author: Long, C. J.

text:
    WOLF v. MICHIGAN MASONIC MUTUAL BENEFIT ASSOCIATION.
    1. Mutual Benefit Associations — Notice of Assessment — Action of Minority of Board — Ratification.
    In an action against a benefit association to recover a death, claim, payment was resisted on the ground that the member had been suspended for nonpayment of assessments, while plaintiff claimed that no legal notice to pay said assessments had ever been served upon the member. It appeared that, at the time when the notices of assessment were directed to be given, a quorum of the board of trustees was not present, but that at the next meeting of the board, when a quorum was present, the proceedings of the former meeting, which had been duly recorded, were read and adopted. Held, that any irregularity in ordering said notices to be given was cured by the further action of the board.
    2. Same — Suspension of Member.
    The mere fact that but 13 days intervene between the giving of the first and the second notice of an assessment by a benefit association, instead of 15 days, as provided for by the articles of association, does not render invalid the member’s suspension for nonpayment after the expiration of the full period allowed by the articles for the payment of assessments,
    Error to Kent; Grove, J.
    Submitted January 31, 1896.
    Decided March 24, 1896.

      Assumpsit by Gustave A. Wolf, administrator of the estate of Solomon Wolf, deceased, against the Michigan Masonic Mutual Benefit Association, upon a certificate of insurance. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Walker & Wolf, for appellant.

      Champlin & Stone, for appellee.
   Long, C. J.

On November 7, 1878, Solomon Wolf, by a vote of the board of directors of the defendant company, was admitted into said company, and a certificate of membership duly issued to him. He remained a member of the company until February 19, 1880, when, as is claimed by the defendant, he was suspended, and his name stricken from the roll, for the nonpayment of assessments Nos. 20 and 21. He made no application to be restored to membership, and died July 20, 1880. After his name was stricken from the roll, there were three assessments made before his death; but he was not notified or assessed therefor, for the reason, as it is claimed, that he was not regarded by the association as any longer a member. No claim was made against the. association until April 6, 1892, when the plaintiff, as administrator, wrote a letter to the defendant company, asserting the claim, and received a reply that, upon investigation, the company found that the plaintiff had no valid claim against it. It was admitted on the trial that Solomon Wolf died July 20, 1880, unmarried, leaving, surviving him, his brother, Jacob Wolf, of Grand Rapids, Mich., and two sisters, Caroline Goetz, who resides at Cincinnati, Ohio, and Johanna Wolf, who then resided at Griinstadt, Germany; that Johanna Wolf died, intestate, in the fall of 1890, at her home in Germany, and was then unmarried; that on May 11, 1892, an assignment of the claim was executed to the administrator by Jacob Wolf; and that he was authorized to execute the same for and in behalf of Caroline Goetz. This action is brought to recover the amount claimed to be due to the legal representatives of Solomon Wolf. On the trial, the court below directed a verdict in favor of the defendant.

The defendant association was organized under “An act to provide for the incorporation of co-operative and mutual benefit associations” (1 How. Stat. chap. 118). After its incorporation, it caused to be executed articles of association, which were duly filed, and under which the corporation acted. The articles provide for death claims, as follows:

“Upon the death of any member of this association, the sum to be paid to the representatives of the deceased member, as designated upon the books of this association, shall be one dollar for each member of this association, not in any case to exceed $1,000; and, whenever the amount in the general fund shall exceed the amount necessary for the payment of two death claims, then an assessment shall be passed, and the death claim then due shall be paid from the moneys in the general fund.” Article 15.

The agreement in the certificate issued to the deceased is as follows:

“The said association agreeing to pay to his legal representatives the sum of as many dollars as there are members of this association at his death, but, however, in no case to exceed the sum of $1,000.”

Prior to the suspension of the deceased, three death claims were presented to the association for payment; the latter one to be paid from the surplus fund, which was apparently on hand at that time. The other two claims were to be paid by two assessments to be made upon the members of the company, one dollar each assessment. The only controversy in the case which we think necessary to discuss grows out of the claim of plaintiff that no proper and legal notice was ever served upon the deceased that these assessments were to be paid, and that consequently the company had no power or authority to suspend him from the benefits to be paid at his death. The court directed the verdict on the ground that the notices of these assessments were sufficient and legally authorized, and in consequence of which the deceased was properly suspended for nonpayment of them, and that, therefore, his legal representatives had no benefits accruing to them under the certificate.

The articles of association affecting this question provide:

‘ ‘ The secretary shall keep a record of all meetings of the association and the board of trustees, and’ of all transactions and business of the association. He shall keep a complete register of the names, ages, and residences of the members, and names of the lodges to which they belong. He shall receive all moneys required to be paid by its members. * * * He shall prepare all certificates of membership, and all notices of deaths and assessments. He shall keep a record of the deceased members of the association. * * * He shall make a record in the books of the association of the names of all members who have paid, and of all who have failed to pay, the assessments made upon them. * * * He shall make and serve or publish all notices and notifications required by the association or by the board of trustees. * * * ” Article 8, § 4.
“The board of trustees shall have a general charge and supervision of the affairs of the association. * * * They shall have power and authority to make such rules and regulations for their government in payment of claims, reception of proofs of death, and transaction of general business as a majority may see fit. * * *” Article 8, § 6.
“A member who has been suspended or expelled from the fraternity * * * shall immediately cease to be a member of tins association.” Article 12, § 2.
‘ ‘ At any meeting, a majority of the board shall constitute a quorum for the transaction of business.” Article 5, § 4.
“The board of trustees, when full, shall consist of 19 members of this association. * * * Each lodge outside the city of Grand Rapids having 20 members belonging to this association shall be entitled to one trustee, until the number of trustees shall be full. * * *” Article 6.
“When official notice has been received of the death of a member of this association, it shall be the duty of the secretary to notify each member of the same; and, unless the death claim has been provided for by article 15 of this constitution, each surviving member shall, within 15 days after the date of such notification, pay to the secretary the sum of one dollar and ten cents; and, in case he shall neglect to pay the same within 15 days, he shall be again notified by the secretary; and, if said sum shall not be paid within 15 days after the second notice, his name shall be erased from the roll of members, and he shall forfeit all claims upon this association: Provided, however, that the board of trustees shall have power to restore such delinquent member upon his giving &■ satisfactory excuse for his default, and payment of all assessments which may have accrued up to the date of such restoration: Provided, also, the board of trustees shall have power to restore to membership any suspended member on removal of such suspension, provided said so restored member pay up all dues and claims that would have accrued against him had he not been suspended.” Article 16, § 1.
“A written or printed, or partly written and partly printed, notice deposited in the postoffice at Grand-Rapids, postage paid, and directed to the member’s place of residence as it appears on the books of the association, shall be deemed a sufficient notice.” Article 16, § 2.
“ The notice shall be headed in bold type, ‘ First Notice,’ ‘Second Notice,’ as the case may be.” Article 16, § 3.

It appears that, at the time assessments Nos. 20 and 21 were made, the board consisted of 19 trustees, and therefore 10 trustees were necessary to constitute a quorum. Five, only, were present when these assessments were made; and, when the deceased was reported suspended, only seven trustees were present. It is therefore contended by counsel for plaintiff that, for this reason, the notices were invalid, as well as the action of the board in declaring the deceased suspended from the benefits of the association.

Although no quorum was present at the time the assessments were made, it will be seen from the articles of association that the board of trustees has no power or discretion in the matter of the amount of the assessment. It is always one dollar upon each member, and, if the amount in. the general fund exceeds the amount necessary for the payment of two death claims, there is no assessment. It is shown in the present case, and without contradiction, that there was a sufficient amount in the general fund at the time these assessments were made to pay one death claim, and no more; but there were three death claims to be paid, and it became necessary in order to meet such payment that the assessment of one dollar per member upon each of the death claims be made. The association had never made any rules or regulations for its government in the payment of claims, reception of proofs of death, or the transaction of its general business; but all matters had been left to be governed and controlled by the articles of association. The articles of association, or the statute under which the association was organized, do not vest in the trustees expressly and solely the power to levy assessments, but provide, by article 16, § 1, that—

“When official notice has been received of the death of a member of this association, it shall be the duty of the secretary to notify each member of the same, and, unless the death claim has been provided for by article 15 of this constitution, each surviving member shall, within 15 days after the date of such notification, pay to the secretary,” etc.

Official notice had been received that these death claims were to be met; and, under. this article, it became the duty of the secretary at once to give the notices of assessment; so that, although there was no quorum present at the time the trustees directed the assessments to be made, yet it is apparent that the secretary had the power to give the notices without the direction of the board at all.

