text:
    McKENZIE v. DETROIT, JACKSON & CHICAGO RAILWAY CO.
    1. Appeal and Error — Trial—Conduct of Counsel — Prejudicial Error.
    Constant interruptions and comments by counsel for defendant railway corporation, in a suit for personal injuries, annoying and otherwise unfair, and which are obviously improper, though as likely to be as unfavorable to defendant as to plaintiff, will not be held to be prejudicial, iii the absence of any particular ruling or failure to rule which can be said to constitute reversible error.
    2. Trial — Evidence.

      Held, no material testimony relating to the main issue was improperly excluded or admitted.
    3. Same — Requests to Charge Contrary to Case — Instructions.
    Plaintiff’s request to charge, embodying á plain implication contrary to his case, was properly refused.
    4. Carriers — Relation of Passenger.
    Where plaintiff boarded defendant’s interurban car after it was in motion, it was not necessary for him to be recognized by defendant’s agent before becoming a passenger.

      5. Trial — Carriers—Passenger—Boarding Car — Instructions — Directed Verdict.
    It was reversible error for tbe court to submit to tbe jury tbe question as to whether plaintiff exercised a proper degree of care in boarding defendant’s car, where plaintiff’s testimony that he was safely standing upon the platform before being thrown therefrom by the claimed negligence of defendant was undisputed, there being no testimony supporting defendant’s theory that plaintiff was thrown while attempting to- board it.
    Error to Washtenaw; Kihne, J.
    Submitted January 10, 1917.
    (Docket No. 85.)
    Decided March 29, 1917.
    Case by Walter I. McKenzie against the Detroit, Jackson & Chicago Railway Company for personal injuries. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Arthur Brown, for appellant.

      Cavanaugh & Burke, for appellee.
   Ostrander, J.

At about 8:30 o’clock on the evening of October 23, 1914, defendant’s interurban car left the station at Ypsilanti for Ann Arbor. Plaintiff, appellant, desired to ride to Ann Arbor. It is his contention, supported by testimony, that after the car began to move from the stopping place at the station and had proceeded 10 or 15 feet he caught and boarded it, suitcase in hand, and established himself upon the rear platform of the car, which he was prevented from leaving conveniently and taking a place inside the car as he proposed to do because of the presence of other passengers on the platform and in the aisle of the car. After the car had carried him from 325 to 350 feet, it turned from a switch, or turnout track, onto the single track, and in doing so, because of the speed at which it was moved, he was, by the lurching of the car, thrown from the platform to the ground and injured. In the opinion of plaintiff and his witness, the car was running 25 miles an hour when it left the switch. The conductor of the car estimated its speed, at this point, at 10 miles an hour, saying also that a rate of from 10 to 12 miles an hour was regarded as safe movement in such a place. Whether the relation of carrier and passenger existed when plaintiff was thrown or fell from the car, whether the agents of defendant negligently operated the car, whether if plaintiff was a passenger he was guilty of negligence contributing to his injury, seem to be the questions which were considered at the trial. The jury returned a verdict for defendant, upon which a judgment for defendant was entered. A new trial was asked for by plaintiff, and was refused.

A considerable number of exceptions were taken, and the assignments of error number 42. In the brief for appellant it is said that the errors upon which appellant relies may be for convenience grouped as follows:

(1) Those pertaining to the exclusion of plaintiff’s testimony.
(2) Those pertaining to admission of defendant’s testimony despite plaintiff’s objections.
(3) Those pertaining to the interruptions, statements, comments, and interferences of defendant’s counsel, and the refusal of the court to interfere and prevent the same.
(4) Those pertaining to comments of the court, in the presence and hearing of the jury, prejudicial to plaintiff.
(5) Those pertaining to the court’s refusal to give plaintiff’s first request to charge and to the court’s instructions to the jury on its own motion.
(6) That pertaining to the denial of plaintiff’s motion for a new trial.

Under each of these headings are references by number to assignments of error, 11 such being given under the first heading, with a reference in each case to a page of the record. There is no statement, distinct from argument, of the questions involved or of the manner in which they are raised. Under the heading “Argument” is a statement of appellant’s claims with the assertion that they “were conclusively established by the proof, and appeals to the record and the authorities for confirmation of his assertion.” There follows a discussion of these claims, the propositions being:

(1) The relation of passenger and carrier existed between the appellant and appellee when appellant received his injuries.
(2) Appellee was guilty of negligence as charged in the declaration.
(3) Appellant was free from fault or negligence causing or contributing to the injury sustained by him.
(4) Appellant sustained serious injuries, concerning which the only issue was whether they were likely* to be permanent.

To this point in the discussion there is no reference to any assignment of error. Counsel for plaintiff did not ask for a directed verdict upon any of these points. It was not claimed at the trial that any of those issues should be withdrawn from the jury. It is not claimed in the brief that it was error to submit any of them to the jury, nor is any reference made to any alleged erroneous ruling of the court. The conclusion stated is:

“We submit that under the record it was impossible for the jury to find no cause of action; that it would not have so found had not the minds of the jurors been diverted from the issue, had not the jurors been misled and misdirected. Appellant’s complaint in this regard is embodied in part in assignments of error Nos. 3, 4, 5, 6, 32, 33, 34, and 42, embraced in groups 3 and 6, supra”

Laying down the brief and referring to the index to the record, it is found that assignments 3, 4, 5, and 6 are based upon objections found upon pages 21 and 22 of the record, assignments 32 and 33 upon page 120' “and record,” and assignment 34 upon “See record.” Page 120 of the record contains a portion of the motion for a new trial. Assignment 42 is based upon the order refusing a new trial. Turning to pages 21 and 22 of the record, we find a portion of the direct examination of plaintiff. Beginning at bottom of page 20, and including, a part of page 22, the examination proceeds as follows until the witness was excused:

“Q. We want you to tell about your injuries, and not what somebody said about them.
“A. That was the only way I got at it; there was a fracture. I suffered a very severe bump upon the head, which caused me to lose consciousness, and to suffer very intensely for several days in the hospital, during the first six days of which period I slept practically not at all; it was impossible for them to give «me any opiates, to relieve my pain.
“Mr. Cavanaugh: I move that be stricken out.
“A. They did not give me any opiates that relieved my pain for several days.
“Mr. Cavanaugh: He has evidently changed his ideas about that.
“Mr. Brown: I move that be stricken out.
“The Court: It may be stricken.
“A. All that they did for me after bandaging my . head and bandaging my hip_, which also was cut, was to place ice caps packed with chipped ice about my head. After several days like that they gave me bromides to make me sleep. During those first few days I suffered very intensely.
“Mr. Burke: He had already suffered intensely three times.
“A. I am still suffering intensely. (Exception for plaintiff.)
“Mr. Burke: There is no use of repeating it unless he wishes to make an impression on the jury..
“Mr. Brown: I object to that statement, and ask to have it stricken out.
“The Court: I think you may go on. (Exception for plaintiff.)
“A. During this period I was out of my head at times.
“Mr. Cavanaugh: There is no allegation in the declaration that he was ever out of his head, and I move that be stricken out.
“Mr. Brown: The allegations in the declaration are sufficient to cover it, if they are not, after we get all through the testimony we may ask, under the broad terms of the new act, to amend it.
“Mr. Burke: We object to any amendment at this time; they have had two years to think over about that intense pain.
“The Court: The judicature act seems to take care of it. Go on Mr. Brown.
“Mr. Brown: I move the statement of counsel be stricken out. (Exception for the plaintiff.)
“Mr. Burke: There is no allegation covering that. It says that he was greatly shocked.
“Mr. Bunker: That is sufficient; we do not have to allege it.
“Mr. Cavanaugh: We will allow you to look the matter up.
“Mr. Brown: I ask to have that stricken out.
“The Court: I think I will reserve that until after the recess. (Exception for plaintiff.)”

The brief then proceeds to refer to matter upon pages 104, 17, 27, 29, 31, 72, 81, 106, of the record, but we find no assignment of error based upon any objections there appearing. As to matter appearing upon pages 46, 53, 64, 82, and 83, and other pages, and the objections there made, they have been examined. In a general way, it may be said that these objections are all of them addressed to interruptions and comments by counsel for defendant, no doubt annoying, and some of them appearing to have been otherwise unfair. What is above set out.is an example of repeated instances of interruption and comment. In a general way, the complaint which is made is also of want of decorum at the trial, and is a criticism of the manner in which, without rebuke, interruptions and comments by counsel were permitted. The complaint is summed up in the following statement taken from the brief of appellant:

“We have set out a part of the record for the convenient examination of matters of which appellant complains. We have drawn attention to them specifically in the hope that we may persuade this court what we failed to persuade the lower court, that appellant should have a new trial for those reasons alone which are set out as the sixth and seventh grounds of the motion, namely: (6) Because throughout the trial defendant’s counsel improperly interrupted the orderly proceedings of the trial, and made unwarranted statements and comments prejudicial to plaintiff’s cause. (7) Because the court was in error in. refusing to interfere to prevent such interruptions, statements, and comments. The trial court’s answer to these is this: ‘As to the sixth and seventh causes assigned, I am not aware of the existence of the causes so assigned.’ The motion was based upon the testimony as well as on the records and files.”

