author: McAlvay, J.

text:
    LEPAN v. MacKINNON BOILER & MACHINE CO.
    1. Evidence — Opinion Testimony — Discharge of Servant.
    Expert testimony that an apprentice was not faithfully and honestly working for his master for some time previous to his discharge, offered by defendant’s superintendent, who stated that he could determine from experience and observation, whether employees were so working, was improperly excluded, in assumpsit for the wrongful discharge of the apprentice.
    2. Same — Apprentices—Breach of Contract.
    In answer to plaintiff’s claim that he was wrongfully put to work about the shop outside his line of work, it was competent to show that it was customary for apprentices to do other than their regular work when there was no regular work to do, and that they became acquainted in this way with various kinds of work about the shop, and it was beneficial to them.
    S. Contracts — Apprentices—Breach by Discharge.
    Defendant, in an action for breach of a contract of apprenticeship, was entitled to have the claim of defense that if plaintiff, after being refused a raise in wages, wilfully slighted and neglected his work in order to force defendant to discharge him, he could not recover, as requested in writing, presented to the jury in the charge.

      4. Same — Master and Servant — Discharge.
    The contract of apprenticeship hound both parties equally, and the apprentice had no right to demand higher wages or to exhibit resentment at the master’s refusal to grant his request.
    5. Same — Construction—Services—Damages.
    Where plaintiff’s contract of apprenticeship provided that in consideration of faithful performance of the agreement during its full term the master agreed to pay the apprentice ten cents per day for each full working day of nine hours that he actually worked, the arrangement constituted a bonus for complete performance, and no recovery could be permitted therefor.
    Error to Bay; Collins, J.
    Submitted April 29, 1913.
    (Docket No. 33.)
    Decided December 20, 1913.
    Assumpsit in justice’s court by Leo Lepan against the MacKinnon Boiler & Machine Company for breach of a contract of apprenticeship. Judgment for plaintiff on appeal to circuit court. Defendant brings error.
    Reversed.

      Kinnane, Pratt & Allison, for appellant.

      Edward E. Annehe and William B. Henry, for appellee.
   McAlvay, J.

Plaintiff, a minor, on January 25, 1909, entered into a certain contract of apprenticeship, in writing, to the defendant, to learn the trade of a molder, which was duly ratified and consented to by his father. These articles of apprenticeship were upon the usual terms, and were to continue for the term of four years, and contained, among other provisions, the following which are material in this case:

“During all of which time the said Leo Lepan doth promise and covenant, that he will serve his employers faithfully, keep their secrets, and obey their lawful commands. That he will do them no damage himself nor see it done by others without giving notice thereof. That he will not waste their goods nor lend them unlawfully. That he will not absent himself without leave, but in all ways behave himself as a faithful apprentice should do during the said term, and that he will make up for all lost time during said term of four years.
“At any time that the said apprentice does not fulfill the above requirements, it is understood and agreed that the said MacKinnon Boiler & Machine Company reserve the right to discharge said apprentice.
“And the said MacKinnon Boiler & Machine Company, covenant and agree to instruct or cause to be instructed the said apprentice, in the trade of molder, and to pay him the sum of 5 5/9c per hour during the first year; 10c per hour during the second year, 12 7/9c per hour during the third year and 15 5/9c per hour during the fourth year.
“Furthermore, in consideration of the faithful performance of the full apprenticeship term of four years, the said MacKinnon Boiler & Machine Company also agree to pay said Leo Lepan, the sum of 10c per day, for each full working day of nine hours, actually performed.”

He was discharged November 25, 1910, and the dispute in this case is as to whether he was rightfully discharged. This case was begun in justice’s court, where the pleadings on both sides were oral, except a bill of particulars furnished by plaintiff. As recited in the record:

“Plaintiff declared orally against the defendant on all the common counts in assumpsit, and especially for damages caused by breach > of a certain contract of apprenticeship between the parties, claiming damages in the sum of $800, and files bill of particulars, in writing, as follows:”

The bill of particulars was for eight weeks’ wages from the date of his discharge to January 14, 1911, at 90 cents per day, which amounted to $43.20, and “ten cents per day for 620 days, as per contract — $62.00.” Defendant pleaded orally the general issue, and gave notice that it would show a breach of said apprenticeship contract by plaintiff. It was appealed to the circuit court, where plaintiff recovered a judgment upon the verdict of a jury.

The errors assigned and relied upon in the case, which is here for review upon a writ of error, relate to rulings of the court upon the admission and exclusion of testimony, the refusal to give certain requests of defendant, and upon certain portions of the charge as given.

The defense in the case was based on the right, under the contract, to discharge this apprentice in case of any failure to perform the agreement on his part, and the claim is made by defendant, which is not denied, that about three months before his discharge plaintiff went to the president of the defendant company and asked for an increase of wages, which was refused, and he was told that he was bound by the contract, which fixed the wages. Defendant claimed and introduced evidence tending to show that after this time a change in his conduct took place, and he neglected his work, idled his time away, and did very poor and indifferent work, to which conduct his attention was frequently .called; that finally, when his attention was called on the day of his discharge, to some poor castings he had made, he was told that if such a thing happened again he would be discharged, when he answered he did not care, and the discharge immediately followed. On the part of plaintiff testimony was introduced tending to contradict the claim that he neglected his work after he asked for more wages, and that he was not found fault with on that account.

The errors relied upon will be considered and discussed in the order presented in appellant’s brief.

The first of these refer to the admission and exclusion of testimony. During the examination of the general superintendent, after qualifying himself as an expert, he stated on redirect examination:

“I can tell from my experience in going through the shop as to whether men are faithfully and honestly working or not.
“Q. What is the fact during the last three months, as to whether plaintiff here, Mr. Lepan, was faithfully working for the company, or was soldiering and not working?
“Mr. Anneke: I object to that. I think it should be specific what he did and did not do.
“A. His work was not satisfactory.
“The Court: I think the question may be answered.
“Q. The question is,-What is the fact as to whether he was honestly and faithfully working or not?
“A. He was not; no, sir.
“Q. With reference to the duties of a foreman, you have been a foreman in this shop?
“A. Yes, sir.
“Q. The size of that molding room is about what?
“The Court: That statement as to whether he was honestly and faithfully working, that is too general and too broad; that is stricken out.”

An exception was taken, upon which error is assigned.

This witness was competent as an expert to testify upon this subject, as the record shows, and in the above quotation had stated that from his experience in going through the shop he could tell whether men were faithfully and honestly working or not. In this instance he testified as to facts within his knowledge from observation of this plaintiff, and it was not a mere expression of opinion. The testimony was very material upon the principal dispute involved in the case as to whether the discharge of plaintiff was justified. The court erred in striking out the testimony.

The foreman of the foundry, who had testified at length as to the conduct of plaintiff, both before and after he had asked for higher wages, and the character of his work during the same time, and who was acquainted with the poor work he had put out, which was broken up and thrown into scrap, among other things, said:

“It is always customary wherever I have worked in my life for an apprentice boy when there was not anything in the shop to go out and do anything until we got something to do.”

He was then asked:

“Q. What is the benefit derived by the boy from working at all of the different work there?
“A. It benefits him—
“Mr. Anneke: I object to that as incompetent and immaterial.”

This objection was sustained and an exception taken.

Plaintiff had testified and introduced evidence tending to show that he had been wrongfully put at work about the shop not in the line of his employment, while he worked as an apprentice. This question above quoted, which was excluded, was offered by defendant to show the benefit of such custom to the apprentice in becoming acquainted with the various kinds of work about the shop, and to meet the claim that he was not properly treated in that respect. Plaintiff testified that he was treated the same as the rest of the men; that when there was no regular work about the shop to be done they were all put at other work, and it appears that such instances were not frequent, and the time spent at such work was very limited. The testimony should have been admitted.

