text:
    MICHIGAN RAILROAD COMMISSION v. DETROIT & MACKINAC RAILWAY CO.
    1. Mandamus — Return—Denials—Plea.
    The denial by respondent of material averments of the relator’s petition in mandamus is conclusive under the judicature act (3 Comp. Laws 1915, § 13440), unless an issue is raised by the plea.
    2. Same — Petition—Peremptory Writ.
    In a mandamus proceeding by the Michigan Railroad Commission against the Detroit & Mackinac Railway Company which, after the final or peremptory writ was ordered issued, filed a petition to secure the recall of such order, on the basis of alleged new facts, set up in the petition, held, that the new matter was involved in a suit in chancery pending in the Wayne circuit court and that the questions had been passed upon by the Supreme Court of the United States, on appeal from the decision of this court, no different conclusion should be reached in a summary proceeding in which the evidence was not all before the court.
    Mandamus by the Michigan Railroad Commission against the Detroit & Mackinac Railway Company to compel respondent to comply with an order of said commission: On petition of respondent to vacate and recall an order granting said writ.
    Submitted June 26, 1916.
    (Calendar No. 25,373.)
    Petition denied July 21, 1916.

      Grant Fellows, Attorney General, D. H. Crowley, Assistant Attorney General (I. S. Canfield, of counsel), for relator.

      James McNamara and Fred A. Baker, for respondent.
   Stone, C. J.

The opinion of this court in Michigan Railroad Commission v. Railway Co., 178 Mich. 230 (144 N. W. 696), gives a history of the proceedings in this case to December 20, 1913, the date of the order that a peremptory mandamus issue. The case was removed by the railway company by writ of error to the Supreme Court of the United States, where the judgment of this court was affirmed on April 3, 1916, the latter opinion being reported in 240 U. S. 564 (36 Sup. Ct. 424). In the meantime the equity case commenced by the railway company against the railroad commission in the Wayne circuit court, in chancery, has been terminated. In that case the Fletcher Paper Company intervened as a defendant and answered, and upon the issue so formed in the chancery case a large amount of testimony was taken. This, with the prior testimony, was certified back to the railroad commission, there argued, and returned to said circuit court, without change in the order of the railroad commission which it had made on August 3, 1911. Upon final hearing before the Wayne circuit court, in chancery, the bill of complaint was dismissed with costs, and the railway company has claimed an appeal to this court, but the record in that case is not before us. On June 10, 1916, a peremptory mandamus was issued by this court, which was duly served on June 12, 1916.

A petition of which the following is the substance was filed in this court by the railway company on June 22, 1916, and the answer of the railroad commission was filed June 26, 1916:

The Detroit & Mackinac Railway Company has filed its sworn petition in this court representing that:

(1) It has been served with a peremptory writ of mandamus issued in the above-entitled cause on June 10, 1916, commanding it to put into full force and effect the order of the Michigan railroad commission made on August 3, 1911, upon the application of the Fletcher Paper Company, which order is mentioned and referred to in the order of this court made on December 20, 1913, upon the petition of the Michigan railroad commission, and commanding it to put in force the said order to relay the rails on the Tubbs branch, and to accept shipments offered to it on said branch by the Fletcher Paper Company, and to grant to the said Fletcher Paper Company the same facilities heretofore granted by it to the Churchill Lumber Company, and to the Fletcher Paper Company, successor to the Churchill Lumber Company, and to such other persons, firms, or corporations as have made shipments over said Tubbs branch, sometimes called Martindale spur. And it prays that said writ be vacated and recalled.

The petition further represents:

(2) That not long after petitioner removed the half mile of rail and discontinued service on the Tubbs branch the Fletcher Paper Company removed all the logs and timber it had banked along the Tubbs branch, and that it now has no logs or timber on said’ branch, nor has any one else any logs or timber there. The sworn answer of the Michigan railroad commission denies the allegation of said paragraph, and avers that the logs that were banked upon the Tubbs branch at the time that petitioner removed the rails were during the winter of 1913-14 hauled to the main line of petitioner, but that there still remains on said branch and tributary thereto hemlock logs and timber amounting to more than 14,000,000 feet.-

(3) Petitioner states that the Fletcher Paper Company has no timber or any interest in timber tributary to the Tubbs branch, nor has any’other corporation, firm, or person any such timber; that all the timber tributary to the Tubbs branch has been cut and removed, and if the branch is restored it will be of no use to any one; that the Tubbs branch was built under a contract with the Churchill Lumber Company, which contract provided that said Churchill Lumber Company should furnish the right of way, do the grading, and furnish the ties, the railroad company to furnish and lay the rails, and operate the branch for the Churchill Lumber Company; that said branch cannot now be operated in its present condition unless at least 6,000 new ties are furnished immediately to replace the rotten ones. In its answer the relator denies the allegations contained in this paragraph, and, on the contrary, charges and avers that said Fletcher Paper Company owns upwards of 14,000,000 feet of timber tributary to the Tubbs branch, and which must be brought out over the same to' the main line of the petitioner, and thence to Alpena; that relator admits that the said Tubbs branch was built by the Churchill Lumber Company making the grade and laying the ties, and that thereafter petitioner took over the branch, furnished and laid the steel, ballasted the track, and kept the same in repair; that petitioner on or about September 9, 1910, took up a portion of the rails on said branch, and thereafter refused to replace the rails, or to transport forest products over the branch, which said refusal has continued to the date thereof; that pending the proceedings upon the bill of complaint filed by petitioner in the Wayne circuit court, in chancery, the relator applied to this court and obtained an order for a peremptory writ of mandamus against petitioner requiring the relaying of the rails and the restoration of service in hauling logs and timber over the branch, which proceedings petitioner removed by writ of error to the Supreme Court of the United States, where the case was heard and affirmed’ April 3, 1916; and that since this court granted the writ of mandamus, and during the pendency of the proceedings above mentioned, the case pending in the circuit court for the county of Wayne, in chancery, has been-fully heard upon proofs taken in open court and before a commissioner, and the said petitioner’s bill was on April 6, 1916, dismissed with costs.

(4) The petitioner further avers that the Onaway & Northern Michigan Railroad Company, duly incorporated under the railroad laws of this State, is owned and controlled by the Lobdell & Churchill Company, now the Lobdell & Emery Company, of Onaway, where it has a mill and manufacturing plant making use of many millions of feet of hard wood, and is the owner of numerous tracts of timber lands, containing hard wood with some hemlock, and that the Onaway & Northern Michigan Railroad was built to reach said lands. The answer of relator admits .the existence, incorporation, and ownership of a logging branch or railroad as above named.