Detailed discussion of these assignments of error will not be undertaken. Most of the objectionable comment occurred while proof of the damages sustained by plaintiff was being introduced. Whatever may be said about the impropriety of the conduct of counsel complained of, and the want of proper decorum manifested, it is not certain that they resulted in prejudice to the plaintiff. It is quite as likely that such conduct upon the part of counsel for a corporation defendant produces in the minds of jurymen an opinion or a feeling unfavorable to the defendant. Upon this subject, the brief of counsel for appellant does not aid the court in placing its finger upon any particular conduct, ruling, or failure to rule which can be said to constitute reversible error. Indeed, it is rather assumed, as the argument referred to indicates, that the court may conclude that from the strength of plaintiff’s case, and the verdict returned, the jury was affected, unfavorably to plaintiff, by the conduct of counsel and the failure of the trial court to rebuke it. The impropriety of much that occurred and is complained about is obvious. That it prejudicially affected plaintiff is not obvious.

I do not find that any material testimony relating to the main issue to which attention is directed was improperly excluded or improperly admitted. If reversible error appears, it must be in the charge of the court or in refusals to charge.

All of plaintiff’s requests, excepting the first, were given. The first is not a request for any rule, but is a statement of plaintiff’s claim. Refusal to give it is assigned as error. It is as follows:

“It is the claim of the plaintiff that on October 23, 1914, he became a passenger upon one of the local cars of the defendant to be carried as such passenger from the waiting room in the city of Ypsilanti to the city of Ann Arbor, for certain fare that he was then and there prepared to pay and intended to pay, for such passage. That as he was about to leave the walk in front of the station of the defendant company at Ypsilanti, and pass from the walk to the pavement lying between the curb of the walk and the car of the defendant standing about 10 feet from the curb of the walk, and that before he had,.an opportunity to go upon the car, the car started and he was obliged to quicken his pace and run a short distance to board said car; that when he got upon the car, it was moving slowly away from the station, and he then passed up the steps of said car, and onto the platform, in order to pass into the car and be carried as such passenger over said journey; that several people were standing in front of the door of the car upon the platform, waiting to go into the car, their passage into the car and the passage of plaintiff into the car being obstructed by a number of people standing in the aisle of the car, up to the doorway and out onto the platform ahead of the plaintiff, and that the car increased its rate of speed very rapidly after plaintiff got on the platform, so that when said car struck the switch at or near the intersection of Pearl street in the city of Ypsilanti, it caused said car to lurch or suddenly sway first one way and then the other, so that plaintiff was thrown off his balance, first to the right, and then to the left, and that the lurch of said car to the left caused plaintiff to be thrown therefrom, and to strike violently upon his head and shoulder on the street about 50 feet north of the north line of Pearl street, and that by reason of said fall said plaintiff sustained the injuries complained of in this case.”

It was not error to refuse it because it contains the plain implication, not a part of plaintiff’s contention, that he was refused, or denied, opportunity to go upon the car. So far as defendant is concerned, it afforded opportunity to go upon the car while it was standing at the station. Admittedly, the plaintiff was not there to embrace the opportunity. He presented himself after the car was in motion.

The court stated the claims of the parties, saying:

“The plaintiff claims that while on the car of the defendant company that left Ypsilanti on the evening of October 23,1914, the defendant recklessly and while going at a high rate of speed left the switch and entered upon the straight track, and that in doing so carelessly and recklessly threw him from the car and produced certain injuries which he has named to you, and for which he claims that the defendant is liable in this action.
“The defendant claims, that the car was going at the time at a moderate and usual rate of speed at that place, and not going faster than was his rule and custom at that place; that the conductor was not aware that the plaintiff was aboard the car until he saw that the plaintiff was being hurled from the back platform of said car, and defendant denies that it was negligent in any respect for the injuries to the plaintiff.
“I think that is a complete statement of the case.”

It was not in fact a complete statement of the case, although none of the counsel asked for a correction or for a further statement. It appeared — was admitted — that plaintiff had boarded the car after it was in motion. Defendant’s counsel had taken the position that there was at least doubt whether plaintiff was in fact fairly upon the car before he was thrown or fell from it and the legal position, if some of the testimony was believed, and some disbelieved, that he was not a passenger. Plaintiff’s own request, which was given, left to the jury the duty of finding that plaintiff was a passenger upon this car. It began:

“If you find from the evidence that the plaintiff was a passenger upon defendant’s car which left Ypsilanti for Ann Arbor,” etc.

Apparently it was the contention of defendant which induced the court to say, what is complained about,, that:

“It may be said that inasmuch as the car of the defendant had started before the plaintiff attempted to take his passage thereon, that this fact in itself would preclude the right of the plaintiff to recover ini this action. That is not necessarily so, for if the subsequent negligence of the defendant company caused this injury (and such negligence in thus taking the car), then the plaintiff would not thereby be precluded from his right to recover, and if such subsequent negligence caused the injuries to the plaintiff and he was free from fault, then the plaintiff is entitled to recover in this action.”

The words which I have put in parenthesis have no meaning. The excerpt from the record except the parenthetical marks is as the record is printed. It should probably be read with the indicated words omitted.

And again, in the course of the charge, to say:

“The boarding of a moving car even if negligence in itself does not constitute contributory negligence as a matter of law so as to prevent recovery, where the danger attending the act had passed before an injury was sustained. If you find from the evidence that the direct and proximate cause of plaintiff’s injury was the car striking the switch and taking the turn upon the straight rail with such speed and force as to cause plaintiff to be thrown from the car, then and in that event, even though plaintiff boarded the car while it was in motion, that fact is in itself immaterial, and should be disregarded by you.”

All of this, taken in connection with the statement of the case, seems to me to be intended as cautionary advice. But having said to the jury:

“If you find from the evidence in this case that this car with the plaintiff and other passengers standing upon the platform of it, with the knowledge of the conductor of that fact, was driven along and .over this track at such a high rate of speed that when the car struck the switch in said track it was caused to sway or lurch from side .to side in such a manner as to cause the plaintiff to lose his balance and be thrown off, then said defendant is guilty of negligence in this ■case, and plaintiff is entitled to recover for all damages that the evidence shows he sustained by reason of so being thrown, provided you further find from the evidence that plaintiff was in the exercise of due care and caution on his part at the time he was thrown from the car”

—the court further said:.

“The mere fact that the plaintiff in this case fell from a car of the defendant and thereby sustained an injury is no reason of itself why the defendant should be compelled to pay damages for the same. The law requires the plaintiff to exercise care and discretion as well as the defendant, and if from the evidence in this case you find that this accident could and would have been avoided by the plaintiff if he had exercised a proper degree of care in boarding the car, then your verdict should be for the defendant, ‘No cause of action.’
“One who attempts to board a moving car after it 'has left a regular stopping place does so at his peril, and if from the evidence in this case you find that this accident was occasioned by the fact that the plaintiff attempted to board the car after it had started, and by reason of his haste and insecure position he fell or was thrown from the car to ground, then and in that event he cannot recover in this case, and your verdict should be for the defendant, ‘No cause of action.’
“In starting the car of the defendant from the regular station stop before the depot at Ypsilanti the duty of the railroad company at that time ended when the conductor saw that those who were on board were not in places of danger, and no duty could be charged against the said defendant by reason of an accident that occurred to one who without notice to the employees of the defendant boarded or attempted to board the car after the same had started. In the operation of cars and trains it is necessary that there should be switches located at the various stations along the right of way, and one using the cars is bound to recognize the fact that some motion and change of motion must be necessary in passing over and upon such switches, and one who makes no effort to guard against such changes of position as might naturally be expected by such method of transportation by taking hold of handrails or otherwise must be responsible for an injury that will come from such negligence, and if the plaintiff in this case by reason of boarding a car in an improper manner or by failing to take proper precaution for his own safety after he had boarded the car, or was thrown therefrom on that account, then he cannot recover in this action, and your verdict should be ‘No cause of action.’ ”

Whether we regard the entire charge or the separate various paragraphs, excepting those relating to the recoverable damages, it is open to the criticism that it does not define the issues, is conflicting and confusing as a whole, lacks precision of statement in. its parts, and in an important particular misstates the. law. Plaintiff’s testimony tended to prove that although he got upon the car while it was in motion he was safely upon it and stood upon the platform. No one disputes him; disclosed circumstances do not dispute him. Of course if he had not boarded the car, was in the act of boarding it when he was thrown or fell from it, another case, not the case of the plaintiff, would be presented. This, it may be said, was one theory of defendant’s case. No testimony supports such a theory, and therefore no such case is presented. If plaintiff had safely boarded the car and was standing with other passengers upon its platform, waiting convenient opportunity to enter the car, what possible difference can it make whether he exercised a proper degree of care in boarding it? And what would be a proper degree of care? The charge answers this, in a way. The jury was instructed that one attempts, at his peril, to board a moving car, and that if in an attempt to do so plaintiff, by reason of his haste or insecure position, fell or was thrown to the ground, he could not recover. This really affords no light upon the question of what would be a proper degree of care to exercise in boarding a moving car, unless the question is to be answered by the success or failure of the one making the attempt.