The other questions upon the exclusion of evidence do not, in our opinion, require consideration, as we are satisfied in regard to them no reversible error was committed.

It is contended that the court was in error in refusing to give some of the requests to charge preferred by defendant. The first of these requests we find was in fact given.

The next was as follows:

“Of course, if you find that plaintiff, after he was refused a raise of wages by defendant, wilfully neglected and slighted his work for the purpose of forcing the defendant to discharge him, then he cannot recover.”

There was evidence in the case on the part of defendant tending to show that after plaintiff asked for higher wages he became indifferent and careless in his work, and also tending to show that by such course of conduct he intended to compel the defendant to discharge him. This request covered this theory of the defense, and was based upon evidence in the case. Defendant was entitled to have his theory of the case presented to the jury, and the request was a proper one, which should have been given. The court was in error in refusing it.

The following request was also refused by the court:

“The plaintiff was bound by the terms of said contract to the same extent as the defendant and plaintiff had no right to demand more wages than the contract provided, and had no right to resent the action of the defendant in refusing to give him higher wages, if you find that he did resent it.”

This request also embodied the theory of the defendant’s case in two respects: First, that both parties were alike bound by the terms of this contract, which they had entered into, and that the contract fixed the wages plaintiff agreed to receive, and he had no right to demand more wages than the contract provided for; second, that he had no right to resent the refusal of the increase of wages, which was a fact to be found by the jury. This request to charge should have been given.

The following portions of the charge given by the court are objected to as erroneous:

“The situation was this: Either party had a right to ask for something more than the contract gave him, and the other party had a right to refuse, and that should have ended it.”

Also:

“That plaintiff, if he thought he ought to have more money, had a right to ask for more money, and the defendant then had a right to say, ‘There is your contract, and I go by that contract.’ ”

The above excerpts from the charge cannot be harmonized with the request last quoted. This request states the law which binds the parties to a written contract of employment, and should have been given. The court was in error in stating that the plaintiff, “if he thought he ought to have more money, had a right to ask for more money,” and following that by saying, “The defendant had a right to say he relied upon the contract” does not cure this error in the charge. In this charge the court was construing this contract and the rights of the parties under it. Neither party to the contract had any right to demand more than was provided in that contract, and the court should have so stated in effect. The use of the word “right” in the charge quoted was unfortunate. The court was dealing with the strict rights of the parties to this agreement, and the charge as given was erroneous and confusing to the jury.

The last error relied upon relates to the charge of the court upon the question of damages and the construction which the court gave to the clause in the contract providing for a bonus of 10 cents per day. This paragraph of the contract reads:

“Furthermore, in consideration of the faithful performance of the full apprenticeship term of four years, the said MacKinnon Boiler & Machine Company agrees to pay said Leo Lepan the sum of ten cents per day for each full working day of nine hours actually performed.”

The court charged the jury at considerable length upon this matter, as follows:

“The plaintiff claims this 10 cents per day for the time stated, that is, up to the time the suit was brought. Now if the plaintiff was rightfully discharged, if defendant had a right to discharge the plaintiff, nothing can be recovered on that point. If, on the other hand, the plaintiff was wrongfully discharged, I am of the opinion that this claim is entitled to consideration, and I instruct you upon its allowance, as follows: That amount is at the rate of 10 cents per day for the full four years of the term, and it would amount to $124.80, or thereabouts. But that was a bonus payment, and it was a payment in consideration of the total service of four years to be performed by the plaintiff, and the evidence shows and it stands to reason that the plaintiff’s services would be worth much more the latter part of the four years than the first part, and that there would be more equity in the allowance of this bonus for the latter part of the four years than the first part, so I have concluded to charge you as to this • question that if the plaintiff was wrongfully discharged you may allow the plaintiff as damages that part of that $124.80 that would be equitable and fair, considering all the circumstances of the case, not to exceed the $62 claimed; and, in considering what would be fair and equitable, you will consider what the plaintiff has lost by reason of not performing that contract, in respect to this 10 cents per day, and also the benefit that would accrue to the plaintiff in having it carried out, the idea being that there is a lump sum to be paid out, which is to be paid for the full four years’ service, when the service would be more the latter part of the term than the first part of the term, and this is a claim for the allowance in the first part of the term. Then your allowance would be on that subject what would be reasonable and equitable in view of all the circumstances of the case.”

Plaintiff brought this suit to recover certain damages which he claimed to have suffered by reason of his discharge by defendant. These damages which he claims consisted of two items: One for wages which he would have earned for the term of eight weeks during which he was unable to secure employment; the other, 10 cents per day for 620 days’ services rendered to defendant during the term of his apprenticeship. This last item he claims under the last paragraph of the contract. Upon the first item plaintiff was in error as to the number of weeks he was out of employment. The record shows that from November 25, 1910, to January 14, 1911, is exactly seven weeks.

Upon the second item it is strongly urged by defendant that the contract will not warrant a construction that any part thereof could be recovered by plaintiff, for the reason that the agreement which provided for 10 cents per day contemplated a complete performance of the full apprenticeship term of four years, and that the court was in error in submitting the question to the jury. Our construction of this paragraph of the contract is that the 10 cents per day therein provided was not as compensation in the nature of wages, but was a further sum which the master agreed to pay plaintiff as an incentive to complete his apprenticeship as stated by its explicit terms, in consideration of the faithful performance of the full term of apprenticeship by him, and which could not be demanded unless the terms of the provision had been fully performed. The court was in error in charging the jury as last above quoted, and upon that question should have charged as above indicated, and substantially as requested by defendant. This was not a case of suit brought to recover wages already earned and damages for a wrongful discharge by defendant. Plaintiff had been paid in full for all wages earned. He was earning 90 cents a day at the time of his discharge. He found employment at $1.50 a day within seven weeks, and this loss of time at 90 cents a day is the only item of damages in the case, and depends upon the one question as to whether or not defendant was justified in discharging him.

For the reasons given, judgment is reversed, and a new trial is granted. -

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
      In re BRIGGS. BRIGGS v. CASS CIRCUIT JUDGE.
    1. Contempt — Jurisdiction oe Equity — Injunction—Statutes — Michigan Railroad Commission — Exercise oe_ Authority Over Telephone Corporations.
    In equity proceedings to review an order of the Michigan railroad commission denying to a telephone patron relief against the telephone company, the court was without jurisdiction to issue an injunction at the time of the final determination of the case, restraining the telephone company from refusing service to complainant and other subscribers. Under Act No. 138, Pub. Acts 1911 (3 How. Stat. [2d Ed.] § 7222 et seq.), the circuit court was not exercising a general equitable jurisdiction, and could only proceed strictly in accordance with its statutory authority, and the order of the commission must he treated as valid and reasonable until complainant established the contrary by clear and satisfactory evidence.
    2. Same — Preserving Status.
    The court of chancery has no power to preserve the status quo pending the suit unless to sustain the action of the commission: the order should not embrace subjects not included by the issues in the suit.

      3. Same — Telegraphs and Telephones — Equity.
    Id. cases based on special statutory jurisdiction, courts of equity must be considered as courts of special and limited jurisdiction and no presumption as in suits in equity or actions at law is indulged in favor of jurisdiction: all the necessary facts to confer it must be made to appear.
    4. Same — Void Decree — Punishment eor Disobedience.
    Since the order was void, disobedience of its provisions could not be punished as a contempt of court.

