text:
    Rufus Hibler, v. Jacob Hibler and John J. Surles.

      Wills — Gharge upon realty — Lapsed legacy.

    1. A testator gave to his wife the use for her life of all his real and personal estate, and directed that a certain legacy, given to one of his sons as the sum which the testator considered equitably his due for services rendered, should be paid out of the personal estate on hand at the time of the wife’s death. The remainder of the personal property he bequeathed, share and share alike, to all of his children. The personal estate proved insufficient to pay the legacy. And it is held that the legacy was not a charge upon the real estate of the testator, which he specifically devised to the legatee and another son, subject to the payment of other legacies.
    2. The will provided that one of said legacies should be paid to the legatee in one year after the death of the testator and his wife. The legatee survived her father, but not her mother. And it is held that the legacy did not lapse, but became vested in the legatee upon the death of the testator, and descended to her heirs.

      Appeal from Oakland. (Moore, J.)
    Argued January 25, 1895.
    Decided March 5, 1895.
    Bill to construe a will. Complainant and defendant Hibler appeal.
    Decree affirmed.
    The facts are stated in the opinion.

      Aaron Perry, for complainant.

      J. Ten Eyck, for defendant Hibler.

      D. L. Davis and P. B. Bromley, for defendant Surles.
   Grant, J.

Philip Hibler died testate October 11, 1880. His will was executed July 6, 1880, and is as follows:

“First. After all my just debts are paid and discharged, the residue of my estate, both real and personal, I give, bequeath, and dispose of as follows: To my beloved wife, Ann, the use of all my estate, both real and personal, for ■and during her natural "life, and after her death to be disposed of as follows, viz.: To my son Jacob, the sum of 11,500, this sum being the amount which I consider to be justly and equitably his due for services rendered me and the family since he became of age, and to be paid to him first out of my personal property on hand after the death •of my said wife, and before any division shall be made of ■said personal property, The balance of my personal property, after the death of my said wife, to be divided equally among my five children, viz., John, Jacob, Jane, Rufus, and Elizabeth, share and share alike, if they be living at my death and after the death of my said wife; but, if either of said children shall then be dead, then, in that •event, the child or children of said deceased child to take the share which their parent would have been entitled to receive by right of representation, share and share alike. The above and foregoing declares the way and manner I want all the personal property of which I may die possessed to be distributed and disposed of.
“ Second. And as to my real estate situated in the townships of Orion and Pontiac, in the county of Oakland, and State of Michigan, being the farm on which I now reside, and being all I own in said townships, I give and devise to my sons Jacob and Rufus, to have and to hold the same, to them, their heirs and assigns, forever, upon the uses and trusts following, viz.: After the death of my said wife, to pay to my son John, as hereinafter stated, the sum of $2,000. Secondly, to pay to my daughter Jane the sum of $800 in one year after the death of myself and my said wife, and to pay to my daughter Elizabeth the sum of $1,000 in one year after the death of myself and my said wife. And I hereby give to my said trustees full power and authority, after the death of my said wife, to sell any and all of my said real estate, at private or public sale, for the purpose of paying off such legacies; and after having paid the said legacies in full out of said real estate, as aforesaid, then it is my will that the rest and residue of my said real estate, or of the avails thereof, if the same shall have to-be sold as aforesaid, shall be divided between my two sons Jacob and Rufus, share and share alike, to have and to hold the same in fee simple forever. The said sum of $2,000 hereinbefore devised to my son John is to be paid to him, or, if need be, to his legal guardian, on or before-one year after the death of my said wife.
“And 1 do hereby nominate and appoint my two sons. Jacob Hibler and Rufus Hibler executors of this, my last, will and testament; herein and hereby revoking and annulling- all other wills by me made/'’

Jacob Hibler alone qualified as executor. The personal property of the estate was appraised at $734.62. The debts-proven were $339.65. The real estate described in the-will was valued at $8,000. Another piece of land was-valued at $125. These comprised all the property of the-estate. The widow died September 23, 1893. Elizabeth Hibler was married to John J. Surles, November 28, 1878. She died intestate March 3, 1884, leaving one child, who-died August 25, 1891. Complainant filed this bill to secure-a construction of the will. The defendants filed separate-answers, and the cause was heard upon the pleadings. The court decreed that the bequest to Elizabeth became a. vested right at the death of Mr. Hibler, and was inherited by her child, and that, upon the death of the child, his-father, Mr. Surles, inherited the bequest, and that it was-a charge upon the lands mentioned in the will. It further •decreed that the lands were devised to Jacob and Rufus subject to the payment of the $2,000 to John, $800 to Jane, and $1,000 to Elizabeth, and that the bequest of $1,500 to Jacob was not a charge upon the lands. Jacob •appealed from the entire decree, and-Rufus appealed from the decree affirming the bequest to Elizabeth.

Was the bequest to Jacob a demonstrative legacy, ■chargeable upon the real estate devised to Jacob and Rufus, upon the failure of sufficient personal property at the death ■of the testator to pay it? It is the settled rule that legacies are always payable, presumptively, out of the personal ■estate, and if a deficiency exists the legacies must abate, unless they are made chargeable upon the real estate. 2 Redf. Wills, 208; 13 Amer. & Eng. Enc. Law, 110, 126; Canfield v. Bostwick, 21 Conn. 550. Another equally well settled rule is that the real estate of the testator must be made chargeable with the payment of legacies either expressly or by clear implication. Massaker v. Massaker, 13 N. J. Eq. 264; Olden v. White, 5 Id. 629; Taylor v. Tolen, 38 Id. 91. Also, if legacies are given generally, and the residue of the real and personal estate is afterwards given in one mass, the legacies are a charge on the residuary .real, as well as the personal, estate. Hawk. Wills, 294; Thayer v. Finnegan, 134 Mass. 64, where the principle will he found discussed, and many authorities cited; White v. Olden, 4 N. J. Eq. 343; Hoyt v. Hoyt, 85 N. Y. 149. It follows that" it is the duty of courts to first examine with •care the will itself, for, if the intention of the testator can be gathered from the four corners of the instrument, that intention must prevail and be given effect.

The bequest to Jacob of $1,500 was not a specific legacy. It was a demonstrative legacy, and ’ especially made payable out of the personal estate. The testator first provided for the disposition of his personal estate, directing that the legacy to Jacob should be first paid, and that the residue should be equally divided among his children,, naming them. After so providing he seemed to be in some doubt whether his intention as to its disposition was-sufficiently clear, and he therefore added this clause:

“The above and foregoing declares the way and manner I want all the personal property of which I may die possessed to be distributed and disposed of.”

He then makes a specific devise of his farm to his two-sons Jacob and Rufus; charging them, however, with the-payment of certain amounts to his other son and to his two daughters. The will conveyed the title in fee to-them, burdened with the above payments.

Specific legacies and specific devises are not chargeable-with the payment of demonstrative or general legacies, unless made so expressly or by clear implication. There is nothing in this will to show either an express or implied intent to charge the land specifically devised with the payment of the legacy to Jacob. Bevan v. Cooper, 72 N. Y. 317, 325. It was there said:

“ In such case it has never been held by our courts that such devise did not give full effect to the phrases of the residuary clause, without forcing, or giving ground for, an inference that the legacies were in the mind of the testator, as being that subtraction from the real estate which was to leave a rest and residue of it. The cases cited on the argument, in which legacies have been charged upon the real estate on the strength of the residuary clause, are where the language of it- was such (aided or not by other provisions of the will, and by extraneous circumstances, as the case might be) as that the court could well hold that there was a blending of the two-kinds of property — the whole estate — into one mass, and that a gift of the residue so blended imported an intention that the legacies were to be paid first thereout. When there has been a prior specific devise of real estate, that interpretation has not been thought applicable.”

A case almost the exact counterpart of the one at bar is Johnson v. Poulson, 32 N. J. Eq. 390. It was there held that expressly charging a farm devised with certain payments, thereinafter specified, excludes those preceding.

When M. died, bequeathing to his wife, by a will, $1,000, to his son M. $400, and the residue of his estate to his" four children (naming them), and he left no personal estate,, it was held that the legacies were a charge .on the real estate. McCorn v. McGorn, 100 N. Y. 511. In that case-no reference was made in the will to any personal estate.. It was justly said that the two legacies were mere mockeries, unless meant to be a charge upon the real estate. See, also, Pierrepont v. Edwards, 25 N. Y. 128; Giddings v. Seward, 16 Id. 365. The distinction between these and many other such cases which might be cited, and the case, at bar, is apparent.

The fact that the testator stated in his will that he considered the amount to be justly and equitably due the-legatee, for services rendered him and his family since he-became of age, cannot be held to show an intent to charge-the land specifically devised with the payment thereof-The acknowledgment of a moral or equitable obligation-will not justify courts in setting aside the plain provisions of a will. Duncan v. Township of Franklin, 43 N. J. Eq. 143, 145; Towle v. Swasey, 106 Mass. 100.

It is also urged that the testator must have known at the time of executing the will that he was not possessed of sufficient personalty to pay this legacy, and that, therefore, he must have intended that it should be paid out of the devised realty. Some courts have given weight to this fact, and, under certain circumstances, it might have some significance, though it is doubted by the supreme court of Massachusetts how far this ought to be taken into account. Thayer v. Finnegan, 134 Mass. 65. We think it of little, if any, significance in the present case. What value the testator placed upon his personal property at that time does not appear. There is nothing to show that the will was made in anticipation of immediate death, or what his plans and hopes might be for accumulating other personal property. The provisions of the will are so clear that the only natural inference to be drawn is that he thought he either had, or should have, sufficient personal estate to satisfy this legacy. But, be this as it may, he had charged upon the devise, worth not to exceed $8,000, the payment of $3,800. The intention to charge it with further payments must clearly appear in the will, and we find no language in it to justify that conclusion. The construction placed upon this provision of the will by the learned circuit judge must be sustained.