What is the meaning of the third paragraph of the portion of the charge last above quoted? If the jury accepted it literally and applied it to the facts, as. disclosed by plaintiff’s testimony, it amounted to the direction of a verdict for defendant. Plaintiff boarded the car without notice to defendant’s agents, if he boarded it at all. He ran after it, mounted the steps, and stood upon the platform, with other passengers. This is, although a perilous act, an everyday occurrence. I am referred to no rule of law which requires one in such circumstances to introduce himself, or to be introduced, to the carrier’s agent, or to be recognized by the agent, before he can become a passenger. See Berkebile v. Traction Co., 255 Pa. 310 (99 Atl. 871)

In the last paragraph above quoted, no mention is made of the usual or unusual speed of the car. Plaintiff, admittedly, did not have hold of a handrail. How he otherwise guarded his position is told in his testimony. But it is his contention that the car was not operated as such cars usually and safely are operated when leaving a switch for a main line track; that it was moved at a high and dangerous rate of speed, to which operation his injury should be attributed.

For the reasons stated, the judgment must be reversed, and a new trial granted.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
      In re DETTMAN’S ESTATE. APPEAL OF DETTMAN.
    1. Executors and Administrators — Nomination of Administrator — Husband and Wife — Bigamy—Statutes.
    Although a wife, during the lifetime of her husband, from whom she was never divorced, lived in a state of adultery with another man, without any ceremony of marriage, bearing him two children, but whose meretricious relations ceased more than 14 years before the death of her husband, with whom she cohabited from time to time, she was the latter’s widow, and as such entitled to nominate the administrator of his estate,' and Act No. 327, Pub. Acts 1905 (3 Comp. Laws 1915, §§ 14618, 14619), providing that no surviving spouse who at the time of the death was living with another person in a bigamous relation should take any interest in the property of the deceased, and that in any order made determining heirs or distributing property if it appeared that the surviving spouse was living in bigamy at the time of such death, such order should be made as if such spouse had not survived, is not applicable.

      2. Bigamy — What Constitutes.
    Bigamy means more than the meretricious relation of one who has a spouse living; it imports a form or ceremony of marriage by a spouse who has a lawful wife or husband.
    Error to Lenawee; Hart, J.
    Submitted January 12, 1917.
    (Docket No. 123.)
    Decided March 29, 1917.
    Petition by. Minnie Holtz to the probate court for the appointment of Gustave Schultz as administrator of the estate of William Dettman, deceased. Also petition by Alice G. Dettman for the appointment of Herbert R. Clark as such administrator. From an order appointing said Schultz, Alice G. Dettman appealed to the circuit court, where it was heard before the court without a jury. Order of probate court affirmed, and said Dettman brings error.
    Reversed and remanded to probate court with directions.

      Marion W. Bacombe and Herbert R. Clark, for appellant.

      Wallace Westerman, for appellee.
   Ostrander, J.

It is the law that the widow of one dying intestate, leaving an estate in this State to be administered, may be appointed, or may nominate, the administrator of the estate. William Dettman died intestate during the summer of 1915, leaving property. Two sisters and a niece survived him. One of the sisters filed a petition in probate court for Lenawee county, asking for the appointn ent of a certain person as administrator of the es.ate. Appellant, who claimed to be widow of deceased, asked for the appointment of another person, about whose qualifications for the position no question is made. The petitions came on to be heard together, and the prayer of the sister was granted. An appeal to the circuit court resulted-in an affirmance of the order, and upon a motion for a new trial, which was denied* reasons were filed for denying the motion.

That the deceased and appellant were married December 27, 1888, is not seriously disputed. She and deceased lived and cohabited together after the marriage and there is no evidence of a divorce. Appellant testified that they were not divorced. The court found, however, that appellant—

“previous to the death of said William Dettman lived in a bigamous relation; therefore should not inherit or be treated as his wife under Act 327 of the Public Acts of 1905 (3 Comp. Laws 1915, §§ 14618, 14619).”

This act, it will be found, provides that no person who at the time of the death of the lawful husband or wife of such person was, or shall be, living- with another person, within or without the State, pursuant to a purported marriage, but in fact in a bigamous relation, shall inherit or take any estate, right, or interest whatever in the property of the deceased; that in any order determining heirs or of distribution, hereafter to be made, if it appears to the probate court that the surviving spouse was thus living in bigamy at the time of such death, whether the death occurred before or after the passage of the act, such order shall be made as if such spouse had not survived.

The record advises us that the marriage of appellant and Dettman was considered by the court below to be established, and that the parties were not divorced; that appellant was and is the widow of Dettman. Whether she had an interest in Dettman’s estate was made to depend, not upon whether she is in fact his widow, but upon the application of the statute referred to.

The testimony very clearly shows that appellant, at some time after her marriage to Dettman, lived in Toledo with a man named Benedict in the apparent relation of wife. She was called, and sometimes called herself, Mrs. Benedict. Two children were born to her, and they were called Benedict. Appellant testified, and no testimony disputes her, that her relations with Benedict were ended in December, 1900, and never resumed; that there had been no marriage ceremony. She testified, further, that Dettman was cognizant of her relations with Benedict, notwithstanding which she and Dettman from time to time cohabited.

I conclude, as did the trial court, that appellant is the widow of William Dettman, but am of opinion that the statute has no application to the case made by the evidence. According to the record she was not living with Benedict when Dettman died, and had not been for more than 14 years. Further than this, it does not appear that her relation to Benedict had ever been a bigamous one. Bigamy means more than the meretricious relation of one who has a husband or wife living. It imports a form or ceremony of marriage by a spouse who has a lawful wife or husband. It is unnecessary, therefore, to consider whether it was competent for the legislature to affect appellant’s rights as wife and widow by the legislation in question.-

The probate court should have considered her as widow of the deceased, its order was wrong, and the order sustaining it upon appeal was erroneous. Both are set aside, and the probate- court is advised to enter an order appointing the nominee of appellant administrator of the estate. Appellant will recover costs of this appeal but of the estate.

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


text:
    ROBINSON v. BATZER.
    1. Assumpsit — Vendor and Purchaser — Landlord and Tenant— Betterments — Right op Recovery.
    ■Where plaintiff entered upon defendant’s land, as a prospective purchaser, but a contract of purchase was never consummated, and defendant later recovered possession in summary proceedings, plaintiff was not entitled to recover for betterments to the land, in an action of assumpsit, •such recovery being allowed only in cases of ejectment when the owner brings the suit; nor was defendant entitled to setoff for use and occupation, he being neither a landlord nor a vendor in a contract to sell.

    2. Same — Goods Furnished.
    In the absence of evidence that defendant appropriated ice and manure left on the place by plaintiff, he was not entitled to recover for the same.
    3. Same — Vendor and Purchaser — Contracts — Uncompleted Contract — Right to Recover Purchase Price.
    In such action plaintiff was entitled to recover money paid upon the purchase price, defendant having rescinded the contract and ousted plaintiff from possession.
    Error to Bay; Collins, J.
    Submitted January 18, 1917.
    (Docket No. 4.)
    Decided March 29, 1917.
    Assumpsit by William M. Robinson against Gottlieb Batzer upon the common counts for money had and received and for betterments to defendant’s property. Judgment for plaintiff. Defendant brings error.
    Reversed in part, with directions to circuit court.
    From defendant’s (appellant’s) brief the following statement of facts is taken:
    “The defendant, Gottlieb Batzer, was the owner of a 68-aere farm located on the town line in Portsmouth township of Bay county, and lived on the same in the fall of 1914. The plaintiff, William M. Robinson, a resident of Merritt township, had a talk with defendant in the fall of 1914, relative to the purchase of defendant’s farm. On November 25, 1914, after prior verbal negotiations, plaintiff had a land contract drawn and signed by himself, and took the same to Mr. Batzer’s residence. Batzer had received $100 on the purchase price prior to this date. Mr. Batzer was not at home, ánd in his absence Mr. Robinson paid $200 to Mr. Batzer’s daughter, who signed Mr. Batzer’s name to the same. Mr. Batzer never saw the land contract until he returned home, and had never authorized his daughter to sign the same. Mr. Batzer went to see Mr. Robinson on the 26th (the next day), and not finding him at home, left word with Mrs. Robinson that he would not stand by the ■contract. Mr.'Robinson admitted that upon arriving home he was so advised by his family and that Batzer ■claimed the contract void. Mr. Batzer met Mr. Robinson the next day (November 27th) on the street and said to him: The contract is not guilty, I don’t stand by that contract at all.’ Robinson afterwards moved in in Mr. Batzer’s absence, and they shared the house together for a few days. Mr. Batzer then moved to town. Mr. Robinson lived on the farm until about the 10th of March. On February 12th, he was sent a written notice from Mr. Batzer’s attorneys, repudiating the claimed contract and demanding possession. Mr. Batzer subsequently commenced summary proceedings and secured judgment for restitution.
    “This suit was brought for the recovery of the $300 received by Mr. Batzer and for plowing done on the farm by plaintiff, material and labor in repairing barn, cleaning out and deepening well on farm, putting up and storing ice, and for manure left on farm. Defendant filed a claim in setoff for rent of premises and farm products used by plaintiff. The jury returned a verdict for $399.66. On motion for new trial, the trial court granted a new trial unless plaintiff remitted enough from the judgment to bring it down to $375, and this plaintiff did.”

