text:
    DOWSE v. GAYNOR.
    1. Accounting — Partnership—Equity— Laches.
    Where complainant bought a half interest in a mine in Mexico from defendant in 1887, under a partnership agreement contemplating the operation of the mine by defendant and the division of the profits with complainant, and wrote letters more or less frequently until 1901, at which time he ascertained defendant’s whereabouts without difficulty, a bill for an accounting, fijed subsequent to 1904, is barred by laches.
    2. Limitation op Actions — Residence op Dependant — Ignorance op Plaintiff.
    A foreign plaintiff is not relieved from the force of the statute of limitations by his ignorance of the defendant’s residence in this State.

      3. Same — Statute—Application—Law of Forum.
    The statute of limitations in force in this State applies to actions brought here, rather than the statute of the place where the cause of action arose, or the parties formerly resided.
    4. Same — Partnership Accounting — Time to Sue.
    The right of a partner to have an accounting is cut off in six years, unless the partnership agreement was under seal, and then in ten years.
    5. Same — Fraudulent Concealment — Burden of Proof.
    A complainant in a bill for a partnership accounting, seeking to avoid the statute of limitations by showing fraudulent concealment (section 9739, 3 Comp. Laws), and claiming that there was fraud in the inception of the contract from which mere silence thereafter amounted to concealment, has the burden of proving the alleged fraud.
    6. Same — Fraud—Diligence—Necessity.
    Section 9739, 3 Comp. Laws, suspending the statute of limitations in cases of fraudulent concealment, was not designed to help those who negligently refrain from prosecuting inquiries plainly suggested by facts known, and parties must be held chargeable with knowledge of the facts which they ought, in the exercise of reasonable diligence, to have discovered.
    Appeal from Delta; Stone, J.
    Submitted November 9, 1908.
    (Docket No. 106.)
    Decided November 30, 1908.
    Bill by Thomas Dowse against Edward Gaynor. for a partnership accounting. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Á. W. Wolfe, for complainant.

      F. D. Mead, for defendant.
   McAlvay, J.

Complainant filed his bill for an accounting with defendant upon all matters between them arising under what complainant claims was a copartnership agreement relative to the purchase from defendant of a one-half interest in a silver and lead mine in Sonora, Mexico, for the sum of $1,250, May 10, 1887, and the development and operation of the said mine, claiming that the sale was brought about by fraudulent representations of defendant, and that the money paid was not used as agreed, but was appropriated by him and not accounted for, also claiming that defendant’s whereabouts have for many years been unknown to complainant until 1904, when he .located him at Esoanaba, Mich. Defendant in his answer admits the sale made to complainant for $1,250, Mexican money, but that he actually received $1,000 lawful money of the United States. He denies any guaranty of this property by him, or any fraud or misrepresentation connected therewith. He alleges that he expended the money complainant paid, as agreed, together with $2,000 of his own money, in developing the mine, and that he so informed complainant in 1904. He claims that his legal residence has always been claimed by him to be at Escanaba. He denies any copartnership, and pleads the statute of limitations. Issue was joined, and the case was heard upon pleadings and proofs. A decree was entered denying complainant relief and dismissing his bill of complaint.

The theory of the complainant who asks this court to reverse this decree is (a) that a fiduciary relation was shown to have existed between these parties in this transaction; (&) that he has not been guilty of laches; (c) that his claim is not barred by the statute of limitations. The court in his opinion found against complainant upon these propositions.

Complainant testified that he made this purchase at Nogales, Ariz., after a very brief acquaintance with defendant. The evidences in writing of this transaction are the following memorandum of sale and agreement relative thereto, and a receipt for a mining lease to be recorded :

“ Nogales, Arizona Territory, May 10, 188?.
“ This agreement-made this day between Edward Gay-nor, of Nogales, A. T., party of the first part, and Thomas Dowse, of Duluth, Minn., party of the second part, witnesseth: That said party of the first part, in consideration of the sum of twelve hundred and fifty dollars ($1,250), receipt of which is hereby acknowledged, hereby sells, conveys and transfers to the second party an undivided one-half interest in the ninety-nine (99) year lease dated Ja. 18, 1886, in the mine known as the Oakland, situated in the district of Magdalena, state of Sonora, Republic of Mexico. It being agreed that this one-half interest acquired by the party of the second part is to be free from any assessments whatever. That party of the first part further agrees to give general local supervision to the working of this mine, sales of product, etc., free of any charges, it being further agreed that work on this mine is to commence and continue at once.
“E. Gaynor,
“Thomas Dowse.”
“Nogales, A. T., May 10, 1887.
“Received of Thomas Dowse a mining lease for recording in Sonora, Mexico.
“E. Gaynor.”

Complainant says there was a written agreement given to him by defendant. This paper is lost. As to its contents, he testified that defendant was “to take charge of the mine, sell it, and make remittances and so forth. Full superintendency and care of the mine and make reports to me; sell the product; divide equally.” Defendant gave testimony tending to sustain the allegations and denials of his answer. To give an abstract of the evidence in the case will not be useful, nor is it necessary. We agree with the trial court that no fiduciary relation has been established by complainant. In 1887 he made this purchase. He admits that he did not go and look at the property, although invited. From time to time he wrote defendant concerning the mine. The letters do not indicate that he claimed to be anything more than an owner of an interest in the property. Upon the question of his laches, as appears from the record, there can be no doubt. From 1887 to 1889 he wrote several letters, and received but few answers. He says he continued to write more or less frequently up to the year 1901. He does not show that before that year he used any diligence to ascertain the whereabouts of defendant, and it does appear that when he undertook to locate him he did so without difficulty. It appears, also, that he never went to see the property.

We also find that the claim is barred by the statute of limitations. This is the view taken by the trial judge, with whose opinion upon the material facts we agree. The following portion of this opinion we quote:

“It seems to me that this is a stale claim, and one that is barred by the statute of limitations, in any view of the case which we can take. The defendant in his testimony claims that his residence has been in Escanaba, Mich., all the time since the making of the contract. This is not denied. But if defendant had a residence in Nogales, and moved to the City of Mexico (which is denied by him), and then returned to Escanaba even without the knowledge of the complainant, this would not operate to suspend the running of the statute. As was said by our Supreme Court in Home Life Ins. Co. v. Elwell, 111 Mich. 691:
“ ‘No provision of our statute relieves a foreign plaintiff from the force of the statute because he is ignorant that the defendants have removed to Michigan; it is only when defendants are absent from Michigan that the statute is arrested.’
“ In that case suit was brought to recover a deficiency on a decree in the foreclosure of a mortgage executed in New Jersey. The court said:
‘“It is a uniform rule that the law of the forum applies, and therefore it is the statute of limitation in force in Michigan, and not that of New Jersey, which must govern. See 1 Wood on Limitations (2d Ed.), § 8; Howard v. Coon, 93 Mich. 442.’
‘ ‘ The bill was filed upon the theory that the parties were partners. If this relation were established, which in my judgment the evidence does not warrant, then under the rule in Michigan the claim is outlawed. The right of a partner to have an accounting is cut off in six years, unless the partnership agreement was under seal, and then in ten years. Jenny v. Perkins, 17 Mich. 28; Near v. Lowe, 49 Mich. 482. The complainant, however, claims that the statute of limitations does not apply because a trust relation existed between the parties, and because of section 9789, 8 Comp. Laws, which provides that, if any person shall fraudulently conceal the cause of action from the knowledge of the person entitled thereto, an action may be commenced at any time within two years after the person who is entitled to bring the same shall discover that he has such an action. Is there any evidence of fraudulent concealment on the part of the defendant ? We have already said that under the evidence no partnership is established — hence, no fiduciary relation. The parties dealt with each other at arms’ length and as strangers. Under such circumstances the rule is well stated in 19 Am. & Eng. Enc. Law (2d Ed.),, p. 253:
“ ‘ When the basis of the action is some wrong other than a fraud, the fraudulent concealment which will work a postponement of the statute must be a concealment produced by affirmative acts or misrepresentations. A mere silence on the part of the defendant is not enough. The plaintiff must show some arrangement or contrivance on the part of the defendant, of an affirmative character, designed to prevent subsequent discovery. The rule in question prohibits the defendant from doing at any time anything to prevent the plaintiff from ascertaining subsequently to the transaction out of which the right of action arises the facts upon which it depends, either by affirmative action which conceals the truth, or by any device which avoids inquiry that would lead to a discovery. Where, however, the basis of the action is a fraud perpetrated by the defendant, the original fraud is regarded as a continuing affirmative act, and mere silence of the defendant is treated as a concealment.’
“I am aware that complainant claims that there was some such fraud in the inception of the contract, but I do not think that the evidence shows it. The burden is here upon the complainant. 19 Am. & Eng. Enc. Law (2d Ed.), p. 333. The property was at all times open to inspection. The cqmplainant was in the first instance invited to visit it. This statute has been construed by the Supreme Court. In Purdon v. Seligman, 78 Mich. 132, the court says:
“ ‘The statute was not meant to help parties who take no pains to see what is before their eyes.’
“In First Nat. Bank of Ovid v. Steele, 146 Mich. 315, the court says:
‘“The statute was not designed to help those who negligently refrain from prosecuting inquiries plainly suggested by facts known, and the plaintiff must be held chargeable with knowledge of the facts which it ought, in the exercise of reason'able diligence, to have discovered.’”

The opinion from which the above is quoted is long and exhaustive. All of the evidence is carefully reviewed and the correct conclusions found. It is not necessary to discuss any other questions referred to in complainant’s brief.

The decree is affirmed, with costs.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ATTORNEY GENERAL, ex rel. BEERS, v. BOARD OF CANVASSERS OF SEVENTH SENATORIAL DISTRICT.
    1. Elections — Board of Canvassers — Jurisdiction—Qualifications of Candidates.
    In canvassing the votes east tor a State senator, the board of district canvassers created by sections 3684 et seq., 1 Comp. Laws, has no jurisdiction to determine whether a candidate was ineligible under section 6, article 4, of the Constitution, because holding the office of prosecuting attorney, and reject votes cast for such ineligible candidate.