(5) The petitioner avers that the Lobdell & Emery Company owns the hard wood timber and the bark on the hemlock trees, and the Fletcher Paper Company owns the hemlock logp after the bark has been stripped from them, with the consequences that the same railroad service which takes out the hard wood and hemlock bark for the Lobdell & Emery Company also hauls the hemlock logs for the Fletcher Paper Company; that in that way the Onaway & Northern Michigan Railroad Company in the month of January, 1915, hauled from these timber lands to Onaway for the Fletcher Paper Company 1,434,940 feet of hemlock logs from which the bark had been stripped by the Lobdell & Emery Company. By its answer the relator admits the ownership of certain hard wood timber by the Lobdell & Emery Manfg. Company, and of the hemlock timber by the Fletcher Paper Company, but denies that said Onaway & Northern Michigan Railroad Company can or does render the service in thé transportation of logs for the Fletcher Paper Company required of the Tubbs branch.

(6) Petitioner avers that in the spring of 1915 the Onaway & Northern Michigan Railroad was extended into the remaining timber lands in which the Fletcher Paper Company and the Lobdell & Emery Company are interested as aforesaid, and in the aggregate that railroad has taken out over 5,000,000 feet of hemlock logs for the Fletcher Paper Company since the controversy over the Tubbs branch began. The relator by its answer denies the allegations contained in the sixth paragraph of said petition.

(7) Petitioner avers that the Tubbs branch was built in 1906, and the ties supporting the rails have become rotten, and in. order to restore the branch it will be necessary for the Fletcher Paper Company to furnish a large number of new ties, to wit, 6,000, to replace the decayed ties; that to take out the rotten ties and lay new ties and do the additional ballasting to put the track in shape for use would involve an expenditure of at least $3,000. By its answer relator admits so much and such parts of the allegations of the seventh paragraph of the petition as avers the building of the Tubbs branch in the year 1906, but denies all of the other allegations thereof. It avers that on September 9, 1910, when the petitioner removed the rails from the Tubbs branch, the said branch was in good condition of repair to be operated in the removal of logs adjacent and tributary thereto, and if the same is not now in the same condition of repair as it was when operated, the change is due to the refusal of the petitioner to obey the orders of the Michigan railroad commission of August 3, 1911, and the writ of mandamus ordered issued from this court December 20, 1913. Relator denies that it is now, or ever has been, the duty of the Fletcher Paper Company to renew the ties, or keep such branch in condition for operation after the same had been turned over to petitioner.

(8) The petitioner further states that the Tubbs branch does not reach the timber lands in question, and that it would have to be extended into them in order to be of any service to the Fletcher Paper Company, and that in view of the small amount of timber remaining, the Detroit & Mackinac Railway Company is not willing to furnish and lay the rails on any such extension. Relator in its answer denies the allegations contained in said last paragraph of said petition, so far as the same refers to the necessity of an extension of the Tubbs branch to take out the Fletcher Paper Company’s timber. It avers that for the greater convenience of the Fletcher Paper Company it might become necessary to build some short spurs off from the Tubbs branch, but that the same is not absolutely necessary to remove the timber, although the haul would be shortened by such construction.

(9) Petitioner avers that the remaining tracts of timber in which the Fletcher Paper Company and the Lobdell & Emery Company are interested are so located that in order to reach the Tubbs branch very long hauls of from two to four miles would have to be made, and which hauls would cross the track of the Onaway & Northern Michigan Railroad Company. This paragraph of the petition is denied by the answer of relator, and it is stated that the same questions set up in said paragraph and in the preceding fourth, fifth, and sixth paragraphs were involved in the case in the circuit court for the county of Wayne, in chancery, to review and set aside the orders of the Michigan railroad commission of August 3, 1911, and were decided adversely to petitioner. It is further averred by relator that under the peremptory writ of mandamus issued out of this court on June 10, 1916, of which due service was made upon the general superintendent of the petitioner on June 12, 1916, the said petitioner has not relaid the rails on the said Tubbs branch, nor accepted shipments offered to it on said branch by the Fletcher Paper Company, and has not granted to the said Fletcher Paper Company the same facilities heretofore granted by the said Detroit & Mackinac Railway Company to the Churchill Lumber Company, as required by the said writ; that under the order of this court dated December 20, 1913, the said Fletcher Paper Company was required to furnish % bond in the penal sum of $10,000 to indemnify petitioner in manner and form as provided in the opinion of this court, and that such bond was executed December 31, 1913, and approved by the clerk of this court, and filed therein January 8, 1914, and that such bond will fully cover any expense that respondent petitioner may be wrongfully put to in and about the compliance with said writ of mandamus, and that no cause exists why petitioner should apply to this court in respect to any of the matters set forth in said petition.

The petitioner prays that the said writ of mandamus be vacated and recalled, or, if that relief is not granted, to suspend the operation and force of the writ until the Fletcher Paper Company furnishes and places along the Tubbs branch 6,000 new ties.

No plea has been filed to the return or answer of the railroad commission, and no issue framed, and the matter has been submitted upon the petition and answer.

Under the provisions of section 4, chap. 36, of the judicature act (3 Comp. Laws 1915, § 13440), all material facts stated in the return or answer in a mandamus proceeding that are not specifically denied by plea are taken as admitted to be true. If that rule is to be applied here, the petitioner has not shown itself entitled to any relief; for the answer fully meets the allegations of the petition. But, aside from the question of practice, we are of the opinion that the petition should be denied because this court has already held, upon the facts found by the railroad commission, that a writ of mandamus should issue to put into effect the commission’s order, pending the outcome of the chancery suit in.the Wayne circuit court, and this holding has been affirmed by the Supreme Court of the United States,' and there is nothing in this record that ought to change that holding. It appears that the new matter contained in the railway company’s petition, and not before this court when the mandamus was ordered, was involved in the. issue made by the pleadings in the chancery case in the Wayne circuit court. That matter is not before us, and, if it were, this is not the proper way to dispose of such questions, especially as that case is on its way to this court, where it will be regularly considered upon its merits. In its .former opinion this court held that it was not called upon to consider and determine the merits of the controversy between the Fletcher Paper Company and the railway company, as such questions were involved in the chancery case. The question as to who should furnish the ties for repairs to the Tubbs branch is not required to be answered by this court in this proceeding in advance of the performance by the railway company of its duty under the writ of mandamus, that company being protected by the indemnity bond furnished by the Fletcher Paper Company under the order of this court; hence we leave that question for future consideration upon a proper record.