      Plaintiff, in his brief, supplements the foregoing statement by the following:
    “That defendant suggested shortly before the contract was drawn that it was a good time to draw the contract, and produced the abstract, from which the description of the land was taken. That the matter of drawing the contract was talked over by both parties with Mr. Bittner, who drew the contract, and that plaintiff told what to put in the contract, before the defendant. That, when the defendant told the plaintiff that the contract was no good, he said it wasn’t good because there was not enough money paid. That the plaintiff then said, T told you at the time that you could get no more money until they paid me more, and when I did I would straighten it all up,’ and that the defendant then said, ‘That will be all right then.’ That $90 of the first $100 paid on the purchase price', was left by plaintiff at the defendant’s house, and. that afterward the defendant said it was all right,, it would make a secure bargain. That defendant at all times retained the $300 of the purchase price paid> even after the starting of the summary proceedings. That all improvements were made by plaintiff before defendant gave notice of a repudiation of the contract and upon the understanding that he was to buy the land from defendant for $7,300, $300 of which he had already paid. That plaintiff bought the farm under good intentions, and that he moved onto defendant’s land while defendant was there. That defendant gave plaintiff a barn to use before that, and gave plaintiff the use of defendant’s cook stove. That prior to this plaintiff had moved grain into the barn of defendant in defendant’s presence and with his consen . That plaintiff plowed a part of the land during the fall, and that defendant told him where to plow.
    “Defendant’s bill of particulars of setoff contained item of 15 tons of straw used by plaintiff, at' $3 per ton, and left by defendant on the farm when possession was given to plaintiff, which defendant testified was fed by plaintiff to his stock, when in possession of defendant’s farm, and went to make up manure, which remained upon the land of defendant at the time plaintiff gave up possession. Defendant would not sell straw from his place. Almost the entire value of straw used for bedding is the value of the manure :it will make, and straw used by plaintiff was used for bedding.”
    Plaintiff’s declaration contains the common counts in assumpsit, and he furnished a bill of particulars as follows:
    To money paid to defendant by plaintiff during October, November, and December,_ 1914...... $300.00
    To plowing done on defendant’s land.......... 40.00
    To furnishing material and labor in repairing barn on defendant’s premises................ 20.00
    To cleaning out and deepening well on defendant’s premises .............................. 50.00
    To putting up and storing ice on defendant’s premises ................................... 20.00
    To manure left on defendant’s farm............ 25.00
    Total ....................................... $455.00
    The plea is the general issue, with notice of set-off, ifche particular items of which are specified. The asisignments of error are 14 in number, and are grouped and discussed under the heads:
    “ (a) Errors in the admission of Exhibits D and E, raised by assignments 2 and 3.
    “(6) Errors in the admission of evidence and in refusing to withdraw items of ice and manure from the consideration of the jury, and in the charge of the court, raised by assignments 4, 7, 8, 9, 10, 13, and 14.

      “(c) Error in the admission of the land contract in evidence, raised by assignment 6.

      “(d) Error in the reception of Mr. Robinson’s testimony as to what he had been advised by an attorney, raised by assignment 5.

      “(e) Error in the admission of evidence and the charge of the court as to the repairs to the barn and well and to plowing, raised by assignments, 1, 7, 11, and 12.”
    The Exhibits D and E, above referred to, are statements of account rendered to plaintiff by dealers, itemizing and pricing various articles bought, by plaintiff and claimed by him to have been used in repairing the premises. The nature of other exceptions relied upon will appear from the facts stated above and the testimony to be hereinafter referred to.
    There was testimony tending to prove that, although the defendant disapproved the form of the land contract, the understanding was mutual that plaintiff would purchase and defendant would sell and convey the farm, and that plaintiff took possession of the land and made certain repairs upon the premises, used some of the straw for his stock, and generally acted as an owner would act with his own. The reason for not concluding the sale is not made clear. The court advised the jury that plaintiff was entitled to recover the sum he had paid as part of the purchase price, which was $300. As to the other items for which a recovery was soúght, the jury was advised that the tests to apply in allowing or disallowing them were:

      First. Whether work was done and money expended, as claimed by the plaintiff.

      Second. Whether at the time plaintiff believed and had the right to believe that he was rightfully in possession and that a sale would be consummated.

      Third. Whether or not the labor and money expended by plaintiff was reasonable and proper and defendant had the benefit of it.
    “If it was reasonable and proper, in view of all of the circumstances, for the defendant to make these improvements, then he is justified in making the improvements ; but before the defendant can be chargeable therewith it must appear that these improvements. were reasonable and necessary and that they conferred a benefit upon the defendant.”
    Particularly, the jury was told that plaintiff could not recover for the ice unless it was appropriated by defendant, and that as to the manure left on the farm by plaintiff, it must appear that it was left in such shape that it was actually an improvement to the farm and defendant had the benefit of it.

      As to defendant’s alleged set-off for straw, ensilage, and rent, the jury was instructed:
    “The defendant has offered proof of those items, and that proof has gone in without objection, and the testimony has been taken on both sides, and for that reason I submit these items to you.
    “Now in proving these items the burden of proof is upon the defendant as to those items to prove by" the greater weight of testimony the amount and value, and I will speak of this somewhat in detail.
    “As to the straw, you are authorized to allow the defendant as against the plaintiff the reasonable value of the straw at the time and place it was used, and of that amount and portion of the straw which was used by the defendant for bedding his horses or used in feeding the plaintiff’s cattle; the reasonable value of the amount used by plaintiff either in the way of bedding or feeding, the reasonable amount and reasonable value of that, if any, may be allowed. The same principle applies to the ensilage.
    “There was there a silo containing a certain amount of ensilage worth a certain amount at that time and place, and it is the contention of the defendant that the plaintiff used a certain quantity of that silo, and it is the contention of the defendant that he used much less than the amount claimed by the plaintiff. You are authorized to allow to defendant against the plaintiff the value as shown by the testimony, the reasonable value as shown by the testimony of the amount of ensilage actually used by the plaintiff.
    “It is a fact, that, for a certain period of time the plaintiff was in the occupancy of the buildings and farm of the defendant, he was in occupancy, going into its occupancy under the circumstances, that you have described, and- the testimony shows how long he stayed there; and I instruct you upon that point that you may allow the defendant as against the plaintiff the reasonable value of the use of that place, reasonable rent for the use of that- place during the time it was used by the plaintiff, and in fixing this value you will consider all of the testimony there is upon the subject, and consider the time of the year, and the nature of the use of it, and the price paid, so far as any testimony has been given on that subject, for similar property under similar circumstances.”
    There is no way of knowing what the jury allowed or disallowed of these respective claims, except that it is presumed they allowed plaintiff $300 for purchase money paid. Nor can we tell what influenced the court in concluding that $24.66 of the verdict returned ought to be remitted.

      On right to allowance for improvements made before acquiring color of title, see note in 37 L. R. A. (N. S.) 918.
      On rights in respect to compensation for improvements on land, made in good faith, under an oral contract or gift, see note in 53 L. R. A. 337.

   Ostrander, J.

(after stating the facts). It was defendant’s position in the trial court, indicated by a motion to withdraw items of plaintiff’s demand from consideration by the jury, that plaintiff performed labor upon the farm and expended money in that connection at his peril; that as to the items for ice and manure left at the farm there was no testimony tending to prove that they were ever appropriated by defendant; that as to the purchase money paid by plaintiff he could not be heard to deny the validity of the land contract, and, if not void “as against him,” the money was not recoverable under the count for money had and received. His position is not different in this court, except that it is not contended that plaintiff may not recover the purchase money he had paid defendant; nor is any fault found with the charge of the court submitting to the jury certain items of the claimed set-off.

It has been held (Davis v. Strobridge, 44 Mich. 157 [6 N. W. 205]), that an oral contract for the sale of land may be made valid by part performance, and that, when one who has contracted orally to sell land rescinds the contract and ousts the vendee in possession, the latter may acquiesce and recover money paid on the contract, and, if the contract is rescinded without his fault, the land has been cleared, and the benefit of the work is appropriated by the vendor, he is liable to pay for it.

The terms of the writing to .which the daughter of defendant signed his name, and which he at once repudiated, do not appear. The terms of the oral agreement, if a complete agreement was made,' are left uncertain by the testimony. Who was responsible for not carrying out whatever oral understanding there was does not appear. Plaintiff has not gone far enough in his proofs to permit the application here of the rule of Davis v. Strobridge; to show that there was a complete and certain parol contract, that in reliance upon it he took possession of the land, that the contract was without his fault rescinded, that he acquiesced in the rescission. The inferences to be drawn from the testimony are that there was not a complete parol agreement; that the understanding, in a general way, was that defendant would sell his farm for $7,-S00 and plaintiff would, some time, pay that sum; that plaintiff found some fault with the defendant’s title, and, being in possession, was later on evicted in summary proceedings.

At the common law there was no recovery allowed for betterments as against the title holder. Our statutes permit such a recovery only in cases of ejectment when the owner brings the suit; and not as a personal judgment, but as a condition to the obtaining a writ of possession. In any event, a claim for betterments is founded upon equitable grounds, and the character of the improvement must be such as to make the land more valuable in the future for the ordinary purposes for which such property is owned and used. Plaintiff was neither a tenant, nor, so far as appears, was he holding under a contract to purchase, and so defendant was not a landlord nor a vendor in a contract to sell; though it cannot be said that in entering upon the land plaintiff entered in bad faith. As I think the facts negative the right of defendant to maintain an action against the plaintiff for use and occupation, at least before notice to quit was given, so I think they negative the right of plaintiff to recover for betterments. As to the ice and manure, there is no evidence that defendant appropriated either. There is, however, no apparent reason for refusing plaintiff a recovery for the $300 he paid to defendant. The last of this sum was paid November 25, 1914, and from that time interest at 5 per cent, per annum should be paid.