      2. State Senate — Qualifications —Determination —Courts— Jurisdiction.
    Under section 9, article 4, of the Constitution, the Senate is the sole judge of the qualifications of its members, and this court has no jurisdiction to determine a basis for its decision or to review it when made.
    Mandamus by John E. Bird, attorney general, on the relation of John S. Beers, to compel the board of canvassers of the seventh senatorial district to recanvass a vote.
    Submitted December 3, 1908.
    (Calendar No. 23,171½.)
    Application denied December 3, 1908.

      John E. Bird (Charles W. McGill and James O’Hara, of counsel), in pro. per.
   Per Curiam.

At the recent general election Charles E. White, John S. Beers, John W. Taylor, and Lloyd East were candidates for election to the office of State senator for the seventh senatorial district, comprising the counties of Cass and Berrien. Of the votes cast at the election for the office of State senator, Mr. White received 10,506; Mr. Beers, 6,971; Mr. Taylor, 384; and Mr. East, 377. The said board of canvassers having convened to canvass the vote for said office, in accordance with the provisions of the statute (1 Comp. Laws, § 3684 et seq.), the relator, John S. Beers, presented to and filed with the board his petition, setting forth, among other things, that at the time of the general election and for upwards of three years and ten months prior thereto, and at the time of filing the petition, the said White had been and was prosecuting attorney of the said county of Berrien, and was therefore, under section 6 of article 4 of the State Constitution, ineligible to the office of State senator, and all votes cast for him were void; that in the early part of August, 1908, an opinion of the attorney general to the effect that said White was ineligible was published in various newspapers in the district, and such ineligibility was understood by all intelligent voters; that said Beers had received a majority of the valid votes cast for said office at said election.

“Your petitioner therefore prays that your honorable body reject all votes cast for the said Charles E. White for said office of State senator, the same being void under the Constitution, and that your honorable body determine that your petitioner was elected to said office of State senator,” etc.

The board ignored and denied the prayer of said petition and certified to the election of said White.

The petition filed in this court prays for the writ of mandamus, commanding said board:

“(a) To reconvene at the office of the clerk of the county of Berrien and recanvass the votes cast for State senator in said district, and in the recanvass of said votes to treat all votes cast for the said Charles E. White as void.
“ (6) That said board of district canvassers of the said Seventh senatorial district of the state of Michigan be directed to issue a certificate of election in accordance with section 3689 of the Compiled Laws to such person as this honorable court may determine as being lawfully entitled thereto.
“ (c) That such other and further order may be made in the premises as to this honorable court may seem meet.’*

We are of the opinion that the board of canvassers properly refused to consider the relator’s petition, for the reason that the question thereby presented for their consideration was not within the jurisdiction of the board to determine. Bradley v. Board of State Canvassers, 154 Mich. 274. We are also of the opinion that this court' has no jurisdiction in the premises. Section 9 of article 4 of the State Constitution has made the State senate the sole judge of the “qualifications, elections and returns of its members.” This court can neither determine a basis for its decision nor review it when made. Wheeler v. Board of Canvassers of Manistee Co., 94 Mich. 448; Vance v. Board of Canvassers of St. Clair Co., 95 Mich. 462.

The application is denied.


author: Brooke, J.

text:
    GOLDMAN v. MANISTEE CIRCUIT JUDGE.
    Partnership — Accounting—Injunction—Receiver — Ex Parte Order — Propriety.
    On a bill for a partnership accounting, an ex parte order for an injunction and appointing a receiver, the effect of which is to dispossess the managing owner of property, real and personal, of such a nature that it could not be readily converted or dissipated, is an absolute nullity.
    Mandamus by Harry Goldman to compel Charles H. Rose, circuit judge of Manistee county, to dissolve an injunction, and to vacate an order appointing a receiver.
    Submitted November 17, 1908.
    (Calendar No. 23,121.)
    Writ granted December 8, 1908.
    P. T. G-lassmire (Smurthwaite & Alway, of counsel), for relator.

      Dovel & Dovel (Butzel & Butzel, of counsel), for respondent.
   Brooke, J.

Application for mandamus. The writ is sought to require the respondent to dissolve a preliminary injunction and vacate an order appointing a receiver.

One William Imerman and the relator were in business as copartners under the trade-name of the Western Hide & Fur Company of Manistee for some time prior to the 29th day of September, 1908. Upon that day Imerman filed a bill in chancery and his own affidavit, and upon the filing thereof applied for a temporary injunction against Goldman and for the appointment of a receiver. The circuit judge ex parte made an order appointing a receiver for all the assets of the partnership, and issued an injunction against the relator enjoining him from—

“ Taking possession of any of the assets of the Western Hide & Fur Company, or collecting any of the moneys due to the Western Hide & Fur Company, or from conducting any business particularly until the further order of the court in the name of or in behalf of the Western Hide & Fur Company, and from transferring or conveying any property, either real or personal, belonging either to the Western Hide & Fur Company, and from in any way clouding the title or conveying the property commonly known as Arthur street yards and warehouses.”

As soon as was practicable after the service upon the relator of the injunction and notice of the appointment of a receiver, he filed his answer to the bill and made a motion for the dissolution of the injunction and the vacation of the order. He also filed several affidavits in support of said motion. An order to show cause was issued by the circuit judge upon this motion, and it was heard on the 13th of October. Upon the hearing, various affidavits filed that day were considered by the judge in support of the continuance of the injunction, and on the 17th day of October the judge denied the petition of the rélator, and affirmed the ex parte order already referred to. The principal business carried on by the copartnership in the city of Manistee was that of dealing in old metal and old machinery. It had a considerable stock on hand, and was indebted to the bank in Manistee in the sum of some $10,000, which bank indebtedness was indorsed by Imerman. The relator’s answer was under oath. In it he denied the existence of a partnership with Imerman, and fully met the equities of the bill.

A careful perusal of the bill, answer, and various affidavits fails to disclose any urgent necessity for the very drastic course taken. By the action of the court, relator Goldman, who had been for 14 years the owner or part owner of the business in question, and for the year during which the partnership with complainant had existed, its managing partner, was wholly dispossessed of his property, the very nature of which rendered it extremely unlikely that it could be readily converted or dissipated. This court has repeatedly held that the issuance of an injunction and .the appointment of a receiver ex parte is an absolute nullity. It has further had occasion to point out the impropriety of taking such action pendente lite in “ a special and summary proceeding on which an inquiry into the facts must always be imperfect and generally one-sided.” McCombs v. Merryhew, 40 Mich. 721. See, also, Salling v. Johnson, 25 Mich. 489; Port Huron, etc., R. Co. v. St. Clair Circuit Judge, 31 Mich. 456; Hall v. Wayne Circuit Judge, 111 Mich. 395; Comstock v. McDonald, 113 Mich. 626.

Writ granted.

Grant, C. J., and Blair. Montgomery, and Ostrander, JJ., concurred.


author: MOORE, J.

text:
    STRIFLING v. BADEN.
    1. Justices of the Peace — Municipal Courts — Kalamazoo ' Charter — Jurisdiction.
    By section 18, chapter 29, of the charter of Kalamazoo (Act No. 648, Local Acts 1907), the legislature gave the municipal justice of Kalamazoo exclusive jurisdiction of all cases where both parties are residents of the city, and section S of the same chapter, providing that said justice “ shall be considered the successor in office of all the justices of the peace now-in said city as their respective terms of office shall expire,” was not intended to give existing justices concurrent jurisdiction with him during the unexpired portions of their terms.
    2. Same — Municipal Justices — Exclusive Jurisdiction — Statute — Validity.
    Section 18, chapter 29, of the charter of Kalamazoo (Act No. 648, Local Acts 1907), giving the municipal justice of Kalamazoo exclusive jurisdiction of all cases where both parties are residents of the city, is not inharmonious with sections 17 and 18 of article 6 of the Constitution, as depriving the four existing justices of the emoluments of their office in a manner equivalent to legislating them Out of office.
    3. Same — Municipal Justices — Constitutional Provisions.
    There is nothing in the Constitution prohibiting the legislature from conferring upon one justice of the peace exclusive civil and criminal jurisdiction in cities over cases arising in the city or between residents of the city.
    Certiorari to Kalamazoo; Adams, J.
    Submitted September 10, 1908.
    (Calendar No. 23,030.)
    Decided December 14, 1908.
    Petition by Jacob Strifling for a writ of mandamus to compel John P. Baden, justice of the peace, to dismiss an action at law for want of jurisdiction, and for a writ of prohibition restraining further proceedings. There was an order granting the writs, and respondent brings certiorari.
    Affirmed.

      Samuel W. Oxenford, for relator.

      William A. Luby, for respondent.
   MOORE, J.

This is a petition for a writ of certiorari to review an order of the circuit court for the county of Kalamazoo. Respondent is a justice of the peace of the city of Kalamazoo elected under its charter as it existed in 1905. His term of office began on the second Monday in April, 1905, and will end the second Monday in April, 1909, or as soon thereafter as his successor is elected and qualified. Mark Young, a resident of the city of Kalamazoo, commenced a suit before the respondent against the relator, also a resident of the city of Kalamazoo, whose attorney moved to dismiss the same for the reason that exclusive jurisdiction in such cases had been conferred upon the municipal court of Kalamazoo by its amended charter, especially section 18, chap. 29, Act No. 648, Local Acts 1907. The motion was denied, and the relator filed a petition in the circuit court for a mandamus and writ of prohibition. A demurrer was filed to the petition, but before hearing a stipulation was also filed by which the full case might be determined. A hearing was had and an order entered granting the prayers of relator’s petition.