But, be this as it may, we think, if there was any irregularity in this respect, that that was cured by the further action of the board at its next meeting, when a quorum was present. At the time these assessments were ordered (December 18, 1879), the proceedings of the board were recorded upon its journal; and on January 15, 1880, a majority of the board being then present, the minutes of the preceding meeting were read and adopted. This action of the board at that time was a ratification of the proceedings of the minority meeting of December 18, 1879. A majority, in the first, instance, could have directed the assessment; and the adoption of the act of a minority by the majority of the trustees at a regular meeting of the board made the action of the minority valid and binding as an assessment, as such ratification was retroactive, and took effect from the time the assessment was ordered by the minority. New York Security & Trust Co. v. Saratoga Gas & Electric Light Co., (Sup.) 34 N. Y. Supp. 890; Ellison v. Water Co., 12 Cal. 542. The cases cited by counsel for plaintiff upon this question are- not similar in principle to the present, as here the amount of the assessment was fixed absolutely by the articles of association, and the duty to make the assessment to meet the death losses is clearly defined by the articles, so that the levying of the assessment was a purely ministerial act.

It is further contended by counsel for plaintiff that a sufficient length of time had not elapsed, as required by the articles, between the giving of the first and the second notice. The first notice was mailed on January 1, 1880; the second, January 15, 1880. And counsel contend that full 15 days should have elapsed between the time the first notice was given and the second was mailed. It is evident that it was the design of this provision of the articles of association to give the member full 30 days’ notice to pay the assessment. This full 30 days’ notice was given, and the mere fact that the second one was given a day too early could not affect any substantial right which a member would have in the payment of his assessment. But from the record it appears that the deceased did not pay his assessment at the end of the 30 days, when, on February 1, 1880, a third notice was given, and it was not until after this third notice that the resolution was passed by the board suspending the deceased from further benefits in the association. Death losses accrued after that time, but no notices were mailed to the deceased, for the reason' that he was not regarded thereafter as a member; and although he resided in the same house with his brother, who was also a member of the association, and received notices from the association for death losses, no effort was made, as appears by the record, to have the deceased reinstated. The deceased and his relatives evidently regarded the deceased as suspended, and as having no claim upon the association. After his death, 13 years elapsed before any claim was made upon the company for the payment of the claim. The cause of this delay is alleged to be that the certificate was lost, and was not discovered until about the time the claim was made. .

The contention is also made upon the part of the defense that the claim is barred by the statute of limitations; but we think it unnecessary to discuss that question. The court below placed its ruling entirely upon the questions of regularity of the proceedings to suspend the deceased from benefits, and we think properly.

The judgment must be affirmed.

Grant and Moore, JJ., concurred. Montgomery and Hooker, JJ., did not sit.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    BERRY v. TINSMAN.
    Drainage — Damages—Deepening Drains.
    The owner of lands assessed for the construction of a given drain, which is crossed by a drain subsequently constructed at a grade 18 inches below the bottom of the former, is not damaged by a subsequent deepening to the extent of 10 inches of the latter drain, where he is interested in the former one, only as it operates to drain his lands.
    Error to Monroe; Kinne, J.
    Submitted February 18, 1896.
    Decided March 24, 1896.

      Certiorari by John W. Berry to review the action of Arthur D. Tinsman, county drain commissioner, in deepening and widening a drain. From a judgment sustaining the .action of the commissioner, plaintiff brings error.
    Affirmed.

      Elam Willard and' Charles A. Golden, for appellant.

      Willis Baldwin and Ira G. Humphrey, for appellee.
   Montgomery, J.

Plaintiff sued out of the circuit court a writ of certiorari to review the action of the drain commissioner in deepening and widening a certain drain known ás the “Babcock and Baker Drain.” The circuit court sustained the action of the commissioner, and plaintiff brings error. It appears by the record that the plaintiff is the owner of land assessed for the construction of the Plank Road drain, the southern outlet of which is Swan creek. This drain was laid out in 1872, and in 1874 a drain known as the “Babcock and Egypt Drain” was laid out and established, running east and west, and discharging its waters into the Plank Road drain. In 1875 a third drain was laid out and established, known as the “Babcock and Baker Drain,” and commencing at a point about a half mile north of the Babcock and Egypt drain, and running thence on a general easterly course, crossing the Plank Road drain. As these drains have been constructed for 10 years, whatever defects existed in the original proceedings are not now open for consideration. This proceeding is for. the deepening and widening of the Babcock and Baker drain, and, if deepened and widened as prayed for, at the point of intersection with the Plank Road drain, it will be 2 feet 4 inches below the bottom of the latter drain, and 18 inches or more below the bottom of the Babcock and' Egypt drain. It appears by the return of the commissioner that the Babcock and Baker drain, when laid out, crossed the Plank Road drain at a grade 18 inches below the bottom of the Plank Road drain, and so existed, and is now below the bottom of the Plank Road drain; and the return further shows that the Babcock and Baker drain does not cross the Babcock and Egypt drain.

The contention of plaintiff is that the deepening and widening of the Babcock and Baker drain will have the effect to destroy the Babcock and Egypt drain and the Blank Road drain from the point of intersection of these respective drains, by diverting the flow of water. As. already stated, the return shows that the Babcock and Baker drain does not cross the Babcock and Egypt drain, and that the bottom of the former drain is below the Plank Road drain; so that the most that can be said is that the diversion of waters in the Plank Road drain would be a difference in degree merely. We are not able to see the force of plaintiff’s contention. There is no pretense that those interested in the Plank Road drain are interested in any other way than as the drain operates to drain their lands. How the diversion of some further portion of the water, which would, but for the deepening of the Babcock and Baker drain, flow through the Plank Road drain, would operate to destroy any portion of this drain, is not apparent. If the lands are above the level of the bottom of the Plank Road drain and the Babcock and Egypt drain, it would seem that these drains would still furnish a means of draining plaintiff’s lands. The vested rights of those owning land along these two drains are not in any way interfered with. The water courses, so far as. they furnish a means of drainage, continue; and, unless the persons abutting the lower portion of the ditch have a right to have the water from above for power, they are in no way damnified by having the Babcock and Baker ditch deepened. We think they have not this right, particularly as the Babcock and Baker ditch, as it was originally constructed and as it now stands, diverts the waters at the point of intersection. The cases cited by plaintiff’s counsel—Tomlin v. Newcomb, 70 Mich. 358; Zabel v. Harshman, 68 Mich. 270, 273—are not in point. In each of these cases an attempt was made by the township drain commissioner to establish a drain on the line of an existing county drain. This it was held he was not authorized to do, unless such existing drain had been previously vacated.

It has been determined in the present case that the deepening and widening of this ditch is a necessity, and this by a jury demanded by plaintiff. We thinh the circuit judge was right in sustaining the action of the drain commissioner.

Judgment affirmed, with costs.

The other Justices concurred.


author: Hooker, J.

text:
    COLLINS v. TOWNSHIP OF GRAND RAPIDS.
    Township Boards — Public Improvements — Estoppel.
    In a suit against a township for the balance due on a contract for improving a highway, the township defended on the ground that the petition for the improvement, presented to the township board, was not signed, as required by the statute, by a majority of the resident property holders upon the portion of the highway sought to be improved. Held, that the • township was not estopped, by reason of the determination of the township board that the petition presented had been properly signed, from making such defense.
    Error to Kent; Adsit, J.
    Submitted February 18, 1896.
    Decided March 24, 1896.

      Assumpsit by Hiram Collins against the township of Grand Rapids to recover a balance due on a contract for improving a highway. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Kingsley & Kleinhans, for appellant.

      Turner & Carroll, for appellee.
   Hooker, J.

The plaintiff has sued the township of Grand Rapids to recover abalance due upon a contract made and performed by bis assignor, whereby he was to make certain street improvements on a street or highway constituting the boundary between said township and the city of Grand Rapids. This contract was made in the course of proceedings taken under certain local statutes authorizing the city of Grand Rapids and adjacent townships to unite in the improvement of highways lying between said city and townships. Act No. 313, Local Acts 1875; Act No. 353, Local Acts 1877. A special assessment was levied to pay the expense of said improvement, and most of the amount assessed was paid to the township treasurer, and by him applied upon the contractor’s claim. Some $2,000 or more was not paid, and in a proceeding to collect the same, contested by one Olive B. Fisher, it was held that the assessment was invalid, for the reason that a majority of the resident property holders upon the portion of the street improved had not petitioned for the improvement, and that, therefore, the assessment was void. It was urged on behalf of the auditor general that the determination by the township board that the petition had been signed by a majority of the resident freeholders, which determination was recited in the order of the township board, was an adjudication of the fact, which placed it beyond collateral attack; but the court held otherwise, and said:

‘ ‘ The statute does not provide that this determination of the township board shall be conclusive, and, in the absence of such a provision, the rule is well settled that the fact whether or not the requisite number of persons have signed a petition or given assent to pave or improve streets, when the power so to pave or improve them depends upon a given number or proportion of the proprietors to be affected, can be inquired into, and that the non-assent may be shown as a defense to an action to collect the assessment.” Auditor General v. Fisher, 84 Mich. 133.

This street improvement was again before us in an action brought by Fisher against the township and the plaintiff’s assignor, i. e., the man who made the improvement; and a judgment for a substantial amount, in trespass, for grading down the street, and removing the trees in front of her residence, was affirmed. In that case it was conceded that the proceedings under the statute were void, and the court took that view of the matter. Fisher v. Naysmith, 106 Mich. 71.