The judgment is reversed in part, and the court below advised to enter judgment for plaintiff as indicated, with costs. In this court no costs will be awarded to either party. Act No. 314, Pub. Acts 1915, chap. .47, § 20 (3 Comp. Laws 1915, § 13701).

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


text:
    DERHAM v. HOVEY.
    1. Life Estates — Deeds — Husband and Wife — Reservations —Waste—Without Impeachment of Waste.
    A husband and wife may make a conveyance of land of which the husband is the owner, and in which the wife has only an inchoate right of dower, reserving a life estate in both husband and wife and the survivor, without impeachment of waste.
    2. Deeds — Wiixs—Construction—Intent.
    In interpreting devises and reservations in deeds, the purpose is to discern the intention of the testator or granto-r from the words employed; the subject-matter and attending circumstances to be considered where the words have a doubtful meaning.

      3. Life Estates — Deeds—Husband and "Wife — Reservations — Waste — Intent.
    Where a husband and wife conveyed a farm reserving “the use, occupancy, and. control of said premises to themselves or to the survivor of either of them so long as they or either Of them shall live, and this conveyance is not to- take effect until the death of both of said first, parties,” the words employed imported that the grantors were to control the premises so long as either lived precisely as they might have done if the grant had not been made, without impeachment of waste, but nevertheless, with reference to the grant, which was of the fee.
    4. Same — Equity — “Without Impeachment of Waste” — Malicious Destruction.
    A court of equity will sometimes, when there is no remedy at law, interpose when the tenant for life “without impeachment of waste” does something affecting the in- ■ heritance in an unreasonable way, or seeks maliciously,, or unconscionably, to destroy it.
    5. Same — Waste—Cutting Timber — Equity.
    Equity will not interpose to prevent a life tenant without impeachment of waste from cutting certain growing trees on the inheritance, where the testimony is to the effect that the time had come when the trees would sell to best advantage, that by their sale there was neither malicious waste nor destruction of the estate, in whole or in part, that it is not certain that, if unsold, the estate devolving at the termination of the life estate would be in fact more valuable, although neither the timber nor its proceeds were to be used to improve the estate, and- the purpose of the cutting was commercial purely and not to enlarge the area of the cultivated land.

    Appeal from Shiawassee; Williams, J., presiding.
    Submitted January 5, 1917.
    (Docket No. 40.)
    Decided March 29, 1917.
    Bill by Chloe M. Derham against Henrietta E. Hovey and another to restrain waste and for an ac■counting. From a decree for defendants, plaintiff appeals.
    Affirmed.

      Leon F. Miner (Francis J. Shields, of counsel), for appellant.

      Louis E. Howlett, for appellee. •

      On the question of impeachment of life tenant for waste in cutting timber, see note in 37 L. R. A. (N. S.) 772.
      As to cutting of timber as waste which may be enjoined, see note in 43 L. R. A. (N. S.) 262.

   Ostrander, J.

The bill is filed to restrain waste .and for an accounting. It was dismissed at the hearing in the court below, and plaintiff, appealing, presents two questions for decision. The first is whether¿9 the defendant Henrietta E. Hovey is a Tenant of the premises, without impeachment of waste; the other whether, if she is dispunishable of waste, wESTshe did, or was doing, was nevertheless waste.

Henry O. Hovey and Henrietta E. Hovey, his wife, without other consideration than love and affection, executed a deed of the premises in question October 25, 1892, to the plaintiff, their daughter, in which, after the description of the premises, a farm containing 80 acres, appears the following:

“The parties of the first part hereto reserve the use, occupancy, and control of said premisesToTEom-? selves or to the survivor of either of them so long as/, they or either of them shall live, and this conveyance/ is not to take effect until the death of both of said| first parties.”

Whether this deed and another made to a son conveying other land, had been delivered was considered in Griffin v. Hovey, 179 Mich. 104 (146 N. W. 210),4 in which action a bill filed by the administrator of the estate of Henry O. Hovey to set aside the deeds was dismissed.

Upon the land conveyed to plaintiff, the daughter, there was and is 35 acres of timber land, and among others were 70 elm trees, some, perhaps one-fourth -of them, maturedT/afiidTthe others immature and growing, scattered over the timber lot. The widow, Henrietta, contracted with the other defendant to sell to it, and it cut the logs from, these 70 trees, and paid her therefor $417.55. The tips and rejected butts of the trees contain some 200 cords of stovewood, to manufacture' which would cost 70 to 80 cents a cord, and to market it some 40 cents a cord. It is worth in a nearby market $2.75 a cord. There remains in the wood lot sufficient timber for firewood, building purposes, and for repairs for the farm for many years.

As to the estate reserved to the widow, it is said by appellant that, because Henry O. Hovey owned the land and his wife had only a dower interest therein, no greater estate could be reserved to her in the whole of the land than she would have had in an undivided one-third thereof if the deed had not been made; that in law the deed reserves to her a life estate with no privileges with respect to the use and control thereof other than such as the dower tenant would have. We have held (Engel v. Ladewig, 153 Mich. 8 [116 N. W. 550]) that a husband and wife may in such a conveyance reserve to both or to the survivor the use of the land so long as either lives; the reasoning there employed being that, since the two can convey the fee, they can in conveying it impose.such limitations as they please. There is no legal objection to the reservation of a life estate in both husband and wife, dis-punishable of waste.

In Stevens v. Rose, 69 Mich. 259 (37 N. W. 205), the owner deeded land to his son, and the son executed to his father a life lease of the land, “to have and to hold, to use and control as he thinks proper, for his benefit during his natural life.” This language, it was Iield, imported a leasing without impeachment of waste and that the lessee had the right to do all acts which such a tenant might do.

In Duncombe v. Felt, 81 Mich. 332 (45 N. W. 1004), there was a conveyance of land by the owners to their son, who gave back a life lease. The lease contained the recital that the consideration for it was the conveyance to the lessor of the premises by the lessees and the provision:

“And it is expressly understood that the second parties are to have as full and complete control of saidl premises, while they or either of them shall live, as though such conveyance had not been made.”

It was held that it was a lease without impeachment of waste.

In Heliker v. Heliker, 184 Mich. 657 (151 N. W. 757), a mother devised to a son for and “during the term of his natural life, the entire use, income and profit of the following described real estate, * * *” with remainder to another son. It was held that the life tenant did not hold without impeachment of waste.

In interpreting devises and reservations in deeds, the purpose is to discern the intention of the testator, or grantor, from the words employed; the subject-matter and attending circumstances to be considered where the words have a doubtful meaning. Certain presumptions may be indulged, and often precedent judicial interpretations of the meaning .of similar words amount to establishing a rule of property which cannot be ignored. In the case at bar the beneficial use of what was granted in the deed is postponed until the death of the survivor of the grantors. The words employed in the reservation, especially those which follow it and defer the taking effect of the grant until after the death of the survivor, import, I think, that the grantors were to control the farm so long as- either lived precisily~asNhey mlghOave done if the grant hád^noTb'eénTnade, but nevertheless with reference to the grant'Which' was of the fee. .

The phrase “without impeachment' of waste” is in equity so restrained in its" meaning, that it will not permit the tenant for life to commit malicious waste soasToMéstroy fñe'éstáté, and a'cburto'f"equity, some7 times when there is no remedy" at law^~"will'lhterpdse when the tenant “without impeachment of waste” does something affecting the inheritance in an ünreá,sonable way, or seeks maliciously,, or unconscionably, to "destroy it. ’ The meritorious question here is whether what the grantor did was so unreasonable an act of control that the owner of the inheritance may complain thereof. Growing timber was at common law the property of the owner of the inheritance, and the effect of a lease without impeachment of waste was to transfer to the lessee for many purposes property in the timber.

The learned trial'judge found, upon testimony which supports the finding, that the acreage of this farm contained in the wood lot was relatively íarge and larger than that found in the neighborhood uponffarms of equal size; that some of the trees sold were partly decayed; that there wás a pínseñtTñarket~"in-"the"vicinfty for the trees; and that it was not bad husbandry to sell and remove them. To be contrasted witlr these-facts -are "others, among them the one that the timber itself, or its. proceeds, was not to be used to improve the estate; that it was a commercial transaction purely, and in making the sale of timber the purpose was. not to enlarge the area. of cultivated land and diminish the size of the woodlot. Assuming, as from the testimony it may be assumed, that the time had arrived when the trees would sell to the best advantage, the time when an owner in control would in the exercise of a fair judgment sell- them, there was. accomplished by their sale neither malicious waste nor a destruction of the estate in whole or in part. The matured trees would deteriorate if left standing. The immatured trees might for a period increase in value, but it was not necessarily bad husbandry to presently sell them together. Nor can it be certain that, if unsold, the estate devolving at the terminatioh"’of'the life estate would be- in fact more valuable. The "tenant was not stripping the estate of ffiñberNand no further act of- cutting or removing timber has been threatened.

In my opinion, the decree dismissing the bill should be affirmed, with costs to the appellees.