Did the $1,000 legacy to Elizabeth lapse by reason of her death before the death of her mother? Here, also, the intent of the testator must control, if it can be gathered from the instrument. The question is not free from doubt, and as was said in Rood v. Hovey, 50 Mich. 400, “no amount of reasoning can throw much light on the meaning of the will." It is certain that the testator intended that the farm should go to his two sons Jacob and Rufus. It is equally certain that he intended to bequeath to Elizabeth the $1,000, and that in order to secure it, as well as the other legacies, he directed that the land should be sold to pay the legacies. Payment was postponed for the benefit of the widow, who had a life estate in the entire property, and was postponed a year after her death, in order to give the devisees, who were also the executors, time to raise the money and pay off the legacies, in which event their title would become complete. Should they refuse or neglect to pay, the legatees could, by proper proceedings, enforce a sale of the land to pay off the legacies. The rule is tersely stated in Bruce v. Charlton, 13 Sim. 68, as follows:

“If a testator gives a legacy to A. B. at the end of 10 years after his death, the legacy is contingent; but if he gives it to A. B. to be paid to him at the end of the 10 years, it is vested.”

See, also, Marsh v. Wheeler, 2 Edw. Ch. 162.

Unless an intention appears to the contrary, the will must be held to operate from the death of the’ testator. Rood v. Hovey, 50 Mich. 395; Curtis v. Fowler, 66 Id. 696. See, also, Lyman v. Vanderspiegel, 1 Aikens, 275.

We think the legacy did not lapse, but became vested in Elizabeth upon the decease of the testator, and descends to her heirs.

Decree affirmed. Costs will be paid out of the estate.

Long, Montgomery, and Hooker, JJ., concurred. Mc-Urath, O. J., did not sit.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    The Zimmerman Manufacturing Company v. Darius Dolph.

      Sale — Breach of warranty — Parol evidence — Waiver—Practice in Supreme Court.

    1. A contract for the purchase of a windmill contained a warranty as to the manner of its erection and the making of repairs made necessary by defective manufacture. In a suit by the vendor tp recover the purchase price of the mill, the vendee was permitted to introduce evidence of conversations between himself and the vendor’s agent prior to the execution of the contract, tending to prove verbal warranties, and also a circular issued by the vendor in regard to its windmills. And it is held that, the vendor being liable only on the warranty contained in the contract, and no fraud being claimed in its execution, it was error to admit the testimony; citing Nichols, Shepard & Co. v. Crandall, 77 Mich. 401,
    2. The contract provided for 60 days’ notice by the vendee to the vendor to furnish defective or damaged parts of the windmill. In response to a notice that the mill did not comply with the contract, an agent of the vendor made certain repairs, which, as claimed by the vendor, put the mill in good condition. The notes sued upon were then executed, and no notice of any defect was afterwards given until the notes matured. And it is held that the plaintiff was entitled to • an instruction that if the agent believed the mill was in proper condition to comply with the contract, and so notified the vendee, and left with that understanding, and the vendee, without notifying the vendor, continued to use the mill until the notes, matured, such conduct would be a waiver of any defect in the mill and of the right to reject it; citing Turner v. Machine & Foundry Co., 97 Mich. 166.
    3. Assignments of error upon the admissibility of testimony will not be considered where no reference is made, either in the assignments or in the brief, to the pages of the record an examination of which is necessary to the investigation of the questions raised.
    Error to Calhoun. (Smith, J.)
    Argued February 12, 1895.
    Decided March 5, 1895.

      Assumpsit. Plaintiff brings error.
    Reversed.
    The facts are stated in the opinion.

      Mains é Mains, for appellant.

      William H. Porter, for defendant.
   Grant, J.

Plaintiff sold to the defendant a windmill called the “Monarch.” The contract was in writing, dated August 28, 1888, and is as follows:

“ Zimmerman Mfg. Co., Established 1874, Incorporated 1886, Auburn, Indiana:
“Ship to me on or before Sept. 10,.1888, or as soon as possible thereafter, to Homer, via the cheapest R. R., the following list of articles, at prices opposite each, and erect at your earliest convenience:
1 ten-foot Monarch wind engine...................§80 00
1 thirty-foot derrick, upper platform and brackets. 15 00
1 improved lift pump standard No.............
1 2|xl0 brass-lined cylinder........................ 8 00
1 round tank, size 5 foot bottom, 2 foot stave..... 12 00
1 galvanized house tank, cased and painted-------- 10 00
Enough for well feet one-inch galvanized iron pipe, at 28 cents per foot for amount used.
And other fixtures or goods at manufacturers’ prices.
Well is 31 feet deep from top of ground, 41 feet of water.
“I agree to pay the freight [word “freight” stricken out] from Auburn, Ind.; draw engine and material from depot on arrival; furnish four anchor posts 7 feet long 6x6 inches square, 3 feet from top, and plank for platform; do all the digging of anchor holes and trenches for convey pipes; to board and assist workmen while putting up work, furnish them conveyance to and from railroad station or next job, if in the same vicinity, — all at my cost. When said wind engine and fixtures shall be erected and in good working order, I shall make the following payments, either cash or note, to the Zimmerman Mfg. Co., or its workmen, for goods bought as above specified, viz.: $50.00 note, due on or before October 1, 1889, payable at Homer; $70.00 note, due on or before October 1, 1890, bank of Thomas Lyon, — with interest payable at eight (6) per cent, per annum, waiving valuation laws.
“Warranty: The above wind engine is purchased with the distinct understanding that it is to be erected in a good and substantial manner, and safe from any injury from any tornado or gale that does not overturn the tower or injure other permanent structures in the neighborhood, and be furnished free of charge all repairs caused by defective manufacture, for one year from the day of erection, providing the mill is properly cared for. I shall give you 60 days’ notice to furnish defective or damaged parts. Defect in any one part to affect price and purchase of that part only. Lack of water no reason for non-settlement.
“ All the conditions upon which this order is made are stated herein, and on my failure to make the settlement hereinbefore provided for (when said mill is up and in working order), or to receive or accept said goods so ordered when shipped to me, or to draw the same from the depot on their arrival, or from the factory in accordance with this order, then the amount of the purchase price for the same, as herein stated, shall become due and payable without demand.
“I live on section 33, township of Clarendon, county of Calhoun, State of Michigan, 8 miles from Homer, and my postoffice address is Clarendon, and the title of the farm •on which the wind engine will be pla'ced is in my own name.
“Darius Dolpii.”

December 21, 1888, defendant executed two notes, one for $50, the other for $70, — the price of the mill. Attached to each note was the following:

“This note, being one of a series of two, is given for a Monarch wind engine and attachments; and it is hereby agreed between the seller and purchaser that said goods shall remain the property of the Zimmerman Mfg. Co. until payment with all interest, or judgments and costs obtained thereon shall have been paid, and, upon the failure to pay any one of such series when due, shall operate to render all immediately due and payable at the option of the legal holder without notice, and the said Zimmerman Mfg. Co. may, at their option, take possession of and remove all goods furnished by them, and any payment made them shall be for the use and rent of such goods. These notes to become due on the removal of the maker from the place where at this time resides. * * *
“I own in my own name 100 acres of land, which is worth $3,000, free of all incumbrances except $1,200. I own $500 worth of personal property over and above all indebtedness. And I make this statement for the purpose of procuring credit for which the within note is given.”

Defendant refused to pay, and plaintiff brought suit. In his plea of the general issue he gave “ notice of a breach of warranty, in that the plaintiff represented the mill to be a good mill, perfect in construction, and would do good work, whereas the mill is imperfect, and is worthless and of no value, will not run or pump water except in high winds, and was never completed, in that plaintiff did not connect mill to tank.”

Defendant was permitted to introduce evidence of conversations between himself and plaintiff's agent prior to the execution of the contract, tending to prove verbal warranties, and also a circular issued by plaintiff in regard to its mill. The admission of this testimony was error. The parties had deliberately put their contract in writing. No fraud is claimed in the execution of the contract. The only warranty for which the plaintiff is liable is that-contained in the written contract. The case is expressly ruled by Nichols, Shepard & Co. v. Crandall, 77 Mich. 401.

By the terms of the contract, defendant agreed to notify the plaintiff, by giving 60 days* notice, to furnish defective or damaged parts. One Warwick, an agent of' the plaintiff, in response to a notice that the mill did not comply with the contract, made certain repairs. It was-claimed by the plaintiff that' the mill was then put in good condition, in compliance with the contract; that the notes were then given; and that defendant gave no notice-of any defect after that time, and until the notes matured. The court should have instructed the jury, as plaintiff' requested, that if Mr. Warwick believed the mill was in proper condition to comply with the contract, so notified the defendant, and left with that understanding, and the-defendant, without notifying the plaintiff, continued the use of the mill until the notes wére due, such conduct-would be a waiver of any defect and of the right to reject-it. Turner v. Machine & Foundry Co., 97 Mich. 166. The court instructed the jury that, if defendant did not know what the defect was, he was under no obligation to-give any notice. His inability to determine what the defect-was did not obviate the necessity to notify plaintiff that-the mill was defective and did not work. The law would not permit him to keep and use the mill for a year without objection, and then defend upon the ground that it-did not comply with the contract. Plaintiff was entitled to notice and the right to remedy the defect, if any existed.

Many other errors are assigned, most of them relating to the admissibility of evidence. Inasmuch as they depend very largely upon the construction of the contract, already decided, it is unnecessary to consider them. As to some of them no reference is made, either in the assignments of error or in the brief, to the pages of the record which it is necessary to examine in the investigation of the questions raised. Such points will not be considered. Attorneys, in either their briefs or assignments, should refer to the record, and not impose on this Court the burden of reading a record to find them.

Judgment reversed, and new trial ordered.

McGrath, C. J., Long and Hooker, JJ., concurred. Montgomery, J., did not sit.


author: Long, J.

text:
    John J. Black v. William L. Carpenter, Circuit Judge of Wayne County.