In the case now before us, the plaintiff makes the same claim that was made in behalf of the auditor general, viz., that the township board had power to pass upon the question of fact, and determined that the petition was signed by a majority of the resident freeholders; that the proceedings show such adjudication; and that the proceedings cannot be. attacked by the township, upon that ground, in this case; and it is further said that, while the taxpayer whose land is included in the special assessment may raise the question in his defense against the levy, it cannot be' raised by the township officers, in behalf of the taxpayers generally, who, manifestly, must furnish the necessary money to pay plaintiff’s claim, if he is allowed to recover. This is placed on the ground of estoppel, it being asserted that the township board represented to the plaintiff’s assignor that the petition was signed by the requisite number of freeholders.

It seems to us a plain proposition that a proceeding which is void because the necessary steps have not been taken to confer jurisdiction upon a statutory board, whose powers are strictly limited by the statute, cannot be given effect, and practically made valid, by an adj udication by such board that the necessary prerequisites of jurisdiction exist, or that the absolutely void act shall, through the application of the doctrine -of estoppel, be made binding in behalf of the contractor who has acted upon the faith of the acts of the board, against the taxpayers of the township at large, who are not benefited by the improvement, while it cannot have that effect against those of the locality who are benefited, and by whom it was contemplated, by all concerned, payment for the improvement should be made. It is the general rule that one who relies upon such proceedings must ascertain that jurisdiction exists, and it would be an anomalous rule if we should hold that the township could -be bound by a mere representation of the town board in a matter where the statute required specific acts to be performed before the township could be affected. The contractor was bound to ascertain whether the township board had jurisdiction, and could not, rely upon their opinions or representations as to the fact necessary to confer it. Rens v. City of Grand Rapids, 73 Mich. 247, and cases cited; Mackey v. Township of Columbus, 71 Mich. 230; Bogart v. Township of Lamotte, 79 Mich. 299.

The judgment of the circuit court is affirmed.

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


text:
    EATON v. GLADWELL.
    1. Building Contract — Evidence—Contract Price — Value of Services.
    Where, in an action hy contractors to recover for erecting a building, the contract, which specifies the price to be j)aid, is offered in evidence, and the iilaintiffs claim a substantial compliance therewith, testimony on their part as to what it was worth to erect the building is inadmissible.
    2. Same — Waiver of Terms — Hidden Defects.
    The owner of a building does not waive a substantial failure to comply with a contract for its erection, by remaining silent when asked by the contractor to tell him if there is anything not in accordance with the contract in order that he may fix it, — especially where the defects are not such as can be readily seen and are not called to his attention.

      3. Same — Parol Evidence — Letters and Conversations.
    Where a building contract is unambiguous in its terms, and specifies the kind of materials to be used, and that the work is to be done in a good and substantial manner, letters and conversations between the parties, prior to the time that the contract was -reduced to writing, are not admissible in evidence to show that the building was to be cheaply con- * structed.
    4. Same — Custom: among Carpenters.
    In a suit upon a building contract, testimony was admitted tending to show that it was a custom among carpenters to furnish doors 1-J inches thick when those 1} inches thick were specified, because they were dressed down % of an inch. Held, that, there being nothing to show that the defendant knew of such custom, or that it was a custom so general in its application and recognition that he could be presumed to have contracted with reference to it, the admission of such testimony was error.
    Error to Wayne; Lillibridge, J.
    Submitted February 18, 1896.
    Decided March 24, 1896.

      Assumpsit by Joseph W. Eaton and another against Thomas J. Gladwell upon a building contract. From a judgment for plaintiffs, defendant brings error.
    Reversed.

      Sylvester Pray (Atkinson & Atkinson, of counsel), for appellant.

      T. E. Tarsney and W. W. Wicker, for appellees.
   Hooker, J.

The plaintiffs are builders, and have brought this action to recover for the erection of a building for the defendant. The declaration is upon the common counts, and the record states that, “there being no other or further testimony, the jury were permitted to inspect the building,” from which we infer that the substance of all of the testimony is contained in the record.

The plaintiffs, in malting their case, offered in evidence a written contract under which the work was done, and one of them testified that he “claimed it was completed according to the contract.” Testimony was offered showing that' it was worth $1,600 to build such a building as that was; but, as the case went to the jury upon a claim that such contract was substantially performed, and there appears to be no evidence that the building was ever accepted by the defendant, the testimony as to value of services was inadmissible. It is only upon the theory that service and materials had been rendered by the plaintiffs, and the benefit appropriated by the defendant, that a recovery could be had upon the quantum meruit, and until the preliminary proof of appropriation was made, or, at least, some claim that the plaintiffs were relying upon such theory, the testimony of value should not have been admitted. It furnished an opportunity for the thought that the building was worth all that it cost, and a jury would be likely to act upon such argument.

The defendant’s claim was that the work and materials did not correspond, in many particulars, with those required by the contract. This does not seem to have been seriously disputed, but, it was claimed that the defendant waived his right to insist upon compliance. Aside from one or two items, this waiver is based upon a statement that, at one time, when the defendant went through the building, “he called attention to somethings, and one of the plaintiffs asked him if there was anything else, and told him, if there was, to say so, and he would fix it, and he did not say anything.” It was claimed by the defendant, upon the trial, that the rafters were further apart than the specifications permitted; that the roof boards were not dressed to a uniform thickness, it apparently being conceded that they were not dressed at all; that the tin was of an inferior quality; that the studding was not as specified, either in quality or quantity; that one door was omitted, and that all doors were inches thick, instead of ; that steps were not built at the doors, as specified ; that one flue was omitted; and that the workmanship was poor. A waiver implies an intention to overlook a deficiency, or to forego a right to have the defect remedied or to have compensation therefor, and necessarily implies knowledge of the defect that is waived, or acquiescence under circumstances reasonably implying unconditional acceptance of the work as a full performance. The defendant was under no obligation to know and point out defects at his peril. He might rely upon his contract, and, by seasonably refusing to accept, avoid liability upon the unperformed contract. Fildew v. Besley, 42 Mich. 100; Martus v. Houck, 39 Mich. 432. Or, if his necessities required him to occupy the premises, he might do so, and claim damages by way of recoupment, when sued for the price or value of the building. We think the law does not necessarily imply a waiver of all defects from a failure to point out specifically all deficiencies upon demand. Especially is this true as to matters which are concealed, such as roof boards, flues, studs, etc., and one-eighth inch in the thickness of doors, where it is not shown that attention was called to them.

Some letters, written by the defendant to the plaintiffs before the contract was made, were offered in evidence to explain the contract, or perhaps, more accurately speaking, to show the circumstances under which the parties dealt. The object and use made of them was to convince the jury that the building was to be a cheaply constructed one. Conversation to the same effect was also admitted. It seems to us that the contract was the culmination of the negotiations, and that it was not ambiguous, and, therefore, that these letters and conversation were inadmissible. The contract specified the materials, and good and substantial work, and was conclusive of the subject.

Testimony was admitted tending to show that it was a custom among carpenters to furnish doors 1£ inches thick when those 1-]- inches thick were specified. It was said that this was because the l|-inch lumber, from which they were made, dressed down £ of an inch. There was nothing in the case to show that this was a custom so general in its application and recognition as to make it admisáible, nor was there anything tending to show that the defendant knew of it, or conld be presumed to have contracted with reference to it. Black v. Ashley, 80 Mich. 90; Pennell v. Transportation Co., 94 Mich. 247; Lamb v. Henderson, 63 Mich. 305; Schurr v. Savigny, 85 Mich. 144.

The judgment is reversed, and a hew trial directed.

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


author: Hooker,. J.

text:
    FLEUGEL v. LARDS.
    1. Justices of the .Peace — Direction of Writ — Service.
    The direction of a writ commonly issued by a justice of the peace to “any constable” need not be changed when the writ is served by an authorized person other than a constable.
    2. Officer’s Return — Construction of Charter.
    Where, under a city charter, the marshal is ex officio chief of police, to which last-named officer power is given to serve any process which by law a constable may serve, a return of service made by the city marshal, as such, admits of no other conclusion than that the writ was served by the chief of police.
    3. Same — Sufficiency of Service — Clerical Error.
    A return of service to a writ of replevin, after showing the seizure of the property, its appraisal by a disinterested person duly sworn for that purpose, and its delivery to the plaintiff, concluded: “And I further return that, bn the 28th day of June, 1894, the defendant named in the said writ, by delivering to him, the said defendant, personally, a certified copy of said writ.” Held, that the omission of the words, usually found in such a return, showing that service of the writ was made on the defendant, was clerical, and that it was evident that the defendant had been served in the manner required by law.

      4. Chief of Police — Authority to Serve Process — Extent of . Jurisdiction.
    Where a city charter authorizes the chief of police to serve any process which by law a constable may serve, and contains no words limiting said authority to the city or to particular cases, civil process out of justice’s court may be served by him anywhere within the county.-
    6. Writ of Replevin — Service and Return — Omission—Judicial Notice.
    A city marshal signed his return of service of a writ of replevin, ‘ ‘ Almon S. Krapf, city marshal. ” Preceding the return was the oath of the appraisers, the jurat to which was signed, “ Almon S. Krapf, city marshal of the city of Adrian.” Held, that the failure to append the words “of the city of Adrian” to the signature to the return was unimportant, and that the justice might take judicial notice that the person so signing was marshal of said city.
    Error to Lenawee; Lane, J.
    Submitted February 18, 1896.
    Decided March 24, 1896.
    Replevin by Christian Fleugel against Henry C. Lards. From a judgment for defendant upon special appeal from justice’s court, plaintiff brings error.
    Reversed.