In view oí the stipulation which was entered into for the purpose of having the full case heard, we decline to consider any other than the main question, to wit:

“Did the amended charter give exclusive jurisdiction to the municipal court justice to hear and determine cases where both parties are residents of the city ?”

The city charter prior to the amendment provided for the election of four justices of the peace. The amended charter provides for the election of but one justice of the peace. Section 18, chap. 29, Act No. 648, Local Acts 1907, provides:

“ Said justice shall, as against all other justices of the peace of the county oí Kalamazoo, and State of Michigan, have exclusive jurisdiction of all actions and proceedings, within his jurisdiction, where both parties thereto shall at the time of the commencement of such action or proceedings be residents of said city.”

Section 3 of said chapter provides:

‘ ‘ The said municipal justice shall be considered the successor in office of all the justices of the peace now in said city as their respective terms of office shall expire.”

The respondent claims that these two provisions give the justices concurrent jurisdiction, and that it is not until the terms of office of all the justices of the peace except the municipal justice have expired that the latter obtains exclusive jurisdiction of the cases where both parties reside in Kalamazoo. If this was what the legislature had in mind, it would doubtless have said so, instead of using the language we have quoted. Counsel say that if the court should find the legislature meant by “exclusive,” in section 18, to deprive respondent of his jurisdiction in civil cases when both parties are residents of the city of Kalamazoo, before his term of office expires on the second Monday in April, 1909, then it overreached its authority, and the act creating the municipal court is void as being inharmonious with sections 17 and 18 of article 6 of the Constitution of Michigan.

It is insisted that to permit this is, by indirection, to deprive a constitutional officer of his office, that the effect of so limiting his jurisdiction is to deprive him of the emoluments of his office, and that he might as well be legislated out of office. Counsel cite: Allen v. Kent Circuit Judge, 37 Mich. 474, 476; Allor v. Wayne County Auditors, 43 Mich. 101; Gratopp v. Van Eps, 113 Mich. 590, 591; Attorney General, ex rel. Hooper, v. Loomis, 141 Mich. 547. An examination of these cases will show that each of them is distinguishable from the case under consideration. In the last-named case it was said, among other things:

“We do not find in section 18, art. 6, anything prohibiting the legislature from giving to municipal courts such jurisdiction as is there given to justices of the peace.”

It is also said in that case:

“It is not contended that the legislature may not constitutionally provide for a single justice in cities.”

Section 1, art. 6, provides that municipal courts of civil and criminal jurisdiction may be established' by the legislature in cities. Section 17 of the same article provides that there shall be not exceeding four justices of the peace in each organized township. It also provides that the legislature may increase the number of justices in cities, but we do not find any requirement that there shall be more than one justice of the peace in a city, nor do we find any prohibition upon the legislature from conferring upon one justice of the peace exclusive civil and criminal jurisdiction in cities over cases arising in the city or between residents of the city. We think the act can be sustained under the following authorities: Root v. Mayor, 3 Mich. 433; Perrott v. Pierce, 75 Mich. 578; Messenger v. Teagan, 106 Mich. 654, and the cases cited therein.

The judgment of the court below is affirmed.

Grant, C. J., and Blair, Montgomery, and Mc-Alvay, JJ., concurred.


author: Hooker, J.

text:
    PLEFKA v. DETROIT UNITED RAILWAY.
    1. Trial — Taking Question from Jury — Propriety —Weight of Evidence.
    In an action against a street-railroad company for injuries to a passenger caused by falling on a car floor, though plaintiff’s testimony that the floor was broken and rotten was shaken on cross-examination, and five other witnesses testified who saw no broken floor, it raised a question for the jury, who should not have been instructed that “it is not claimed by plaintiff or any of her witnesses that the floor was broken.”
    2. Carriers — Street Railroads — Care Required — Safe Cars.
    A common carrier of passengers owes the duty of at least reasonable care in furnishing and maintaining cars in a safe condition, and an instruction is erroneous which makes a street-railroad company’s liability to a passenger for injury from' a defective car depend upon such a defective condition as in and of itself to “necessarily” apprise the company of its defective character.
    3. Evidence — Res Gest.se
    In an action against a street-railroad company for injuries to a passenger caused by falling on a defective car floor, it was competent for plaintiff to show what the conductor did with the section of flooring at the time, it being part of the res gestas.

      Error to Wayne; Brooke, J.
    Submitted October 12, 1908.
    (Docket No. 28.)
    Decided December 14, 1908.
    Case by Celia Plefka against the Detroit United Railway for personal injuries. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      William Van Dyke, for appellant.

      Corliss, Leete & Joslyn, for appellee.
   Hooker, J.

The plaintiff entered by the rear door a side aisle street car, the seats facing front. She followed another woman, who, by tripping or stepping on the forward end of a section of removable slats constituting the floor of the aisle, caused its displacement, and, plaintiff’s foot being caught under the rear end of the section displaced, she fell and was injured. She brought this action, and, the case being submitted to the jury, a verdict was rendered for defendant, and plaintiff has appealed.

She testified, in substance, to the foregoing, and said that the slats were broken and rotten. While her cross-examination tended to shake this testimony, it raised a question for the jury, who should not have been instructed that “it is not claimed by the plaintiff or any of her witnesses that the floor was broken.” We agree with counsel for the defendant that, in view of her cross-examination and the fact that five witnesses testified, none of whom saw any broken floor, there is little reason to believe that the jury could have found that the floor was broken, but we cannot see that the charge can be sustained. The court also charged the jury:

“The burden of proof in this case is upon the plaintiff. She must satisfy you, by a fair preponderance of evidence, that she herself was not guilty of any contributory negligence in the premises, and that the defendant company was guilty of negligence in providing an appliance which was not reasonably safe; that is, that the car floor was in such a defective condition as would necessarily give the defendant notice of its dangerous character, and that its failure to remedy the defect was of such a character as to make it (the defendant company) liable.”

We are of the opinion that this is stating too broad a rule, as the learned circuit judge made defendant’s liability depend upon such a defective condition of the floor as in and of itself to ‘ ‘ necessarily ” apprise the defendant of its dangerous character. The rule is that a common carrier owes the duty of at least reasonable care in furnishing and maintaining cars in a safe condition. He cannot omit all inspection, nor will a careless inspection answer.' It is only where a reasonable inspection would have failed, or had failed, to disclose a defect that he can claim immunity from the consequences of furnishing an unsafe car.

It was also competent for plaintiff to show what the conductor did with the section of flooring at the time of the accident, it being a part of the res gestee, but apparently no harm was done by the exclusion of this testimony.

We are constrained to reverse the judgment, and direct a new trial.

Grant, C. J., and Montgomery, Ostrander, and Moore, JJ., concurred. Blair and McAlvay, JJ., concurred in the result.


author: Moore, J.

text:
    FIFTH AVENUE LIBRARY SOCIETY v. HASTIE.
    1. Justices op the Peace — Pleading—Special Defenses.
    In an action brought in justice’s court on a written contract for the sale of books which contained the statement: “No agreement is valid other than as embodied in this contract,” the books having been received and retained by defendant, testimony tending to show that the contract was obtained by misrepresentation, and that there was a partial failure of consideration, was not admissible without a notice of the special defense; sections 767, 769, 828, 1 Comp. Laws, providing, in effect, that a total failure of consideration can be shown under the plea of the general issue, without notice, not being applicable.
    2. Commerce — Interstate Commerce — Foreign Corporations— Sale of Goods — Law Applioable.
    An order for books signed in Detroit, not subject to countermand or cancellation, contemplating payment in Detroit, but directed to plaintiff in New York, and contemplating that plaintiff will subsequently deliver the books, which was in fact done, was within the protection of the commerce clause of the Federal Constitution, and plaintiff, a foreign corporation, could maintain an action thereon in our courts, though it had not complied with our registration act, Act No. 206, Pub. Acts 1901.
    Error to Wayne; Rohnert, J.
    Submitted October 13, 1908.
    (Docket No. 49.)
    Decided December 14, 1908.
    Assumpsit by the Fifth Avenue Library Society against William Gh Hastie for goods sold and delivered. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.

      Henderson & Martindale, for appellant.

      Clark, Jones & Bryant, for appellee.
   Moore, J.

This case was originally commenced in justice’s court. Plaintiff declared on all the common counts and on a written contract. Defendant filed a plea of the general issue. The case was tried in justice’s court, and a judgment rendered in favor of the plaintiff, from which judgment defendant took an appeal to the circuit court. The case was tried by a jury. A verdict was directed for the plaintiff for $41.25, the amount of the claim. The case is brought here by writ of error.

We quote from the brief:

“Appellant’s assignments of error raise but two questions for this court to determine:
“First. Is the evidence offered by defendant and appellant admissible under the pleadings in the case ? and,
“Second. Is the contract a contract made in Michigan, and is plaintiff and appellee prohibited from bringing suit thereon by reason of the statute governing the conduct of business in Michigan by foreign corporations ? ”

The contract upon which suit was brought is as follows:

“No agreement is valid other than as embodied in this contract.
“Detroit, Mich., January 27, 1905.
“Fifth Avenue Library Society,
“258-260 Fifth Avenue, New York.
Gentlemen: Please deliver to me one set edition De Luxe the Ridpath Library of Universal Literature, in twenty-five volumes, bound in half leather, deckle edge, for which I agree to pay you $49.50, payable as follows: $12.00 down, and balance, $37.50 in 30 days from delivery of books. The title to said books does not pass to me until they are paid for in full. I understand this order is not subject to countermand or cancellation. You are at liberty to consult as to my reputation for keeping business promises Mr. William F. Metcalf, address Corner Rowena & Woodward.
“ Paid to salesman on acct. $12.00.
[Subscriber’s Signature] “ William G. Hastie.”