      Ejectment — Costs.
    How. Stat. §§ 8964, 8967-8969, contemplate but one bill of costs in favor of the defendants in an action of ejectment where the case has gone to trial and all of the defendants are acquitted.

      Mandamus.

    Argued February 12, 1895.
    Denied March 5, 1895.
    Relator applied for mandamus to compel respondent to set aside an .order denying a retaxation of costs in an action of ejectment. The facts are stated in the opinion.

      S. W. Stewart, for relator.

      Fraser é Gates, for respondent.
   Long, J.

Elizabeth Jeffreys commenced suit in ejectment on April 5, 1893, in the Wayne circuit court, against Joseph C. Hough, F. Robert Hawley, and John J. Black, the relator, jointly, as defendants. All the defendants appeared and pleaded separately. Relator and Hawley appeared by the same attorney, S. W. Stewart, while Mr. Hongh appeared and pleaded by his attorney, James H. Pound. The cause was placed upon the calendar for trial for several terms, and was continued each time. At the April term, 1894, the cause was brought to trial before a jury, who, under the direction of the court, returned a verdict in favor of the defendants. Judgment was entered upon the verdict. Relator presented his separate bill of ■costs to the clerk, including attorney’s and term fees to the amount of $45. This the clerk reduced to the sum of $15, on the ground that only one attorney’s fee or term fee could be taxed, and that relator was entitled to only ■one-third. A motion for retaxation was made before the •court, and denied. Mandamus is now asked to compel that court to set aside its order, and tax to the relator the full amount.

It is claimed that each defendant is entitled to tax his full costs. How. Stat. § 8964, provides:

“In the following cases, if the plaintiff recover judgment by default, upon confession, verdict, demurrer, or ■otherwise, in any action or proceeding at law, he shall recover his costs:
“First. In all actions of ejectment, or for waste or private nuisance, and in all proceedings to recover the possession of land forcibly entered, or forcibly or otherwise ■unlawfully detained.”

It is provided by sections 8967, 8968, and 8969 that—

“In all actions and proceedings in which the plaintiff would be entitled to costs upon a judgment rendered in his favor, if, after the appearance of the defendant, such plaintiff be non-suited, discontinue his suit, be non-prossed, or judgment pass against him on .verdict, demurrer, or ■otherwise, or in case a plaintiff recover judgment, but not ■enough to entitle him to costs, the defendant shall have judgment to recover against such plaintiff his full .costs,” ■etc.
“When several persons are made defendants in any suit or proceeding, or in any action in which the plaintiff, upon a recovery, would be entitled to costs, and one or more of them shall be acquitted by verdict on the trial, or by judgment upon plea in abatement, or on demurrer, or by the plaintiff’s discontinuing as to such defendant, every person so acquitted shall recover his costs of suit in like manner as if judgment had been rendered in favor of all the defendants.
“But if such person be so acquitted in any action brought for the recovery of land, or the possession thereof, or for nuisance, * * * and if the judge or court before whom such trial shall be had or such judgment shall be given shall certify in the minutes of the court that there was reasonable cause for making the person so acquitted a defendant in such action, then such person shall not be entitled to recover such oosts, and no costs shall be recovered against him.”

The right to recover costs is purely statutory. Booth v. McQueen, 1 Doug. 41; Jeffery v. Hursh, 58 Mich. 247. We find nothing in these statutes which would entitle each defendant to his full costs. If one or more of the defendants are acquitted upon the trial, and the plaintiff succeeds against the remaining defendant or defendants, those acquitted would be entitled to the costs. In the present action the trial proceeded against all, and a joint verdict was rendered in favor of all the defendants'. It was but one trial, and but one bill of costs can be made against the plaintiff. It frequently happens that a great, many persons are made parties defendant in ejectment and other actions, and this is the first time where a claim has. been made that defendants upon acquittal, after a trial, would each be entitled to full costs. We think the statute contemplates but one bill of costs in favor of defendants in those actions where the cause has gone to trial and all are acquitted.

The court below was correct, and the writ of mandamus will be denied.

The other Justices concurred.


text:
    William M. Barney v. James C. Rutledge.

      Infants — Chattel mortgage — Estoppel.
    1. A chattel, mortgage given by a minor, whether void or voidable, is not enforcible as against the mortgagor during his minority; citing Corey v. Burton, 32 Mich. 30.'
    2. A minor mortgaged a horse belonging to his father, as also one purchased by himself, to secure the purchase price of the latter horse. Prior to the purchase the father had informed the mortgagee that his son had a horse similar to' the one owned by the mortgagee; that the son wanted to get a team, and would give the mortgagee a good deal for his horse if he would sell it. When the mortgage became due the father refused to surrender his horse, and it was seized under the mortgage, and the father replevied it. And it is held that there is nothing in the evidence to justify a finding that the father is estopped from asserting title to his horse.
    Error to Alpena. (Kelley, J.)
    Submitted on briefs February 13, 1895.
    Decided March 5, 1895.
    Replevin. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      I. 8. Canfield (C. E. Williams, of counsel), for appellant.

      J. Cavanagli (J. D. Turnbull, of counsel), for plaintiff.

       As to necessity of returning consideration in order to disaffirm infants’ contracts, see Englebert v. Pritchett, 26 L. R. A. 177, and note.

   Long, J.

Plaintiff's minor son gave a chattel mortgage to George Stubbs for $60, covering two horses. One of these horses was purchased from Stubbs by the son, and the chattel mortgage was given to secure the purchase money. When the mortgage became due, Stubbs took possession of the horse sold by him, and demanded the other horse covered by the mortgage. The horse at that time was in the possession of the plaintiff, who refused to surrender it. Stubbs placed the mortgage in the hands of the defendant, a constable, and directed him to take the horse under it. The defendant took the horse on the mortgage, and the plaintiff brought replevin. On the trial of the replevin suit in the circuit, the court directed verdict and judgment in favor of plaintiff.

On the trial the plaintiff showed his title to the horse under a purchase from Mr. Schram. He also showed that, at the time the chattel mortgage was given, his son, who gave it, was a minor, and had not at the time of the commencement of the action attained his majority. Mr. Stubbs was sworn as a witness in his own behalf, and testified substantially as follows:

“I met the plaintiff at a camp where I was picking berries. I had my pony with me, and plaintiff inquired if I owned the pony. He said his son had one about like that, and" would give me a mighty good deal. He stated that his son had a pony of about the same color and of about the same weight, and wanted to get a little team; that the son had a piece of land, and he would give me a good deal for that pony if I would sell it.”

Witness was then asked what the son said about this horse (the one in controversy). This was objected to and excluded.

The court, in directing verdict for plaintiff, stated that there was no question to go to the jury, as the mortgage was void, and created no right in Stubbs to the horse. It is-now contended by the defendant:

1. That the plaintiff was estopped from setting up his title.

3. That the court was in error in holding the mortgage void.

3. That the court was in error in directing verdict for the plaintiff.

We think it does not matter whether the mortgage was void or only voidable. The mortgagor was a minor at the time of its execution, and had not attained his majority at the time of the commencement of this suit. As against the mortgagor, Mr. Stubbs had no right to enforce it. Corey v. Burton, 32 Mich. 30. He did receive back his own horse, which was voluntarily surrendered to him. The horse in controversy at the time the constable «ought to take it was in the possession of the plaintiff. He took the horse against plaintiff’s objection. It clearly .appears that the plaintiff was the owner of the horse, and we see nothing in the evidence which would have justified the jury in finding the plaintiff estopped from asserting title. There is no testimony showing or tending to show that plaintiff knew or had reason to believe that his son was intending to deal with the horse in question as his own, or to give security upon it if he purchased the- horse from Stubbs, or that Stubbs intended to take a mortgage .upon the horse in controversy.

Judgment is affirmed.

Grant, Montgomery, and Hooker, JJ., concurred. McGrath, O. J., did not sit.


text:
    Harry Chandler and Frank H. Goddard v. The Board of Education of the City of Detroit.

      Public improvements — Lowest bidder — Rejection of bid.

    A board of education, which was not required by statute to award contracts to the lowest bidder, advertised for proposals for the construction of a school building. The right to reject any and all bids was expressly reserved in the notice. Several. bids, were reported to the board, the acceptance of one of which was recommended by the committee making the report. At. a subsequent meeting of the board, the report, which had been laid on the table, was amended by substituting in place of said bid another exceeding it in amount in the sum of $879, and the report, as amended, adopted. The contractors whose bid was rejécted filed a bill to restrain the board from enters ing into a contract with the successful bidder. No fraud, corruption, or collusion was alleged. ' And it is held that, when the complainants put in their proposal, they did so with full notice that, though it might be the lowest bid, it might be-rejected; that the board, in. rejecting said bid, was acting within the right thus .reserved; that it had a discretion in the matter, which is not shown to have been abused, and the relief asked for was properly refused.

    Appeal from Wayne. (Lillibridge, J.)
    Argued February 13, 1895.
    Decided March 5, 1895.
    Bill to restrain defendant from entering into a contract, for the construction of a school-house in the city of Detroit, complainants claiming to be the lowest bidders for such work. Complainants appeal.
    Decree affirmed.
    The facts are stated in the opinion.

      George Gartner, for complainants.

      William E. Bauble, for defendant.

       The “right of lowest bidder on a public contract” is the subject of a valuable note to the case of Anderson v. Board of Directors of the St. Louis Public Schools, 26 L. R. A. 707.

   Long, J.

This cause wa's heard in the court below on pleadings and proofs taken in open court, and the bill dismissed.