We must decline in this summary manner to make any ruling which would have a tendency to reverse the decision of the Wayne circuit court, in chancery, and the order of the railroad commission, especially as that record is not before us, and we have not had the opportunity to examine the testimony in that case.

The petition is denied, with costs.

Ostrander, Moore, Steere, Brooke, and Person, JJ., concurred. Kuhn and Bird, JJ., did not sit.


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    KUNZE v. DETROIT SHADE TREE CO.
    Master and Servant — Workmen's Compensation Act — Course of Employment.
    Where claimant’s husband was employed by the week as a foreman tree trimmer and planter, and in the course of his employment it was his duty to go from job to job about the city of Detroit, and while presumably about to take a street car to proceed on his way from one job of inspection to another, he was struck by an automobile and fatally injured, his death was due to an accident arising out of and in the course of his employment, entitling claimant to an award under the workmen’s compensation act (Act No. 10, Extra Session 1912; 2 Comp. Laws 1915, § 5423 et seg,).

    Certiorari to Industrial Accident Board.
    Submitted June 15, 1916.
    (Docket No. 124.)
    Decided July 21, 1916.
    Augusta Kunze presented her claim against the Detroit Shade Tree Company for compensation for the death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Affirmed.

      Thomas M. Cotter, for appellant.

      E. D. Alexander, for appellee.

      As to application and effect of workmen’s compensation acts, generally, see comprehensive note in L. R. A. 1916A, 23.

   Kuhn, J.

This case is brought here by certiorari to review an award made by the State Industrial Accident Board.

Frederick Kunze, whose widow is the claimant herein, was employed by the Detroit Shade Tree Company, the defendant, as a tree trimmer and planter. Having been with the defendant company for about two years, on July 18, 1914, he was employed as a foreman, and in the course of this employment it was his duty to go from job to job about the city. On the day aforementioned, he had inspected a job on Virginia Park, a street in the city of Detroit, and, having completed this inspection at about 9 o’clock in the morning, he left the work in charge of another employee and started east on Virginia Park to the intersection of Woodward avenue, where it is to be reasonably inferred from the evidence he was about to take a car to inspect another job north of Virginia Park at the corner of Josephine avenue and Woodward avenue; and it also appears that there was another job for inspection at the cotner of Mt. Vernon and John R. streets, which was also north of Virginia Park. While at the intersection of Virginia Park and Woodward avenue, he was knocked down by an automobile, seriously injured, and died the following day.

It is the contention of the appellant that there is no evidence in the record that the deceased was at the timé of his death engaged in any business for his employer. Mr. Alfred Gibson, the president of the defendant company, was sworn and testified as to the character of the employment. It appears from his testimony that the deceased was employed by the week, and he stated that in the summer time,

“He went around trimming trees, doing tree surgery work, taking down trees, and so on, with other men in my employ that he had charge of.”

He also testified that, at the time of his injury, the deceased had on his person a list of places to go, one after the other, and stated that he had finished his work on Virginia Park. We think it is clear from the record that the employment of the deceased was to go from place to place to trim trees, and that in the discharge of these duties it was not only necessary for him to supervise the work, but it was necessary, in the course of his employment, to proceed from one job to the other, adopting such means of locomotion as he might desire.

It is strongly urged by counsel for appellant that the death of the deceased was not due to. any accident “arising out of and in the course of his employment,” and that there was no causal connection between the employment and the injury, and in support of this contention the recent decision of this court in Hopkins v. Sugar Co., 184 Mich. 87 (150 N. W. 325, L. R. A. 1916A, 310), is relied upon. In the opinion in that case, Mr. Justice Steere, speaking for the court, quoted from the rule announced by the Massachusetts court, in which it was stated:

“If the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises ‘out of’ the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workman would have been equally exposed, apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. 'It must be incidental to the character of the business, and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.” McNicol’s Case, 215 Mass. 497 (102 N. E. 697).

Being clearly of the opinion that the record warrants the conclusion that at the time of the injury the deceased was within the ambit of his employment, we also think that it is a justifiable conclusion that the accident can be fairly traced to his employment as a contributing and proximate cause. It is true that in going from one place to another, as was his duty, he naturally was compelled to assume risks not in anywise connected with the trimming, planting, and treating of shade trees. But his employment extended further than this and necessarily obliged him, in the discharge of his duties, to go from place to place, and in so doing to assume the risks of traffic upon the streets. Where employees are compelled during the course of their employment to travel about the streets, it does not seem to us to be unreasonable to say that the danger of being struck by street cars, automobiles, and traffic of every description should be taken account of. We think it must be said that the very nature of the occupation of the deceased itself exposed him to the unusual risk and danger of an accident of this nature, and believe that the instant case is readily, distinguishable from Hopkins v. Sugar Co., supra, where this court said that:

“No direct causal relation is claimed in the particular that the nature of the business of manufacturing sugar in itself exposes its employees to unusual risk or danger of accident of this nature.”

It appears that in that case the deceased at the time of the accident had finished his duties of the day and had returned safely to his home city, Saginaw, and was injured because of slipping on the ice while passing on foot along a highway. In this case the deceased received his injury during the hours of employment while actively engaged in performing work for his master, in accordance with duties imposed upon him by his employment. See Beaudry v. Watkins, 191 Mich. 445 (158 N. W. 16).

We are of the opinion that the order and award of the Industrial Accident Board should be and is hereby affirmed.

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


text:
    UECK v. MEATZ.
    1. Trial — Replevin—Instructions—Estoppel.
    In replevin for a motorcycle which plaintiff had sold on contract, reserving title until fully paid for, which the purchaser later sold to defendant on contract without informing him as to the condition of his title, it was defendant’s theory, supported by evidence, that plaintiff was estopped from asserting his title by conduct as follows: That plaintiff saw the motorcycle in defendant’s possession about the time he bought it, and learned what he had paid for it; that about three weeks later defendant went to plaintiff’s shop and was informed that it had not been paid for, but nothing was said about the contract or that title had been retained; that later defendant paid the balance he owed in plaintiff’s presence and received a receipt in full written by plaintiff and signed by the original purchaser; that plaintiff made out an application for registration of the motorcycle in which he described defendant as the owner; held, that defendant’s requests, or their equivalent, properly presenting his theory, should have been given, and it was error for the court to refuse them.
    2. Estoppel — Acts—Intent.
    Where the question involved was whether the conduct of plaintiff was such as to lead a reasonably prudent man to believe that be bad parted with bis title, and thus .estop bim from, maintaining replevin, it was erroneous for tbe court to instruct tbe jury that be would be entitled to recover unless be bad knowingly and intentionally waived bis rights, as it is tbe act and not tbe intention that governs.
    Error to Berrien; Bridgman, J.
    Submitted June 12, 1916.
    (Docket No. 42.)
    Decided July 21, 1916.
    Replevin in justice’s court by Richard Ueck against Rudolph Meatz for a motorcycle. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Reversed.