    Certiorari to Cass; Des Voignes, J.
    Submitted June 6, 1913.
    (Docket No. 46.)
    Decided December 20, 1913.
    Contempt proceedings against Marion W. Briggs and others for disobedience of an injunction in a suit brought by William L. Jones against the Michigan railroad commission. The Cass County Home Telephone Company was allowed to intervene as a party defendant. Marion W. Briggs and Charles E. Sweet bring certiorari from an order adjudging them guilty of contempt.
    Reversed.

      Alfred J. Mills, for appellants.

      Thomas J. Cavanaugh, for appellee.

       The question of disobedience of void order as contempt is treated in a note in 16 L. R. A. (N. S.) 1063.

   Stone, J.

This is a proceeding in certiorari to review the proceedings of the circuit judge, wherein he found relators and appellants guilty of contempt of court.

The Cass County Home Telephone Company is a corporation doing business in Cass and Van Burén counties, with a telephone exchange at the village of Cassopolis. William L. Jones was one of the subscribers, a patron of the company, and had a telephone. About January 30, 1912, his telephone was disconnected and service discontinued. In March, 1912, he made complaint to the Michigan railroad commission, charging the company with discrimination in refusing to give him telephone exchange service, and praying it to declare as unreasonable certain of its regulations embodied in a discount contract which it required him to sign as a condition to renewal of service to him. An issue was made and a hearing had before the commission. It rendered its decision in June, 1912. Mr. Jones, being dissatisfied with the decision of the commission, filed a bill of complaint in the circuit court for the county of Cass, in chancery, as complainant, against the Michigan railroad commission as defendant, in accordance with section 12 of .Act No. 138 of the Public Acts of 1911 (3 How. Stat. [2d Ed.] § 7233). The telephone company was permitted by the court to intervene as a defendant, and filed its answer. The hearing was begun in open court upon this issue. January 8, 1913, the court made an order reading in part as follows :

“It further appearing to the court that there are some 300 noncontract subscribers of the said company’s Cassopolis telephone exchange, and some 300 contract subscribers thereof, and that some of the stockholders of said company are also subscribers of the said exchange; it further appearing to the court that the question of telephone rates and rental at said exchange and rules and regulations for telephone service at said exchange are now pending in a suit entitled Grenville L. Smith et al. v. The Cass County Home Telephone Company, before the Michigan railroad commission; it further appearing to the court that said Cass County Home Telephone Company has cut off the telephone service of some of the subscribers of its said exchange since they have testified in said cause, and said company has refused to restore them service, and that said company has also cut off certain others of its said telephone patrons and subscribers at its Cassopolis exchange, and threatens to deny all noncontract subscribers aforesaid telephone service, and refuses to continue them as subscribers; it further appearing to the court that under the exigencies of this case and preservation of the public interest in the continuation of telephone service at said exchange and the protection of said company’s stockholders, and of said subscribers and of complainant’s interest therein, and of business and property interests connected therewith, that all of said company’s subscribers are entitled to telephone service, and should not be disconnected, and the service should be restored as formerly and continued as heretofore until the said decision of the Michigan railroad commission shall be rendered in said matter now pending:
“Now, therefore, on motion of Clarence M. Lyle, solicitor for said complainant, it is ordered, adjudged and decreed, and the court doth order, adjudge and decree, as follows: (1) That said Cass County Home Telephone Company forthwith restore telephone service to all of its Cassopolis subscribers of its telephone service at its telephone exchange situated at Cassopolis, Mich., and all other of its former said subscribers who desire it; (2) that said defendant, the Cass County Home Telephone Company, forthwith furnish and give to said William L. Jones telephone service the same as he received the same prior to disconnecting his telephone lines to its exchange on, to wit, January 30, 1912, and restore him as a subscriber in all respects; (3) that said Cass County Home Telephone Company forthwith connect and restore service to all of its subscribers who have been disconnected by it and their telephone service at its ■Cassopolis telephone exchange denied them, and that said Cass County Home Telephone Company from henceforth furnish and give telephone service to all of the subscribers of the telephone service of said company exchange situated at Cassopolis, and all others connected therewith, and all former subscribers who desire said service, and that said telephone service be continued continuously in all respects as in the past until the decision shall be rendered by the Michigan railroad commission in said suits pending, entitled Grenville L. Smith et al. v. The Cass County Home Telephone Company; (4) that said telephone service be restored and furnished and continued as aforesaid to complainant, William L. Jones, and all other subscribers, upon the same rates, terms, and conditions as heretofore; (5) that said, subscribers, each and all, shall pay their telephone rentals and rates for said telephone service on or before the 15th day of the first month of each three months in advance, beginning with the month of January, 1913, and continue until the said Michigan railroad commission shall have rendered their decision upon the matters and all things involved therein, and in the said matter pending before them of Grenville L. Smith et al. v. The Cass County Home Telephone Company.
“This order is only temporary in character, to preserve the rights of said parties in statu quo, and without prejudice, until such time as the Michigan railroad commission of the State of Michigan shall have passed upon all of the matters and things complained of in the complaints of William L. Jones, and also of Grenville L. Smith et al. v. The Cass County Home Telephone Company.”

On January 8, 1913, a certified copy of this order was served upon a young lady then in charge of the Cassopolis exchange, and on M. W. Briggs, who was acting as general manager for the telephone company. On that day the telephone company filed its claim of appeal from said order, and caused notice thereof to be served on the solicitors for the complainant, but made no application for a modification of the order. On January 14, 1913, Mr. Jones filed a petition to which was attached the affidavit of James G. Bonine, in the chancery cause, in which he prayed an order requiring the Cass County Home Telephone Company, its board of directors, managers and officers, to show cause why it and they should not de decreed to be in contempt and be punished for their failure to comply with said order. The petition, in substance, averred the entry of the decretal order, a demand by William L. Jones upon the local manager for compliance therewith so far as he was concerned, and his refusal to do so unless Mr. Jones would consent to sign a so-called discount contract. It is also alleged in the petition that the company had refused to restore service to certain others of its subscribers who are named therein. The petition alleged that the telephone company—

“Ignores the order of this court, and does not intend to comply with the terms and conditions therein, * * * that the conduct of the said telephone company in this regard is wilful, against the orderly administration of justice, and injurious to the property rights of your petitioner and numerous other subscribers.”

One of the statements in the affidavit of James G. Bonine is that on January 12, 1913, Charles E. Sweet, solicitor for said defendant company, told him:

“We don’t care anything more about that order than if you had made it.”

Upon the filing of the petition, the court entered an order requiring:

“The Cass County Home Telephone Company and its board of directors, to wit, C. L. Fowle, Chas. E. Sweet, L. L. Lawrence, M. W. Briggs, W. F. Hoyt, Chas. Heddon, W. H. Dayton, Eugene Gilbert, and Henry C. Walker, and it and each of them and all of them appear before this court and show cause, on the 17th day of January, 1913, at the hour of 10 o’clock in the forenoon, why it and each and. all of them should not be adjudged guilty of contempt of this court, and be fined and punished therefor in and for failure and refusal to comply with the terms and conditions and requirements of said order, as set forth in said order.”

The parties appeared before the court, and filed an answer. Charles E. Sweet filed a special answer under oath, in which he denied some of the statements contained in the affidavit of James G. Bonine. He also demanded therein that interrogatories be filed in accordance with what he claimed the law and practice required. The court ruled that the alleged contempt was, if committed, a criminal contempt, and that the filing of interrogatories could not be required. The hearing proceeded, witnesses were sworn, and the respondent filed a written opinion, after which an order was made imposing a fine of $100 on each of the relators and appellants. It is that order which is sought to be reviewed here.

Among the errors relied upon by the relators and appellants are the following:

“The court had no jurisdiction to make or enter the decretal order of January 8, 1913, and same was not lawfully made.
“Relators were not bound or required, as matter of law, to render obedience to said decretal order.
“They could not lawfully be adjudged guilty of contempt for disobedience thereof.”