The books were soon afterwards received by defendant, and he had them at the time of the trial. After he received the books, defendant wrote a letter, a part of which is as follows:

“Detroit, 585 12th St. Feb. 28, 1905.
“C. S. Goodwin,
“Pres. International Mag. Ass’n.
Dear Sir: I received the volumes of the Ridpath Library some time ago, and have been reviewing them from time to time. To speak frankly, this work is a great disappointment to me. A few of my reasons are as follows: A work of this magnitude and price should contain only the 4 Immortals ’ in literature. * * *
44 You know the terms your agent made with me. I refuse to fulfill that contract. Were you to give me these volumes for a recommendation alone, I would refuse to give it. You have some money of mine. I have the books. The matter rests with you.
44 Yours truly,
44 W. G. Hastie.”

Upon the trial, counsel sought to show the contents of an advertisement, in relation to the books, defendant had read before he gave his order, and also the conversation between himself and the agent who solicited the order, which advertisement and representations were to the effect that the books contained all of the greatest literary writings of the century, and had been edited by John Clark Ridpath, a well-known literary man, and that defendant, assuming these representations were true, had entered into the contract. The court excluded this testimony as not admissible under the pleadings.

It is now said that what was attempted to be shown amounted to a total failure of consideration, citing Colbath v. Jones, 28 Mich. 281, Perkins v. Brown, 115 Mich. 41, Hubbard v. Freiberger, 133 Mich. 139, and Ward v. Reed, 134 Mich. 393. Section 767, 1 Comp. Laws, provides, as to pleadings in the justices’ courts, that—

. “The plea of the general issue shall be in the same form as in those [the circuit] courts and notice of any defense not admissible under the general issue shall be given with such plea.”

Section 769, 1 Comp. Laws, provides:

44 A failure or want of consideration in whole or in part, may be shown in defense, to any action or set-off, upon or arising out of any bond or promissory note or other instrument in writing, except negotiable notes, negotiated before falling due, to any person not having at the time it was negotiated, knowledge of such defense.”

It is further provided by section 828, 1 Comp. Laws:

“A failure or want of consideration, in whole or in part, may be given in evidence, in any action or set-off upon, or arising out of, any contract, except negotiable instruments, negotiated before they became due, to persons not having notice of such defense; in actions upon such contracts, evidence of a partial failure, or want of consideration, shall not be admitted, unless notice of such defense shall be given.”

The cases cited by counsel are to the effect that, when the three sections are read together, the construction to be given them is that in justice’s court a total failure of consideration can be shown under the plea of the generalissue without notice. But none of them establish the proposition that, in actions upon a contract like the one sued upon, evidence of a partial failure or want of consideration can be admitted unless notice of such defense is given. The contract itself contained the statement: “No agreement is valid other than as embodied in this contract.” The books were received by defendant. They were retained by him at the time of the trial. The most that can be said of the offered testimony is that it tended to establish that the contract was obtained by misrepresentation, and that there was a partial failure of consideration. These defenses require notice to be given. See Hubbard v. Freiberger, supra.

2. Is the contract a contract made in Michigan, ahd is the plaintiff prohibited from bringing suit thereon by reason of the statute ? Plaintiff is a New York corporation, and had never filed a certified copy of its articles of association with the secretary of State, and had never paid into the State treasury a franchise fee. Section 1, Act No. 206, Pub. Acts 1901, provides:

“Ifc shall be unlawful for any corporation organized under the laws of any State of the United States * * * to carry on its business in this State, unless it shall first have filed, or recorded, or both filed and recorded, as the law may require, in the office of the secretary of State, a certified copy of its charter or articles of incorporation, and evidence of appointment of an agent in this State to accept service of process, and have paid to the secretary of State the requisite filing and recording fees and franchise fees. * * * No foreign corporation, subject to the provisions of this act, shall maintain any action in this State upon any contract made by it in this State after the taking effect of this act, until it shall have fully complied with the requirements of this act, and procured a certificate to that effect from the secretary of State.”

Section 6 of said act further provides that the provisions of this act shall not be applicable to the sale of goods or merchandise which would be protected by the rights of interstate commerce. It is insisted the contract was signed in Detroit; that the payment made thereon was in Detroit; that the contract is not subject to countermand or cancellation, and is within the statute. The order is directed to the plaintiff in New York. It contemplates that plaintiff will deliver the books subsequent to the giving of the order. This was in fact done. The case is controlled by Coit & Co. v. Sutton, 102 Mich. 324 (25 L. R. A. 819); People v. Bunker, 128 Mich. 160; City of Muskegon v. Hanes, 149 Mich. 460.

Judgment is affirmed.

Grant, C. J., and Blair, Hooker, and McAlvay, JJ.,'concurred.


text:
    DETROIT TRUST CO. v. OLD NATIONAL BANK OF GRAND RAPIDS.
    1. Bankruptcy — Preferences — Recovery by Trustee — State Courts — Jurisdiction.
    When a trustee in bankruptcy resorts to a State court to recover payments constituting a preference, as authorized by the bankruptcy law, the jurisdiction and practice are governed by the law of the State in which the suit is brought.
    2. Equity — Jurisdiction—Adequate Remedy at Law. In this State equity does not take jurisdiction of cases where a suitor has a full, complete, and adequate remedy at law, unless it is shown that there is some feature of the case peculiarly within the province of a court of equity.
    3. Bankruptcy — Preferences — Recovery — Equity— Jurisdiction.
    A bill by a trustee in bankruptcy will not lie to recover payments to'defendant constituting a preference,' where there is nothing to indicate that a judgment against defendant would not be good, and no ground of general equity jurisdiction is alleged, or necessity for equitable relief shown.
    Appeal from Wayne; Mandell, J.
    Submitted October 14, 1908.
    (Docket No. 56.)
    Decided December 14, 1908.
    Bill by the Detroit Trust Company, trustee in bankruptcy of the estate of William Reid, against the Old National Bank of Grand Rapids to recover certain sums of money paid to defendant. From an order overruling a demurrer to the bill, defendant appeals.
    Reversed.

      Bernard B. Selling (Hunt & Altland, of counsel), for complainant.

      human W. Goodenough (Bundy, Travis & Merrick, of counsel), for defendant.
   Moore, J.

The bill of complaint in this cause was filed by the trustee in bankruptcy for the purpose of recovering certain sums of money alleged to have been paid by the bankrupt to the defendant bank, a creditor, at various times within four months of the filing of the petition in bankruptcy, when, it is alleged, the bankrupt was insolvent and known to be so by the defendant. The bill contained no allegations showing the need of an injunction, or of discovery, or of an accounting, or of specific performance, or of the need of the reformation or cancellation of a written instrument, nor did the prayer for relief seek an injunction, a discovery, an accounting, specific performance, or the reformation or cancellation of a written instrument. The purpose of the bill is to obtain a decree against the bank for the amount of such payments, with interest thereon. The defendant demurred to the bill of complaint for the reason that the complainant had a complete and adequate remedy at law. The demurrer was overruled, and the case is-brought here by appeal.

The position of counsel for complainant is as follows:

“The payments by William Reid to the Old National Bank, a creditor, were valid under the laws of the State of Michigan, and it is only because of the existence of the Federal bankruptcy statute giving the right to the trustee in bankruptcy to avoid preferential transfers that this bill cali be filed or any proceedings either at law or in equity had to set aside such preferences. The remedy in this case is founded upon the following sections of the bankruptcy act (Act July 1, 1898, as amended by chap. 487, 32 U. S. Stat. pp. 799, 800):
“ ‘Seo. 60a. Preferred Creditors: A person shall be deemed to have given a preference if, being insolvent, he has, within four months before the filing of the petition, or after the filing of the petition, and before the adjudication, procured or suffered a judgment to be entered against himself in favor of any person, or made a transfer of any of his property, and the effect of the enforcement of such judgment or transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class. Where the preference consists in a transfer, such period of four months shall not expire un til four months after date of the recording or registering of the transfer, if by law such recording or registering is required.
“‘606. If a bankrupt shall have given a preference, and the person receiving it, or to be benefited thereby, or his agent acting therein, shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property or its value from such person. And, for the purpose of such recovery, any court of bankruptcy, as hereinbefore defined, any State court which would have had jurisdiction if bankruptcy had not intervened, shall have concurrent jurisdiction.
“ ‘235. Suits by the trustee shall onlylje brought or prosecuted in the courts where the bankrupt, whose estate is being administered by such trustee, might have brought of prosecuted them if proceedings in bankruptcy had not been instituted, unless by consent of the proposed defendant, except suits for the recovery of property under section sixty, subdivision 5, and section sixty-seven^ subdivision e.’ 32 U. S. Stat. p. 798.
“As will be noted from the above, suits to set aside preferences may be brought in either the‘State or Federal courts. Inasmuch as the State and Federal courts have concurrent jurisdiction in cases arising under section 60b, and the right to bring suit is based on a Federal statute, the decisions of the Federal courts upon the question as to the form of the remedy ought to have a great, if not controlling, force.”

Counsel cite in support of their contention from several courts of appeal, and say they have not been able to find a decision of this court directly in point. Upon the oral argument attention was called to the case of Harmon v. Feldheim, 131 Mich. 470. This case was a bill of complaint filed by a trustee in bankruptcy, but the bill was dismissed, and the question of the trustee having an adequate remedy at law was not raised.

It is urged that, as the right of the trustee to recover the money claimed in this proceeding is based upon the bankruptcy act, and as the complainant might have brought suit upon the equity side of the Federal court, it would be an anomaly to say that he must resort to the law side of the court if the suit is brought in the State court. It will be noted that the language of the bankruptcy act is:

“And for the purpose of such recovery, any court of bankruptcy, as hereinbefore defined, and any State court which would have had jurisdiction if bankruptcy had not intervened shall have concurrent jurisdiction.”