      O’Hara & O’Hara, for appellant.

      Welden Bros., for appellee.
    The plaintiff, who resides in Benton Harbor, is the proprietor of two motorcycle garages, one in Benton Harbor and the other in St. Joseph. On September 12, 1914, he sold a motorcycle to one Albert Krieger for $252, receiving $100 in cash and the balance payable monthly under a written contract of sale, reserving title in the vendor until fully paid. In January or February, 1915, Krieger offered to sell the motorcycle to the defendant, who is a Russian, and who is unable to either read or write English. A sale was agreed upon, the price being fixed at $145, of which $90 was paid in cash, and the motorcycle was delivered to the defendant.. Three weeks later the defendant paid $20 more to Krieger. It was the claim of the defendant, and was supported by his testimony, that when he received the motorcycle he took it to the plaintiff’s garage for some repairs; that he there had conversation with the plaintiff, who asked him how much he paid for the motorcycle, and that he told him $145, and that he had purchased the machine from Krieger. It is further claimed that about three weeks later he again went to the plaintiff’s shop, and there was told by him that Krieger had not paid for the motorcycle as yet, but that nothing was said about the contract or that title had been retained. It is further claimed that on the eighth of March the plaintiff, the defendant, and one Mier, a friend of the defendant, all went to the house of Krieger, where the defendant offered to pay the balance he owed on the machine if the plaintiff and Krieger would give him a receipt. Krieger not being able to write, plaintiff wrote the receipt and Krieger signed it. It is the claim of the plaintiff that he told defendant that he could not give him a receipt, but both defendant and Mier state that the defendant asked plaintiff to give him a receipt, and Mier states that plaintiff said: “I write — I give him a receipt; * * * I sign it too.” The defendant thereupon paid him the $35 which was due according to his agreement and took a receipt which was as follows:
    “March 8, 1915.
    “Received of Rudolph Meatz, one hundred and forty-five dollars: Paid in full for one 1914 twin-cylinder Indian motorcycle.
    “$145.00 Albert Krieger.”
    On April 1st following plaintiff made out an application for registration of the motorcycle (which was necessary under the automobile license law) for the defendant, he not being able to write. In this application it is stated that the defendant is the owner of the machine. An action in replevin for the motorcycle and equipment was brought by the plaintiff in the justice’s court, where judgment was had for the plaintiff, and on appeal by the defendant the case was tried in the circuit court before a jury, and judgment for six cents damages was given for plaintiff. The errors relied upon, raised by proper assignments of error, relate to the charge of the court and to the claimed failure of the court to present the defendant’s theory of the case in the charge as given.
   Kuhn, J.

(after stating the facts). It was the theory of the defendant, which finds support in the evidence, that when defendant bought the machine from Krieger he had no knowledge that plaintiff, or any other person, had any interest therein; that plaintiff within a few days saw the wheel in defendant’s possession, and said nothing to the defendant; that at the time the plaintiff drew the receipt and defendant paid the $35 still owed by him to Krieger the plaintiff said nothing about the contract, and led the defendant to believe that by making the payment he had acquired full and perfect title to the machine; that thereafter, when the plaintiff made out the application of registration for the machine, which was sent to the secretary of State and in which application the defendant was described as owner of the machine, nothing was said about the contract, or that the plaintiff claimed any right to the machine. It is the claim of the defendant that if the jury should find these facts to be true from the evidence, the plaintiff had by his conduct estopped himself from now asserting his title to the wheel, and various requests, incorporating this theory of the case, were submitted by defendant’s counsel to the court. Among others, was the following request to charge:

“One who, having contracted for the sale of personal property, stands by and permits his vendee to sell the same to an innocent purchaser is estopped to assert, as against the latter, that title had not passed under the contract, or that he is entitled to a lien for the purchase price.”

We are of the opinion that this request, or its equivalent, should have been given. The trial judge in his charge said the following with reference to this claim:

“Now, the plaintiff, under these circumstances, would be entitled to recover in this action in any event unless he has waived his rights; unless he has knowingly and intentionally done such acts as waive his rights under this contract, released his title to Meatz, and released all claims against the machine, he would be entitled to recover. And in such case your verdict would be for the plaintiff, with nominal damages. On the other hand, if the jury should find that he has knowingly and intentionally waived his rights, then your verdict must be for the defendant, and in that case your verdict would be that the plaintiff return the property and pay to the defendant such damages as he may have sustained.”

And thereupon the following occurred:

“The Court: Swear an officer.
“Mr. O’Hara: Oh, just a moment! Your honor has not covered our theory of the case at all. Those requests there.
“The Court: Very well. Those requests will be refused, and note an exception.
“Mr. O’Hara: Your honor has used the word ‘Intentionally.’
“The Court: I did.
“Mr. O’Hara: I take an exception.
“The Court: Certainly, certainly. Let an officer be sworn.”

We do not think that this is a correct exposition of the law with respect to the defendant’s theory of the case. While it is true that the claims of the defendant were strenuously denied by the plaintiff, nevertheless the defendant clearly had a right to have his theory submitted to the jury with proper instructions of the law applicable thereto. We do not think that it was necessary, as a matter of law, for the jury to find that the plaintiff had “knowingly and intentionally” parted with his title. The question rather is, Was the conduct of the plaintiff such, in relation to this transaction, as to lead a reasonably prudent man to believe that he had no claim or interest in the machine in question? In discussing the question of estoppel in a case of this kind this court said, in Vanneter v. Crossman, 42 Mich. 465 (4 N. W. 216):

“It is the act and not the intention that governs. The owner of property may silently stand by and see it sold as the property of another, and this without any intention on his part.of misleading or injuring any one, and yet the result would be the same.”