In 1894 the board of education purchased a site upon which to erect a high-school building. It advertised for proposals for furnishing materials and labor for the construction of the building in March following, requiring all proposals to be accompanied by a certified bank check of 6 per cent, of the amount of the bid, the same to be filed with the bid. Complainants filed a proposal to do the work for 8177,580, and accompanied it • with a certified bank ■check of 6 per cent. Other proposals were made with certified bank cheeks, one .from A. .Chapoton for-8879 greater than complainants’ bid- At a regular meeting of the board in April the committee having the bids in charge reported them to the board, and recommended that complainants’ bid be accepted. This report was laid on the table, and at a subsequent meeting of the board the matter was taken up, the report amended by substituting the Chapoton bid in place of complainants’, and the report, ■as thus amended, adopted. This bill is filed to restrain the board from entering into a contract with Mr. Chapoton ■or any other bidders except the complainants.

It is alleged in the bill that the action of the defendant in rejecting complainants’ proposal was without any good, valid, or legal reason, and that the same was rejected .-arbitrarily, and without any reason being assigned therefor, and that the'action of the board'in rejecting it and accepting the Chapoton bid was invalid. Complainants showed upon the hearing that the time and responsibility of getting up the.bid were "worth from 81,000 to 83,000. The defendant asserts that its action in the premises has been for the best public interest, and in accordance with the powers given and the duties imposed upon it under the act relative to free schools in the city of Detroit, and the several acts amendatory thereof. It is further asserted that the complainants were not deceived or misled by the terms and conditions of the notice, but filed their proposal well knowing that the defendant could reject any and all proposals made under the same.

The advertised notice for proposals under which complainants filed their proposal contained the following notice:

“The right is expressly reserved to reject any and all bids and to waive any defects in bids.”

No fraud, corruption, or collusion is alleged, and there-is no statute requiring contracts to be awarded to the lowest-bidder. The board expressly reserved the right to reject any and all bids, and in the rejection of the complainants’’ bid it was acting within the right reserved by the notice. The board had a discretion in the matter, and there is no-evidence that it was abused. When the complainants put. in their proposal, they did so with full notice that, though it might be the lowest bid, it might be rejected.

In State v. Board of Education, 24 Wis. 683, 684, the writ of mandamus was asked to compel the respondent to award to relators the contract to build a school-house, they being the lowest bidders. It was said:

“Where proposals are made and bids put in in the usual manner in letting contracts for public works, the lowest bidder has no such fixed, absolute right that he is entitled to a mandamus to compel the letting of the contract to him after his bid has been in fact rejected and the contract awarded to another. The statutory provision requiring the contract in such cases to be let to the lowest bidder is designed for the benefit and protection of the public, and not of the bidders.”

But in the present case there is no such statute, and, as we have seen, the notice reserved the right to reject any and all bids.

Even when the bid has been accepted, and the officers of the municipality refuse to enter into the contract, it is held that mandamus will not lie to compel the .execution of the contract, but the remedy of the bidder, if any, is. in an action at law for damages. People v. Campbell, 72 N. Y. 496.

The writ of mandamus was denied by this Court in Talbot Paving Co. v. Common Council of Detroit, 91 Mich. 262. The writ was asked to compel the common councill to approve a paving contract made with' relator by the-board of public works. The contract had been let to> anothbr party, and the work done. It was said that the-relator must be left to his remedy against the city; citing the above cases, holding that the remedy, if any, is for damages, and not an enforcement of thé contract.

In the present case no contract was entered into, and the court below very properly refused to grant the relief, asked, and dismissed complainants1 bill.

The decree will be affirmed, with costs.

Grant, Montgomery, and Hooker, JJ., concurred. McGrath, O. J., did not sit.


text:
    August Lau v. George N. Fletcher et al.

      Master and servant — Negligence—Defective appliances — Expert testimony — Questions for jury.

    1. In an action by an employé for injuries received by the breaking of a saw, it is competent for witnesses who are shown to be familiar with such saws, and who have had large experience in their use, and know their strength," and -the force to which they are subjected, to testify that in their judgment the saw in question was suitable and safe for use.

      ■2. The testimony on the part of the defendant tended to show that the plaintiff was not struck by a piece of the saw, as claimed by him, and that the saw, which had been mended, was suitable and safe for the use to 'which it was applied. A-nd it is held that the court properly refused to direct a verdict for the plaintiff, leaving to the jury only the question of damages.
    Error to Alpena. (Kelley, J.)
    Argued February 13, 1895.
    Decided March 5, 1895.
    Negligence case. Plaintiff brings error.
    Affirmed.
    The •'facts are stated in the opinion.

      J. D. Turnbull (W. -E. Depew, of counsel), for appellant. ••

      Frank Emerick, for defendants.
   Grant, J.

The ■ defendants own ■ and operate a pulp mill. One of the' machines used is called the “double •cutter,” consisting of a. frame or table 4 feet high, 9 feet long, and 4 feet wide, the saw, the carriage, and the gearing. The frame is of solid wrought iron, with strong posts at the corners, and a rectangular opening at the top, ever the saw. The saw is placed horizontally in the frame, .and 10 inches below the top. The circular saw is 40 inches in diameter,' and revolves on a fixed pivot in the center. In operating the machine, the carriage, which is .above the saw, moves towards and from the saw alternately. At each end of the carriage is a clamp, or V-¡shaped piece of iron, holding the bolts of wood to be ■sawed. The bolts are. 2 feet long and from 4 to 8 inches in diameter.. The saw at.each, cut takes off about 1 inch from the lower end of the bolt, the pieces dropping down through an opening in the floor directly under the saw, ’into an elevator, by which' they are carried to another room. The front side of the frame, where the operator stands, is protected by a guard, consisting of a plank covered with iron, of sufficient width to prevent pieces of the saw, in the event of breaking, or pieces of the bolt, from flying out. The right end is also protected by a plank or board 12 inches wide, for the same purpose. The sawdust carrier incloses the left end of the frame. The back side of the frame is close to the wall of the room, where no one has occasion to go. If the saw breaks, pieces cannot escape into the room except by tearing through the protections around the frame. Plaintiff was running a single cutter about five feet to the right of the double' cutter. The operator of the double cutter threw the ends of the blocks which he could not saw into a box standing between the two cutters. On the right of the plaintiff was a gang saw, whose operator also threw similar pieces into a tub standing at the right of the plaintiff’s machine. The business of the plaintiff was to saw those pieces. Plaintiff had been at work in this room for nearly five years. The double cutter had been in operation for two years. It is conclusively established by the testimony on the part of both the plaintiff and the defendants that these saws frequently broke, even though they were perfectly sound. One of plaintiff’s witnesses, who had operated this machine before the accident, testified that sometimes two broke in one week, and sometimes they would run three or four months without breaking. The reason for this is that the “ dogs,” which come up with a • spring to hold the bolts in place, “do not always go up solid,” as the witnesses express it, so as to hold the bolts entirely firm. Whenever this happens, the bolts bind the saw, and breaking generally results.

On November 10, 1891, the defendants, having broken the saw, and having no new one to put in, took a saw, which had a crack in it two or three inches long, to a foundry, had it riveted, and placed in the machine for use. It did the work without trouble until December 9, when it broke. Plaintiff claims that a piece of the saw flew out, struck him in the side, and injured him. The sole negligence alleged is the use of an unsound saw.

The conflict of evidence was upon the following points:

1. Plaintiff's testimony tended to show that when the saws broke pieces flew around the room. Defendants* testimony tended' to show that it was impossible for pieces to fly out, on account of the guard.
2. Plaintiff claims that he was struck by a piece of the saw, while defendants claim that when the saw broke, which made a great noise, the plaintiff, in stepping or running back or to his right, fell over the tub standing-near him.
3. One witness testified that he picked up a piece of the saw near where the plaintiff stood. Defendants insisted that the only way in which such piece could escape was by.dropping down under the frame, striking upon the side of the opening to the elevator, and bounding out upon the floor, in which case it could do no harm. The frame was open just above the floor, and the only way to see the saw was by stooping down and looking up under the table, or by standing up above the frame and looking down upon it.
4. Plaintiff's testimony tended to show that the protection at the right end of the cutter was a board an inch thick, while defendants* testimony showed it to be a plank l-£ to 2 inches thick.
5. There was also a conflict of evidence on the question whether the saw was suitable and safe for use.

The case was submitted to the jury under the charge of the court, and a verdict rendered for the defendants.

The defendants introduced evidence of expert witnesses, who were familiar with these machines and saws, and had ha'd large experience in their use, and who knew their strength and the force to which they were subjected, to the effect that in their judgment the saw in question was suitable and safe for use. We think the testimony was properly admitted. It cannot be said that one unfamiliar with the use of such machines is as competent to. judge of their safety and fitness as those experienced and skilled in their use, and who have knowledge of their construction. .

The judge very fully and carefully instructed the jury upon the general principles of negligence involved in the case,' and as to the duty of the employer to furnish a safe place and safe appliances, and as to the risks which the plaintiff assumed. These principles are so well established, and so familiar to the profession, that we deem it unnecessary to quote from the charge. The circuit judge closed his instructions upon the negligence of the defendants by saying:

“The question for you to determine in this case is, was-this saw at the time a safe and proper saw to be used in the connection in which it was then being used? Was it-such a saw as men of ordinary prudence and care and caution would have used under like circumstances?”

The verdict and judgment must stand, unless, as the-plaintiff contends, the court should have directed a verdict-for the plaintiff, leaving to the jury only the question of damages. It is unnecessary to discuss this question under the conflicting evidence as above stated. If the-jury believed the evidence on the part of the defendants, the plaintiff was not struck by a piece of the saw. One-of the plaintiff’s own witnesses testified that the pieces of the saw could not escape from the table without tearing through the board or plank protection at the end. No-witness on the part of the plaintiff testified that the protection was torn off or broken. Neither can it be said as a matter of law that it was negligence to use the-mended saV. It had done the work for a month, and there is no evidence tending to show that it was weaker at the mended point than at any other, or that it broke-at that point, or in consequence of the crack in its mended condition. Witnesses for the plaintiff testified positively that it was not safe/and that they so-notified defendants’ agent. This information was denied, and defendants’.witnesses as positively testified that it was safe.