It is clear that the complainant may exercise a choice as to where he will commence the proceeding, but, if he chooses to bring it in the State court, there is nothing in the statute to indicate that it was intended to change the jurisdiction of those courts as ordinarily exercised; indeed, as to State courts the jurisdiction is limited to a “court which would have had jurisdiction if bankruptcy had not intervened.” In Loveland on Bankruptcy (3d Ed.), § 203a, the following language is used:

“To recover property conveyed by the bankrupt in fraud of the act, either as a preference or a fraudulent conveyance, is not a proceeding in bankruptcy. For this purpose there must be a plenary suit at law or in equity according to the nature of the case. Such suits may be actions at law in ejectment, trover, assumpsit, etc., or suits in equity, as a bill to set aside a fraudulent conveyance, etc. What kind of a suit will lie to recover property for the estate of a bankrupt depends upon the law governing the practice in the particular court in which the suit is brought.”

The complainant having resorted to the State court, it becomes important to inquire what the law is which governs the practice in that court. There is a conflict in the authorities as to when equity will take cognizance of a case. We need not, however, go outside of our decisions, as the question has been before this court a number of times. The case made by the bill does not require the intervention of a court of equity to do justice. There is nothing to indicate that a judgment against the defendant would not be perfectly good. It is probable that in a trial upon the merits the only question of fact involved about which there would be a dispute would be whether the officers of the bank knew or should have known that the creditor was insolvent. Questions of fact come peculiarly within the province of the jury. The principle involved was discussed in Prescott v. Pfeiffer, 57 Mich. 21, and again in Mack v. Village of Frankfort, 123 Mich. 421, where a considerable number of authorities are collated. A reference thereto will make a long discussion here unnecessary. In this State equity has not taken jurisdiction of cases where a suitor has a full, complete, and adequate remedy at law, unless it is shown that there is some feature of the case peculiarly within the province of a court of equity. The bill of complaint does not show such a situation. See Grandchamp v. McCormick, 150 Mich. 232; McCormick v. Page, 96 Ill. App. 447, and the cases there cited; Boonville Nat. Bank v. Blakey, 166 Ind. 442. The demurrer should have been sustained.

The decree is reversed, and the complainant will be given the usual time in which to amend the bill of complaint.

Grant, C. J., and Blair, Hooker, and McAlvay, JJ., concurred.


author: Blair, J.

text:
    GRAHAM v. SMITH.
    1. Bills and Notes — Indorsement — Rights op Indorsees — Holder in Due Course.
    Where there was no fraud in the inception of a note, and plaintiff had no knowledge, actual or constructive, of any fraud in connection with its indorsement and transfer, and received it in good faith, he was a “holder in due course ” if he was a holder for value.
    2. Same — Bona Fide Purchaser — Collateral Security — PreExisting Debt.
    By sections 27 and 29 of the negotiable instruments law of 1905 (Act No. 265) the legislature changed the rule theretofore prevailing in this State so that now any person to whom a negotiable instrument has been pledged as collateral security for a pre-existing debt is a holder for value to the extent of the amount due him.

      Error to Bay; Collins, J.
    Submitted October 14, 1908.
    (Docket No. 75.)
    Decided December 14, 1908.
    Assumpsit by Andrew J. Graham against Henry B. Smith upon a promissory note. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.

      M. L. Oourtright, for appellant.

      Stoddard & McMillan, for appellee.
   Blair, J.

Plaintiff brought suit against defendant Smith, as maker, and Charles H. Hill, as indorser, of the following promissory note:

“$2,500.00. Bat City, Mich., Jan. 11, 1906.
“Six months after date I promise to pay to Charles H. Hill, or order, twenty-five hundred dollars, at First National Bank, of Bay City, Mich., value received, with interest at the rate of six per cent, per annum.
“Henry B. Smith.
“No.-. Due 7-11-6.”
Said note is indorsed upon the back thereof as follows: “ Charles H. Hill. Fred A. Bangs.”

In consequence of fraudulent representations by one of its officers as to the mining property and the purpose for which the note was obtained and would be used, Hill was induced to and did indorse the note in blank and deliver it to such officer for the La Fronteriza Copper Mining Company in part payment for shares of its stock. Prior to the transfer of the note, Fred A. Bangs, president, James A. McCoy, vice president and general manager, and William S. Barbee, treasurer, borrowed of plaintiff, on account of the mining company, on their joint and several note, $5,000, which was credited to the company on plaintiff’s books and checked out by the company. The note in suit was indorsed in blank and delivered by Mr. Bangs to plaintiff, as plaintiff claims, in payment of an equivalent amount of the company’s indebtedness, but as defendant contends, as collateral security therefor. Mr. Bangs, who was called by defendant, testified:

“Q. Was any statement made to Graham & Sons which in any manner might cause them, or tend to cause them, to suspect the entire good faith of the transaction ?
“A. No, sir; because I knew nothing about it except that it was in good faith.
“Q. The Smith-Hill note was received by you and turned over to Graham & Sons to the account of the mining company in the regular course of business of the company ?
“A. Yes, sir.
“Mr. CourtrigM: I do not claim that Mr. Bangs was a party to any fraud or wrongdoing whatever.
“Witness: The original note was signed by Barbee, McCoy, and myself. Mr. Barbee’s name was left off the present note because in the meantime he resigned as treasurer and left the company, and, being for company indebtedness, it was signed by officers of the company.”

Plaintiff discontinued his suit as against Hill and proceeded to judgment against Smith upon a directed verdict. As stated by counsel for defendant in their brief:

“The only question in the case therefore is whether, under the evidence and the provisions of the negotiable instrument law, Act No. 265 of the Public Acts of 1905, plaintiff is a holder in good faith and for value. The defendant claims that he is not such a holder, and that the court should have at least left the question to the jury, for the reason that it was for the jury to determine this question under the evidence, as plaintiff parted with nothing, did not extend any credit, and in no way altered his condition by taking the note, and there was no agreement that it was taken in extinguishment of any part of the indebtedness represented by the Bangs-McCoy note; so that in fact no part of the Bangs-McCoy indebtedness was legally discharged.”

There was no fraud in the inception of the note. It was given for an actual indebtedness and was unimpeachable between the maker and payee. The fraud alleged arose on the sale of the shares of mining stock. The evidence conclusively establishes the fact that plaintiff had no knowledge, actual or constructive, of any fraud in connection with the note, and that he received it in good faith. If therefore plaintiff was a holder for value, he was "a holder in due course,” as held by the trial judge, and entitled to recover. If, as contended by defendant’s counsel, the plaintiff received the note as collateral security for an existing debt, and the negotiable instrument law, Act No. 265, Pub. Acts 1905, has introduced no change in the law as to such instruments, plaintiff was not a holder for value. Burroughs v. Ploof, 73 Mich. 607; Maynard v. Davis, 127 Mich. 571. Section 27 of the act is as follows:

"Value is any consideration sufficient to support a simple contract. An antecedent or pre-existing debt constitutes value, and is deemed such whether the instrument is payable on demand or at a future time.”

Section 29 provides:

"Where the holder has a lien on the instrument, arising either from contract or by implication of law, he is deemed a holder for value to the extent of his lien.”

We are of the opinion that it was the intention of the legislature to change the rule theretofore prevailing in this State—

"So that any person to whom a negotiable security has been pledged as collateral would be a holder for value to the extent of the amount due him.” Payne v. Zell, 98 Va. 294.

See, also, Mersick v. Alderman, 77 Conn. 634; Brooks v. Sullivan, 129 N. C. 190. See, also, Petrie v. Miller, 57 App. Div. (N. Y.) 17, affirmed without opinion, 173 N. Y. 596.

The judgment is affirmed.

Grant, C. J., and Hooker, Moore, and McAlvay, JJ., concurred.


text:
    EBERT v. WILCOX.
    Brokers — Action eor Commissions — Trial—Instructions—Propriety.
    Where it was undisputed that plaintiff through his employé introduced a party to defendant who bought her real estate, and the only contest in the case was whether defendant herself, or through her husband acting as her agent, listed the - property for sale with plaintiff, and the j ury were properly instructed upon the issues in the case, it was error for the court, on the jury’s announcing the improbability of their agreeing, to say before sending them out again: “A trial like this is costly to the county. If we fail to reach a result in cases of this nature, people lose faith in the ability of the courts to settle disputes. And the single question in this case, which should be solved readily, did the plaintiff by his subagent procure a customer for this property, and did they deal; and, if so, he is entitled to his commission. If not, not guilty, or for the defendant. It is the simplest case ever presented to a jury. Follow an officer.”
    Error to Wayne; Donovan, J.
    Submitted October 15, 1908.
    (Docket No. 98.)
    Decided December 14, 1908.
    Assumpsit by Edmund L. Ebert against Kittie Wilcox for commissions on the sale of certain real estate. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Sloman & Slomcm, for appellant.

      Robert M. Brownson, for appellee.
   Blair, J.

Plaintiff, a real estate agent, brought suit against defendant to recover his commission on account of a sale of certain real estate belonging to defendant alleged to be due by virtue of an oral agreement with defendant and her husband acting as her authorized agent. Defendant contended, and gave evidence tending to prove, that she never had any agreement with plaintiff that he should sell her property on commission or otherwise, and never authorized her husband to make any such agreement ; that plaintiff had dealt with her and in relation to the property solely in the role of an intending buyer, and that under the guise or pretense of being a buyer he endeavored to fasten upon her liability on a fraudulent claim for an agent’s commission in selling the same; that his efforts towards procuring a purchaser were for his own benefit, in order that he might buy it from the defendant at his price, and make the difference between what he could sell it at and what he could buy it for from her. That plaintiff employed one Garrison to endeavor to sell the property; that Garrison interested a prospective purchaser; that such prospective purchaser went to defendant and actually purchased the property of her, are undisputed facts upon this record. If, therefore, the property was listed with plaintiff for sale by defendant or her husband acting as her authorized agent, he was entitled to recover. The parties put in testimony tending to prove their respective contentions as to the listing of the property for sale. After the case had been submitted to the jury and they had been out for two hours, they were recalled and announced that they were not likely to agree.