Neither the validity of the statute involved, nor the right of the circuit court, in chancery, to entertain the bill of complaint filed by Mr. Jones has been raised or discussed by counsel, and neither of these questions is here considered.

We are of opinion that the court below had no jurisdiction, or power to make the order of January 8, 1913. The jurisdiction of the circuit court, in chancery, in the instant case was strictly statutory, and it was not exercising its general equity jurisdiction, as in ordinary chancery cases. By the provisions of section 12 of Act No. 138, Public Acts of 1911 (3 How. Stat. [2d Ed.] §7233), William L. Jones, being dissatisfied with the order of the railroad commission, had the right to commence an action in the circuit court, in chancery, against the commission as defendant, to vacate and set aside such order as unreasonable, and on leave of the court the Cass County Home Telephone Company might intervene as a defendant, as it did. Clearly, there is no general equity jurisdiction in the circuit court, in chancery, to declare an order of a Commission or body unreasonable. The entire proceeding in the circuit court, in chancery, was statutory, and the court was not acting in the exercise of its general equitable jurisdiction.

By the provisions of section 16 of the act the order of the railroad commission was prima facie lawful and reasonable, and should have been continued in force pending the chancery suit, and the burden of proof was upon the complainant in that suit to show by clear and satisfactory evidence, that the order of the commission complained of was unreasonable. Michigan Central R. Co. v. Railroad Commission, 160 Mich. 355 (125 N. W. 549).

Construing sections 12 and 14 together (it appear^ ing that original evidence, in addition to and different from the transcript of evidence offered to the commission, was introduced upon the hearing in the chancery case) it was the duty of the court below, before proceeding to render- any judgment or decree, to transmit a copy of such evidence to the commission, and to stay further proceedings in said action for 15 days from the date of such transmission. The record shows that this was not waived, and the return of the respondent states that there was transmitted to the railroad commission a transcript of the testimony taken before the court, but that this was not transmitted until after the entry of the order of January 8th. It is evident, therefore, that respondent deemed it necessary to transmit such new testimony.

Section 13 of the act provides that no injunction shall issue suspending or staying the order of the commission, except upon application to the court, or to the judge thereof; notice to the commission having been had therefor.

It appears by this record that the hearing was concluded on January .7th, and the order which it is claimed was violated was made and entered January 8th. The order was in the nature of an injunction, among other things, suspending and staying the order of the commission, and was granted without proper application and notice. Upon that subject respondent returns that:

“Said order was justified and authorized by the facts appearing in said cause and was made for the purpose of staying any and all proceedings in said cause, and keeping them in statu quo, as well as causing the said Cass County Home Mutual Company and its officers to reconnect and furnish service to the said William L. Jones, and others of its telephone subscribers, during the pendency of the proceedings initiated before the State railroad commission, and then pending in the circuit court for the county of Cass.”

An examination of the order of the court shows that it embraced subjects and matters not covered by the issues in the chancery cause. The court had no power to preserve the status quo pending the suit unless to sustain the action of the commission. Fletcher Paper Co. v. Railway Co., 175 Mich. 234 (141 N. W. 613).

This was a special statutory proceeding. It is well settled in this State that the circuit courts, in chancery, though in ordinary cases of equity cognizance courts of general jurisdiction, must, as to such special proceedings, be considered as courts of special and limited jurisdiction, and no presumption of jurisdiction should be indulged, as in suits at common law, or ordinary suits in equity, in courts of general jurisdiction. All the necessary facts to confer jurisdiction must therefore affirmatively appear upon the record.

The doctrine is well stated in Brown on Jurisdiction, at page 17, in the following language:

“If a court or tribunal pronounces a judgment it has no authority to grant, or one outside of the issues made and before the court for determination, then such judgment in excess of the power conferred is void as to such excess of its powers.”

This subject is fully discussed, and the Michigan and other authorities collected and quoted from, in the recent case of Maslen v. Anderson, 163 Mich. 477, at pages 481, 482, 483 (128 N. W. 723). See, also, Fletcher Paper Co. v. Railway Co., supra; People, ex rel. Brewer, v. Kidd, 23 Mich. 440; 22 Cyc. p. 1009.

The order being void, disobedience thereof is not punishable.

A clear distinction is made in the authorities between an erroneous order and a void order. It is only of the latter class we are here speaking. The judgment of the circuit court is reversed, and relators and appellants discharged, but without costs.

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


author: Brooke J.

text:
    FUCHS v. STANDARD THERMOMETER CO.
    1. Common Counts — Work and Labor — Quantum Meruit — Contracts — Express and Implied Obligations.
    Upon evidence showing the existence of a definite contract that fixed plaintiff’s compensation for selling speedometers as agent for the manufacturer, he could not recover on the quantum, meruit; the damages must be limited by the terms of the express agreement.
    2. Contracts — Services — Commission — Principal and Agent— Mutuality.
    While damages cannot be recovered for termination of a contract of an agency for the sale of speedometers on commission, which fixed no definite term or specific number to be sold, the contract was not void for want of mutuality, notwithstanding that plaintiff might' terminate the arrangement at any time: so far as it was performed the agreement was valid and binding and authorized the recovery of compensation as provided.
    3. Same — Employment—Agency—Commission— Agreement.
    Under evidence which, considered in the light most favorable to plaintiff, would entitle him to recover, to the effect that defendant agreed to pay him commissions on reorders secured during a succeeding year by defendant, he could recover compensation for reorders which defendant got after it terminated the contract.
    4. Same — Estoppel — Principal and Agent — Corporations —
    Authority.
    Where plaintiff negotiated with defendant’s representative for an agency to sell speedometers on commission, and, having entered into an agreement, undertook to carry it out to the knowledge of defendant’s officers, and defendant corporation enjoyed the avails and benefits of his labor, it was estopped to deny that its representative had authority to execute the alleged contract.
    5. Same — Reorders.
    A reorder included contracts for an instrument like the speedometer handled by plaintiff under his agency contract, although the later kind sold at an advance of two ■ dollars and was somewhat altered.
    Error to Wayne; Hosmer, J.
    Submitted June 9, 1913.
    (Docket No. 49.)
    Decided December 20, 1913.
    Assumpsit by Walter M. Fuchs against the Standard Thermometer Company for services rendered under a special agency contract. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Sloman & Sloman, for appellant.

      Clyde I. Webster (Horace G. Williams, of counsel), for appellee.

      In the month of January or February, 1910, plaintiff entered into an oral contract with defendant by the terms of which he became agent for the city of Detroit and vicinity for the sale of an automobile speedometer manufactured by defendant. The time during which the contract was to be in force was left indefinite, though plaintiff testified he was to have the exclusive agency “as long as he sold an average of 50 per month or 600 per year.” Plaintiff’s counsel disclaimed an employment for any definite time. The oral arrangement was followed by a very voluminous correspondence between the parties. It is unnecessary to quote from the letters, but it may be noted that throughout his entire employment plaintiff carefully refrained from obligating himself to sell a specified number of instruments within a specified time. He was, of course, under the' contract, at liberty to discontinue his services at any time. Certain specified percentages were to be paid plaintiff upon all sales, varying in amount according to the size of the contract secured.
    Entering upon the performance of his duties, plaintiff endeavored by various means to introduce and sell defendant’s instrument to the various automobile manufacturing concerns' of Detroit. As a result of •his efforts, a contract was entered into between defendant and the Cadillac Motor Company in July, 1910, under which some 10,377 instruments were sold at $8 each. This figure was very much lower than the regular price and necessitated the cutting of plaintiff’s commission to 2 per cent., which was done by agreement of the parties. The commission was paid as it accrued, and no claim arises on account thereof. During the latter part of the year 1910, and the spring of 1911, plaintiff sought to interest various other manufacturers in the instrument but was unable to secure any further contract. In March, 1911, plaintiff’s agency was terminated and a Mr. Baldwin, an officer of defendant, was installed as resident manager in Detroit. It is not claimed by plaintiff that the “Cadillac” order can be apportioned “at the rate of 600 per year” so as to continue his agency contract over a period of 16 years or more.
    Plaintiff’s declaration is upon the common counts in assumpsit, with added special counts based upon the contract. Under the common counts, plaintiff’s bill of particulars sets out the value of his services and disbursements in the premises at the sum of $15,000. Under the special counts for loss of commissions which would have been earned but for the alleged wrongful termination of the agency, a claim for upwards of $80,000 is made by the bill of particulars.
   Brooke J.