Judgment affirmed.

Long, Montgomery, and Hooker, JJ., concurred. McGrath, C. J., did not sit.


author: Long, J,

text:
    Joseph Houseman et al. v. The Merchants’ Dispatch Transportation Company.

      Carriers — Delay in transporting goods — Damages—Market value —Findings of fact.

    1. In an action against a common carrier to recover damages alleged to have been sustained by reason of delay in transporting a case of goods from the place of purchase to the ■place of destination, the measure of damages in case of recov- ■ ery is the difference between the market value of the goods at the time when and the place where, by the contract, they were to be delivered, and such value at that place at the time of their actual delivery.
    2. - Two of the plaintiffs, whose evidence was not contradicted, and who alone testified on tha't branch of the case, testified that the goods depreciated in value a given per cent, between the time when they should have arrived and the time of their arrival. On cross-examination one of the witnesses admitted that the plaintiffs had never offered to sell the goods; that he could not say what they would have sold for; that the goods might, immediately upon their arrival, have been sold for cost, at a detriment to other goods upon which plaintiffs were making a good profit; that possibly the goods could not have been purchased at a less price at the time they were received than that agreed to be paid for them; and that he based his judgment as to the depreciation in the value of the goods upon what they were worth to the plaintiffs. The testimony of the other witness also failed to show any depreciation in the market value of the goods. The court found that there had been.no such depreciation, and rendered a judgment for the ■ defendant. And it is held that there was some evidence to support the finding, and that the conclusion of law properly followed.
    Error to Kent. (Grove, J.)
    Submitted on briefs February 14, 1895.
    Decided March 5, 1895.

      Assumpsit. Plaintiffs bring error.
    Affirmed.
    The facts are stated in the opinion.

      Maurice M. Houseman, for appellants.

      L. G. Butherford, for defendant.
   Long, J,

This action is brought to recover damages growing out of a delay in transporting a case of merchandise from New York to Grand Rapids, this State. The cause was tried before the court without a jury, and the following findings made:

“1. The plaintiffs are retail clothing dealers in the city of Grand Rapids.
“ 2. On November 8, • 1893, they made the following order:
“ ‘Newbokg, Rosenburg & Go.,
“ ‘200 Greene St.,
“‘New York, N. Y.:
“ ‘ Ship 25 each two light shades Washington beaver overcoats.
“‘Houseman, Donnally & Jones.’
“3. The plaintiffs gave no special instructions to any one as to the manner or by what line the goods in question should be shipped, but the plaintiffs had previously given definite instructions to Newborg, Rosenburg & Go.,, the party from whom the goods in question in this suit were- purchased, at the. city of New York, to ship all goods ordered from said Newborg, Rosenburg & Go. via the Merchants’ Dispatch Transportation Go.
“4. On November 9,' 1893, . Newborg, Rosenburg & Co. delivered -the goods to the defendant, and with them the bill of lading, which contained' the following conditions:
“ f No carrier is bound to carry said property by any particular train or vessel, or in time for any- particular market, or otherwise than with as reasonable dispatch as its general business will permit.’
“ This bill of lading was forwarded by the shippers to plaintiffs.
. “ 5. The goods were delayed in transit, and did not arrive at Grand Eapids until the 28th of November. Upon their arrival, the defendant caused the goods to be delivered at the plaintiffs’ place of business, who refused to receive them.”
“ 7. On the 3d of January, 1894, the defendant again notified plaintiffs that it desired them to receive the goods. On January 4 the plaintiffs again refused to receive them. On January 10 defendant again requested plaintiffs to receive the goods, and was again refused. On January 17 the defendant again requested plaintiffs to receive the goods. They refused to do so, and on the following day commenced this action by summons.
“ 8. I further find that the plaintiffs ordered these goods for the purpose of offering them at a special sale; but I also find that neither the defendant, nor the parties in New York from whom the goods were ordered, was notified that the goods were purchased for any other purpose than to sell at retail in the ordinary course of trade, and that the defendant never knew that the goods had been purchased for any special purpose until after their arrival in Grand Eapids and refusal by the plaintiffs; yet, if they had been delivered within six days from date of shipment, they would have been in time for said special sale.
“9. The cause of the delay of the receipt of the goods is not explained by any evidence in the case.
“10. On the 15th day of April, 1894, almost three months after this suit was commenced, the plaintiffs went to the Detroit, Lansing & Northern Eailway freight house, and took the goods into their possession, where they were at the time this action was tried. The cost price of the goods was $250.
“11. I further find that there was no change in the market value of the goods between the 9th day of November, 1893, the date of shipment, and the 28th day of November, 1893, the date of their arrival.
“12. I further find that, in soliciting the business of plaintiffs, defendant’s agent had promised to deliver all goods shipped via its line, the Merchants’ Dispatch Transportation Company, in from four to six days from the city ■of New York to the city of Grand Rapids, and in pursuance of said promises the plaintiffs had often shipped goods by defendant’s line, and the said defendant had, for a long period of time and on many particular occasions, delivered such goods so ordered in from four to six days from the •city of New York to the city of Grand Rapids.
“13. The goods in question were offered by the said defendant to the said plaintiffs 19 or 20 days after the same had been delivered by the said Newborg, Rosenburg & Co. to the said defendant at the city of New York.”
“I find from the foregoing facts that the plaintiffs are not entitled to recover in this action, and that a judgment ■of no cause of action should be given, and that the defendant recover its costs to be taxed.”

Exception is taken to these findings of fact and the conclusion of law. It is contended:

1. That there is no evidence to support the eleventh ■finding of fact, but that the evidence supports the proposed amendment to such finding, as follows:

“That there was a change in the market value of' the goods ■ordered by plaintiffs from Newborg, Rosenburg & Co. between the 9th of November, 1898, the date of shipment, and the value of said goods on the day on which they were tendered to the plaintiffs, to wit, November 28, 1898, of at least 40 per cent, in the value of said goods.”

2. That the proposed sixteenth finding of fact should have been allowed, as follows:

“The only testimony in the case as to the market value of the goods in question at any time was the testimony of Eugene W. Jones and Edward H. Donnally, two of the plaintiffs. Their testimony was that the goods had depreciated from 40 to 50 per cent, between the time they should have arrived and the time they did arrive, in the market of their arrival; and their testimony was uncontradicted. ”

3. That the court erred in its conclusion of law, and in refusing to find, as requested, that plaintiffs recover as their damages the sum of $150, with their costs to be taxed.

While it is true that there was testimony that a change had taken place in the market value of the goods, and that Jones and Donnally were the only witnesses to that fact, yet we must take all their testimony to determine whether the court should have found as requested.; On cross-examination Mr. Jones' testified:

“ Q. Have you ever put these goods on the market?
“A. No, sir. -
“Q. What can they be sold for on this market?
“A. That I could riot say. We have not offered them for sale; they may have sold and they may not. ■ •
“ Q. Don’t you think that if, immediately upon the receipt of these goods, you had put them on the market, you could have got the cost out of them readily enough?
“A. Well, there comes a question of business, possibly, that don’t enter into direct testimony and a lawsuit. We might have disposed of these goods at a detriment to other goods that we were making a good profit on; but we were not doing business to sell Merchants’ Dispatch Company’s goods or anybody’s else goods for cost.”

Mr. Jones further stated that possibly the goods could not have been purchased at a less price at the'time thej1received'them than the price agreed to be'paid, and that what he based his judgment of depreciation upon was what, the goods were worth to his firm. Mr. Donnally’s testimony also fails to disclose any depreciation in' the market value of the goods on the day they were delivered from the day they were purchased.

We think the evidence fully sustained the finding of the court. It is evident'that the plaintiffs regarded'the value of the goods at what they were worth to the firm, and not the market value. That the market value had not depreciated is .admitted by .Mr. Jones. The measure of damages in the case would be the difference between-the market value at the time when and the place where, by the contract, they were to be delivered, and such value-at that place at the time they were actually delivered. 3 Suth. Dam. p. 219. There was some evidence to support the findings of the court below, and the conclusion of law properly followed.

We find no error, and the judgment must be affirmed.

The other Justices concurred.


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    The Board of Supervisors of Alpena County v. Andrew J. Simmons, County Clerk of Alpena County.

      Boards of supervisors — Bonds—Limitation as to maturity— County roads.

    1. How. Stat. § 483, subd. 8, which provides that the several boards of supervisors shall have power to provide for the payment of any loan made by them by a tax upon the county, which shall in all cases be within 15 years from the date of such loan, limits the issue of all county bonds to 15 years; citing McMullen v. Circuit Judge, 103 Mich. 608.
    3. Act No. 149, Laws of 1893, which provides for a county road system, and authorizes the issuance of bonds upon a vote of the electors of the county to raise money to be expended in the construction and maintenance of such roads, is silent as to the time of the maturity of said bonds, which is therefore limited by How. Stat. § 483, subd. 8, to 15 years.

      Certiorari to Alpena. (Kelley, J.)
    Argued February 26, 1895.
    Decided March 5, 1895.
    Relator applied to the circuit court for mandamus to compel respondent to execute certain bonds, and brings certiorari to review order denying the writ.
    Affirmed.
    The facts are stated in the opinion.

      L. G: Dafoe, for relator.

      A. M. Marshall, for respondent.
   Grant, J.

At a special election held July 17, 1893, "the electors of Alpena county adopted , the county road ¿system. The whole number of votes cast in the county was 738, of which number 583 were for it, and 155 against it. The board of supervisors thereupon provided for the 'election of commissioners, and submitted a proposition to ¿the electors to bond the county for $100,000, the first •$5,000 to be payable in 20 years, and the residue payable $5,000 each year thereafter; the bonds to bear annual interest at 5 per cent., payable semi-annually. The proposition carried by a vote of 1,614 to 666. The county clerk declined to sign the bonds, and the purpose of this proceeding is to compel their execution by him.