One of the jurors, who was sick, was excused by consent, and thereupon the following occurred:

The Court: That is very kind. You are excused. It would be inhuman to keep him on the jury. I wish to say a word more to the jury before you go back. I am afraid that you have not all had a book of instruction to jurors. If you have not, I will see that you get one after this case is done. A trial like this is costly to the county. If we fail to reach a result in cases of this nature, people lose faith in the ability of courts to settle disputes. That is the very purpose of our work in court, is to bring about a result based upon testimony. And the single question in this case, which should be solved readily, did the plaintiff by his subagent procure a customer for this property, and did they deal; and, if so, he is entitled to his commission. If not, not guilty, or for the defendant. It is the simplest case ever presented to a jury. Follow an officer.”

This statement of the issue by the court was equivalent to the direction of a verdict for the plaintiff. The court had, however, theretofore instructed the jury in his charge that the questions in the case were two:

“Was this property listed with the plaintiff Ebert for sale ? Did Ebert by himself or agent bring Mr. Hudson and Hannan and the Wilcoxes together, and did they make a .deal ?”

And, again:

“Before the plaintiff can recover in this case, he is obliged to prove to your satisfaction, by a fair preponderance of evidence, that Mrs. Wilcox either made such a contract with him therefor or that she authorized her husband to do so.”

We cannot say that the final instruction, which annulled what the court had previously said, was without prejudice.

The judgment is reversed, and a new trial granted.

Grant, C. J., and Hooker, Moore, and McAlvay, JJ., concurred.


text:
    PARKER v. UNION STATION ASS'N.
    1. Negligence — Personal Injuries — Death — Proximate Cause —Conjecture.
    Where, in an action for negligent personal injuries resulting in death, there being no eyewitnesses of the accident, the circumstances shown justify legitimate inferences which bring defendant’s liability within the realm of probability, rather than leaving it a mere matter of conjecture, the case is one for the jury.
    2. Master and Servant — Injuries to Servant — Place to Work —Railroads—Blocking Switches — Negligence.
    In an action against a union station company for injuries to a servant resulting in death, alleged to have been caused by defective switch blocking, evidence examined, and held, that the circumstances justified inferences from which liability might arise, and that the case was one for the jury.
    Error to Wayne; Mandell, J.
    Submitted November 11, 1908.
    (Docket No. 147.)
    Decided December 14, 1908.
    Case by Mary Parker, administratrix of the estate of Isaac P. Parker, deceased, against the Union Station Association and others for the negligent killing of plaintiff’s intestate. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Washington I. Robinson (Frederic T. Harwarcl, of counsel), for appellant.

      Stevens, McPherson & Bills (Seward L. Merriam, of counsel), for appellees.
   Hooker, J.

Plaintiff’s intestate was run over and injured by defendant’s switch engine while in the employ of the Union Station Association, and engaged in switching cars. She sued to recover damages after his death, and, a verdict in favor of the defendant being rendered by direction of the circuit judge, she has appealed.

We understand that the learned circuit judge was of the opinion that upon this record the proximate cause of the accident was a matter of conjecture merely. Plaintiff’s theory was that, while engaged in performing his duties as switchman, decedent’s foot was caught in a guard rail by reason of defective blocking, and that he was run over before he could extricate it. Defendants contend that the proof conclusively shows that just prior to his injury he was riding on the footboard of the locomotive, and that it is as reasonable to suppose that, in changing from one side of the engine to the other — of which there was some circumstantial evidence — he fell off from the footboard, and was run over, as that he stepped into the dangerous and defective place, and therefore that the cause of the accident is conjectural. Assuming that this was all of the testimony, we are of the opinion that this would be true; but it is not all. There was testimony that, when decedent was found, his foot was firmly wedged in the space between the guard rail and the main rail, the sole and heel pressed down flat, to which defendant’s counsel say that it is as reasonable to suppose that the flange of the wheel pressed his foot in there, as that he stepped into it and was caught before being run over.

We find the following testimony:

“When we found his foot was in the guard rail, we tried to loosen it, and could not get it loose. * * * His left foot was injured in the ankle, about here, and up in here. It was broke there between the ankle and "the knee, and his right leg was injured up between the knee and the hip. * * * Before we went away, we attempted to take his left foot out of the guard rail, but it was tied, and we could not get it out. * * * The left foot was crushed down between the rail and the guard rail. * * * The man was lying on his back outside of the rail, on the southerly side of the track. His left foot or left leg was severed about in there, about four or five inches above the ankle. The right leg was cut above the ankle, between the ankle and the knee and between the knee and the hip crushed. That is a partial cut. It was not off. * * * His body was extending crosswise in the same direction that the ties are laid, substantially straight across. * * * From the block; it was right at the end of that nine-inch block where his foot was in. * * *
“Q. Now, was the heel down like that ?
“A. No; the whole foot, the heel, and foot was right down.
“Q. The leg was turned, was it ?
“A. No, sir; it was not.
“Q. He was lying on his back?
“A. Yes, sir.
“Q. And the leg was not turned ?
“A. No, sir.
“Q. The foot was crushed straight down with the man lying on his back, is that the idea ?
“A. Yes, sir.
liQ. As you understand it, the heel was down ?
“A, Yes, sir.
“Q. And the toe up ?
“A. Yes, sir; the toe down.
‘ ‘ Q. The heel was first down, the heel was underneath ?
“A. The whole foot, the heel and the foot, were right down.
“Q. If a man was lying on his back and lying straight, his heel would be down ?
“A. His foot was caught in there, and kept it down.
“Q. Do you know whether his heel was down or not?
“A. Yes, sir.
“Q. Was it down?
“A. Yes, sir.
“Q. And the balance of the foot was crushed down on the heel ?
“A. The balance of the foot was down, too.
Q. Crushed down on the heel ?
“A. No, sir.
“Q. Was it aside of the heel ?
“A. No; it was right down like that.
“Q. And the man lying like that?
“A. Yes, sir.
“Q. And the legs straight ?
“A. Yes, sir.
“Q. The foot with the heel down, lying in that condition ?
“A. Yes, sir.
“Q. And the foot was crushed down between the guard rail and the rail ?
“A. Yes, sir. * * * That block was originally about two feet long. The foot was right straight in there between the rail and the guard rail. His foot was fastened between the two rails, the wing of the guard rail and the rail. It was right between the two. The part of his limb outside of the track and away from the part that was fastened between the main rail and the guard rail was about two or three inches away. Part of his leg, from five inches above the ankle, was away from the track. The other part that was to the body, was on the south side of the track. There was another break right there above the ankle. This was where the wheel could pass over. * * * The engine did not move while I was there.
“Q. Why didn’t it move? His foot was caught in the guard rail. Was anything done or said about its being moved ?
Mr. Merriam: I object to what was said.
“Mr. Robinson: I desire to show that it was suggested by the engineer that they move the engine and cut the cord off with the engine and the deceased said * No,’ he did not want them to do it.
The Court: That may be shown.
“A. Some one said they could run the engine over.it and Mr. Parker objected. He said‘No.’
“Q. What do you mean by running the engine over it?
The Court: The jury must draw the conclusion.
“A. Run the engine over the cords. The engine was not run over it. After that I took a knife and cut the cord.”

A witness for the defense stated:

“ Mr. Parker’s foot was not in the guard rail. I could see his foot laying over the guard rail, on top of the guard rail. The flange of the driver had pressed part of the leg down between the guard rail and the main rail. The foot in the shoe was not fastened between the rail and the guard rail underneath with a little flange that sticks over the main rail and the guard rail. * * * At the time I stopped the engine, Mr. Parker’s body was located practically in the center and between the two drive wheels. His foot was east of the middle of the guard rail, not much east, near the center. I could see the guard rail from the engine. I could see the front end, the east end of the guard rail. After I backed up, I could see the foot where it was between the guard rail and the main rail, after I backed up, if the foot was where it first lay. * * *
“The Court': Do you know whether his foot was ever fastened there ?
“A. No, sir. I know his foot was; that is, not. his foot, his foot was out clear, but the wheel had drawn this part down between the guard rail. The location, the way the foot looked to me, it must have been around the ankle that was between the guard rail and the main rail. I suppose the piece down in there hindered them from taking tíie foot right up with the body. Not the foot. It was pressed down in, but the foot was not run over. I didn’t get down to see where the foot was fastened. I did see it.”

The surgeon of the Detroit sanitarium testified:

“The left limb was crushed and the right one cut off above the knee. The bones of the left one were broken, and it was taken off in the operating room below the knee five or six inches. * * * It was his right foot that was taken off when he came to the hospital; cut off above the knee about four inches. And the left foot and leg were crushed a good deal. The left leg appeared as though the wheel passed over it diagonally.”

