163 Mich. 226 (128 N. W. 177); Armstrong v. Stearns, 156 Mich. 597 (121 N. W. 312).

In Citizens’ Sav. Bank v. Vaughan, supra, indorsements of the association on notes of over $500 each, apparently made in the usual course of business by one of its officers, were involved. It was said:

“Undoubtedly both parties acted in ignorance of this statute; but the statute must control. * * * We think the statute contemplates that the invalidity should attach to every contract in its entirety, where the amount exceeds $500.”

In Rhoades v. Pure Wood Co., supra, in a suit for services rendered under a contract for hiring at an annual salary of $2,000 per year, it was held plaintiff could not recover, because the contract was not signed by at least two managers of the defendant.

Hoyt v. Grape Juice Co., supra, was a suit to recover under a contract of employment for over $500, signed by only one manager of the defendant. It was said:

“This contract was a nullity in its entirety, and it was no more binding upon the plaintiff than the defendant, upon the familiar principle that there was a want of mutuality * * * This defendant was in a situation to raise this question in its own defense at any time.”

In Beach v. Publishing Co., supra, the defendant being engaged in general publishing, book selling, and office supplies, it was held that:

“Power conferred upon the general manager by the association to make contracts involving more than $500 must be limited to merchandise contracts. The contract in the case before us is one of hiring, and must be declared void under the statute.”

In Armstrong v. Stearns, supra, it was held that under the exception in the statute, not only notes given for merchandise in excess of $500, but also notes given as accommodation paper, were valid obligations in the hands of bona fide holders against a partnership association, limited, whose business was buying and selling merchandise.

The case of Howard v. Land Co., 167 Mich. 251 (131 N. W. 113), is cited by complainants in support of the contention that, in a proper case, such a contract will be sustained, though not executed as the statute requires. In that case the principles of previous cases are recognized and applied. Though the name of but one manager of the company appeared on the contract, it was held to be, in legal effect, signed by two or more, and the requirements of the statute complied with; the records of the company showing that at a meeting, duly held, all the managers and directors of the company, by proper resolution, voted to make the purchase and close the contract. It was the action of the board, preserved in the records of the company, which legalized the contract, not part performance.

We think, in the light of previous decisions applied to the practically undisputed facts in this case, the defendant land company could invoke the statute at any time as a defense against proceedings to enforce further liability and further performance.

By its cross-bill, the Factory Land Company seeks to recover the money paid on the purchase price and for taxes on the land, with interest, on the ground that the contract was void and the payments without consideration. While the doctrines of part performance and estoppel in pais will not render valid and aid complainants in enforcing an executory contract made in direct violation of a prohibitory statute, a different question is presented when a defendant asks a court of equity to undo that already done, and compel return of money voluntarily paid. It is to be borne in mind that this contract was not ultra vires. It was not • fundamentally void of necessity, because outside the object for which the company was created. The company was organized to deal in real estate. It was within its power to accept and ratify this tentative contract of its agent and, at any time before complainants served notice to the contrary, make it valid by executing it according to the statute. It did not see fit to do so; but, quieting these complainants by these payments, from time to time, it kept control of the property, holding this unilateral contract as a symbol of ownership, in effect an option, awaiting the advent of fortuitous circumstances, if they came, and in position to throw up the project, if it proved unprofitable. The contract not being ultra vires, no question of public policy is involved, and we think the equitable doctrine of estoppel in pais can well be applied to such a state of facts.

Complainants’ bill and defendants’ cross-bill will be dismissed, without costs to either party.

McAlvay, Beooke, Blaie, and Stone, JJ., concurred.