It is sought to distinguish this case from that of McMullen v. Circuit Judge, 102 Mich. 608, upon the ground that Act No. 149, Laws Of 1893, entirely revolutionizes the road system and the road laws, and confers upon the people of the county the right to issue bonds to any extent, 'and payable at any time in the future. The authority to issue bonds is found in section 22 of the act of 1893, which provides that the board of supervisors may, by a two-thirds vote of all the members elect, resolve to issue bonds, '.and shall submit the question to a vote of the electors. The act says nothing about the maturity of such bonds.

We do not think the relator’s argument is sound. The act which controlled the McMullen case was a general law entitled—

“An act to define the powers and duties of the boards of supervisors of the several counties, and to confer upon them certain local, administrative, and legislative powers.”

Its provisions control the issue of all bonds to be issued Iby the board of supervisors in the absence of other controlling provisions of the act authorizing bonds. : The act •of 1893 authorizes the issue of bonds, but is entirely silent ns to the time of their maturity. It is fair to conclude ■that the Legislature did not- intend to depart, from, the policy of the law which had been upon the statute book ior more than 40 years, and which is stated in the’McMullen case.' Under relator’s contention, the people of a ■county could incur a debt of enormous magnitude, and postpone its payment for from 50 to 100 years or more. •Such power should be expressly conferred. .It ought not to and cannot be implied.

The action of the circuit court in denying the writ of ■mandamus is affirmed.

The other Justices concurred.

       How. Stat. § 473 et seq.


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    Dora A. Briant v. The Detroit, Lansing & Northern Railroad Company.

      .Railroad companiés — Fires—Contributory negligence — Condition of right of way. • .
    1. A wooden planing mill and the machinery used therein,' owned by the plaintiff, and standing within about 34 feet of defendant’s side track, were’ destroyed by fire communicated, as claimed by plaintiff, from one of defendant’s engines by reason of the negligence of its employés. The mill was built by plaintiff’s grantors, had a sheet iron roof, and had been idle for about 18 months at the time of the fire. Plaintiff sued to recover the value of the mill and machinery. And it is held that a request of the defendant for an instruction that, in so, constructing or maintaining said mill, the plaintiff was guilty of negligence per se, and could not recover, was properly refused. . . ;

      % The defendant removed a platform from the side, of the mill, and deposited the planks and timbers of which it was constructed into a ravine on defendant’s right of way, lying between the mill and the side track, and covered said material with sawdust and shavings. The plaintiff notified defendant’s-section foreman of the situation, and the foreman promised to-cover the material with cinders. A short time before the fire-plaintiff visited the mill, and found that the foreman’s promise had not been kept, and that the sawdust and shavings were scattered about on the top of the ground so that there was-danger from fire; and, although it was a dry time, he went away without leaving the mill in charge of any one except his-family, who lived two blocks away, and without notifying the-defendant, or taking any action to protect the property, and did not return again until after the fire. And it is held that-the defendant’s servants were responsible for the condition of the sawdust and shavings; that the plaintiff, when he left, had a right, in view of the promise of the foreman, to presume that the right of way would be put in a safe condition;, and that the court properly refused a request for an instruction that the plaintiff, in thus leaving his property without taking steps for its protection, or notifying the defendant of the-situation, was guilty of contributory negligence.
    Error to Montcalm. (Daboll, J., presiding.)
    Argued February 1, 1895.
    Decided March 5, 1895.
    Case. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Smiley, Smith & Stevens, for appellant.

      FitzGerald & Barry (Francis A. Stace, of counsel), for plaintiff.
   Long, J.

This action is brought to recover the value of a planing mill and the machinery situated therein, which were destroyed by fire, originating, it is claimed, from an engine of the defendant in operating its train upon its tracks opposite the mill property, April 20, 1892. The plaintiff recovered verdict and judgment for $4,600.

The evidence showed that the railroad was first constructed. The defendant asked the court to instruct the jury that—

'“The undisputed evidence shows that the railroad was -constructed first, and the mill afterwards; that it was a wooden building, except that the roof was covered with iron; that by reason of its close proximity to the defendant’s tracks it was dangerous, and liable to take fire from •engines upon defendant’s tracks; that in so constructing or maintaining his mill the plaintiff was guilty of negligence, •and cannot recover.”

It is contended by this request that it is negligence per se to build or maintain a wooden building near a railroad track. Counsel cite, in support of their claim, Kendrick v. Towle, 60 Mich. 363. In that case the mill had been built prior to the time the railroad was constructed there; and it was held that the defendant had the right to build a railroad track, and conduct business thereon by running trains within 30 or 40 feet of the plaintiff’s mill; that it was a lawful, but a hazardous, business; and that the care and caution required of the owner of the railroad must be commensurate with, and in proportion to, the risks assumed.

In the present case the court charged the jury as to the degree of care the plaintiff must exercise as follows:

“The plaintiff or his grantors having erected the mill in close proximity to the railroad track, * * * he must be held to have known of the risk incident thereto; and, if there was a special risk, arising from no want of care in the proper equipment and management of the engine in question, that risk is not chargeable to the railroad, but is an incident to the situation, and the plaintiff cannot recover.”

The court stated further:

“The plaintiff, having established himself along the line of the defendant’s right of way, and in close proximity to its track, Avhere its locomotives would be expected to run, assumed all risk incident thereto; and, if this fire occurred from no want of care in the proper equipment and management of its engines and trains, then such fire is not chargeable to the defendant, and the plaintiff cannot recover.”

And again, the court said:

■ “ The plaintiff or his grantors having erected his mill adjacent to the right of way of the defendant, where the' same was thus'exposed to all risks incident to the use of engines near said premises, the obligation of care to prevent fire from such engines of the defendant from burning the mill of the plaintiff, by reason of catching in any combustible’.matter about such mill, and upon the premises of the plaintiff in near proximity to such track, rested upon the -plaintiff. ■ And if the jury find that such fire was communicated to the mill by' reason of the neglect of the plaintiff to comply with such obligation, the plaintiff’ would then be guilty of contributory negligence and cannot recover.”

And again, the court said:

“The railroad had a perfect right to run and operate its trains in front of the plaintiff’s mill, and was not-guilty of negligence in so doing, and by law it is not. made liable for fires set in so doing, provided its engines, machinery, smokestack, and fire boxes were in good order, and properly managed. * * *
“The law does not make the company an insurer that its engines will not set fire. If the machinery of its enginés, their smokestacks and fire boxes, are in good order, and - properly managed, that is all that is required, so far as its engines are concerned, to exempt the company from liability.”

. The court then stated to the jury that the charge thus far given had reference almost entirely to the rights and liabilities of. the defendant under the statute; that the statute,.-however, was not intended ■ to relieve a railroad company from its common-law liability for acts of negligence, but that, when the act originated from either of the causes mentioned in the statute, the burden is cast-upon the railroad company to show it is free from negligence; and therefore:

“It was the duty of the defendant to keep its track and grounds reasonably clear of combustible material, and, if the jury find that defendant negligently allowed combustible material to be and remain upon its grounds, and if, in consequence thereof, fire emanating' from a locomotive engine ignited such combustible material, and the-fire thus ignited spread to plaintiff’s grounds, and destroyed bis mill, then defendant is in that case liable forall the damage so incurred; and it is in that case no defense that the engine, its machinery, smokestack, and firebox were in good order, and properly managed. * * *'
“If the jury find that the fire in question originated-from the engine number six, but that this engine, its-machinery, smokestack, and fire box were in good order,, and properly managed, that all reasonable precautions hadi been taken by the railroad company to prevent the origin; of such fire, and that proper efforts were made to extinguish the same when the existence of the fire was communicated to any of the officers of the company, the defendant is not liable, and the plaintiff cannot recover in this action. *********
“ The law does not make the company an insurer that its right of way shall be kept so clean that a fire cannot, take upon it. All that it requires, in regard to its right, of way is that reasonable precautions shall be taken to prevent fires from originating upon it.’’

This charge, as given, stated the case under the law as-, fairly as the defendant was entitled to; and there is no-statement in Kendrick v. Towle which would have warranted the court in giving defendant’s request to charge-

The same claim was made in Alpern v. Churchill, 53 Mich. 607. There the plaintiff erected her house after the-mill had been put up which caused the fire that destroyed her house. The contributory negligence claimed was that the plaintiff erected her building within a hundred yards or so of defendants’ mill after a dangerous burner had been put up, and did not cover it with a metallic roof. It was said:

“She was simply dealing with her own property in a customary and perfectly lawful way, interfering with no-one else, and neglecting no duty.’’

In the present case the plaintiff’s mill was erected upon his own land. He took the precaution to put on a metallic roof, for the purpose of guarding against fires of' this character. It cannot be said to be negligence per se to erect such a building in close proximity to the railroad track; but, as said by the court below, the plaintiff having erected it there knowing the circumstances, he must be held to have known of the risk incident thereto, and, if there was a special risk, arising from no want of proper equipment of the engine, or want of care in its management, the risk would not be chargeable to the defendant, ¡but would be an incident to the situation, and the plaintiff could not recover. The court also by this charge •instructed the jury that it was the plaintiff's duty to keep Iris premises free from combustible matter, and, if he failed to do so, and the fire .happened in consequence, then he could not recover; also, that if plaintiff failed to take all reasonable precautions against fire under the circumstance of his proximity to the railroad, and the fire happened in consequence of such neglect, he could not recover. Certainly the defendant had no reason to complain of this charge.

In Railway Co. v. Jones, 86 Ind. 496, it appeared that fire had been set by a passing engine to dry grass on the railroad right of way, which had thence communicated to dry grass and combustible matter on plaintiff's adjoining premises, destroying his fences and grass. It was held that the failure of plaintiff to remove dry grass or stubble’ from his own land to prevent the spread of fire was not contributory negligence on his part. This rule was followed in Kellogg v. Railway Co., 26 Wis. 223.