While it is true that proof must establish a probability, and where the testimony can be said to be as consistent with a theory that relieves a defendant from, liability for the accident, as it is with one involving his liability, there can be no recovery, we have often held that circumstances shown may justify inferences which bring liability within the realm of probability, rather than leaving it a matter of conjecture merely. And, where a judge can see that such inferences may be legitimately drawn, he should leave the question of inference to the jury. Jones v. Railroad Co., 127 Mich. 201; Schoepper v. Chemical Co., 113 Mich. 586; Alpern v. Churchill, 53 Mich. 613; Car ver v. Plank Road Co., 61 Mich. 584; Merryman v. Hall, 124 Mich. 265, 136 Mich. 297; De Cair v. Railroad Co., 133 Mich. 583; La Fernier v. Wrecking Co., 129 Mich. 596; Stowell v. Standard Oil Co., 139 Mich. 24. The surgeon testified to a conversation in which deceased said to him that “ he slipped off from the footboard and got caught under the wheel.” This testimony was not disputed, and was corroborated by testimony consistent with defendant’s theory from the engineer and fireman, and their testimony was uncontradicted. While it may be said that this testimony of the engineer and fireman, if believed, showed that the deceased was probably upon the footboard a very short time before he was hurt, it is not necessarily inconsistent with the theory that he jumped off and stepped into the space between the rails, or that he slipped off, and, in trying to get away from the engine, stepped into such space, getting his foot caught. Upon these theories a defective blocking might be the proximate cause of the injury, and these would be questions for the jury. Unless, therefore, we should say that the uncontradicted proof of the admissions of the deceased must be taken as controlling evidence, the case should have gone to the jury. We do not find it necessary to determine whether direct evidence by way of admissions uncontradicted should as matter of law overcome the inferences from circumstantial evidence for the reason last stated, viz., that the evidence of the surgeon and the admission are not necessarily inconsistent with the claim that his foot was caught by reason of the defective blocking, and that but for this he might have escaped injury if he did slip off from the footboard. Therefore we must come back to the simple question of whether the condition of the foot, if not lacerated, justified an inference that it was caught between the rails before he was struck by the wheel, instead of being crowded into the space by reason of his being struck. Manifestly the position of his body and the wounds received may have thrown light upon this question, and, as already intimated, it is our opinion that the question should have been submitted to the jury. In the foregoing discussion we have acted upon the assumption that there was negligence on the part of the' defendants. That was a disputed question of fact. There was testimony tending to show that the statutory requirement as to blocking was not obeyed, which, if true, constituted negligence, and may have justified a recovery if 'it was the proximate cause of the injury. Counsel urge that plaintiff’s theory is improbable and contrary to the great weight of the evidence. What we might say about this were the case here on exceptions to a denial of new trial, we need not say.

The judgment is reversed, and a new trial ordered.

Montgomery, Ostrander, Moore, and McAlvay, JJ., concurred.


author: Montgomery, J.

text:
    WATROUS v. WATROUS.
    Divorce — Grounds — Extreme Cruelty — Evidence — Sufficiency.
    On a bill for divorce on the ground of extreme cruelty, evidence examined, and held, not to show such acts of extreme cruelty as justify the dissolution of a marriage relation in existence for 37 years.
    Appeal from Kent; Perkins, J.
    Submitted November 11, 1908.
    (Docket No. 5.)
    Decided December 14, 1908.
    Bill by Marian E. Watrous against Burritt J. Watrous for a divorce. Prom a decree dismissing the bill, complainant appeals.
    Affirmed.

      Lombard & Hext, for complainant.

      Butterfield & Keeney, for defendant.
   Montgomery, J.

This is a proceeding for divorce. The parties were married in 1869 and continued living together as husband and wife until the 16th of October, 1906, at which time complainant left defendant, and on the following day filed her bill for divorce upon the ground of extreme and repeated cruelty. The bill alleges that during the earlier years of their married life the defendant, although at times harsh and exacting in his conduct, was on the whole a kind, indulgent, and loving husband, and that they continued to live happily and contentedly until about 15 years ago, at which time defendant began to exhibit a cold and indifferent spirit towards complainant, and frequently and repeatedly, without any cause or provocation, harshly criticised, swore at, and most unreasonably abused, complainant; that his conduct in this respect grew worse from year to year, and that complainant became the object of constant ill-treatment and abuse. On the trial the evidence took a wide range, and the whole married life of the parties was brought under review by the circuit court.

The facts, so far as they need to be stated, show that Mr. Watrous, the defendant, was for many years employed by the Grand Rapids Boom Company, and through all these years was an industrious, capable, hard-working man; that many years ago he bought a home consisting of five acres then on the Plainfield road outside the city of Grand Rapids; and that he has made this his home during all the married life of the parties. It is also apparent that the complainant was an industrious, hardworking woman, and that together these parties accumulated something like $5,000 in addition to the homestead, which they had at interest. They kept some cows, and for many years defendant also kept a horse and carriage for the use of his family. Some few years ago the boom company by which defendant had been employed practically ceased business, and defendant, because of advancing years, was not able to procure employment except in a desultory way. But the record shows that he had always been industrious, of good habits, saving, and economical. After his employment by the boom company ceased, practically the only income which defendant had was that derived from the interest on loans and securities, amounting to about $5,000, which he had, and he found himself unable to maintain the family upon this income and pay the taxes upon his property, and by reason of this the principal of his securities was encroached upon until at the time of the hearing it had been reduced to something like $1,000. The parties kept four cows and sold milk, and in this way supplemented the income derived from the defendant’s exertions and from the income upon his investments. There is no doubt that the defendant’s health was somewhat impaired, and there can be little doubt that his increasing years, together with the impairment of his health and the anxiety relative to the future maintenance of the family, to some extent preyed upon his mind, and made him at times querulous and faultfinding with complainant. But we are not able to find such acts of extreme cruelty as justify a dissolution of this marriage relation which has continued for a period of 87 years. The circuit judge, who saw the witnesses and heard the testimony in open court, was not able to find that the complainant had made a case entitling her to a decree, and in this conclusion we concur.

The decree will be affirmed.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


text:
    DETROIT TRUST CO. v. GLAZIER STOVE CO.
    Sales — Effect—Passing Title — Evidence—Sufficiency.
    On a petition to recover possession from a receiver of a switchboard manufactured and installed by intervener in defendant’s plant, evidence examined, and held, that intervener’s view that the title had not passed because of lack of acceptance by defendant only presented itself after defendant became insolvent, and that a complete sale and delivery, including passing of title to the property, was shown.
    Appeal from Washtenaw; Kinne, J.
    Submitted November 16, 1908.
    (Docket No. 70.)
    Decided December 14, 1908.
    Bill by the Detroit Trust Company, trustee, against the Glazier Stove Company for the appointment of a receiver. The F. Bissell Company intervened claiming the right of possession of certain property sold to defendant. From an order denying the claim of the intervener, it appeals.
    Affirmed.

      Orla B. Taylor and Charles F. Delbridge, for complainant.

      Holbrook & Monsarrat and Blum & Sample, for appellant.
   Brooke, J.

On April 10, 1907, in consideration of $1,220, the F. Bissell Company made a written agreement with the Glazier Stove Company to furnish all labor and material for a switchboard complete in every detail, and for installing same in the company’s plant at Chelsea, Mich., in accordance with certain specifications. The switchboard consisted of five marble panels 72"x24'/x2''. The contract is evidenced by the following correspondence :

“4-10-0?.
“Chas. L. Weil & Co.,
“ 616 Union Trust Bldg.,
“Detroit, Mich.
Gentlemen: We received this morning specifications for Glazier Stove Co. switchboard and have this p. m. wired you as per the inclosed confirmation. * * * The F. Bissell Company propose to furnish all labor and material called for by the specifications (set No.-, dated -) for a switchboard for the power house of the Glazier Stove Company at Chelsea, Michigan, and in entire accordance with said specifications for the sum of twelve hundred and twenty dollars ($1,220).
[Signed] “The F. Bissell Company.”
“May 28, 190?.
“F. Bissell Co.,
“ Toledo, Ohio.
Gentlemen: We have been instructed by the Glazier Stove Company to accept your proposal of May 28, 1907, for switchboard. Price $1,220. Delivery of the board to be made within six to seven weeks. All labor and material to be in accordance with our specifications.
“Yours truly,
“Chas. L. Weil & Co.,
“Per Chas. L. Weil.”

In pursuance of this contract the claimant furnished all the necessary labor and material, and installed and erected a switchboard in the power building of the Glazier Stove Company. Upon its completion at Toledo it was shipped to the Glazier Stove Company at Chelsea, Mich., and a bill rendered to said company for the same, amounting to $1,224.40. This bill, aside from the $1,220, the original contract price, included $4.40 for some extra attachments. The switchboard went into service on August 22, 1907, and has ever since been used by the Glazier Stove Company or its receivers. Chas. L. Weil & Co. were the erecting engineers for the Glazier Stove Company, and on August 6, 1907, notified the Glazier Stove Company as follows:

“Gentlemen: The arrangement of certain switches and circuit breakers on the switchboard sold you by the F. Bissell Company is not that called for by the contract. We would specifically request that you do not make a payment on this switchboard without our approval.
“ Yours truly,
“Chas. L. Weil & Co.,
“Per Chas. L. Weil.”

Correspondence between the Chas. L. Weil & Co. and the F. Bissell Company ensued relative to the changed arrangement of the circuit breakers and switches. On August 12th the Chas. L. Weil & Co. wrote the F. Bissell Company as follows:

“We cannot approve of the panels in question.”

On September 2d, the Bissell Company sent to the Glazier Stove Company a statement of account including the item for the switchboard, and made sight draft therefor. On September 3d, the Glazier Stove Company replied to the claimant stating that these matters were held subject to the advice of Messrs. Weil & Co. On September 9th, the F. Bissell Company wrote Chas. L. Weil & Co. as follows:

“ There is of course no question in reference to our having changed the position of the switches and circuit breakers of the feeder panel from that indicated on the blue print, but we had sufficient advantageous reasons for doing so. In this our opinions evidently differ. It would seem to us unnecessary expense to furnish new panels or to redrill the old panels to make the arrangement as per blue print, but, as we alone are responsible for the error, we are prepared to do this or make other adjustment of the matter which you may demand.”

On September 14th, Chas. L. Weil & Co. wrote the F. Bissell Company as follows:

“We suggest that you either furnish new panels at this time, for the switchboard in question, or make the Glazier Stove Co. sufficient allowance on the invoice to cover the expense of making this alteration at a future date.”

On September 25th, Mr. Bardol, treasurer of the F. Bissell Company, wrote the Glazier Stove Company as follows:

“Your attention is called to past due account, consisting of invoices July 6th $81.00 and August 5th, $1,224.00, with request that you favor us with remittance for same.”