See, also, Miller v. Ross, Bradley & Co., 107 Mich. 538 (65 N. W. 562); 16 Cyc. p. 722.

For the-error thus pointed out, the judgment must be reversed, and a new trial granted, with costs to the appellant.

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


text:
    REED v. OVERLIE.
    Costs — Damages—Double Damages — Judgment.
    Plaintiff brought suit against defendant for damages to his sheep caused by defendant’s dogs and the amount of damage found by the court to have resulted to plaintiff's property was $75, which was doubled, under 2 Comp. Laws 1915, § 7270, and judgment was- entered for $150 and $5 costs. Held,, that the judgment, exceeding $100, entitled plaintiff to his costs pursuant to 3 Comp. Laws 1915, § 13691.

      Case-made from Kent; Perkins, J.
    Submitted June 14, 1916.
    (Docket No. 101.)
    Decided July 21, 1916.
    Case by Leonard Reed against Nick Overlie for damages to plaintiff’s sheep caused by defendant’s dogs. Judgment for plaintiff. Defendant appeals.
    Affirmed.

      EUis & Ellis, for appellant.

      C. G. Turner, for appellee.
   Kuhn, J.

This action is brought by the plaintiff against the defendant to recover damages to his sheep caused by the dogs of the defendant. The suit was brought in the circuit court, and the damages were alleged in the declaration in the sum of $500. The case was tried before the court without a jury, and the trial-judge found the damages to be $75, and by virtue of the statute (2 How. Stat. [2d Ed.] § 4362 [2 Comp. Laws 1915, § 7270]), doubled the damages and gavé judgment for the plaintiff in the sum of $150 and $5 costs provided for in the statute. It is the claim of the defendant, and it is the sole question involved in this appeal, that, because the damages proven amounted to less than $100, he (the defendant) was entitled to his costs, which the court below refused to give.

Subdivision 4, § 14392, 5 How. Stat. (2d Ed.) (3 Comp. Laws 1915, § 13688) 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: * * * Fourth. . In all actions of replevin, and in all actions for the recovery of * * * penalties or forfeitures, in all cases where the court has exclusive or concurrent jurisdiction.”

It has been held that, when the plaintiff recovered in the circuit court in an amount for which he should have sued in the justice’s court, costs should be awarded against him. Strong v. Daniels, 3 Mich. 466; Inkster v. Carver, 16 Mich. 484; Meyer v. Wood, 38 Mich. 297; Stortz v. Ingham Circuit Judge, 38 Mich. 243; Dikeman v. Harrison, 38 Mich. 617; Berndt v. Ionia Circuit Judge, 111 Mich. 359 (69 N. W. 661).

Section 14395, 5 How. Stat. (2d Ed.), 3 Comp. Laws 1915, § 13691, provides in part as follows:

_ “In all actions and proceedings in which the plaintiff would be entitled to costs, upon judgment rendered in his favor, if, after the appearance of the defendant such plaintiff be nonsuited, * * * 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, which shall have the like effect as all other judgments.”

The portion of the statute (section 4362, 2 How. Stat. [2d Ed.] [2 Comp, Laws 1915, § 7270]), under which this action is brought which is material here provides:

“If it shall appear to the satisfaction of the court by the evidence that the defendant is justly liable for the damages complained of, under the provisions of this act, the court shall render judgment against such defendant for double the amount of damages proved,” etc.

An examination of the above-cited authorities shows that the question of costs has been determined by the amount of the judgment rendered, and it seems to us to be immaterial whether the judgment as rendered is for damages or in part for the penalty provided for in the statute, as long as the judgment is in excess of $100.

The judgment is affirmed.

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


text:
    FULLER v. WURZBURG DRY GOODS CO.
    Negligence — Elevator—Moving Stairway.
    Where plaintiff was injured in riding on an escalator and charged that the stairway had a jerky movement which threw her and caused her injury, it was incumbent on her to show that defendant knew or ought to have known of the irregularity in its motion, and without testimony which brought it home to the defendant, she could not recover, in the absence of anything tending to show negligent construction or operation.

    Error to superior court of Grand Rapids; Dunham, J.
    Submitted June 13, 1916.
    (Docket No. 83.)
    Decided July 21, 1916.
    Case by Belle Fuller against the Wurzburg Dry Goods Company for personal injuries. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      E. A. Maher, for appellant.

      Kleinhans, Knappen & Uhl, for appellee.

      As to applicability of rule res ipsa loquitur as between storekeeper and customer, see notes in 16 L. R. A. (N. S.) 931, 21 L. R. A. (N. S.) 461, and L. R. A. 1915F, 577.

   Kuhn, J.

On the 6th day of January, 1914, the defendant had in operation in its store a moving stairway or escalator. Being located in the back part of the store it took patrons from the main floor to the balcony, and was placed between two stationary stairways, and was about two feet wide, with rails on each side to take hold of on making the ascent. It is the claim of the plaintiff that on the aforementioned day, while on the escalator, when she had nearly reached the top, she was thrown by a peculiar motion of the stairway, and fell upon her right knee and was injured. She brought suit, and sought to recover damages because of the negligent operation of the stairway by the defendant, which it is alleged caused her to fall. When plaintiff’s proofs were submitted the trial judge directed a verdict for the defendant because in his opinion no proof had been offered to show any, negligence on the part of the defendant. Plaintiff’s counsel urges that the question of defendant’s liability should have been submitted to the jury, which presents the only question for our consideration.

.Two other witnesses were sworn on the part of the plaintiff, who testified that the escalator had a jerking motion while they were upon it, one fixing the time between Christmas and New Year’s in 1913, and the other in February, 1914. It is not claimed that the attention of the defendant or any of its employees was called to these occurrences, or that the defendant had any knowledge thereof. There was no testimony that the defendant knew, or could have known, that any irregularity in motion could or might occur. In effect, the plaintiff relies simply upon the happening of the accident to sustain her claim of negligence on the part of the defendant. That the mere fact of an accident occurring is no evidence of negligence is well established in this State. We have very recently considered this phase of the law in Elsey v. J. L. Hudson Co., 189 Mich. 135 (155 N. W. 377, L. R. A. 1916B, 1284), and numerous decisions are there cited.