The rule is laid down in Shearman and Kedfield on Negligence (section 93) as follows:

. “As there is a natural presumption that every one will act with due care, it cannot be imputed to the plaintiff as negligence that he did not anticipate culpable negligence on the part of the defendant. * * * Even where the plaintiff sees that the defendant has been negligent, he is not bound to anticipate all the perils to which he may possibly be exposed by such negligence, or to refrain absolutely from pursuing his usual course on account of risks to which he is probably exposed by the defendant’s fault.”

This doctrine is held in England,- as stated in Vaughan v. Railway Co., 3 Hurl. & N. 743; Clayards v. Dethick, 12 Q. B. 439. The court was not in error in refusing the defendant’s request to charge.

The court was also asked to charge the jury that—

“If the jury find that the plaintiff, on Sunday preceding the 9th of April, 1892, before he left for West Superior, visited his mill premises, and found them in a dangerous condition, and likely to take fire, and that without notifying the defendant, or taking any action to protect his property, he left it, and went out of town on April 9, 1892, and remained away, then he was guilty of contributory negligence, and is not entitled to recover in this action.”

The proofs showed the following state of facts as to the situation and surroundings of the mill and its proximity to the railroad tracks, and the knowledge of. the plaintiff as to the situation: The plaintiff introduced several witnesses, who gave evidence tending to show the manner in which the building took fire. It appears that a platform made of planks had been constructed between the plaintiff’s building and the defendant’s side track, and that teams were accustomed to go upon this platform; that it became old, and in February or March, 1892, the servants of the railroad company, with the consent of the plaintiff, removed this old platform, and threw the material of which it was constructed into a ravine which extended north and south under the platform, and between the mill and the defendant’s side track. They partially filled up this ravine with the debris from this old platform, and put sawdust and dirt upon the top of it. It was contended by the plaintiff that sawdust and shavings were left upon the top of the material from the platform, and it was contended by the defendant that this material had been covered with dirt and cinders. There was a conflict in the testimony as to the condition in which the surface of the ground between the mill and the railroad track was left by the railroad company after tearing down the platform, and covering, or partially covering, the space between the mill and the track. The plaintiff testified that he spoke to Mr. Fitz Patrick about it in February or March previous to the fire, and told him that he was making-a fire trap there; that they were putting sawdust and dirt over next to the track and in the ravine. From the testimony of several witnesses for the plaintiff, it appeared that the fire was discovered at or near the south-east corner of the shaving room, between the railroad track and the south-east corner of the mill or shaving room, and that it was seen there about the time, or immediately after, the train of the defendant, which had been switching upon the track and side track immediately east of the mill, started from the depot of the defendant south upon the line of the road. It further appeared that, just as the train was starting out of Stanton, the engineer and fireman both saw the fire burning on the ground on the defendant’s right of way near the mill, but that they did not stop the train, or give any notice of the fire, until arriving at the next station; and that, immediately after the train left, the fire was discovered by others, and that no other fire was in the neighborhood. One of the plaintiff’s witnesses testified that he was at the mill on the Sunday previous to the fire; that his attention was attracted to the fact that on the east side oí the shaving room it had been graded down about two feet right next to the building, or a little under it; that it looked as though it had been graded five or six inches under the edge of the shaving room, and that near the corner shavings had run out, and that there was a barrel» or two of shavings there, and that they had rolled down a little embankment, and that it was a very dry time. Another witness for plaintiff testified that he was there in February or March, and saw the section hands digging near the south-east corner of the shaving room, and that he saw shavings near the corner of the shaving room, scattered along. He also testified that he was there at the time of the fire, and that the fire was then burning in the corner of the shaving room, on the outside. When he got there it was' pretty near the roof, and he noticed the fire burning on the ground on the east and towards the railroad. Another of plaintiff’s witnesses testified that he was at the fire, and saw it burning near the south-east corner of the shaving room. He also- saw the premises before the fire, and testified that there were shavings near the south-east corner of the shaving room then, which had been scattered about by the wind. On rebuttal the plaintiff was recalled as a witness in his own behalf, and testified that he went to West Superior, Wis., on the 9th of April, 1892, and that on the Sunday before going he went to the mill in question; that the work was not finished; that he saw the roadway on top of the timbers, and refuse had been put in there, so that the shavings and sawdust were scattered about on top of the ground; that the shavings were there on top of the ground, so that he considered it dangerous from fire; that it was a dry time; that he went away without leaving the mill in charge of any one except his family, who lived two blocks away; that he left no watchman nor any one there to look after the mill. He also-testified that the shavings and sawdust were scattered about-so that they appeared on top of the surface, and that he thought it was in a dangerous condition; that when he saw this condition of things in front of the mill he did not do anything towards fixing it; ’ that he did not go to-' lpok at it again between that time and the time he went away to West Superior. -The defendant’s witnesses gave-evidence tending to show that the roadway between the mill and the track was in good condition, covered over with dirt and cinders; that the smokestack and fire boxes of its engine were in good repair and perfect condition; and that the engine was properly operated at the time it was switching upon its tracks in front of the mill that day.

It. appears that the defendant’s servants had caused this exposed condition of the sawdust and shavings. They had placed them there, and had promised the plaintiff to cover them when their attention was called to their condition, and that it was making a fire trap. It was upon defendant’s right of way. This was in February or March, but after that they had covered a portion. When the plaintiff left for West Superior, he had the right to presume that they would put the right of way in a safe condition. It is apparent that, had this been done, the fire would not have occurred, as it seems to have originated in this uncovered portion of the right of way. The refusal of this request to charge, under the circumstances, was proper.

Contributory negligence is where one acts so as to contribute by direct consent to or participation in the wrong complained of. Moomey v. Peak, 57 Mich. 259. In the above case it was shown that a steam thresher was placed near the plaintiff’s haystacks. Plaintiff was plowing in a. field near by, and made no protest. The wind was blowing, carrying the smoke from the thresher directly over the hay. After the evidence was in, the plaintiff asked the court to instruct the jury that—

' Contributory negligence is where one so acts as to contribute by direct consent to or participation in the wrong complained of; and if Moomey [the plaintiff] did not consent to what was done there on the day of the fire, or did not, by any act of his, participate therein, than he, in contemplation of the law, did not contribute to the burning complained of.”

This was refused. It was held by this Court that the request should have been given, and that there was no evidence fairly tending to fix upon the plaintiff the charge of contributory negligence.

In the present case the plaintiff was there a short time previous to the fire. The premises may have been in an exposed condition, but they were so put by the act of the defendant. There was no fire then on the premises. It is true that, if the fire had then been started, and the plaintiff' could have extinguished it, he would have been in fault in not doing so; but he had no greater reason to expect that the defendant would carelessly run its engine past there at that time than at any other, and the condition was as well known to the defendant’s agents as to the plaintiff.

The defendant further asked an instruction that under the evidence the plaintiff could not recover. We need not discuss this request. It was properly refused. There was evidence to go to the jury on the questions raised, and those questions were fairly submitted.

Plaintiff’s counsel contend that under How. Stat. § 3378, the defendant was liable for the fire, and, if there had been any contributory negligence on the part of the plaintiff, it would not prevent a recovery for the loss. In the view we take of the case, that question is not important. The question of the plaintiff’s contributory negligence was fairly submitted to the jury under the proofs made, and they have found in his favor. We therefore need not pass upon that question.

The judgment must be affirmed.

McGrath, C. J., Grant and Montgomery, JJ., concurred. Hooker, J., did not sit.


author: Per Curiam.

text:
    In the Matter of Orren Lewellen on Habeas Corpus.

      Witnesses' in criminal cases — Detention in default of bail.

    1. While the power of the proper court under How. Stat. §§ 9472, 9473, 9475, as modified by How. Stat. § 9453, to detain witnesses upon a proper showing, to testify on behalf of the people in a criminal case, is undoubted, such showing should in all cases-be made, and the witnesses given a hearing, and an opportunity to be heard, before commitment.
    2. Witnesses who are committed in default of bail for their appearance to testify on behalf of the people in a criminal case must be regarded as “prisoners held upon- civil process,” within the meaning of How. Stat. § 8941, which provides that on no pretense whatever shall prisoners (held) on civil and criminal process be put or kept in the same room.

      Habeas corpus proceedings.
    Argued March 5, 1895.
    Petitioner discharged March 7, 1895.
    A writ of habeas corpus was directed to the sheriff of Kent county to inquire into the cause of the imprisonment and detention of petitioner. From the return it appeared that upon ex parte affidavits the judge of the superior court of Grand Rapids made an order that petitioner enter into a recognizance before the judge of the police court, in such sum as said magistrate should require, and with sureties to be approved by him, for the appearance of petitioner at said police court at a certain time to give evidence on the part of the people upon the examination of one Macard, held on a charge of perjury; that, pursuant to such order, ■ and o.n the same day, the police judge entered an order determining the amount of the recognizance, and providing that, in default of giving the same, petitioner be committed to the county jail until •such recognizance should be given, or until the determination of said prosecution, or until discharged. according to law; that petitioner was at once brought before such judge, and, on failure to comply with the 'order, a warrant of •commitment issued forthwith, by virtue of which warrant, and of others since issued in continuation .thereof, and based upon similar proceedings, petitioner had been imprisoned in the county jail for a period of five months.
    How. Stat. §§ 9472, 9473, 9475, authorize an examining ■magistrate to bind by recognizance all material witnesses against the prisoner to appear and testify, and, if satisfied by due proof that there is good cause to believe that any ¡such witness will not perform the condition of his recognizance unless other security be given, to order the witness to recognize, with] one or more sureties, for his appearance at court, and, on the refusal of any witness so to ■recognize, to commit him to prison, there to remain until he complies with the order or is discharged according to law. These provisions were modified by section 9453, ■which provides that it shall not be necessary in any criminal case for any witness to give bail for his appearance as a witness in such cause unless required to do so by the order of a judge of a court of record or a circuit court commissioner. The proceedings taken in this case were sought to be justified under the foregoing statutory provisions.