On September 26th, intervener wrote Chas. L. Weil & Co.:

“We will act immediately on receipt of your further advice, as we are very anxious to close the deal and make collection of the amount due us.”

On September 30th, Mr. Bardol wrote the Glazier Stove Company as follows:

“Your account amounting to $1,326.34 is past due. These bills were sold on 30 days, and this time has long since expired. We must ask you, therefore, to let us have prompt remittance for the same.”

On October 2, 1907, the F. Bissell Company wrote the Glazier Stove Company:

“ While this matter is still pending, don’t you think we are at least entitled to a portion of the amount due us. Usually in such cases about ten per cent, is withheld, to cover any defective work, omissions or changes necessary.”

On the same day, in reply to this letter, the Glazier Stove Company said that they would not pay for the apparatus until it had been O. K.’d by Messrs. Weil & Co., and that had not yet been done. On or about October 22d, Mr. Walker, on behalf of the intervener, made an arrangement with Mr. Weil to allow $25 for the misplaced apparatus, and on November 7th Mr. Bardol wrote the Glazier Stove Company as follows:

“Will you kindly favor us with a reply to our Mr. Gray’s letter of November 1st regarding account. This matter is very old, and as we feel entitled to the money we must urge you not to neglect the matter longer. A statement is herewith inclosed, showing balance $1,342.14 all averaging past due.”

Under the facts disclosed by the foregoing correspondence, it is the claim of the intervening petitioner that the switchboard in question was personal property, that title to it never passed to the Glazier Stove Company, that it was never accepted by the Glazier Stove Company, and that, therefore, the Glazier Stove Company having become insolvent and passed into the hands of a receiver, it (the intervener) now has the right to repossess itself of the board in question. It is quite apparent to us that this view of its rights in the premises only presented itself to the intervener after the Glazier Stove Company became insolvent. It is evident that the contract under which the board was manufactured and erected did not contemplate the retention of title in the vendor. The billing of the same to the Glazier Stove Company as goods sold and delivered and the reiterated demands on the part of the petitioner for the settlement of its account alleged to be “due and past due’’clearly indicate that the petitioner believed that it had made a sale and delivery of personal property for which it was entitled to receive present compensation in full. It will further be noted that, although the Glazier Stove Company continually objected to a settlement of the account until the adjustment of the differences arising from the misplacement of the circuit breakers and switches by the petitioner, it never either by any act of its own or by Chas. L. Weil & Co., its engineers, indicated an intention to refuse to accept the board. On the contrary, the board was placed in commission on August 22d, very shortly after its erection was completed, and continued in service up to the date of the insolvency. Under the circumstances disclosed by the record, we are therefore of the opinion that the learned circuit judge reached a proper conclusion in the premises.

We do not discuss the question as to whether or not the switchboard when erected became a fixture, as our foregoing conclusions render such discussion unnecessary.

The decree is affirmed.

Grant, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.


text:
    VILLAGE OF JONESVILLE v. SOUTHERN MICHIGAN TELEPHONE CO.
    1. Telegraphs and Telephones — Use op Streets — Regulation —Municipal Corporations — Powers.
    A village corporation authorized by its charter to prevent the incumbering of streets, etc., in any manner whatever, has power to prohibit by resolution a telephone company organized under chapter 177, 2 Comp. Laws, as amended by Act No. 16, Pub. Acts 1899, from erecting its line upon the main business street of the village between certain points, where such regulation will not prevent access to the company’s patrons, though it renders such access less convenient and more expensive.
    2. Same — Regulation—Municipal Corporations — Powers.
    Where a municipality, in the exercise of its inherent police power, adopts an ordinance reasonably regulating the manner, character, or place of construction of a contemplated line, the telephone company must comply with such regulations and exercise its right of entry under the general powers conferred by the State subject to them.
    Appeal from Hillsdale; Chester, J.
    Submitted November 17, 1908.
    (Docket No. 110.)
    Decided December 14, 1908.
    Bill by the village of Jonesville against the Southern Michigan Telephone Company to restrain the erection of poles in certain streets. From a decree for complainant, defendant appeals.
    Affirmed.

      Victor Hawkins, for complainant.

      H. P. Stewart, for defendant.
   Brooke, J.

Complainant in this cause filed its bill to restrain the Southern Michigan Telephone Company from setting a line of poles upon Chicago street, the main thoroughfare of the village, in the block between West and Maumee streets. After a full hearing the court perpetually enjoined the defendant from the erection of poles upon Chicago street, in said village, between West and Maumee streets.

The material facts in the case are in brief as follows: The defendant company is organized under chapter 177 of the Compiled Laws of 1897, as amended by Act No. 16 of the Public Acts of 1899. Complainant is a municipal corporation organized under Act No. 60, Laws of 1855, and Act No. 27, Laws 1857, as amended by Act No. 408, Laws 1869. Chapter 5, § 2, subd. 8, defining the powers of the common council, provides:

“To prevent the incumbering of streets, sidewalks, crosswalks, lanes, alleys, bridges, or other public places in any manner whatever.”

The defendant was, at the time the injunction was issued, engaged in the construction of a telephone line extending through the county of Hillsdale and several other counties in the southern part of the State, and was establishing stations in the several cities and villages along its line of construction. Among other villages which it sought to enter and establish an exchange was the village of Jonesville in the county of Hillsdale. In constructing said line it approached said village from the west, and, without undertaking to secure any ordinance permitting it to enter the village of Jonesville under proper regulation, proceeded to construct its lines through the village. Some discussion between the street commissioner, the president of the village, and the foreman in control of the construction, seems to have been had. But no formal action was taken by the village until after the trouble had occurred, when the village by its council passed a resolution providing that “no poles of any description shall be set in the streets of the village of Jonesville, nor- any excavations made therefor, excepting under the direction of the council of said village.” And the street committee of said council has been vested with authority to permit such excavations and the erection of poles at the places selected by them, provided same are not located on Chicago street between a point 75 feet east of the St. Joseph river and Maumee street. On the day on which the trouble arose, the defendant company was undertaking, against the protest of officers of the village and without any authority from the village, to erect its poles and lines upon Chicago street between West and Maumee streets. The protest of the officers not being heeded, the village authorities called out the fire department, hose was attached to a hydrant, and the workmen employed by the defendant company were driven from their work by means of a stream of water. Some of them were subsequently arrested, the cases against them being still pending. The bill of complaint in the case before us was then filed, a preliminary injunction secured, and upon full hearing the injunction above recited was made permanent.

It is the defendant’s claim that the village of Jonesville has no right whatever to prohibit it from erecting its line upon any street in the village it may choose for that purpose. It claims further, that when, in the construction of its line, it reached the village of Jonesville, it found there no ordinance regulating the method by which it should construct its line through said village. It therefore claims that it had the right to proceed to the erection of its line, and it avers that the character of the proposed construction was such as could not have been prevented by any reasonable regulation which might have been adopted by the village.

There is only one question raised by the record in this case. Assuming that the council of said village had a right to impose such reasonable regulations as it saw fit, as a condition precedent to the entry of the defendant company, whether or not it could, as one of such reasonable regulations, absolutely prohibit the defendant company from going upon a particular street — in this case Chicago street, between West and Maumee streets. Both parties to this controversy have cited and seem to rely upon the case of Michigan Telephone Co. v. City of Benton Harbor, 121 Mich. 512 (47 L. R. A. 104). In that case the court says:

“Under this statute [the statute under which the defendant in this case is organized] the sole authority of the municipality is the proper exercise of the police power, inherent in it, to protect the public from unnecessary obstructions, inconveniences, and dangers, and to determine where and in what manner complainant may erect its poles and stretch its wires, so as to accomplish this result. * * * These municipalities may, under this law, prohibit the erection of these poles in places, and in a manner which will injure or incommode the public.”

This precise question was under consideration in the case of City of Marshfield v. Telephone Co., 102 Wis. 604 (44 L. R. A. 565), where it is said:

“Here was a city of 5,000 people, with waterworks, electric lights, a local exchange, and paved streets. Considerations of local pride seemed to demand that their main business street, in the business center, should be kept clear of obstructions or incumbrances. The board had an undoubted right, in the exercise of a reasonable discretion, to prohibit the incumbering of Central avenue with wires and poles.”

In the case of Village of Carthage v. Telegraph Co., 185 N. Y. 448, it is said :

“The right to erect these poles and string the wires is not derived from the village authorities, but they are permitted to regulate the erection of the same; that is to say, the location of the poles and the streets to be occupied are, doubtless, within the reasonable power of the village to regulate.”

This court has said (Michigan Telephone Co. v. City of Benton Harbor, supra) a municipality may determine “ where and in what manner complainant may erect its poles and stretch its wires, * * * and may prohibit the erection of these poles in places.”

Does this power, so defined, confer upon the municipality the right to wholly exclude the poles and wires from a single block of a single street ? We think it does, unless it is made to appear that by the adoption of such a regulation the telephone company is cut off from communication with persons it desires to reach and whom by law it is obliged to serve. The complainant in the case at bar urges that this one block is its main business block, and that to permit it to be incumbered with poles and wires would not only render it unsightly, but would appreciably increase the risk from fire by making it more difficult for the fire department to erect ladders and reach a conflagration. Neither of these considerations is without weight. The mere fact that the route designated by the municipality is less convenient or involves on the part of the telephone company a larger expenditure is of no consequence so long as the company is not thereby prevented from reaching all those it desires to serve or who desire service from it. The record before us fails to disclose this condition. Where a municipality, in the exercise of its inherent police power, adopts an ordinance reasonably regulating the manner, character, or place of construction of a contemplated line, the telephone company must comply with such regulations and exercise its right of entry under the general powers conferred by the State subject to them.

The decree of the court below is affirmed.

Grant, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.