(after stating the facts). At the outset we are satisfied that there can be no recovery upon the quantum meruit. Sullivan v. Railway, 135 Mich. 661 (98 N. W. 756, 64 L. R. A. 673, 106 Am. St. Rep. 403). Plaintiff himself testifies to a definite contract, and his right to recover must be predicated thereon. That contract was confessedly indefinite as to duration and left the plaintiff at entire liberty to abandon his employment at any moment. In case it was terminated at any time it contained no provision for compensating plaintiff for the time and money he had expended in introducing defendant’s instrument. The learned circuit judge who tried the case at circuit held the contract void for lack of mutuality, under the authority of Wilkinson v. Heavenrich, 58 Mich. 574 (26 N. W. 139, 55 Am. Rep. 708), and directed a verdict for defendant.

Plaintiff’s counsel ask the following question in their brief:

“Will this court, because defendant could not compel plaintiff to sell a given number of its speedometers, hold that it could at any time terminate plaintiff’s agency and reap the fruit of plaintiff’s labors without some compensation therefor?”

The obvious answer to this query is that courts do not make contracts for individuals. If plaintiff chose (as he did) to enter upon his employment under a contract for an indefinite term, without providing for compensation in case of the termination thereof, the courts are powerless to aid him. He might have pro-' tected himself but failed to do so.

In our opinion the contract, as testified to, was not void. There was an offer upon one hand and an acceptance upon the other. No damages can be recovered because of its termination, for none were provided for in the contract. But so far as it was performed it was valid and binding upon both parties, and plaintiff is not debarred from recovering compensation under its terms.

Plaintiff testified:

“I cannot claim commission on anything I did not make a sale — that I did not close.
“Q. Now, supposing you did not get any order at all, were you to receive any pay then?
“A. No, sir.”

But again he said:

“Q. Then you also claim that in this early conversation that you had with Mr. Abel he agreed to give you the same commission on all reorders?
“A. Yes, sir.”

It appears that the Cadillac Company entered into a second contract with defendant for the season of 1911-12, under which about 12,000 instruments were sold at $10 each. While the correspondence, which we have carefully examined, seems rather strongly to negative plaintiff’s claim as to this alleged phase of the contract, we do not think, in view of the foregoing testimony, that it can be said as a matter of law that no such agreement was made. It is a familiar rule that, in directing a verdict, the testimony of the party against whom the verdict is directed must be given its greatest probative force. Viewed in this light and as the record now stands, we are of opinion that this question should have gone to the jury.

Defendant urges that, even if the oral contract was .as testified by plaintiff, there can be no recovery because of the lack of authority in Mr. Abel to make it. We do not agree with this view. Mr. Abel was the man sent on by the defendant to conduct negotiations with plaintiff. After he made the contract (whatever it may have been) plaintiff undertook the agency. His employment was known to all of defendant’s officers (as is evidenced by the correspondence), and defendant has had the benefit of his services. It cannot now be heard to say that a contract, the avails of which it has enjoyed, was made by its agent without its authority.

It is further contended by defendant that the second Cadillac order was not a “reorder,” for the reason that it specified an entirely different instrument at a different price. It is true that the instrument furnished under the second contract was somewhat modified and was sold for $10 instead of $8. These variations, however, should not prevent recovery if the contract to pay a commission upon all reorders was actually made as claimed by plaintiff.

Many authorities are cited in the briefs of counsel upon the question of revocability, but, inasmuch as we are satisfied from an examination of the record the contract was terminated in good faith and for valid reasons, their consideration becomes unnecessary.

The judgment is reversed, and a new trial ordered.

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


author: McALVAY, J.

text:
    SMITH v. LIBRARY TEA CO.
    Trade-Marks and Trade-Names — Unfair Competition — Injunction.
    Where the defendant, in a suit to restrain unlawful competition, sold oleomargarine under the name of “yellow special,” a name that complainant had adopted and used for two years, but the evidence did not show that the defendant ever tried to represent its goods as those of the complainant, or that the public were deceived, and the name was one commonly used in the trade, a decree enjoining the use of the name, as constituting unfair or unlawful competition, was not justified.
    Appeal from Wayne; Hally, J.
    Submitted June 12, 1913.
    (Docket No. 83.)
    Decided December 20, 1913.
    Bill by J. Henry Smith against the Library Tea Company for an injunction. From a decree for com- . plainant, defendant appeals.
    Reversed.

      Williams C. Harris (L. J. Whittemore, of counsel), for complainant.

      Roioland M. Connor, for defendant.
   McALVAY, J.

Complainant, who has been engaged in the wholesale .and retail grocery business in - the city of Detroit for many years, and, among other things, selling and keeping for sale oleomargarine, or butterine, filed his bill of complaint in the circuit court for the county of Wayne, in chancery, against defendant, Library Tea Company, a corporation, engaged, among other things, in the business of selling oleomargarine. Complainant alleges that in April, 1909, to designate a certain brand of butterine he adopted the trade-name “yellow special,” and extensively advertised continuously in the newspapers, and also in and about his store placed placards, upon which were printed the words “yellow special butterine,” and that the same were printed on boxes in which the manufacturer shipped the goods to him; that this particular brand of butterine was made for him under contract by Armour & Co. and was of prime quality. He alleges that sales increased from a small amount to 200,000 pounds annually in the year 1911. He alleges that the public dealing with him called for this “yellow special” brand; that on January 23, 1911, under the laws of this State he filed with the secretary of State “yellow special” as his trademark to be applied to butterine. Complainant alleges that in December, 1910, he learned that defendant, which did business within a block or two of his place and on the same street, was advertising oleomargarine under the name “yellow special” in the same newspapers, and near complainant’s advertisements, and selling a spurious and inferior article under that name, fraudulently palming the same ■ off as and for the product of complainant. He at once notified defendant to refrain from using the name “yellow special,” which it refused to do, and complainant forthwith filed his bill of complaint in this cause, January 31, 1911, against defendant to restrain it from using the name “yellow special” in advertising its oleomargarine, claiming it as a trade-name, and secured a temporary injunction for that purpose. Defendant answered the bill of complaint, denying each and every allegation therein, paragraph by paragraph, and denying all right or equity in the complainant for any relief prayed therein, alleging that for years the term “yellow special” had been used in connection with this article of commerce, and was well known; that it had been used by dealers for years, particularly in the city of Detroit, and also alleged that complainant fraudulently claimed a trade-mark in the name “yellow special,” whereby defendant was damaged and asked for affirmative relief that complainant be enjoined from using such name as a trademark. Upon issue joined the cause was heard upon proofs taken in open court, which resulted in a decree in favor of complainant, and a permanent injunction against defendant in accordance with the prayer of the bill of complaint. An appeal has been taken to this court on. the part of defendant, asking that such decree be reversed and set aside.