It is urged, however, that negligence, like any other fact, may be inferred from the circumstances, and the rule announced in Schoepper v. Chemical Co., 113 Mich. 582 (71 N. W. 1081), is relied upon. But in making this contention counsel overlooks the fact that before this inference of negligence can be drawn, something more must be shown than the mere happening of the accident. In the case before us there was no testimony, direct or indirect, as to any negligence in the construction or in the operation of the stairway. We are unable to distinguish the case in principle from Elsey v. J. L. Hudson Co., supra. See, also, Meyer v. Chair Co., 180 Mich. 604 (147 N. W. 488); Maki v. Copper Co., 180 Mich. 624 (147 N. W. 538); Dombrowski v. Manufacturing Co., 180 Mich. 202 (146 N. W. 666).

Judgment is affirmed.

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


text:
    UNITED STATES RADIATOR CORPORATION v. COUNTY OF WAYNE.
    1. Taxation — Credits—Banks—Deposit.
    Money deposited in a bank is not assessable as chattels but as credits.
    2. Same — Fraud—Review.
    In determining the valuation of personal property the judgment of the assessors is final, in the absence of fraud or illegality, and the court does not substitute its opinion for their judgment when honestly exercised.
    3. Same — Jury.
    The statements made by property owners are not binding upon the assessors and are for the purpose of assisting these officers in making a proper and just assessment of the property: the assessor in making an assessment must exercise his own judgment and the question cannot be left for a jury to determine.

      4. Same — Debts—Assessment.
    An assessment on money on deposit in a bank as personalty is not' sustainable and plaintiff was entitled to recover baek á tax so levied and paid under protest, being entitled to Rave its deposits charged off against its debts, whether or not the assessment had been made by the officer by reducing the value of other personal property so as to more than offset the sums on deposit.
    Error to Wayne; Lamb, J., presiding.
    Submitted June 14, 1916.
    (Docket No. 121.)
    Decided July 21, 1916.
    Assumpsit by the United States Radiator Corporation against the county of Wayne for taxes paid under protest. Judgment for plaintiff on a verdict directed by the court. Defendant brings error.
    Affirmed.

      Charles H. Jasnowski, Prosecuting Attorney, and Paul W. Voorhies, Assistant Prosecuting Attorney (Walter Barlow, of counsel), for appellant.

      Miller, Smith, Canfield, Paddock & Perry, for appellee.
   Kuhn, J.

In this suit plaintiff recovered a judgment in the sum of $670.95 because of an alleged over-assessment of State and county taxes taxed against the plaintiff on its personal property for the year 1912. At the conclusion of the testimony introduced by the respective parties the court, on motion of the plaintiff’s counsel, directed a verdict for this amount, and this action on the part of the trial court is the only question presented for review by the record in this case.

The plaintiff filed a .statement of its personal property sworn to by Mr. Charles W. Garrett, its assistant treasurer, with the board of assessors of the city of Detroit for the year 1912. Previous to making the assessment Mr. Nagel, the assessing officer, made such investigation as he deemed requisite respecting the personal property of the plaintiff, and from the information received by him from Mr. Garrett, as well as from his own knowledge of the company’s property, he determined and fixed the valuation of such property at the sum of $308,900, and assessed the plaintiff at that figure. This assessment included an item of $165,600 cash in banks, which was assessed as a chattel under the practice then in vogue in the assessor’s office. A petition was filed with the board of review by the plaintiff, asking that the assessment on the money in banks be remitted as illegal. This matter was referred to counsel for the board, who advised that it was assessable as a chattel under the practice up to that date, and the plaintiff’s petition was denied. Plaintiff thereupon paid its tax for the year 1912 under threat of levy and under protest.

The question of whether moneys in banks should be assessed by the assessing officers as chattels or as credits was decided adversely to the city’s contention in the case of City of Detroit v. Hertz, 184 Mich. 512 (151 N. W. 564). The instant suit was brought to recover claimed illegal taxes on deposits in banks and resulted in the judgment above referred to. It is the contention of the defendant’s counsel as stated in his brief:

“That because the several items of personal property, other than the money deposited in banks, contained in plaintiff’s tax statement, were reduced in value by the assessing officer by an amount far in excess of the amount of money deposited in the banks, the plaintiff should not be entitled to recover the judgment for $670.95, rendered against the defendant herein.”

And no question is made but that, under the decision in City of Detroit v. Hertz, supra, the plaintiff had a right to have its moneys in the banks offset its debts, and that in this case the moneys were improperly assessed. On the other hand, it is the contention of the plaintiff that the defendant cannot attack the. values placed by the assessors on plaintiff’s property, and that neither the plaintiff nor the defendant can go behind such assessment, in the absence of fraud or illegality. Broadly it seems to be the contention of the defendant that, before the plaintiff can recover for the illegal tax on the bank deposits, it must be made to appear that the plaintiff was required by the assessment complained of to pay more than its just proportion of the taxes for the year 1912. No claim, however, is made of any fraud, and in the absence of a showing of fraud it must be assumed that the assessing officers acted honestly in reaching the assessment and fixing the value on the plaintiff’s property.

' The making of assessments has been confided .by law to the assessing officers and the board of review, and the judgment of these officials is final in the absence of fraud or illegality. As was early said by Mr. Justice Cooley in Merrill v. Humphrey, 24 Mich. 170, the courts will not substitute their opinion for the judgment of assessing officers if honestly exercised.

The statements made by the property owners are not binding upon the assessors, and are for the purpose of assisting these officers in making a proper and fair assessment of the property. The valuations therein stated are not conclusive (Bowman v. Montcalm Circuit Judge, 129 Mich. 608 [89 N. W. 334]), and the assessor must exercise his own judgment in making the assessment

Counsel for defendant urge that the question here presented should have been left to the jury, but it must be clear that the making of an assessment cannot be left to them for the reason just stated; that is, that this power is given solely to the assessing officers. The cases of Detroit Fire & Marine Ins. Co. v. Hartz, 132 Mich. 518 (94 N. W. 7), and Northern Assurance Co. v. Detroit Common Council, 176 Mich. 80 (141 N. W. 904), have not escaped our attention, and we think are readily distinguishable from the situation here presented. In these cases the statute provided a method for reaching a value, and the assessors had no judgment to exercise.

We are of the opinion that the verdict was properly directed, and the judgment is" therefore affirmed.