      J. C. Winne, for appellant.

      Watts, Bean & Smith, for appellee.
   Hooker,. J.

Almon S. Krapf, being at the time city marshal, and by virtue of his office chief of police, of the city of Adrian, attempted to serve a writ of replevin issued by a justice of the peace of said city, said writ being directed “to any constable of said county,” as required by statute. The following is a copy of the return made to the writ:

Lenawee County, ss.: By virtue of the annexed writ, I have, this 28th day of June, 1894, replevied to the plaintiff, therein named, the goods and chattels specified in the said annexed writ, as I am commanded therein, and on the 2d day of July, 1894, I caused the said property, so seized by me, to be appraised by one disinterested person, on oath administered, as above set forth, which oath, after being so administered by me to the said disinterested person, and after he has subscribed and set oath as above, he appraised the same as above set forth. After such appraisement, I duly delivered the same to the said plaintiff, as I am likewise commanded. And I further return that, on the 28th day of June, 1894, the defendant named in the said writ, by delivering to him, the said defendant, personally, a certified copy of said writ.
“Dated July 7, 1894.
“Almon S. Krapf, City Marshal.”

Preceding the return upon the writ was the oath of an appraiser, the jurat to which was signed,—

“Almon S. Krapf,
“City Marshal of the
“City of Adrian, in said County.”

Upon the return day the defendant appeared specially, by counsel, and moved to quash the proceedings for want of jurisdiction, which motion was denied. After judgment for the plaintiff, the defendant removed the case to the circuit court by special appeal, where it was reversed upon the questions raised by the special appeal, and it is before us upon error.

The grounds of the motion to quash were:

1. Because there was no proper proof of service of the writ.

2. Because the writ was not served by any person authorized to serve the same, nor by any person appointed to serve the same.

In support of the second ground, it was urged that the city marshal of Adrian was not authorized to serve a writ directed to “any constable,” etc.; that the 'charter provides for one constable for each ward; that the constable is a constitutional officer; that the number cannot be^ increased by giving his power to the city marshal; that the authority to serve process is given to him in the capacity of chief of police, and not as city marshal.

No authority in point is cited in support of any of ■these propositions. The statute prescribes the essentials of a justice’s writ of replevin, and requires it to be directed “to any constable of said county.” It is a statutory writ, and departure from the prescribed form would, to say the least, render it of doubtful validity. The statutes require a similar direction to summons and other writs; yet it is provided by law that some of them may be served by sheriffs, and private persons duly authorized. It is not the practice in such cases, nor is it necessary, to change the direction of the writ.

The second point is covered by the case of White v. Supervisors, 105 Mich. 608. The charter provides that “the city marshal shall be the chief of police of the city.” In another section it says: “The chief of •police may serve any process which by law a constable may serve.” As the chief of police and city marshal are one and the same person, we think the signature of the return as city marshal admits of no other conclusion than that the writ was served by the chief of police.

The return is attacked upon the grounds: (1) That it does not show any service; (2) that it does not appear to have been served in the city of Adrian; (3) that the marshal did not append his official title to his signature.

The return shows an omission of a few words usually found in the return, but it is evidently clerical, and it is evident that the defendant was served in the manner required by law.

We think that the marshal might lawfully serve this writ within the county. Counsel for the plaintiff cites a number of cases to the proposition that regularity of official action is to be presumed, among them Bushey v. Raths, 45 Mich. 183, where it was held that it would be presumed that a writ of attachment was served within the county, the return being silent. The case differs from that of Alverson v. Dennison, 40 Mich. 179, 526, where the marshal’s authority was limited to the city, and to particular cases, and was not general.

The fact that the marshal failed to append the words “of the city of Adrian” to his signature to the return is unimportant. It appears twice upon the writ, and the-justice might take judicial notice that he was marshal of Adrian.

The judgment of the circuit court must therefore be reversed, and the case remanded for further proceedings.

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


author: Moore, J.

text:
    WALKER v. THOMPSON.
    1. Bills and Notes — Negotiability—Agreement to Pay Taxes.
    A note containing a promise to j>ay a specified amount on a given date, with, interest, and all taxes assessed against the land described in a mortgage given to secure such note, or against the mortgagee’s interest therein, until the note is paid, is nonnegotiable.
    2. Same — Mortgage—Assignment.
    In a suit by an assignee to foreclose a mortgage given to secure a nonnegotiable note, it appeared that the note and mortgage were given to raise money to pay ofi! a prior-mortgage on the same land, given by the defendants to complainant’s assignor, and by him assigned, without the knowledge of the defendants, to a stranger to the suit; that the assignor promised to discharge the prior mortgage, but died without doing so. There was nothing in the record to show that the defendants had any knowledge that the complainant proposed to buy the second mortgage, or that-they did any act, or failed to do any act, that caused complainant to make the purchase. Held, that the complainant, took no other or greater equity by his purchase and assignment than his assignor had.
    Appeal from Van Burén; Buck, J. >
    Submitted February 18, 1896.
    Decided March 24, 1896.

      Bill by Peter Walker against Jasper L. Thompson and wife to foreclose a mortgage. From the decree entered, complainant, appeals.
    Affirmed.

      E. A. Crane and Alfred J. Mills, for complainant.

      Stafford Try on (Heckert & Chandler, of counsel), for defendants.
   Moore, J.

The complainant commenced proceedings in the court below to foreclose a mortgage for $800 given by defendants to George E. Breck, dated November 24, 1892, and sold and assigned by Breck to complainant on December 5, 1892, for $802. The mortgage was given to secure the payment of an agreement reading as follows:

“$800.00. , Paw Paw, Mich., Nov. 24th, A. D. 1892.
‘ ‘ Five years after date, for value received, I promise to pay to George E. Breck or bearer the principal sum of eight hundred dollars, with interest thereon at the rate of seven per cent, per annum, payable yearly, to wit, on the 24th day of November in each year until due, and at the rate of seven per cent, per annum, payable annually, after due, and to pay all taxes assessed against the real estate and the mortgagee’s interest therein, described in the mortgage given to secure this note, until it is paid.
“The several installments of interest aforesaid, for said period, are further evidenced by five interest notes or coupons, of even date herewith. The payment of this note is secured by mortgage, of even date herewith, on real estate described therein, in Keeler, Van Burén county, Michigan.' No. 1.
“Jasper L. Thompson.”

The defense interposed was- that in December, 1889, defendants had made to the same George E. Breck a mortgage for $600, which was assigned by Breck, without the knowledge of defendants, to Mrs. Barnes, and that the mortgage which it is sought to foreclose was given to raise money to pay the first mortgage and a debt defendants owed to Breck, and that Breck agreed to discharge the mortgage of record; that it was discovered on Breck’s death that the first mortgage never was paid, and it still remains a first lien on the premises.

The circuit judge found the facts as claimed by the defendants, and rendered a decree in favor of the complainant for $187.67. The complainant appeals to this court.

Two important questions in the case are: Was the writing, to secure which the mortgage was made, a negotiable promissory note? Did the complainant, in buying the mortgage, acquire any greater equities than Breck had ?

A promissory note is defined by Judge Story to be “a written engagement by one person to pay another person therein named, absolutely and unconditionally, a certain sum of money, at a time specified therein.” This definition is quoted with approval in Cayuga County Nat. Bank v. Purdy, 56 Mich. 7, where there is a discussion of what constitutes negotiable paper. Other cases holding the same doctrine: Bullock v. Taylor, 39 Mich. 137; Altman v. Rittershofer, 68 Mich. 287; Altman v. Fowler, 70 Mich. 57; Wright v. Traver, 73 Mich. 493; Second Nat. Bank v. Wheeler, 75 Mich. 546; Conrad Seipp Brewing Co. v. McKittrick, 86 Mich. 191. We think the instrument in question is not a negotiable note, and that the complainant took no other or greater equity by his purchase and assignment than Breck had, unless other facts are shown by the record which will aid him. Our attention is especially called by counsel for complainant to the case of Englemann v. Reuse, 61 Mich. 395. The facts disclosed in that case are so different from the facts in the case at issue that it does not aid complainant.

It is urged by complainant that, conceding the note is nonnegotiable, defendants are estopped from making such a defense. Counsel claim ‘ ‘.that, where one of two innocent parties must suffer loss from the fraud or conduct of a third, such loss should fall upon the one, if either, whose act has enabled such/fraud to be committed;” citing Bloomer v. Henderson, 8 Mich. 395; Smith v. Osborn, 33 Mich. 413; Bates v. Smith, 83 Mich. 351; Zucker v. Karpeles, 88 Mich. 430; and other cases. This contention fails, if it is established, as we have already found, that the instrument is not a negotiable note. Judge v. Vogel, 38 Mich. 569.