Upon the hearing of the case complainant abandoned any and all claim by reason of a trade-mark, as appears by his statement in the record, and as also appears in the opinion of the court, as follows:

“Counsel for complainant rests his case, not on the trade-mark law, but on the ground of unfair trade.”

It follows that the issue is narrowed to the one question as to whether, under the facts shown by this record, defendant in the use of the name “yellow special” in advertising oleomargarine for sale was guilty of unfair trade. The record shows that the bill was planted upon the theory that complainant was the owner of the words “yellow special” as his lawful trade-mark and his exclusive property, which without lawful right defendant was using to his injury. During the trial he admitted that he had no lawful trademark, but insisted that this was a trade-name which he had appropriated and used for the term of about two years, having spent a large amount of money in advertising such trade-name, and that defendant’s use of the words “yellow special” was unfair trade and to his damage. The record shows that he had used these words for a term of two years, during 1909 and 1910. It appears from the proofs that the president and general manager of defendant company in 1903 and 1904 had sold “yellow special” butterine; that other dealers in Detroit had advertised and sold such goods under the same name in 1906; that one dealer in Detroit had advertised and sold “yellow special” oleomargarine for 12 years. The court, in his opinion, found as follows:

“There is no showing that defendant ever tried to palm off his oleomargarine as the same product sold by complainant, or that the public in asking for defendant’s product thought that it was procuring the same goods offered by complainant, or that defendant’s clerks attempted to deceive the public.”

Further:

“In the case under consideration the defendant made it appear not long before complainant used this name others had used it. This, with the short period of time complainant has used it, seems to take the case out of the decisions to which I have been referred.”

These findings by the court are supported by the uncontradicted evidence, and dispose of complainant’s contention that by long term of years he had become entitled to the use of “yellow special” as a trade-name. The court, in his opinion, held:

“There is, however, a property value in advertising. Complainant, with the use of this term, was in the field before the defendant. He had spent money and given time and thought to make it valuable”— and upon that ground granted complainant relief.

The Supreme Court of the United States in a leading case, in an opinion written by Mr. Chief Justice Fuller, has said:

“The essence of the wrong in unfair competition consists in the sale of the goods of one manufacturer or vendor for those of another, and if defendant so conducts its business as not to palm off its goods as those of complainant, the action fails.” Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U. S. 118 (25 Sup. Ct. 609).

The record in the instant case shows that defendant did not sell defendant’s goods as those of complainant, and did not conduct its business so as to represent its goods as those of complainant. It also shows that complainant by the use of the well-known, familiar and commonly used words “yellow special,” as applied to this class of goods, had acquired no right to claim that the use by defendant, as proved, constituted unfair competition.

The decree of the circuit court is reversed, and the decree will be entered in this court dismissing his bill of complaint, with costs of both courts in favor of defendant.

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


author: Bird, J.

text:
    PAINTER v. LEBANON LAND CO.
    Appeal and Error — Abatement—Plea—Final Order — Equity.
    An order overruling defendant’s plea in abatement to a creditor’s bill to sequestrate property, but without prejudice to the defendant’s right to raise the same defense by answer, is not a final appealable order.
    Appeal from Washtenaw; Kinne, J.
    Submitted April 8, 1913.
    (Docket No. 7.)
    Decided December 20, 1913.
    Bill by Resom M. Painter and another against the Lebanon Land Company and others for sequestration of assets. From an order overruling defendants’ plea in abatement defendants appeal.
    Dismissed.

      M. J. Cavanaugh and Arthur Brown, for complainants.

      Robert E. Bunker and B. M. Thompson, for defendants.
   Bird, J.

The complainants recovered a judgment against the defendants in the Washtenaw circuit court for the sum of $2,193, in an action for fraud and deceit, growing out of the sale of certain lands in Cuba to them by the defendants. For want of property to levy upon, this chancery proceeding was instituted under section 9760, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13533), to sequestrate the stock, property, etc., of the defendant corporation. To the bill of complaint the defendants interposed a plea setting up therein, in substance, that the complainants were indebted to the defendant the Lebanon Land Company in the sum of $656.64, the same being the balance of the purchase price for said lands, and the plea concluded as follows:

“Wherefore, by reason of the premises and because the said complainants have not in and by their said bill offered to allow and pay said sum of $656.64, together with interest thereon as aforesaid, as an offset to the said judgment, this honorable court is without jurisdiction to hear and determine this cause. Therefore these defendants plead the said set-off in bar to complainants’ bill, as hereinbefore particularly mentioned, and pray the judgment of this honorable court whether they (or any of them) ought to be compelled to make any further answer to said bill or any part thereof.”

A hearing on the plea was had before the chancellor, and resulted in the following order being made:

“It is ordered, adjudged, and decreed that said plea be and the same is hereby overruled, but without prejudice to the defendants to raise by their answer the same defense as is raised by and set forth in said plea.
“It is further ordered that the defendants have 15 days from and after this date in which to answer said bill of complaint, or take such steps therein as may be advised. Provided, however, that if an appeal or other method of review be taken from this order to the Supreme Court of the State of Michigan, the defendant shall have 15 days in which to answer said bill after said cause has been determined in said Supreme Court, if defendant take steps to appeal to the Supreme Court within the time prescribed by statute.”

The defendants, feeling aggrieved at this order, have taken an appeal therefrom to this court, and they base their argument for reversal on the maxim that “He who seeks equity, must do equity;” that complainants have neglected and refused to indorse on their execution the amount owing by them to the execution defendants, and therefore the court ought not in equity to entertain the proceeding at all.

The complainants argue that the appeal should be dismissed for the following reasons:

(1) Because the order is not a final order, and therefore is not appealable; (2) because the plea is frivolous and without merit.

The general rule is, that a judgment on a plea in abatement is not final in the sense that it may be reviewed before the final determination of the cause. 2 Cyc. p. 607, and cases cited. It would n,ot be, in any event, unless it affected the merits of the controversy. Miller v. McLaughlin, 135 Mich. 646 (98 N. W. 390); 2 Cyc. p. 587. It is quite apparent that the order made by the trial court has no such effect. The court said, in effect, to the defendant by its order, there may be some merit in your plea, but if there is, I am not going to determine it until I hear the whole case upon its merits. I will overrule it now, but it shall be without prejudice to your raising the same question in your answer. In other words, the court examines the plea, listens to the arguments thereon, and postpones his decision thereof until he hears the whole case on its merits. This practice finds support in Puterbaugh’s Chancery Practice, p. 97, and cases cited. The order as made is in no sense a final order, and is therefore not appealable.

The appeal will be dismissed, with costs to complainants. •

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


author: Steere, C. J.

text:
    CURTIS v. CHARLEVOIX GOLF ASSOCIATION.
    1. Injunction — Equity — Nuisance — Parties — Pubuc Easements — Highways and Streets — Pubprestube.
    The unlawful obstruction of a public street is, as a rule, an invasion of public rights which can be redressed only at the instance of public authorities, except in unusual cases when some special or particular injury results from the wrong, different in kind and in degree from that which affects the public.
    2. Municipal Corporations — Streets—Vacating.
    It is not necessary, as a preliminary to vacating a city street under 1 Comp. Laws, § 2780 (3 How. Stat. [2d Ed.] § 6001), that a petition be filed with the common council : the council has plenary power by virtue of the statute and may act on its own motion.
    3. Same.
    And its action in vacating a public street was discretionary. That the action was at the request of an abutting owner to whom the property reverted, has no tendency to show fraud, illegality, or that the proceedings were taken for private benefit.