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


author: KUHN, J.

text:
    A. E. WOOD & CO. v. STANDARD DRUG STORE.
    1. Fraud — Mistake—Equity—Reformation—Landlord and Tenant.
    A suit to reform a lease does not lie on the alternate ground of fraud or mistake because the lease included no clause or stipulation that the lessor should heat the leased portion of the building, where evidence failed to show mistake on the part of the lessor in omitting such proviso, but rather established an intentional omission, as a mutual mistake is necessary to warrant equitable relief.
    2. Same — Execution.
    And the trial court properly dismissed the bill, upon testimony which did not prove fraud and merely showed that the lessee neglected to examine the contract before signing it.
    Appeal from Wayne; Withey, J., presiding.
    Submitted June 7, 1916.
    (Docket No. 20.)
    Decided July 21, 1916.

      Bill by A. E. Wood & Company against the Standard Drug Store to reform a lease on the ground of mistake or fraud. From a decree dismissing the bill of complaint, complainant appeals.
    Affirmed.

      Campbell & Dewey, for complainant.

      A. G. Pitts, for defendant.
    The plaintiff, a corporation engaged in the millinery business, was a tenant of the defendant, engaged in the drug business, on certain premises located on Gratiot avenue, in the city of Detroit. The defendant had leased the entire building, and itself occupied the ground floor. The plaintiff occupied the three upper floors from July 22, 1908, and from October 14, 1909, it occupied all the five floors of the building above the ground floor. The two leases expired simultaneously on the 1st day of August, 1913. By the terms of the first lease the defendant covenanted as follows: “Party of the first part to heat said premises suitably and sufficiently”; and in the second lease, “to heat said premises satisfactorily and sufficiently.” Negotiations were begun in the early part of 1913 relative to an extension or renewal of these leases, and culminated in an informal memorandum being signed by the plaintiff and defendant on February 12, 1913, specifying the terms, the rent reserved — which was over 100 per cent, above the rent plaintiff was paying — and the space demised. After a lapse of six months and when the new term had begun on August 13, 1913, the formal lease was executed by the parties by their respective presidents. It was drawn in the office of the defendant and brought Ijy the stenographer of Mr. Cunningham, defendant’s president, to the plaintiff and left with its president, Mr. Wood, with whom it remained three days before he signed it, which he claims he did without reading it. When the first cold weather came in the fall and heat was needed, Mr. Wood was informed by the defendant’s porter that heat would no longer be furnished, and upon making complaint he was told to examine the lease, and, when Mr. Cunningham’s attention was called to it, was informed by him that provision for heat had been left out intentionally, and that he did not intend to heat the building. After some discussion an arrangement for the winter of 1913-14 was arrived at, by which the defendant furnished the coal and the plaintiff the man to take care of the furnace. The next spring defendant moved out, and another tenant moved in, and the plaintiff was obliged to furnish coal for the winter of 1914-15, and the winter of 1915-16, which plaintiff claims resulted in damage to him in the sum of at least $385. The building is heated by a single furnace located in the basement, and the plaintiff claims that it is impossible to heat any section of the building without heating the other. This bill is filed to reform the lease because of fraud or mistake in not including the heating provision therein. At the close of plaintiff’s proof on motion of defendant’s counsel the trial judge dismissed the bill. From a decree so holding an appeal is taken.
   KUHN, J.

(after stating the facts). It is the settled rule in this State that in order to reform a written contract on the ground of mistake, such mistake must be mutual and common to both parties to the contract. 260 (49 N. W. 567); Burns v. Caskey, 100 Mich. 94 (58 N. W. 642); Kinyon v. Cunningham, 146 Mich. 430 (109 N. W. 675). This record is barren of any testimony that would indicate that there was any mistake on the part of the defendant in omitting from the lease the provision in question. In fact it clearly appears that Mr. Cunningham, upon having his attention called to it, insisted that the omission was deliberate and intentional. No relief can be predicated on the ground of mistake.

We are also of the opinion that the proofs are not sufficient to make out a case of fraud. The lease, after being drawn by the defendant, was in the possession of the plaintiff for three days before it was signed. It is claimed that the plaintiff had a right to assume that the lease was the same as the old lease. But it appears that other and substantial changes were made in the terms of the lease other than the omission of the heating provision. It is elementary that fraud is not to be lightly presumed, but must be firmly established by proof. Plaintiffs neglect to examine the writing which he signed cannot be made the basis of a charge of fraud. It may be reasonably contended that if the omission to insert the provision had been called to the attention of the defendant at the time of signing, the lease might not have been executed at all.

■ The plaintiff has failed to make out a case for the interposition of equity, and the decree, dismissing the bill, is therefore affirmed, with costs to the defendant.

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


author: Moore, J.

text:
    ROSENBAUM v. TYSZKA.
    Vendor and Purchaser — Contracts—Frauds, Statute of — Terms —Sufficiency of Memorandum.
    A land contract in the form of a receipt for $25 “as a deposit on house located at 1415 Chene street, purchase price $3,450. One thousand will be paid before June 15, 1915. Balance $300 and interest,” signed by the vendor, did not contain a sufficient memorandum of the terms to satisfy the statute of frauds, since the time of performance must be clearly stated.

    Appeal from Wayne; Mandell, J.
    Submitted June 15, 1916.
    (Docket No. 137.)
    Decided July 21, 1916.
    Bill by Sam Rosenbaum and another against Kornelia Tyszka for the specific performance of an alleged land contract. From a decree overruling a demurrer, defendant appeals.
    Reversed, and decree entered for defendant.

      Walter Phillips, for defendant.

      As to necessity of specifying time of payment of purchase price in contract or memorandum for the sale of real property, see note in 33 L. R. A. (N. S.) 84.

   Moore, J.

Plaintiffs filed their bill of complaint against defendant for specific performance of a land contract, based upon the following writing:

“Detroit, Mich., May 29, 1915.
“Received of Sam and Bela Rosenbaum twenty-five and no/100 dollars, as deposit on house located at 1415 Chene street, purchase price $3,450. One thousand-will be paid before June 15, 1915. Balance $300 and interest.
“[Signed] Kornelia Tyszka.”

Defendant filed a demurrer to the bill of complaint for the following reason:

“Because the alleged contract to sell, set up in complainants’ bill of complaint, is not sufficient under the statutes of the State of Michigan to bind the defendant to make the sale.”

The demurrer was brought on for hearing. It was regarded by the court as a motion to dismiss and was denied. The defendant petitioned this court for leave to appeal. The petition was examined by one of the Justices, who declined to hold that the petition for said appeal does not present a meritorious question, and the appeal was allowed.