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


text:
    MAXON v. CHADDOCK-CARNEY SALES CO.
    1. Factors — Brokers — Contracts — Breach of Contract — Affirmance — Damages.
    Plaintiff alleged a contract with a factor to sell celery at $1.25 a crate at the home market or not to sell at all; the factor shipped some of the celery to a foreign market deducting the extra expense. In a suit for the breach, plaintiff refused to treat it as a conversion of his property, but claimed his right to affirm the sales in the foreign market, and treat them as made in the home market, at whatever price made, allowing nothing for additional expense. Held, plaintiff could not at once affirm and dis-affirm sales made contrary to contract, and there was no evidence to show the proper amount of damages.
    2. Same — Damages Recoverabee — Issues.
    Under plaintiff’s theory of the case, he might have recovered for foreign broker’s fee deducted on one car shown to have been sold f. o. b. home market, had the jury clearly found that the contract was as claimed by him.

      Error to Van Burén; Des Voignes, J.
    Submitted January 4, 1917.
    (Docket No. 27.)
    Decided March 29, 1917.
    Assumpsit in justice’s court by John P. Maxon against the Chaddock-Carney Sales Company for damages for breach of contract. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Thos. J. Cavanaugh, for appellant.

      Earl L. Burhans and David, Anderson, for appellee.
    Plaintiff, in the year 1914, was a grower of celery, defendant a corporation of which M. S. Carney was president, E. L. Cady vice president, and John B. Chaddock secretary and treasurer, doing business at Decatur, Mich. A part of the business was shipping celery from Decatur. It did not buy celery to ship, but Mr. Cady was a grower of celery, and his product, and that of some others, was marketed by this company. Plaintiff claims, and his testimony tends to prove, that in the year 1914, in October, desiring to sell his celery, he talked first with Mr. Cady and later with Mr. Chaddock about marketing it. Plaintiff was at the time in Decatur with a load of celery, and his arrangement was made with Mr. Chaddock, the manager of defendant. Concerning the arrangement, plaintiff testified that Mr. Chaddock, looking at his celery, said,
    ‘‘ ‘Your celery is good stuff,’ plaintiff saying, ‘What is it going to bring me if I put it on?’ ‘Well,’ he says, ‘I have four carloads sold at a dollar and a quarter f. o. b. Decatur.’ I said, ‘What will that leave me?’ ‘Well,’ he says, ‘You pay us (15) fifteen cents a case for selling this celery and the lumber bill.’ And I said, ‘Who pays the rest?’ He says, ‘They pay it at the other end.’ I says, ‘What will that leave me?’ We figured it up.' He says, ‘It will leave you around a dollar eight or ten cents.’ * * * I says, ‘I will put my celery on at that price, but if it gets any cheaper let me know and I will trench it or ship it myself.’ That was our last conversation. He says, ‘Bring the celery along; prices are getting better.’ That is the words he told me.”
    Plaintiff continued to deliver celery in crates, slips being issued to him as deliveries were made, containing car number and number of crates of celery, and grading, whether large or small. Deliveries began October 28th and ended November 2d. Plaintiff thus delivered for sale in car 18612, 168-crates; in car 14644, 80 crates; car 141812, 144 crates; car 25333, 39 crates; car 24139, 77 crates; car 22219, 122 crates. In November reports of sales were made to him, from time to time, and checks respectively for $78.05 and $28.75 were received by him. A final statement was accompanied by a check for $196.07. These statements informed the plaintiff of certain charges. For example, under date^ November 23, 1914, the statement was made for car 18612 as follows:
    “146 crates of celery, $1.30, $189.80; 22 crates celery eighty cents, $17.60. Total, $207.40. Stock small and short. Declined to accept as above. Were to have placed in storage rather than accept discount 50 cents per crate. Had several examine and no offers. Rather [weather] hot. Finally adjusted and accepted fifty cents discount, $84.00, $123.40. Lumber and nails, $5.15. Brokerage Minneapolis $15.00. Commission 15 cents, $25.20. Making a total of charges of $45.35. Net proceeds $78.05.”
    Setting up in his declaration the alleged contract, and claiming a breach thereof, plaintiff alleges that defendant “deducted from the sum of said shipment's ■ items of charges which it had no right so to deduct under its agreement with this plaintiff, and made some shipments for a less price than was permissible under the terms of the agreement above set forth”;: the particulars being brokerage charge on car 18612, $15; on car 14644, freight charge $56.40; on car 141812, brokerage charge $15; on car 25833, storage $9.75, freight $10.53, brokerage $3.90; on car 24139, storage $19.25, brokerage $7.70; on car 22219, entire shipment lost to plaintiff, commission $18.30, “and. plaintiff claims as to this car the difference between $1.25 per case and any proper charges.”
    The court ruled that car 22219 and all relating to-it should be withdrawn from consideration. With the-plaintiff’s testimony and the evidence furnished by the receipts, statements, and checks, the plaintiff rested-The total of the items claimed for, excluding car 22219,. is $159.09.
    Testimony for defendant tended to prove that plaintiff was informed that defendant would not under any circumstances buy celery, that it was handling Carney’s and Cady’s celery, and would handle celery for others, shipping it along with what they were handling and disposing of it in the same way, selling as much as was possible f. o. b. Decatur; that it would be handled upon brokerage basis, and that often brokers were employed at the other end to sell it, in which cases plaintiff would be charged a proportionate part of cost of handling at the other end. It denies that any promise was exacted or made to notify plaintiff if celery was selling for less than $1.25 f. o. b. Decatur, or any statement made as to what the celery would net the plaintiff. Defendant’s brokerage charge was 15 cents a crate, and plaintiff was told that if there were other expenses at the other end that also was charged against the seller. Defendant’s testimony also tended to prove that car 18612 was sold, f. o. b. Decatur for $1.25 a crate, and when it reached its destination was rejected, brokers employed to sell it and who resold it, for which a charge of $15 was made and paid for plaintiff’s account. So car 141812 was sold f. o. b. Decatur for $1.25 a crate, but defendant had employed a broker to sell that car. Car 14644 was not sold (could not be sold) f. o. b. Decatur, and was consigned to Minneapolis as the best market. It was later sold there for $1.25 a crate. ■Car 24139 could, not be sold f. o. b. Decatur, and was sent to Chicago, and could not be sold there. The celery was put in cold storage, and later 110 crates sold for $1.75,'and 30 crates for $1.50. Of these, 77 crates were plaintiff’s, and he was credited with sale at $1.70 a crate, and charged with his proportion of. the expense. Car 25333 was in like manner disposed of; the celery being put in cold storage in Chicago, where it was finally sold for $1.25 a crate.
    Defendant’s motion for a directed verdict was refused, and the jury was instructed there was but one question of fact, and it was whether the contract which was made was the one testified to by plaintiff, saying that if upon that point they found for plaintiff the amount of damages recoverable would be “the sum of the unauthorized charges for freight, brokerage, and storage,” as they found them established by the evidence, and interest from January 15, 1915, at the rate of 5 per cent. Certain of defendant’s requests to charge were refused. The jury returned a verdict November 15, 1915, for plaintiff for $122.38, from which it would appear that the jury allowed plaintiff for the items of freight and storage only (refusing him allowance for brokerage charges at the other end), amounting to $117.49 and interest, $4.89. A motion for a new trial was refused, and reasons therefor were given. This motion was based upon the refusal ■ of the court to charge as requested to do, and upon what occurred after the trial and before a verdict was rendered, when the jury returned for further instructions.

      Appellant contends that the measure of damages, upon plaintiff’s theory of the case, is the value of the property at the time it was converted by the defendant, less what defendant paid and tendered therefor. Again it is said:
    “It was and is our contention that the proper measure of damages would be the difference between what the plaintiff’s celery was actually worth in the village of Decatur at the time it was loaded, or what it was actually worth at the time it would 'be put on the market if trenched, less what the plaintiff received for it from the defendants.”
    Because there was no testimony which permitted the application of the rule, it is urged that the court should have directed a verdict. Plaintiff says:
    “We did not prosecute this suit to recover from this defendant on any claim that the defendant converted the celery or because liable for its value”
    —and that violation of instructions by the broker did not deprive plaintiff of his ownership of the celery, but defendant sold plaintiff’s celery and received money for it, and out of it has retained some that' under the contract belongs to plaintiff, and that the money so retained is what he seeks to recover.
   Ostrander, J.

(after stating the facts). The novel contention of plaintiff is the reason for so minute a statement of the facts. While the terms “broker” and “brokerage” are used in the record and briefs, the testimony of both parties indicates that defendant was a factor, intrusted with the possession of the property to be sold, with power to sell it in its own name, etc. 9 C. J. pp. 510, 511.

Assuming that it was. defendant’s duty to sell f. o. b. Decatur for $1.25 a case or more, or not to sell at all, and that it violated the duty by selling elsewhere at $1.25 a case, and more, how was plaintiff injured, and how can his damages be computed? Clearly, he is not entitled to at once affirm and disaffirm a sale made elsewhere at $1.70 a case; the price received depending in part upon delivery in the foreign market instead of at Decatur. And if a car was sold f. o. b. at Decatur at $1.25 a case, and was, without the broker’s fault, rejected, or refused, by the buyer, and after expense had been made and paid, was sold at the same price, in the foreign market, why should the broker be charged with the extra expense? Plaintiff says to defendant:

“It was your duty to sell the celery for at least $1.25 a crate f. o. b. Decatur. If you could not do that, you were to notify me, and I then would have either trenched it or sold it myself. You violated this duty, and in consequence I have been injured.”

But what injury has he proved? He refuses to treat the breach of duty as a conversion of his prop-i erty and sue for its value, in which case he would be obliged to prove its value when converted. He treats all sales as made at Decatur at whatever price they were made.