■ The complainant also urges that if a mortgagor “stands silently by, and permits the assignee in good faith to pay his money and take an assignment for its full value, he cannot afterwards set up his equitable defense against the claim of the assignee for full payment;” citing 2 Story, Eq. Jur. § 1551. The above is undoubtedly the law, but there is nothing in the record to show that defendants had any knowledge .that complainant proposed to buy the mortgage, or did any act, or failed to do any act, that caused complainant to make the purchase.

The decree is affirmed, with costs of both courts.

The other Justices concurred.


text:
    FULLER v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Railroad Companies — Negligence—Cattle Guards.
    A railroad company is not guilty of negligence as to its employes in maintaining a cattle guard at a point where its ordinary right of way joins its station grounds.
    2. Same — Injury to Employe — Assumption op Risk.
    A brakeman assumes the risk of coupling and uncoupling cars at a cattle guard, where such guards exist at intervals over the entire road.
    3. Same — Wing Fences.
    A railroad company owes no duty to its employés to build fences from its cattle guards ,to the line fence, in order to , advise them of the presence of such guards, — especially where the guard is plainly visible, and is located at a place where, by common experience, it may well be expected.
    Error to Lenawee; Lane, J.
    Submitted March 3, 1896.
    Decided March 24, 1896.
    Case by Lura Fuller, administratrix of the estate of Albert Fuller, deceased, against the Lake Shore & Michigan Southern Railway Company, for negligently causing the death of her intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Watts, Bean & Smith, for appellant.

      C. E. Weaver (George 0. Greene and O. G. Getzen-Danner, of counsel), for appellee.
   Hooker, J.

The plaintiff’s intestate was injured, and died, by reason of stepping into a cattle guard while engaged in an attempt to uncouple cars in a train upon which he was brakeman. This action was brought to recover damages, upon the ground that the defendant negligently maintained “a dangerous pitfall, i. e., a culvert 20 inches deep, partly covered with timbers, but leaving openings 6 inches wide between said timbers, upon its track.” The circuit judge directed a verdict for the defendant, and the plaintiff appealed.

Counsel for the plaintiff concede that, if the law required the defendant to maintain the pit at that place, the plaintiff should not recover. The pit was a cattle guard. The law requires the railroad company to maintain fences between its right of way and adjoining lands, excepting, only, station grounds. It also requires the maintenance of cattle guards at highway crossings. This cattle guard was not placed at a highway crossing, but was 400 or 500 feet south of Hamilton street, at a point where the ordinary right of way joined the railroad station grounds, which were much wider than the space used for the main track farther south. Without such cattle guard, there would have been nothing to prevent cattle from straying from the streets upon the station grounds, and thence south upon the track. The defendant was obliged to fence its right of way from the point where this cattle guard was built. To have left it without a cattle guard would have left a narrow pocket, 500 or 600 feet long, into which animals might freely enter, and from which they could not escape at any other point. The obvious intent of the legislature, in providing for fences and cattle guards, is to exclude animals from entering upon the track. The fence keeps them from entering from adjoining premises; the cattle guards, from entering from the highways. But station grounds are exempt, for the general convenience of the company and the public. And, as cattle guards would be useless at streets crossing station grounds, it is the uniform custom, as all know, to locate them upon the. boundaries of station grounds instead, as was done in this case; and we think it right and proper that this should be done. Within reasonable bounds, a railroad company may extend its station grounds, and, ordinarily, the limits fixed by the company must govern. In this case they were plainly fixed at this point, and we think it was not negligence to construct a cattle guard there, and there is force in the claim that it was a duty.

Again, the undisputed proof shows that this accident occurred before 5 o’clock on a day in May; that the fireman upon the engine could distinguish the deceased, and see his legs and hand as he walked, while watching to take signals from him. He had walked by this cattle guard, in close proximity to it, three or more times, while engaged in switching that day. He threw the switch which was near to the cattle guard, being only 33 feet distant, that the train might back onto the main track; and, if he did not see the cattle guard, he was heedless in the extreme. It was his duty to take notice of the track upon which he was at work, and we have no doubt that he was aware of the existence of the cattle guard; but, whether he was or not, cattle guards were required by law, and existed at intervals, from one end of the road to the other. They were common incidents and hazards of his employment, and we must hold that he assumed the risks attendant upon them when he entered the service of the defendant. He entered between the cars, a few feet from this cattle guard, while they were in motion. Experiencing difficulty in lifting the pin, he walked along between the cars until his more watchful companions, expecting, momentarily, to see him emerge to avoid the cattle guard, stopped the train, lest he be hurt; but, as it proved, it was a moment too late. This is one of those unfortunate casualties, attendant upon railroading, which, as yet, no adequate means has been found to prevent. The learned circuit judge took this view of the case.

A point is made here upon the fact that there was no fence, extending from the cattle guard to the line fence, upon the east side; but we think it is without force. The fence upon the west side was there, and material was in the yard to rebuild that upon the east side. But we think it is not incumbent to build fences to advise employés of the existence of cattle guards. They have another purpose. The cattle guard was plainly visible, and at a place where the proof, as well as common experience, shows it was to have been expected.

The judgment is affirmed.

The other Justices concurred.


author: Q-rant, J.

text:
    STEBBINS v. JUDGE OF SUPERIOR COURT OF GRAND RAPIDS.
    Bonding Proposition — Majority of Votes — Construction of Charter.
    "Wliere a proposition to bond a city is submitted to the electors at a general election, under a charter providing for an issue of bonds when “the qualified electors of said city, voting in their respective wards, shall have authorized the issuing of said bonds by a majority of their votes cast at any regular election, or at a special election called for the purpose of voting upon such question,” a majority of all the votes cast at the election, and -not merely a majority of those cast on the bonding question, is essential to authorize the issuance of the bonds.

      Mandamus by Charles D. Stebbins, mayor, and others, to compel Edwin A. Burlingame, judge of the superior court of Grand Rapids, to vacate a temporary injunction restraining the issuance of bonds for the purchase of a city market.
    Submitted March 3, 1896.
    Denied March 24, 1896.

      By the charter of the city of Grand Rapids, the municipality is authorized to purchase, among other things, a city market, and to issue bonds therefor, under the limitation contained in the following provision:
    “Nothing in this act contained shall be so construed as to authorize the incurring of any bonded indebtedness against said city of Grand Rapids for any of the purposes above specified, unless the qualified electors of said city, voting in their respective wards, shall have authorized the issuing of said bonds by a majority of their votes cast at any regular election, or at a special election called for the purpose of voting upon such question. ”
    The common council, under the authority conferred upon it by the charter, submitted to the electors at the general election held in 1895 the question of bonding the city for $75,000, to purchase a site for a public market, and to erect and maintain market buildings thereon. Only one ballot was used, which contained the names of all the candidates and the bonding proposition. All the ballots were deposited in one box in each voting precinct. The number of electors voting at this election, as shown by the poll list, was 12,579. The total vote upon the bonding question was 7,024, of which 3,874 were for, and 3,150 against, the proposition. The common council declared the proposition carried, voted to issue the bonds, advertised them for sale, received and approved a bid. Thereupon a taxpayer filed a bill of complaint to restrain the issuing of said bonds, alleging that such issue was unauthorized; and a temporary injunction issued. The relators applied to this court for the writ of mandamus to compel the vacation of this restraining order.

      Henry J. Fellcer, City Attorney (Taggart, Wolcott & Ganson, of counsel), for relators.

      Thompson & Temple (Taylor & Eddy, of counsel), for respondent.
   Q-rant, J.

(after stating the facts). On account of the public necessity for a speedy determination of the question, we decided to hear it upon this proceeding. It is contended on behalf of the city that a majority of the votes cast upon the question of bonding controls; while on the part of the respondent it is contended that the majority of all the votes cast at the election must control.

The authorities are very numerous, and are not in harmony. An examination of them will show that the phraseology of the constitutional and statutory provisions in the various decisions differs, and the courts have had no little trouble to determine the clear legislative intent. The relators cite, as supporting their position, the following authorities: Gillespie v. Palmer, 20 Wis. 544; State v. Grace, 20 Or. 154; State v. Echols, 41 Kan. 1; Commissioners of Marion Co. v. Winkley, 29 Kan. 36; Walker v. Oswald, 68 Md. 146; Yesler v. Seattle, 1 Wash. St. 310; Sanford v. Prentice, 28 Wis. 361; Dayton v. City of St. Paul, 22 Minn. 400; Metcalfe v. Seattle, 1 Wash. St. 297.

Gillespie v. Palmer fully sustains the relators’ contention, and, if it were accepted as the law, it would control the present case. The soundness of that decision was questioned in Sawyer v. Insurance Co., 37 Wis. 524, in which it was said that it had been subjected to the criticism that the court decided it in accordance with the “logic of the war,” rather than by-the “logic of the law.” In Bound v. Railroad Co., 45 Wis. 579, Chief Justice Ryan characterized it as a reproach to the court, and a judgment proceeding upon policy rather than upon principle. It is expressly repudiated in State v. Babcock, 17 Neb. 194, and State v. Lancaster Co., 6 Neb. 474, and is criticised in other courts. While we have great respect for the supreme court of Wisconsin, we do not think that that decision is supported by reason or authority.