      4. Same — Pubuc Officers — Presumption.
    It will be presumed that public officials act from honest motives and that they observe their obligations.
    5. Nuisance — Injunctions—Equity—Conspiracy.
    The court of chancery exercises its jurisdiction to enjoin a nuisance only in extreme cases in which the right to relief is free of all substantial doubt, or after the right and the question of nuisance have been settled on the law side.
    Appeal from Charlevoix; Mayne, J.
    Submitted October 7, 1913.
    (Docket No. 4.)
    Decided December 20, 1913.
    Bill by John Curtis and others against the Charlevoix Golf Association for an injunction and other relief. From a decree for complainants, defendant appeals.
    Reversed.

      Ira G. Moser, for complainants.

      B. W. Kane, for defendant.
   Steere, C. J.

The bill of complaint was filed in this suit on July 29, 1911, to obtain an injunction restraining defendant from occupying and using, for other purposes than as a highway, or in any manner interfering with public travel over and along a certain described portion of Central avenue in the city of Charlevoix, Mich.

Defendant is a foreign corporation owning the land adjacent to and on each side of the strip in question and now claims title to the same as an abutting owner by virtue of that portion of Central avenue having been vacated.

Central avenue became a highway through the laying out and platting of Lindsay Park addition to the village (now city) of Charlevoix on April 12, 1894, and has since that time been open to travel and used by the public as desired for a thoroughfare. Shortly prior to the time of filing this bill, action was taken by the common council of the city of Charlevoix looking to the vacation of that portion of said avenue lying between Elm street and State street. Following this defendant claimed ownership of the property and gave notice of its intention to inclose the same and forbade the public from using it as a highway.

The annexed diagram of Lindsay Park addition may help to an understanding of the matter in controversy.

Complainants reside on the north side of State street in the vicinity of where Central avenue intersects said street. Curtis and Marsa own the lots upon which they reside. Defendant McCourtney is a tenant holding the property where he resides under a lease, the date of which is not given, for a term of five years. Central avenue extends in a northeasterly and southwesterly direction through Lindsay Park and lies entirely within its limits, terminating at its northerly extremity on State street and at its southerly end on Chicago street, which are boundary streets of said addition at those extremities. Defendant owns most of the northeasterly portion of Lindsay Park addition and has chiefly made use of the same, for 12 years or more, as a golf links. At the time the addition was platted and its streets dedicated, it was thought the location would become a popular summer resort resulting in a ready demand for lots upon which to erect cottages. As a part of the scheme for its development, there was planned and built a large summer hotel, called “the Inn,” located on the southeasterly edge of the addition near the shore of Pine Lake, convenient to the Pere Marquette railway station. This hotel was built in 1898 and has been used since as a summer resort hotel, accommodating a large number of guests each year. Convenient to it and upon the addition in question defendant laid out golf links which have been popular with and extensively used by members of the defendant association and others. Lots upon said addition have not apparently found a ready sale. The addition contains about 403 lots and is separated by streets into 15 blocks. Block No. 1 on the westerly side of the addition, nearest the center and business portion of the city, is occupied and used largely for residence and business purposes. The balance of the addition is owned by defendant or the Central Land Company, whose interests are closely allied, or by a few parties who have bought lots for the purpose of erecting summer cottages. It is stated, among other things, in a stipulation filed in the case that—

“Lindsay Park, at the date the bill was filed in this suit, did not have any paved street, nor are there any buildings located on Central avenue. Dixon avenue' is - now being paved and the paving continued to the railroad. Dixon avenue and Chicago avenue, being practically parallel streets, are the only ones upon which sidewalks are located at the date of the hearing.”

State street, on the north side of which complainants reside, is the main traveled thoroughfare between Charlevoix and Petoskey and, prior to the platting of Lindsay Park, was called the Emmet and Grand Traverse State road. Chicago avenue was also in existefice prior to said platting. Dixon avenue is one of the main streets of the city leading from the railway and hotels toward the business center and stated to be “perhaps the heaviest traveled aside from Bridge street.” Complainants are none of them abutting owners on Central avenue and own no property in said addition.

Complainants in their bill, filed July 29, 1911, make no mention of any vacation proceedings by the common council of the city, and their solicitor reiterates in his brief that they did not and do not recognize or attack them, stating their position to be that the attempted- proceedings “were null” and “there was nothing to attack, and the golf people stand out as plain, simple trespassers from the beginning.” Defendant by its answer, filed August 7, 1911, sets up certain proceedings of the common council vacating the portion of Central avenue in dispute and claims to be the owner thereof by virtue of being the abutting owner of the land on both sides of the vacated highway. On August 14, 1911, a replication in usual form was filed by complainant.

No further steps appear in the case until April 29, 1912, when by consent of parties defendant filed a supplemental answer stating, as matter which had arisen since the foregoing proceedings were filed, that the first proceeding to vacate said avenue, referred to in defendant’s original answer, having been challenged as invalid, new proceedings to vacate the disputed part of Central avenue and other streets in Lindsay Park had since been taken and perfected by the common council of the city on its own motion. These proceedings are set forth in its amended answer. Not admitting the invalidity of the original proceedings, defendant asked that the subsequent ones so stated in the answer be considered in determining the issues in the case.

On May 15, 1912, a special replication to said supplemental answer was filed by complainants, alleging amongst other things that the—

“Common council of the city of Charlevoix, unmindful of its duty as trustee for the general public of all public streets in the city of Charlevoix, and its further duty to keep said streets open and in repair for public travel, did and are confederating with said defendant to deprive the public and your replicants of a much used and needed street and to vacate and close said street for the especial and exclusive use of said defendant for a playground, * * * well knowing the facts that Central avenue was a much used and necessary public highway and improvement, and that the same should not and could not be taken from the public and given over to the defendant for any exclusive purpose whatever, resorted to the subterfuge of vacating said avenue under the forms of law, for the sole purpose of depriving your replicants and the general public of said highway, and for the sole purpose of turning over or donating said highway to the defendant for its sole and exclusive use as a playground.”

On first impression this would seem to savor of an attack on said proceedings, but it is said in complainants’ brief to be simply pointing out that defendant has failed to make, on its part, the showing that it “had the right to occupy the portion of Central avenue in controversy in this case.”

The municipality of Charlevoix is a city of the fourth class, incorporated in 1905. It is shown that the proceedings of the council were not based upon any formal petition. On October 18, 1910, the city attorney laid before the council two letters received by him from the land agent of the Central Land Company, one of the owners of Lindsay Park, asking him to present the matter in proper form and to secure resolutions' for closing certain streets and parts of streets in said addition. With the letter was a blueprint map indicating what was desired.

The council thereupon adopted a resolution stating it was deemed advisable to vacate the streets and parts of streets referred to, fixed the evening of November 22d following as the time when the council would meet and hear objections, and directed that notice of such meeting be published not less than four full weeks before that time in a newspaper published and circulated in the city of Charlevoix. This publication was made. On the 22d of November, 1910, there was no quorum of the council present, and the meeting stood adjourned until its next regular meeting, which was on December 6, 1910. At that time, no objections having been offered, a resolution was unanimously adopted vacating certain streets in Lindsay Park, including the portion of Central avenue in question. This resolution recited the proceedings already had, stated that no one appeared to object to the proposed action, and concluded with a declaration that certain streets, described in detail, “be and the same hereby are vacated, discontinued, and abolished.”