To sustain the contention of plaintiff is not to discover and make good his loss, to award him compensation, but is rather to impose a penalty for breach of the contract. With respect to one car only, No. 141812, is it clear that it was sold f. o. b. at Decatur, and that plaintiff was charged a commission, or brokerage fee of the foreign broker, in which casé it would appear that the defendant deducted something from money belonging to plaintiff. In all other cases there are facts and circumstances to be considered affecting the question of the price received by defendant for the produce. If the jury had clearly found that the contract testified to by plaintiff was made, this sum plaintiff might recover in this action upon the announced theory of his case. But it is not clear that the jury found the contract to be the one stated by plaintiff. The jury, apparently, disallowed all brokerage fees.

It is obvious that, without considering any other of the questions which are presented (they are not likely to arise upon another trial), the judgment must be reversed, and new trial granted, with costs to appellant.

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


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    HOUDER v. REYNOLDS.
    1. Vendor and Purchaser — Contracts — Fraud — Good Faith — Right to Rescind.
    In an action for damages for false and fraudulent representations in the sale of lands, where essential facts asserted and relied upon were untrue, the good faith of defendant and her agent in mating them was no defense.
    2. Same — Rescission—Damages—Evidence—Instructions—Issue —Curing Error.
    The sale having been rescinded, error In admitting testimony as to the value of the land was harmless, where the court in his instructions confined the jury to the proper issue, instructed them not to weigh the erroneous evidence, and the verdict returned was for actual damages only.
    Error to Newaygo; Barton, J.
    Submitted January 16, 1917.
    (Docket No. 169.)
    Decided March 29, 1917.

      Assumpsit by Ira D. Houder and another against Rose E. Reynolds for fraud and deceit. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Cross, Vanderwerp, Foote & Boss, for appellant.

      Butler & Everett, for appellees.
   Ostrander, J.

Plaintiffs rescinded a contract for the purchase and sale of real estate, which defendant by her agents had made with them, sued for their damages, and a verdict was returned and judgment entered in their favor. Defendant moved for an order setting aside the verdict and granting a new trial. It was refused. It is contended in this court that it was error to overrule defendant’s motion for a directed verdict in her favor, and, consequently, error to refuse a new trial; that error was committed in instructing the jury and in admitting certain evidence.

The contract was made January 25, 1915. The land was 80 acres of a large tract owned by defendant in Newaygo county, and plaintiffs, residents of the State of Illinois and seeking a new home, were attracted to the land by an advertisement published in the “Farmer’s Review,” in which it was stated, among other things, that the soil was clay and sandy loam, would produce any crop, and was not sandy or rough. What appears to have been an attractive offer, contained in the advertisement, was the one that the owner would take pay in one-half the crops “raised this year, or little down each year.” Plaintiffs, unacquainted with the soil of Michigan lands, went to the land in the winter, the ground being covered with snow, saw the “lay” of the land, but not the soil, made their contract January 25, 1915, returned to Illinois, shipped their goods and farm implements to the land, erected a house and other buildings, and, when the weather permitted, set about clearing, and in some fashion cleared, from 25 to 30 acres of the land and planted it. The land produced no crop. Plaintiffs’ testimony tended to prove that in the large tract of land is some fairly good and fertile land, but that the piece purchased by them is sand, upon which no. crop, unless grass can be grown, can be produced. The issue of fact, submitted to the jury, was whether the land was what it was represented to be, suitable for diversified farming as carried on in Northern Michigan; if it was, “it filled the terms of the contract in that regard, and there should be no recovery.”

Defendant’s agent represented to plaintiffs that the land selected was a good farm, as good as any land in Michigan, was a sandy clay loam and clay subsoil, was all right for farming, and the piece selected was, in the agent’s estimation, the best piece on the ranch. The case made by the evidence presented an issue for the jury. In the printed advertisement, and in the agent’s statements, facts were asserted. It is probable, all of the testimony being considered, that defendant and her agents intended to commit no fraud, to practice no deceit; but, if the essential facts asserted and relied upon were untrue, plaintiffs’ action is not defeated by the good faith of those who asserted them. Only actual damages — actual outlay upon the farm — were recovered, and about the rule of damages stated by the trial court, no complaint is made.

It is said in argument, by defendant, that the land would, or might, be valuable for a fruit farm, and that it does not appear what crops are produced by diversified farming in Northern Michigan. It appears that plaintiffs planted what their neighbors planted. Defendant represented that the land would produce any crop. The court, in instructing the jury, said, among other things:

“I further charge you that if you find from the evidence in this case that the defendant made false statements of the quality of the property in question to the plaintiffs, and that they were ignorant of the quality of the property under the circumstances indicated, and trusted that such statements were to be relied upon and that plaintiff had no opportunity to examine the soil, the defendant is guilty of fraud, and plaintiffs should recover.”

When read with the remainder of the charge, this excerpt therefrom is but a statement of a rule to which I have already referred. The jury was confined to the real issue.

Testimony was admitted, over objection, of the value of the land per acre for farming purposes at the time it was sold to the plaintiffs. Plaintiffs had agreed to pay $22.50 per acre for the land. Defendant’s advertisement, which has been referred to, stated:

“I have a very fine tract of land in Newaygo county, Michigan, that I will divide in farms to suit at $22.50 per acre.”

The testimony for plaintiffs was that defendant’s; agent represented that the land—

“all around there sold for $22 to $25 an acre. Nothing further was said in regard to the value of this land.”

Plaintiffs produced witnesses who, from a claimed knowledge of the soil, what the plaintiffs had done upon the land, and the results of what they had done, expressed the opinion that, when plaintiffs bought it, its value was not more than $5 per acre. In the brief for plaintiffs, it is said:

“The only purpose for which this testimony was offered was to show that the land was not worth $22.50 an acre, as represented by the defendant’s agents, Mr. Reynolds and Mr. Cain, and to show that its value as farming land had been falsely represented.”

I do not find that defendant’s agents expressly directly represented that the land was worth any sum per acre. Indirectly, in fixing a price for it, and in stating the selling price of land around there, it was represented that the price asked was a fair, at least not an unfair, price. Whatever was indirectly represented concerning the value of the land, tended, of course, to confirm and support the representation that the land was suitable for farms. But, the sale having been rescinded, the value of the land was not in issue, and so the court instructed the jury, telling them not to weigh the testimony concerning the value of the land, whether it was worth much or little.

The effect of the testimony objected to was that, in the opinion of the witnesses giving it, the land, when it was sold to plaintiffs, was of no value for general farming purposes. It would have been proper to receive the opinion of a witness that the land had no value for a farm — was worthless for farming purposes. In view of the precise issue, the instruction of the court, and the verdict returned, it cannot be doubted that the jury regarded the testimony as having this, and no other, probative value. Nor is there reason to doubt that without the particular opinions the jury would have reached the conclusion it did reach.

The judgment is affirmed.

Kühn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


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    HOLLISTER v. KINYON’S ESTATE.
    1. Trial — Instructions— Express Contract — Services — Extra Services — Claim: Against Estate.
    Where claimant brought suit against an estate for services rendered the deceased, and the defense was an express contract with claimant to live in the home receiving his board and lodging for such services as he might render, an instruction by the court allowing the jury to disregard the express contract and determine what the services he performed were really worth was erroneous, in the absence of any evidence that deceased regarded the services as of more value at one time than another, and where the general character of the services did not change.
    2. Work and Labor — Contracts — Express Contracts — Implied Contracts — Services.
    Where an express contract covers the terms of an employment, there is no room for implications which change or defeat those terms.
    3. Same — Contracts—Trial—Evidence.
    Where testimony as to an express contract for services was uncontradicted and was corroborated by a course of dealing for 20 years, a finding that such contract was not made should be set aside as against the weight of evidence.
    4. Limitation oe Actions — Estates oe Decedents — Claims — Pleading.
    The statute of limitations was a ground of defense which might have been pleaded in the court below against a claim for services against an estate extending over a period of 20 years.
    5. Appeal and Error — Limitation oe Actions — Pleading.
    While commissioners on claims cannot waive the operation of the statute of limitations (3 Comp-. Laws 1915, § 13872), yet where the defense is not raised in the circuit court, on appeal, it cannot be raised in this court.
    Error to Eaton; Clement Smith, J.
    Submitted January 10, 1917.
    (Docket No. 72.)
    Decided March 29, 1917.

      Stephen Hollister presented his claim for services rendered against the estate of John Kinyon, deceased. From a disallowance of the claim, claimant appealed to the circuit court. Judgment for claimant. Defendant brings error.
    Reversed.

      Rosslyn L. Sowers and L. H. McCall, for appellant.