In State v. Grace the law provided that, “at the next general election, the question of the location of a county seat shall be submitted to the legal voters of the county, and the place receiving the majority of all the votes cast shall be the permanent county seat.” The reasoning by which. the court reached the conclusion that the majority of the votes cast upon the removal, -and not of all the votes cast at the election, should control, is found at pages 161 and 162 of the report. The conclusion is based largely upon the peculiar phraseology of the statute.

In Commissioners of Marion Co. v. Winkley the statute contained no such limitation as is found in the case now before us. The statute in that case simply provided for submitting the question of a bounty to the electors at a general election. It was there provided that, “if a majority of the votes [cast] are for the bounty,” the law shall be declared in force.

In State v. Echols the law required the question to be submitted to the voters of the county at a general or special election, and provided that “after said election the ballots on said question shall be canvassed in the same manner as in the election for county officers, and if the majority of all the' votes cast shall be in favor of establishing such high school,” etc.; and the case is decided to be ruled by Commissioners of Marion Co. v. Winkley.

In Dayton v. City of St. Paul the question arose upon a provision of the constitution relating to alterations of or amendments to it. That provision required a “majority of the voters present and voting.” Under this general language, a majority of those voting upon an amendment was held sufficient. It was also held in the same case that a provision similar to the one now involved required a majority of all the electors who voted at the election. The constitution provided for submitting to the electors the question of constitutional conventions, and provided that, “if a majority of all the electors voting at said election shall have voted for a convention, the legislature shall provide for calling it.” It was held that the use of language so different showed the intention to provide a different rule in each case.

In Walker v. Oswald considerable importance was attached to the provisions of the law for the canvass and return of the votes, as showing the intention to be that a majority of.the electors voting upon the proposition should determine.

In Metcalfe v. Seattle the provision under which the question arose required “the assent of three-fifths of the voters therein, voting at an election to be held for that purpose.”

In Yesler v. Seattle the provision read: “If three-fifths of the' voters of said city of Seattle shall at said election vote in favor of authorizing,” etc.

These two cases adopt the definition of “voter” given by the Supreme Court of the United States in Carroll Co. v. Smith, 111 U. S. 565, as follows:

“The assent of two-thirds of the.qualified voters of the county, at an election lawfully held for that purpose, to a proposed issue of municipal bonds, intended by that instrument, meant the vote of two-thirds of the qualified voters present and voting at such election in its favor, as determined by the official return of the result. _ The words ‘qualified voters,’ as used in the constitution, must be taken to mean, not those qualified and entitled to vote, but those qualified and actually voting. In that connection a voter is one who votes, not one who, although qualified to vote, does not vote.”

The provision of the Constitution of Mississippi there construed reads thus:

“The legislature shall not authorize any county, city, or town to become a stockholder in, or to lend its credit to, any company, association, or corporation, unless two-thirds of the qualified voters of such county, city, or town, at a special eléction or regular election to be held therein, shall assent thereto.”

We must hold that the above authorities are not controlling, and must look elsewhere for authority and reason on which to base our conclusion.

The first duty of courts is to examine the statute, and determine whether the intent of the legislature appears clearly therein. If it does, that is the end of the inquiry. Municipal corporations possess only those powers which are expressly conferred, or necessarily implied, in consequence of their being essential to the exercise of their proper-functions. While the same strictness is not, perhaps, required in construing statutes authorizing the issue of bonds for paving, erection of markets, and the like, as in those authorizing bonds for gifts or grants to railroads and similar purposes, still the general rule is that they must be strictly construed. The charter above quoted in plain terms requires “a majority of the qualified electors of said city voting in their respective wards.” Courts are not at liberty to inject words into a statute contrary to its clear meaning, even if absurd results follow. The question of bonding municipalities is an important one, and courts have nothing to do with the reasons or results where the language is unequivocal. To say that the legislature meant that a majority of those voting at the general election on the proposition should control would be to place in the statute words and an intent not found in it. We see nothing absurd, however, in the legislature providing that at'a special election a majority of the votes should control, while at a general election a majority of all the votes cast at the election should control. There might have been in the minds of the legislators the very best of reasons for such provisions.

Under the sound reason in Dayton v. City of St. Paul, supra, we have in this same charter an evidence of legislative intent which we cannot ignore. Section 29, tit. 3 (p. 1392, Local Acts 1893), provides for acquiring, constructing, and maintaining an electric lighting plant, if authorized by the qualified electors of said city voting thereon. Such, also, is the language of our Constitution in submitting amendments. It requires only a majority of the voters voting thereon.

We think the clear weight of authority under similar provisions to the one now under consideration is in favor of the respondent. State v. Foraker, 46 Ohio St. 677; Enyart v. Hanover. Tp., 25 Ohio St. 618; People v. Brown, 11 Ill. 478; People v. Wiant, 48 Ill. 263; State v. Sutterfield, 54 Mo. 391; Chestnutwood v. Hood, 68 Ill. 132; State v. Mayor of St. Louis, 73 Mo. 435; Cocke v. Gooch, 5 Heisk. 294; State v. Babcock, 17 Neb. 188.

The rule that electors absenting themselves from the election, and those present, but not voting for some candidate for every office or on every proposition submitted, are held to assent to the action of those who do attend and vote, is not applicable to a case like the present. That rule applies only to those cases where there are no limitations, and the question is left in general terms to the determination of the electors or voters.

The injunction was properly granted, and the writ will therefore be denied.

The other Justices concurred.


text:
    WEBSTER v. SYMES.
    1. Negligence—Damage by Fire—Question for Jury.
    In an action to recover damages for the loss of ' property by fire alleged to have heeni&ommunicated, during a violent wind, by sparks from defendant’s steam sawmill, the question of whether the drafts in the furnace were open is properly left to the jury, where defendant testified that sparks could not escape if the drafts were closed, and there was evidence that sparks did escape, and defendant’s witness testified that certain drafts were partially open.
    2. Steam Mills—Spark Arresters—Duty to Provide.
    Where a steam sawmill is run in proximity to inflammable material and buildings, and the chimney is found to emit sparks so as to endanger the surrounding property, the operator must avail himself of such apparatus to arrest their escape as experience has shown to be reasonably adequate for that purpose.
    8. Same—Custom.
    The fact that it is not customary to employ .spark arresters where there are no artificial drafts will not excuse the owner of a steam sawmill, operated with a natural draft, for his failure to provide them, if common prudence requires their use in the particular case.
    4. Negligence—What Constitutes.
    Negligence is properly defined to be “a failure of duty to observe that degree of care which the law imposes for the protection of interests likely to he injuriously affected by the want of it.”

      5. Same—Degree of Care—Instructions to Jury.
    An instruction that, if the violence of the wind and the dryness of the surrounding property endangered such property by fire from a steam sawmill to the extent that a “prudent” man would have shut down the mill, the failure to dp so was negligence, is not erroneous as requiring too high a degree of care,—especially where the jury are subsequently instructed that the operators of steam sawmills are only required to use ordinary care to protect surrounding property.
    6. Same.
    In an action for negligently setting fire to plaintiffs property, where the fire was communicated from another fire set by a spark from defendant’s mill, an instruction that defendant is liable if plaintiff’s property was'burned without her fault, by the negligent operation of the mill, and the injury was the result of a continuous succession of events, so linked together as to make a natural whole, even though defendant could not have anticipated such injury, is not misleading as permitting a verdict for plaintiff although defendant could not have anticipated that any injury would result, the circumstances being such that the jury would readily construe the charge to mean that, even though the defendant’s negligence did not, in the first instance, cause plaintiff’s property to take fire, yet, if it ultimately did take fire as a result of defendant’s negligence, she was entitled to recover.
    Error to Missaukee; Aldrich, J.
    Submitted March 3, 1896.
    Decided March 24, 1896.
    Case by Mary E. Webster against James E. Symes and another for the value of certain property destroyed by fire alleged to have been set by sparks from defendants’ mill. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      F. O. Gaffney and M. Brown, for appellants.

      S. B. Daboll and O. L. Spaulding, for appellee.
   Montgomery, J.

This is an action for negligently causing the destruction of plaintiff’s property by fire. The defendants are the owners of a steam sawmill in the village of McBain, and plaintiff occupied an hotel in the same village.