      Pfathan P. Allen, for petitioner.

      Alfred Wolcott, Prosecuting Attorney, for the people.

       See Robinson v. Judge of Recorder’s Court, 94 Mich. 471, holding that a witness so committed must be held to have been in attendance upon the court during the time of his commitment, and. is entitled to the fees allowed by law to witnesses for the people in criminal cases.

   Per Curiam.

The petitioner must be discharged. We have no doubt of tbe power of the proper court to detain witnesses upon a proper showing, but such showing should in all cases be made, and the witnesses given a hearing* and an opportunity to be heard, before commitment. In the present case petitioner has not been accorded an opportunity to refute the showing made by affidavit or to' be heard respecting the matter.

Complaint is made that the petitioner has been confined in the same apartments with persons charged with crime.. Section 8941, How. Stat., provides that—

“Prisoners arrested on civil process shall be kept in rooms separate and distinct from those in which prisoners-detained on a criminal charge or conviction shall be confined, and on no pretense whatever shall prisoners on civil and criminal process be put or kept in the same room.”

Persons detained as witnesses must, we think, be regarded as persons held upon civil process, and must be SO' treated in this respect.


author: Montgomery, J.

text:
    Frederica Ross v. The Township of Ionia.

      Negligence — Defective highways — Failure to erect harriers — Frightening horse — Proximate cause — Pleading—Variance— Amendment — Practice in Supreme Court.

    1. Plaintiff’s horse took fright while crossing a bridge at the noise' of the water flowing over the wasteweir at the end of a dam. the top of which formed the approach to the bridge, backed off the bridge and off the approach, and plaintiff was injured. The bridge was supplied with railings, but the approach was-not, nor was there anything provided to hide the water from the sight of horses at any point upon the bridge or the approach. And it is held that the question whether or not the defendant was guilty of negligence in failing to erect barriers-at the sides of the approach should have been submitted to the jury.

      2. The declaration averred that plaintiff was driving the horse, while the proofs disclosed that it was being driven by a lady companion. No objection on account of said variance was made upon the trial. And it is held that, if such an objection had been made, it would have been an abuse of discretion to refuse an amendment, and, under these circumstances, it would be manifestly unjust to affirm the judgment in favor of the defendant upon this technical ground.
    3. A variance of four feet between the proofs and the averment in the declaration as to the distance from the end of the bridge to the point at which the horse backed off the approach is not fatal.
    Error to Ionia. (Dodds, J., presiding.)
    Argued January 24, 1895.
    Decided March 12, 1895.
    Case. Plaintiff brings error.
    Beversed.
    The facts are stated in the opinion.

      John H. Mitchell and George E. & M. A. Nichols, for appellant.

      F. G. Miller (Vernon U. Smith, of counsel), for defendant.
   Montgomery, J.

This is an action for an injury occasioned to plaintiff by reason of an alleged defect in a highway.

A dam was built across the flats east of Prairie creek, to a point 66 feet east of the west bank of Prairie creek. At the west end of this dam was a wasteweir, over which the water not carried off by the race was allowed to flow. There was a direct fall over the wasteweir of about 4 feet, and a further fall on an incline of about 3 feet. The highway in question is constructed on top of this dam to a point near where the wasteweir is, using the dam as a roadbed to that point, and completing the road across the creek by constructing a bridge from that point to the west bank of Prairie creek, south of and opposite the waste-weir. The nearest point of the wasteweir to the bridge is at the east end, where it is 16 feet and 2 inches north of the bridge, and at the west end it is 28 feet north of the bridge. The bridge is 66 feet long and 16 feet wide, with railings along each side. There was nothing to hide the water from the sight of horses at any point upon said bridge, or upon coming to the same from the east side thereof. The highway, as it approaches the bridge, is 20 feet in width, being widened somewhat near the east end of the bridge, at a point 12 feet back from the east end of the bridge being 29 feet wide, and nearer the bridge being still wider. There was .no railing on either side of this highway. The declaration averred that—

“ Immediately north of said bridge, at a distance of less than 50 feet, was a part of the said Prairie creek mill-dam, over which the waters of said Prairie creek flowed with great and continued noise, which said noise and disturbance, and disturbance of the waters, was liable to cause and did cause horses and other animals to become frightened in crossing said bridge and in passing along said highway.”

It further averred the want of railings or barriers, and that the highway was not reasonably safe and fit for travel without them. It then averred that—

“As the plaintiff was crossing said bridge, the horse, to which was attached a vehicle in which she was riding, became frightened at the roar and' disturbance of the water above said bridge, and at the east end of said bridge backed" the buggy in which plaintiff was riding down said embankment about 12 feet east of the said east end of said bridge, on the. south side of said highway. The plaintiff was obliged to spring from said buggy in order to save her life, or to save her from injury still greater than that which she did at such time and place sustain, and in so doing was greatly, seriously, and permanently injured in the limbs and body,” etc.

The circuit judge directed a verdict in favor of the -defendant, and the plaintiff brings error.

The circuit judge evidently adopted the view contended for by defendant's counsel in this Court, that the want of barriers was not the proximate cause of the injury to the plaintiff, and therefore that the plaintiff could not recover. Defendant's counsel rely, to support the ruling of the -court below, upon numerous decisions of this Court, among which are Agnew v. City of Corunna, 55 Mich. 428; Beall v. Township of Athens, 81 Id. 536; St. Clair Mineral Springs Co. v. City of St. Clair, 96 Id. 463; and Bleil v. Railway Co., 98 Id. 228.

In Agnew v. City of Corunna a large boulder had been left in the street after excavating the same, and leave had been given to a private individual to remove the stone. The circuit court allowed the jury to assume that a city is liable for leaving or allowing in its streets that which is dangerous, by reason of a tendency to frighten passing teams. This Court said:

“The stone, as is not disputed, was lawfully put there, in the first place, in the course of street repairs. If it was the duty of the city to see that it was not left there ■indefinitely, it was equally its right to sell or give it away, and, having done so, it could take no steps to interfere, unless, at the worst, the purchaser or donee delayed so •long as to make it unreasonable to wait longer for him. It could not be responsible for any delay which was not ■unreasonable. As this case went to the jury, and as it was argued here, the plaintiff cannot make out error, unless it was illegal absolutely to leave this stone where it was left ■any longer than was necessary to - remove it. The court was called on to say that it was a nuisance in itself. This was refused, but it was left to the jury to determine whether it was or not, and also to determine whether it was allowed to remain an unreasonable time. ■ It is difficult to see how the court could have gone further without imposing duties and liabilities on municipalities which would be ruinous.”

It will be seen that if any language was used in the-opinion which should have the construction claimed, as-sustaining defendant’s theory, it was unnecessary to a. decision of the case, and it is apparent that the question of proximate or remote cause did not control the decision.

In Beall v. Township of Athens the horse of plaintiff took fright at a log lying by the side of the traveled way, and the court below charged the jury that the township-was not responsible for the log being there, nor was it-under obligation to remove it. This Court held that the primary cause of the accident was shown, without contradiction, to be the fright of the horse at the log at the side of the road, and the act of the driver in striking the-horse a blow with his whip, and that, therefore, the alleged defect in the roadbed at some distance from the point-where the horse took fright was not the proximate cause-of the injury. In this case it would appear that the horse became uncontrollable.

In Bleil v. Railway Co., 98 Mich. 228, it is very clear that there was an intervening cause. The injury occurred through the horse taking fright at an object remote from the accident, and, while not under the control of the driver, running against some rails piled by the-side of the street.

The doctrine of an independent cause was also applied in St. Clair Mineral Springs Co. v. City of St. Clair.

But we think the case at bar distinguishable from all these cases, and that it should be determined upon a different principle. It is undoubted that it is often a question for the jury as to whether ordinary care requires the construction of a railing by the sides of a steep embankment. See Malloy v. Township of Walker, 77 Mich. 448. It is wholly inconsistent with this view to say that, in •determining whether the railing should be erected, courts •and juries are not at liberty to take into consideration the conditions that surround the highway at the particular q>oint. If in the present ease it should be found that the place in question is one where horses of ordinary gentleness are liable to take fright, and back off the bridge, and ■off the approach to the bridge, it will not do to say that the very happening of the event which the township should have guarded against is a conclusive reason why a person injured through its neglect should not recover, and this ■on the ground that the want of a railing is not the proximate cause.

It is suggested that, if the declaration had alleged a fault in not having erected a barrier to cut off the view of the water, the case might have been different. But this certainly assumes as matter of law that this method of guarding against such an occurrence as the one involved here is the only method which could be adopted. Perhaps "the defendant might have discharged its full duty by either •course, but, having left the water in this exposed state, we "think it became a question for the jury as to whether it was not negligent to leave the approach without barriers, when no other means of preventing injury existed. This would depend upon whether the conditions existing were such as to make it reasonable to suppose that horses of ordinary gentleness would take fright, and would back up in the manner in which the horse in question did, and whether, in view of this fact, ordinary care and prudence would have dictated the placing of barriers there to prevent an occurrence which might have been thus foreseen or •anticipated.

The point is made that there was a variance between the proofs and the declaration, in that the plaintiff averred "that she was then and there lawfully driving along said lighwav, while the proofs disclosed that the horse was being driven by her companion, one Mrs. Rich. The point was not made in the court below. If it had been, it would have been an abuse of discretion to refuse an amendment, and, under these circumstances, we think it would be manifestly unjust to affirm the' case upon this technical ground.

Another point is made, that there is a variance between the proofs and the declaration, in that the declaration alleges that the horse backed off the embankment at a. point about 12 feet east of the east end of the bridge, whereas the proofs disclosed that it backed off at a point about 8 feet east of the bridge. We think the variance is-not fatal.

Judgment will be reversed, and a new trial ordered.

Long, Grant, and Hooker, JJ., concurred. McGrath, C. J., did not sit.