      Raymond, A. hatting and Horace S. Maynard, for appellee.
    Appellee presented a claim against the estate of John Kinyon, deceased. The items thereof he specified as follows:
    Estate of John Kinyon, Deceased, to. Stephen Hollister, ' Dr.
    1904, Deeemher. To cash paid William. Munson for wringer .......................... $5 00
    1907, July. To drilling well in Grand Ledge, 140 feet (net) ....................... 80 00
    1908, May. Cistern pump and 8 feet galvanized pipe at farm ........................ 2 05
    1909, June. To well pump for farm.......... 6 00
    1912, July. To cash paid C. A. Smith for groceries ............................... 25 00
    1913, June. To pump head, 8 ft. of pipe rod.. 6 50 To cash paid W. R. Pierce, labor...... 1 00
    To labor ............................ 1 00
    To getting gas engine from Lansing, returning it to Lansing for starting, setting engine, etc. ................ 10 00
    November, 15 feet of pipe and 2 elbows 1 80
    1914, April. To repairs on engine at farm---- 2 85
    August. To personal attendance from John Kinyon, 1,056 weeks from April 1, 1894, to July 31, 1914, at $3.50... 3,696 00
    $3,837 20
    The commissioners on claims disallowed it. Upon appeal to the circuit court, where all items of the demand excepting the last one were withdrawn, a jury awarded him $2,000, and a judgment for this amount, and costs, was entered. A motion for a new trial was refused.
    Testimony for the claimant tended to prove that in March, 1894, the-deceased was kicked by a horse and was thereafter totally blind. He lived on a farm of more than 100 acres, and had some live stock there. A man who was then upon the farm continued to work for deceased until November, 1894. At that time— November, 1894 — claimant went to live in the home and family of deceased, and thereafter was furnished room, board, and washing and did some of the chores. Early in 1895, the deceased moved from his farm to the city of Grand Ledge, three or four miles distant from the farm, renting the farm, disposing of his live stock, excepting a cow and one horse, and continued to live in Grand Ledge until he died, in July, 1914. Mrs. Kinyon, his wife, died in April, 1914. During this period, claimant, in the city as on the farm, lived in the family. He had some business of his own, how much is not very certain, and followed it at intervals. In Grand Ledge, as on the farm, claimant rendered services to deceased and his wife, being a sort of handy man who cared for the lawn, did errands, and often accompanied Mr. Kinyon when he went abroad. It is the theory of the claimant that he rendered personal services, valuable to and accepted by the deceased, under circumstances implying that compensation was expected and was expected to be paid, and that the value of those services, over and above board and room and washing, was 50 cents per day. Primarily, the claimant seeks to recover upon an implication of a promise to pay for services what the services were reasonably worth. There is no evidence that any account of these services was kept by any one, no evidence of any payments of money by deceased to claimant, no evidence of any demand by claimant for compensation.

      It is the theory of the representative of the estate that these services were performed agreeably with the terms of an express contract, according to which claimant was to live with the deceased, be housed, boarded, and have his washing done, and do the chores and be errand boy, etc. Testimony tending to prove the existence of such an arrangement was introduced and, if believed, fairly established the fact. Claimant, not conceding that the existence of an express contract is proven, but denying there was such a contract, answers by saying, if the contract alleged was made, that after the family removed from the farm to the city the necessity for greater service existed, and that the service rendered by claimant was more onerous and more valuable to the deceased than that theretofore rendered. Consequently, it is said, the implication arises that the services were to be paid for by an additional sum, or some sum, beyond board, etc.
    The appellant, the estate, says that in developing these theories at the trial errors of law were made, insisting that the court should have ruled that the express contract relied upon was established, and, if this is not so, still that improper testimony was admitted and the jury wrongly advised in the charge of the court. It is urged, also, that the greater part of the alleged demand is barred by the statute of limitations, a point not made in the trial court. Finally, it is insisted that a new trial should have been ordered for various reasons asserted when the motion therefor was made, among them the one that the verdict is against the great weight of evidence.
    Claimant was a witness* in his own behalf and, over objection, gave testimony. The court instructed the jury that if claimant and deceased had an agreement according to which claimant’s services were rendered,’ and if it continued during the time claimant was at Kinyon’s, a verdict for the estate must be returned; that, if claimant went to Kinyon’s under an agreement, then he must show a different arrangement afterwards before he could recover, and, unless satisfied that a different arrangement was made, should return a verdict for the estate. But the court then qualified the instruction, saying:
    “Should you find that this was the arrangement when he went there, and his duties and labors did not change, then the instruction I have given you is correct; but should you be satisfied from the proof that his duties and labors changed and became greater, and that they were done and received by Mr. Kinyon with the expectation that they were of more value than before and of more value than the board and lodging, if you shall find they were of more value than the board and lodging, then he can recover what in your judgment they are reasonably worth, not more, however, than the amount he has claimed in this action, that is, 50 cents a day.”
    In stating the claims of the parties, the court said:
    ' “The claim in this matter is for services which it is alleged Stephen Hollister performed for John Kin-yon in his lifetime. There has been no express contract specifically established in the case, but it is alleged that the claimant for a good many years acted as the servant, or, as has been termed in the case, the ‘handy man’ for the deceased, etc.”
   Ostrander, J.

(after stating the facts). The case for the claimant as it was made is, in essentials, not unlike the one stated in Corel v. Turner, 74 Mich. 408 (41 N. W. 1091). It does not appear that claimant, a man more than 70 years old when this case was tried, had a home or family of his own. He attached himself, by permission or by invitation, to the family of the deceased in 1894, and, whatever the relations were, they continued until 1914 — more than 20 years. During that period claimant performed services for the deceased, and during that period he lived in his family, receiving board, lodging, and washing. From time to time, at least, claimant followed his business of driving wells. He. was not always at the Kinyon place. No bargain was made, and he asked for no pay other than his board, etc. There was no promise to pay him. After the death of Mr. Kinyon, claimant presented an account of more than $3,800 against his estate, about $3,700 of it for his unrequited services. As to his services, he seeks a recovery upon the ground that they were worth more than Kinyon paid for them. No account was kept of them; no mutual account of the parties is exhibited. Impliedly, claimant says, impliedly Kinyon agreed to pay him for his services what they were reasonably worth. He paid him only a part, and has owed him all of the time at least 50 cents a day more than he paid him for each day that he served him.

A jury- has given him $2,000, not the amount he claimed, not the result of the application of any discoverable theory. It is obvious that improper advice was given to the jury which may have resulted in prejudice to the estate.

The case for plaintiff was met by the assertion and proof that, when claimant began to serve the deceased, an express agreement for his services was made, by the terms of which he was to receive only his board, etc., as payment. Reading all of the charge, I am convinced that the court did not intend to say to the jury, in stating the claims of the parties, that the contract relied upon by the estate was not established ■ — did not then refer to that alleged contract, although literally that was the statement, no other contract having been asserted. Other and later portions of the charge act, I think, as a correction of this statement and indicate that the court was referring to the claim made and theory of the claimant. Assuming, although the testimony concerning this agreement was undisputed, and was fairly corroborated by the course of events, that whether it was made was a question for the jury, it is impossible to determine how the question was answered, or whether the jury agreed to answer it one way or the other. Because they were instructed, in effect, that if it was made and claimant after a while performed more considerable services, or services of more value, than at first, they might disregard the alleged express agreement and determine what the services he performed were really worth. This is the effect of the instruction, because there is no evidence tending to prove that Kinyon regarded the services as of more value at one time than at another. The right of the estate was made to rest, finally, upon whether the jury found:

“That his duties and labors changed and became greater, and that they were done and received by Mr. Kinyon with the expectation that they were of more value than before and of more value than the board and lodging, if you shall find they were of more value than the board and lodging, then he can recover, etc.”

The generál character of claimant’s services did not change. He was, in fact, paid for all the time in accordance with the alleged agreement. When an exr press contract covers the terms of an employment, there is no room for implications which change, or defeat, those terms. Schurr v. Savigny, 85 Mich. 144 (48 N. W. 547). For a case in which the rule does not apply, see Middlebrook v. Slocum, 152 Mich. 286 (116 N. W. 422). There is no testimony tending to prove that either party to the alleged agreement ever agreed upon a modification of its terms, or that a new or further agreement was made. There is no evidence tending to prove that claimant ever considered a modification of the alleged agreement. It is said that the alleged express agreement was for no specified period of service beyond the first winter that claimant lived with Kinyon. Granting this, there is, as I have said, no evidence of any change in the general character of the relations established by the agreement, if it was made. Claimant stayed on in the general capacity in which he began. It must be remembered that claimant is not pointing out particular days, or weeks, when he did particular work more or less than by the alleged contract he was to do. He gives no credit for days when he was employed about his own affairs. He asserts a continuous and general rendering of services from the beginning, stating the number of weeks of service as 1,056 and the value per week at $3.50, which is 50 cents a day. The qualification introduced into the charge of the court should have been omitted.

I am not prepared to hold that the evidence of the express contract required the court to instruct the jury that it was established, and therefore to direct a verdict for the estate. No witness contradicted the witness who testified to the agreement, and a course of dealing for 20 years corroborates his testimony. The testimony is, however, so conclusive that a finding that the agreement was not made ought to be set aside as against the weight of evidence.

The statute of limitations, while it could not, without a framing of issues, have been pleaded in the court below, was a ground of defense which the estate might have asserted in the trial court. McGee v. McDonald’s Estate, 66 Mich. 628 (33 N. W. 737); McHugh v. Dowd’s Estate, 86 Mich. 412 (49 N. W. 216); Conger v. Hall, 158 Mich. 447 (122 N. W. 1073). This is a court of errors, and while the statute, 3 Comp. Laws, § 9375 (3 Comp. Laws 1915, § 13872), and decisions of this court, are to the effect that commissioners on claims cannot waive the operation of the statute, it is also true that questions not opened in the trial court are not to be first presented in this court. The reasons for this rule, while not so obvious in this case as in some which may be supposed, are nevertheless controlling here.

It is not necessary to consider whether the motion for a new trial ought to have been granted, since for the reasons stated the judgment must be reversed, and a new trial granted.

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