The declaration, in the first count, averred the ownership and occupancy of plaintiff’s property, and further averred:

“ The said defendants were also possessed of lot number nine in the said village of McBain,. lying near to, and westerly of, the said premises of the said plaintiff, on which was a sawmill, then and there, by the said defendants, their employes and servants, being operated and run by steam power, generated by fire in a furnace located in or about said mill; and at the time and place aforesaid the lands, premises, buildings, and other property about said mill and village, and the said hotel and barn of said plaintiff, were dry, and liable to take fire and burn from any fire, sparks, or cinders that might come and lodge thereon; and a strong wind was then blowing from the west towards the east, and towards the said hotel and barn of the said plaintiff, calculated to, and which would, carry fire, sparks, and cinders, coming from said mill, easterly a long distance, along and upon the premises about said mill and village, and the said hotel and barn of the said plaintiff, and thereby set fire thereto, and burn and destroy the same; and by reason thereof the operation and running of the said mill by the said defendants as aforesaid was dangerous and hazardous, and liable to communicate fire therefrom to the premises and buildings about and adjacent to said mill, and to the said hotel and barn and property of the said plaintiff,—of which the said defendants were then and there well knowing.
“And the said plaintiff avers that it then and there became and was the duty of the said defendants, in the operating and running of the said mill, to use care and caution in and about the same, to prevent the taking and spreading of fire therefrom in and upon the said premises and buildings, and the said hotel and barn and property of the said plaintiff, and the injury and burning of the same, and to protect and care for the fire in and about said furnace, and the smokestack of said mill, connected therewith, with dampers, screens, spark arresters, or other suitable devices, as to prevent the escape and spreading abroad from the same of fire, sparks, or cinders, and the setting of fire thereby to, and injuring and burning, the said premises and buildings, and the said hotel, barn, and other property of the said plaintiff; and it also became and was the duty of the said defendants, because of the great violence of the wind then blowing as aforesaid, from the west, towards the said premises and buildings, and the said hotel and barn of the said plaintiff, and to prevent injuring and burning the same, to cease operating and running said mill, and to shut down the same, and put out the fires in said furnace during the prevalence of said wind. * * *
“The defendants did not shut down the mill, * * * and the said defendants then and there so carelessly, negligently, and improvidently operated and ran said mill, and managed, directed, and conducted said fires in said furnace and smokestack, that, by and through the carelessness, negligence, and mismanagement of the said defendants in and about said fire, fire, sparks, and cinders from said furnace and smokestack escaped therefrom, and were carried by the wind, blowing as aforesaid, to and upon lot four of said village, lying east of said mill, and occupied by the said defendants, and into and upon the hay, straw, and litter lying in and about a certain barn thereon, so that the said barn, by reason thereof, took fire therefrom, and was utterly burned, consumed, and destroyed; and it became and was impossible to put out or check said.fire, and it then an*d there spread and extended easterly therefrom to the said hotel and barn of the said plaintiff, standing and being on said lot three of said village.”

The second count, in addition to the averment as to conditions and surroundings, averred that it was the duty of defendants to provide a spark arrester or other device to prevent the spreading about from the smokestack of cinders, and the setting of fire thereby, and that it was the duty of defendants, because of the violence of the wind so blowing, etc., to cease operating the mill during the prevalence of the wind, and averred that defendants failed of their duty in this regard.

The testimony in most parts was conflicting. The plaintiff offered testimony tending to show that, on a previous occasion of a high wind, in a dry time, defendants had been requested to shut down the mill by the village marshal, and had recognized the propriety of the request, and had done so; that, on the day in question, a live spark had, during the noon hour, been blown into the barn where the fire afterwards originated from (it is claimed) a similar cause; that, during the forenoon of the same day, a stump in the street a little north and east of the' barn, but in the same general direction from the mill, caught fire; that, previous to this, a live spark had fallen on the person of one of defendants’ employés in the mill yard, about 150 feet from the smokestack, and on other occasions the smokestack had been seen to emit sparks. There is no controversy but that the wind was very high upon the day in question. It is conceded that defendants were running the mill, and were not using spark arresters. There was a dispute as to whether the direction of the wind was such as to carry sparks from the smokestack to the barn in question, but this was a fair question for the jury.

It is stated, in defendants’ brief, that the evidence was undisputed that the drafts in the furnace were closed, and not open, from some time in the forenoon, before the fire, and that it was also undisputed that the kind of fuel that defendants were using that day was not calculated to communicate fire from the smokestack; but we find that the record hardly sustains this statement, as we find the defendants’ witness, in charge of the furnace, testified:

“When the draft is entirely open, it would depend something upon the force of the wind whether we got much or little draft. Sometimes, when the wind is blowing hard, we can get as much draft with those little circle doors open as we can with everything open with less wind. On this day the wind was blowing violently, and I had the circle doors partly open, and that constituted the draft. A small opening, with a big wind, may produce as good a draft as a large opening with a light wind.”

And there was other testimony tending to show that the drafts were open some of the time. Moreover, the very fact that the cinders were emitted, and that this, according to the defendants’ testimony, could not have occurred with the drafts closed, might be considered by the jury in determining whether the drafts were closed at the time or not. Cheboygan Lumber Co. v. Delta Transportation Co., 100 Mich. 24; Alpern v. Churchill, 53 Mich. 613.

The boiler in which steam was generated was a tubular boiler, arched in with brick. The fire box was in the front end of the boiler. Under the fire box was a place for the draft to come in from the doors in front. There was a fire or cinder box at the back of the boiler. Fire had to go to the back end of the boiler, and return, through the flues in the boiler, to the front end of it, where the smokestack was located. The smokestack was 3 feet in diameter and 85 feet high. There was no artificial draft used. Defendants called a number of witnesses, who testified that, when no artificial draft was used, with a mill constructed like this, no spark arrester was used or required; and among the claims made is that, as such spark arresters are not generally employed in such mills, the defendants cannot be charged with want of ordinary care in failing to provide one. Unquestionably, this is, in general, a fair test of common prudence, but conditions differ with different mills. The defendants’ witness testified that a spai-k arrester would lessen the danger of a mill with a natural draft, if it had a tendency to emit sparks. Another of defendants’ witnesses gave similar testimony; and, indeed, without the aid of the testimony, we could take judicial notice of the fact. There was not only abundant testimony that this mill did emit sparks, but it further appeared that it was located near wooden structures, liable to take fire from sparks emitted. This was a stationary structure, and its owner must be held to know the conditions and surroundings. The case, in that respect, is almost an exact parallel to Hoyt v. Jeffers, 30 Mich. 181. In that case Justice Cheistiancy, in speaking for the court, said:

“I am entirely satisfied, both upon principle and the weight of authority, that when, as in the present case, as the evidence tends to show, the mill is situated in the midst of a city, with numerous dwellings, hotels, shops, and other buildings in close proximity, and mostly of wood, and the mill chimney, without any apparatus, contrivance, or appliance for arresting the escape of sparks and fragments of burning material, generally, or even frequently, throws out such sparks and burning material to such an extent as to endanger surrounding buildings and property, and actually, on many occasions, to set them on fire, especially when the mill owner or his employés in charge have notice of the danger, it becomes both his moral and his legal duty to avail himself of some such apparatus, or other means, if any be known, as experience has shown to be reasonably adequate, if not the most effectual, to arrest the escape of such sparks and fire from his chimney, whether such means or apparatus had ever been previously used upon that particular kind of chimney or not, so that they are in their nature and operation susceptible of being applied to that kind of chimney, and would operate to prevent or check the escape of such fire and sparks if so applied.”

The only particular in which Hoyt v. Jeffers was a stronger case for the plaintiff than the present case is for this plaintiff, is that in Hoyt’s case fire had previously caught, but in this case no previous actual damage had been done, other than the burning of the clothes of the workman in the yard; but the proof was ample that the mill emitted sparks which were carried considerable distance.

What has been said sufficiently answers the objection of defendants’ counsel to questions, put on the cross-examination of their witnesses, as to whether a mill with a direct draft might not be so constructed as to cause a draft equal to that of some other mills having artificial drafts, and as to the purpose of putting on spark catchers, and as to whether spark arresters would lessen the chances of fire, and as to whether, in fact, under some conditions, the spark arresters were not used when the draft was a direct one.

Error is assigned on certain instructions given by the court. The definition of negligence given by the court was: “A failure of duty to observe that degree of care which the law imposes for the protection of interests likely to be injuriously affected by the want of it.” This definition was approved in Kendrick v. Towle, 60 Mich. 367.

Defendants complain of an instruction as follows:

“If the jury find, from the evidence, that, from the violence of the wind then blowing, and the dryness of the atmosphere and the immediate surroundings of the mill and the plaintiff’s property, the operating of the mill endangered the plaintiff’s property, by fire from the mill, to that extent that a prudent man, conversant with the business and the existing conditions, would have shut down said mill until the violence of the wind had abated, the failure of the defendants to do so was negligence; and if, by reason of such negligence, fire was communicated from said mill to the barn, and then to the plaintiff’s property, and destroyed it, she is entitled to a verdict, if she did not contribute to the injury; and this would be so, even if defendants made use of fire or spark arresting appliances on their mill. It was the duty of the defendants, if, in the operating of their mill, they thereby endangered plaintiff’s property by fire, to use such reasonable means as were known to them, or were in such general use that, by reasonable care and inquiry, they might have known of them, to prevent fire from said mill from spreading to or falling upon plaintiff’s property and injuring it, and, if they omitted to use such means, such omission was negligence; and if the jury find, from the evidence, that such negligence directly caused the firing of the barn and the plaintiff’s property, and its destruction, she is entitled to a verdict, if she did not contribute to the injury.”