The next steps disclosed by the record were on April 18, 1911, at which time a petition was filed by 112 citizens of Charlevoix protesting against the closing of any portion of Central avenue and asking the council to rescind their previous resolution vacating the same. This was referred to the committee on streets. Following this, and at the instance of a member of the council, a counter petition was presented, signed by complainant McCarty and 38 others, stating that certain land in Lindsay Park had been secured for a street 100 feet west of the portion of Central avenue proposed to be vacated, which would afford a sufficient outlet for the travel theretofore passing over Central avenue. On June 6, 1911, the committee reported that the proposed donation of land by defendants would furnish a street from Elm to State streets which would be a jog of only 100 feet further west at Elm street, and running north would at its intersection with State street be about 150 feet west of Central avenue intersection; also reporting that they had interviewed a number of petitioners who acquiesced in this and agreed that such a street would meet the needs of the public and afford sufficient outlet for the travel in that vicinity. The report concluded with a recommendation that the donation of said new street by its owners be accepted. This report and recommendation were accepted and adopted by resolution of the council. On the 18th day of July, 1911—

“The street committee presented deeds to the city for land now used for street purposes, as a substitute for that part of Central avenue as was closed last winter, and reported the same has been opened as a street.”

On the 26th of September, 1911, the council again took up the matter, and in a resolution reciting that a suit had been commenced in which some question had been raised as to the validity of the resolution previously passed vacating said streets and parts of streets, proceeded to again take action to vacate the same streets under the provisions of chapter 88, 1 Comp. Laws, relative to cities of the fourth class. The various steps taken ended with a resolution, unanimously adopted October 31, 1911, containing various recitals and declaring that in the opinion of the council—

“It is advisable that said streets and parts of streets should be vacated and closed without further delay, and that in the opinion of this council the public interests demand that said streets and parts of streets should be immediately vacated and closed as a necessary public improvement.”

In consideration of which the previous resolution and proceedings were declared ratified and confirmed, and it was again resolved and declared that the streets and parts of streets in question .were vacated “as a necessary public improvement.” These proceedings follow strictly all statutory requirements unless, as contended by complainants, a petition is essential to jurisdiction to act.

The scheme of complainants’ bill is to restrain defendant by injunction from unlawfully obstructing a highway, a wrong in its nature an invasion of public rights, a nuisance, or purpresture, to be as a rule redressed only by appropriate judicial action at the instance of public authorities, but which may be in exceptional instances abated at the suit of private parties who have suffered or been threatened with some special, peculiar, and particular injury growing out of such wrong, different not merely in degree but in kind from that resulting to the general public.

As champions of the public rights of the citizens of Charlevoix, complainants have no standing in this suit. 2 Elliott on Roads and Streets (3d Ed.), § 850a; 3 McQuillian on Municipal Corporations (3d Ed.), § 1382. Complainants have no interest in the fee of Central avenue, or any land abutting thereon, or in Lindsay Park addition. Neither they nor the city can assert any proprietary interest in the land. The defendant or its grantors, as owners, only gave the city an easement for travel over and along it. The numerous cases sited relative to the rights of abutting owners have little bearing here. Complainants’ most urgent claims of special injury are special in degree rather than in kind.

A thoroughfare leading in the same- direction through Lindsay Park, and for one-half the distance the same thoroughfare, connects State street and Chicago avenue as before. At its northerly end it intersects State street 150 feet farther west and nearer the business center of the city than formerly. To traverse it necessitates a jog of 100 feet, near the center of the addition, to the east or west, according to the direction traveled. This inconvenience is common in kind to all who go that way, differing only in degree according to the extent use is made of the highway. This is also true 'of the complaint that the new street is more difficult of travel by reason of drifting snow in the winter and bad condition of the way in wet weather, as compared with Central avenue. Complainants Marsa and Curtis also claim that closing Central avenue opposite their properties on State street depreciates their values. Marsa testifies that he paid $600 for his property three years before, considers it worth $1,000, and “I would not give one-half the price that I would if Central avenue was open.” Curtis says:

“If I wanted to sell the place today I would not take less than $1,200 for it. If Central avenue were closed, I suppose I could not get over $1,000 for it.”

This is the most definite, and practically all, testimony as to depreciation in values. Such damage, when clearly established, might with some force be urged as differing in kind from that to the general public.

Complainants’ bill is primarily based on the existence of a highway, and the allegation is supported in the first instance by proof of dedication of an easement for the street by platting the addition in 1894 and subsequent public work and travel thereon. Against this the existence of a highway is denied by defendant, and in support of its denial it offers proof of proceedings taken by the common council vacating the street. Though its validity is denied, it is conceded such action was taken, and that various resolutions to that end were passed. While the objection is urged that certain of the proceedings relative to the first resolution were not recorded in proper place and time, and that the statute was not complied with in other respects, such allied irregularities do not apply to the resolution of October 31, 1911. The statute under which the council acted (section 2782, 1 Comp. Laws, 3 How. Stat. [2d Ed.] § 6001), provides:

“Every resolution or ordinance " discontinuing or vacating any street, alley or public ground shall also be recorded in said book of street records and the record shall be prima facie evidence of all matters therein set forth.”

Defendant’s proof prima facie negatives the existence of a highway. To defeat this proof, complainants must necessarily attack the proceedings of the common council.

It is urged that they are void upon their face because no petition was presented as a basis for them. If the council acted without jurisdiction, that question can be raised successfully at any time, and, as counsel claims, the proceedings are a nullity. The action was taken at the instance of the city attorney, who laid before the council letters of request and a map indicating what was proposed. But, assuming this did not constitute a legal petition, we cannot agree with the contention that a petition is required. Counsel for complainants cite 3 Abbott on Municipal Corporations, p. 2202. It is there said:

“That orderly manner in which a highway must be vacated involves a petition, ordinance, or other municipal action as may be required, notice to interested parties, a hearing at which remonstrances may be urged and considered,” etc.

In harmony with the author’s suggestion, the test is: What do our statutes require? We find no requirement that a petition must be filed in the statute under which the council acted. Sections 2780, 2781, 1 Comp. Laws (3 How. Stat. [2d Ed.] §§ 5999-6001), define their powers and course of procedure. Plenary power and jurisdiction are given the council by the statute. It follows that they may act on their own motion. Pearsall v. Board of Supervisors, 71 Mich. 438 (39 N. W. 578). The council had jurisdiction to act, and the proceedings ending in the resolution of October 31, 1911, if not the former ones, are not void for want of jurisdiction.

The power of the council was discretionary. The fact that the vacated street returns to and becomes the property of the abutting owner, or that the action was at his request, standing alone, does not show that the action was solely for a private purpose, nor does it necessarily imply illegality and fraud. Kean v. City of Elizabeth, 55 N. J. Law, 337 (26 Atl. 939). The presumption is- that public officers observe their official obligations and act from honest motives. It would be an extreme case where a court would hold to the contrary and declare false, solemn utterances in the official records of a city council stating that the action taken is “advisable,” “a necessary public improvement,” which “the public interests demand,” where the attack upon their integrity is collateral in its nature, in a proceeding seeking to nullify such records, because they are falsehoods, and to which the council is not made a party nor given an opportunity to defend.

Complainants have appealed to a court of equity. The charge of'fraud and conspiracy set up in their special replication and úrged in their brief is not an afterthought and would in all fairness require that the officials included in the charge and whose action, legislative in its character, is thus attacked should be made parties. Before this bill was filed, complainants had full notice and knowledge of the action of the council vacating the street and that defendant’s claim of ownership based upon such action would be the issue in the case. In Joyce on Nuisances, § 416, it is said:

“The jurisdiction of courts of equity over the subject-matter is, however, not an original jurisdiction. This power was formerly exercised very sparingly, only in extreme cases, at least not until after the right and question of nuisance had been first settled at law. While in modern times the strictness of this rule has been somewhat relaxed, there is still a substantial agreement among the authorities that to entitle a party to equitable relief before resorting to a court of equity his case must be free and clear from all substantial doubt as to his right to relief.”

For the reasons stated, the decree of the trial court is reversed, and a decree will be entered here dismissing complainants’ bill, with costs of this court only in favor of defendant."

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.