It is contended that this instruction was erroneous, for the reason that it left it for the jury to determine what a prudent man would have done. It is said that the measure of liability in such cases is the skill and diligence of men of ordinary care, and not the most prudent or careful man. The use of the word “prudent” without qualification would hardly be understood by the jury as meaning more than “ordinarily prudent.” If there be any doubt of this, the subject is made clear by a later portion of the charge, in which the court said to the jury:

“Persons operating mills propelled by steam power are not insurers of property situated about the mill. All they are required to do is to use ordinary care to protect such property from being destroyed or damaged.”

Exception is taken to an instruction that—

“If defendants were guilty of negligence in operating their mill, and the burning of the plaintiff’s property was occasioned thereby, they are liable to the plaintiff, if she was without fault, for the result of the injury to her, if such injury was the result of a continuous succession of events, so linked together as to make a natural whole, and flowed naturally from such negligence; and this even if they could not have foreseen or anticipated such injury.”

Defendants’ counsel construe this as being equivalent to saying that the defendants might be liable, even if it was impossible for them to have foreseen or anticipated that any injury might result in consequence of their operating the mill in the manner in which they did. We do not so construe the language. It was intended to give the jury to understand that, even though the negligence of defendants did not, in the first instance, cause plaintiff’s property to take fire, yet, if it ultimately did take fire as a result of defendants’ negligence, she was entitled to recover. The jury could not well have misinterpreted the language, and, in view of other portions of the charge, could not have been misled.

The defendants also assign error on the refusal of certain of their requests. In so far as they are not inconsistent with the views herein expressed, they are fairly covered by the charge of the court as given. The case was carefully tried, and no error is discovered.

Judgment affirmed, with costs.

The other Justices concurred.


text:
    ATWELL v. BARNES.
    Drains—Assessment for. Benefits—Injunction.
    Equity will not enjoin the collection of a tax assessed to defray the expense of extending and improving a drain, on the ground of the illegality of the proceedings for the improvement, at the suit of one who has stood by and permitted the work to go on, knowing that those who did the work could be compensated in no other way than by an assessment for benefits, and that his land was to be assessed therefor, and who is in fact benefited by the improvement made.
    Appeal from Lenawee; Lane, J.
    Submitted March 9, 1896.
    Decided March 24, 1896.
    Bill by Conrad Atwell against Henry F. Barnes, drain commissioner of Lenawee county, and another, to enjoin the collection of a drain tax assessed against complainant’s land. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      A. L. Millard, for complainant.

      Westerman & Westerman, for defendants.
   Montgomery, J.

This is a bill filed to set aside proceedings for deepening and widening and extending a drain, and to restrain the collection of a tax levied against the land of the complainant to pay for the same.

It appears from the complainant’s testimony that he appeared before the probate judge, and took part in the selection of commissioners, and subsequently signed bonds on an appeal to the township board taken by one of his neighbors, and that he (complainant) also appeared before the board, and complained of the amount of his assessment, and that the board cut it down somewhat. From this on, complainant did nothing until the work was completed and the benefits to his property had been realized, and then filed the present bill. We think the bill was properly dismissed, under Byram v. City of Detroit, 50 Mich. 56; Lundbom v. City of Manistee, 93 Mich. 170; Goodwillie v. City of Detroit, 103 Mich. 283.

Complainant’s counsel contends that the defects in the proceeding are jurisdictional. Where this is the case, no waiver can cut off the rights of the party, or interfere with his right to complain. We need not determine what would be the right of complainant at law. The cases above cited do not turn on the principle of waiver, but hold that where a party stands by and sees work of this kind go on, with full knowledge that he is to be assessed therefor, and knowing that those who do the work can be compensated in no other way than by an assessment for benefits, and when, as in the present case, the complaining party actually receives a benefit from such work, equity will not interpose to reheve him.

It is suggested that there is no issue of waiver, but, as before stated, the question is one of remedy, and the answer contains a demurrer clause.

Decree affirmed.

The other Justices concurred.


author: Per Curiam.

text:
    CITY OF DETROIT v. WAYNE CIRCUIT JUDGE.
    Judgment—Saving of Interest.
    The Supreme Court, having set aside a judgment entered nunc pro tunc, will not modify its order so as to allow the judgment to stand as of the date actually entered, for the sake of saving to the party his interest upon the judgment, inasmuch as interest may he saved in the entry of a new judgment.

      Mandamus by the city of Detroit to compel Joseph W. Donovan, circuit judge of Wayne county, to vacate a judgment against the relator.
    On motion to modify an order granting the writ.
    Submitted and denied March 21, 1896.

      B. T. Prentis, for the motion.

      John J. Speed, contra.

   Per Curiam.

On motion, a judgment which was entered nunc pro tunc against relator in the Wayne circuit court was set aside by this court on February 26, 1896. A motion is now made to modify this order, and to allow the judgment to stand as of the date it was actually entered.

The claim is made that, unless this be allowed, the plaintiff in the case will lose his interest on the judgment from the date of the verdict to the time of the entry of the judgment. We see no difficulty in the saving of the interest in the entry of, a new judgment.

The motion must be denied.


author: Grant, J.

text:
    FILLMORE v. GREAT CAMP, KNIGHTS OF MACCABEES.
    1. Mutual Benefit Associations—Claim for Benefits—Proofs of Death—Waiver.
    Where a mutual benefit association has expressly waived the right to require that the beneficiary in the certificate of insurance shall submit proofs of death in the form prescribed by the regulations of the association, it cannot subsequently demand that such proofs be furnished as a prerequisite to a consideration of the claim.
    2. Same—Enforcement of Claim—Duty of Beneficiary.
    The beneficiary in a certificate of insurance issued by a mutual benefit association must, in the absence of fraud or oppression on the part.of the association and its officers, -exhaust the remedy prescribed by the charter and by-laws, before resort can be had, if at all, to the civil courts.
    Petition by Catherine M. Fillmore for leave to file a bill of review, in her suit against the Great Camp of the Knights of the Maccabees' for Michigan, and others, reported in 103 Mich. 437.
    Submitted January 7, 1896.
    Denied March 31, 1896.

      Thompson, Harriman & Thompson, for petitioner.

      McDonell & Hall, for defendants.
   Grant, J.

The essential facts in this case will be found in 103 Mich. 437. After the rendition of that decision, complainant paid the costs of the suit, and presented her claim to the executive committee of the great camp. In presenting this claim, she stated, through her attorneys, that proofs of death were waived by the executive committee under date of July, 1893. The committee replied to this that no consideration could be given to the alleged claim unless proofs of death were submitted in the usual way and on the blanks prescribed by the committee. Blanks in use for such purpose were inclosed 'with the communication to her attorneys. She thereupon filed this petition for leave to file a bill of review.

The principal reasons assigned by her are the refusal of the committee to pass upon her claim, and the fact that this committee, which consists of three, have already passed upon the merits of her claim, and are therefore incompetent to hear it. One of them, Mr. Aitken, was the great commander, upon whose advice the officers of the local tent notified Mr. Fillmore that he was expelled. Another is the attorney who has conducted this litigation on the part of the defendants. The third, upon the date of July 17, 1893, wrote to the complainant’s agent that Mr. Fillmore was not, at the time of his death, in good standing, and therefore there was no necessity of sending blank proofs of death. It is also alleged that the personnel of the executive committee has changed by the election of two of these members since the decree. The petitioner further alleges that she cannot now comply with the requirements of these proofs of loss, because they are required to be presented within one year of the date of death, which year has expired, and they now require her to furnish a certificate, to be made by the commander, the record keeper, and the finance keeper, that the deceased was in good financial standing, having paid all dues and assessments up to the date of his death, and was a member of the tent.

The answer admits the refusal of the committee to act, and insists upon the duty of the complainant, under the by-laws of the order, to submit her proofs upon the customary blanks; and, as a reason therefor, they assert that their sole reason for so doing was that the hearing of said claim should be conducted according to the laws, rules, and regulations governing said order and said executive committee. They also assert in their answer, and their attorney stated upon the hearing, that they were willing and ready to proceed with the hearing of the claim, and to give her the right to appeal to the great camp.

We think the committee should have proceeded to hear the claim in the form it was presented. They had expressly waived proofs of loss. It was therefore unnecessary and unreasonable to require her to use the blank form of proof, with many of the provisions of which she could not comply. It has been repeatedly decided, by this court and others, that, when insurance companies expressly waive proofs of loss or of death, it is unnecessary to furnish them, and the hearing of the claims should proceed without them.

Under the former opinion in this case and the authorities there cited, it was the duty of the complainant to proceed t'o enforce her claim under the charter and bylaws of the defendant, and, if she has any remedy in the courts, it must be after that remedy is exhausted, unless a case of fraud or undue oppression is made out on the part of the defendant and its officers. We do not think that such a case is made. The executive committee are bound to take the evidence, and submit it, with their conclusions, to the great camp, where her claim may be heard and her proofs presented. There is no showing that the great camp is prejudiced against her claim. The question involved is an important one, namely, whether a member owning stock in a brewing corporation is engaged in the manufacture or sale of spirituous or malt liquors as a beverage, either as a principal, agent, or servant, in consequence of which his membership is forfeited. It is sufficient, for this case, to say that she must exhaust her remedy, provided by the rules of this voluntary association, by which Mr. Fillmore was bound as a voluntary member.

The prayer of the petition must be denied.

The other Justices concurred.