No brief has been filed in this court by the appellee. The case is unlike the recent case of Brin v. Michalski, 188 Mich. 400 (154 N. W. 110), where the contract, though somewhat informal, contained the essential elements of a contract:

“The parties, property, consideration, terms, and time of performance are clearly stated.”

In the instant case the writing does not contain the terms and time of the performance. The case is within Gault v. Stormont, 51 Mich. 636 (17 N. W. 214), and Ebert v. Cullen, 165 Mich. 75 (130 N. W. 185, 33 L. R. A. [N. S.] 84), and the many cases cited therein.

The decree is reversed, and one may be entered here in accordance with this opinion, with costs to defendant.

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


text:
    O’HARA v. BERRIEN CIRCUIT JUDGE.
    Mandamus — Compensation of Prosecuting Attorney — Divorce Case — Certificate.
    Upon an investigation made by tbe prosecuting attorney relative to tbe status of a minor child in a divorce case and tbe filing of a written report witb tbe clerk, be became entitled to a fee of $5, under Act No. 284, Pub. Acts 1909 (3 Comp. Laws 1915, § 11433), and bis right to tbe statutory fee will be enforced by mandamus to compel tbe circuit judge to issue a certificate to tbe county treasurer.
    Mandamus by Chester P. O’Hara, Prosecuting Attorney of Berrien county, to compel George W. Bridgman, circuit judge of said county, to issue a certificate for services performed under section 11433, 3 Comp. Laws 1915.
    Submitted June 20, 1916.
    (Calendar No. 27,274.)
    Writ granted July 21, 1916.

      Chester P. O’Hara, in pro. per.

   Moore, J.

The relator, who is prosecuting attorney, was served with a subpoena in a divorce case where there was a minor child. He investigated the case and filed a written report with the clerk of the court. He made an affidavit of what he had done, and applied to the circuit judge for a certificate to the county treasurer that the services had been performed by relator, and that relator was entitled to $5 therefor. The circuit judge declined to give relator such a certificate.

This is an application for mandamus to the circuit judge to require him to execute said certificate. The statutes involved are section 8657, 3 Comp. Laws, as amended by Act No. 315, Pub. Acts 1907, and Act No. 284, Pub. Acts 1909 (3 Comp. Laws 1915, § 11433). We think the circuit judge overlooked the last-named act, as it clearly entitles the relator to his certificate under the showing made.

The writ of mandamus will issue as prayed, but without costs.

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


text:
    Lahnala v. MINERAL RANGE RAILWAY CO.
    Negligence — Contributory Negligence — Minors—Railroads.
    It was contributory negligence which precluded a recovery for injuries to a minor of ten years and two months old, of fair intelligence, who, in reliance on an alleged custom to ring the bell before starting, attempted to crawl through beneath a freight train and between two of the cars and was caught by the movement of the cars and injured.
    Error to Baraga; O’Brien, J.
    Submitted June 20, 1916.
    (Docket No. 105.)
    Decided July 21, 1916.
    Case by Albert Lahnala, by his next friend, against the Mineral Range Railway Company for personal injuries. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      N. A. Rounavaara and Le Gendre & Driscoll, for appellant.

      A. E. Miller (John E. Tracy anil J. J. O’Connor, of counsel), for appellee.
   Moore, J.

The plaintiff, a boy of fair intelligence, an attendant at the public school, 10 years and 2 months old, received injuries for which this suit is brought. From a directed verdict in favor of the defendant the case is brought here by writ of error.

No testimony was taken on the part of the defendant. The testimony of the plaintiff was, in substance, that he was on his way to school after eating his dinner, and he came to the railway, crossing the public highway near the schoolhouse, and the rock cars of the defendant’s long freight train were obstructing it, standing across the crossing, and he waited for a time for the train to move away. It did not move away, and his little brother, who was with him, first went through, crawling under the cars and between two cars and got across safely, and then Albert, the plaintiff, tried to crawl through, and while getting through in some way was caught by the train, which moved as he was trying to get through. He testifies that the bell had always rung previously whenever he saw cars at that crossing, before the cars would move; that a train would be at that crossing almost every day and would stay there for a shorter dr a longer period, and that he relied upon the bell ringing before the train started, and that he supposed he could get across safely because the bell had not rung. There is also testimony indicating that the second school bell was ringing, and that plaintiff was afraid he would be late to school.

It is urged that plaintiff only did what a boy of his age might be expected to do under the circumstances, and that the trial judge erred in deciding as a question of law that the boy was guilty of contributory negligence. The question is not a new one in this State, but was before us in principle in Bird v. Railroad Co., 86 Mich. 79 (48 N. W. 691); Ecliff v. Railway Co., 64 Mich. 196 (31 N. W. 180); Henderson v.Railway Co., 116 Mich. 368 (74 N. W. 525); Trudell v. Railway Co., 126 Mich. 73 (85 N. W. 250, 53 L. R. A. 271); Perego v. Railway Co., 158 Mich. 225 (122 N. W. 535); Knickerbocker v. Railway, 167 Mich. 596 (133 N. W. 504); Mollica v. Railroad Co., 170 Mich. 96 (135 N. W. 927); Henry v. Railroad Co., 189 Mich. 45 (155 N. W. 550).

Judgment is affirmed.

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


text:
    PEOPLE v. WATTERS.
    Constitutional Law — Interstate Commerce — Municipal Corporations — License—Peddlers.
    Sales of toilet cream from a stock that had been left over from previously ordered goods, the body of the articles sold coming from a foreign State, New York, did not bring a solicitor within the rule of interstate commerce; he was guilty of violating a local ordinance against peddling without a license, though but two articles, worth 25 cents each, were supplied out of the goods on hand.
    Error to Alger; Fead, J.
    Submitted June 15, 1916.
    (Docket No. 127.)
    Decided July 21, 1916.
    Harvey Watters was convicted of peddling in violation of a city ordinance, and sentenced to pay a fine of ten dollars.
    Affirmed.

      D. E. Simmons, Prosecuting Attorney, for the people.

      W. T. Potter, for respondent.
   Moore, J.

This case was tried before the circuit judge who filed a written opinion which we quote in part:

“The respondent was tried in justice’s court for the offense of peddling in the city of Munising on, to wit, July 8, 1915, contrary to the provisions of Ordinance No. 14 of said city. He was convicted in justice’s court, and appealed to the circuit court, where a trial was had at the October term before the court; the respondent having waived a jury.
“The Grand Union Tea Company is a New Jersey corporation, with headquarters at Brooklyn, N. Y., formed for the purpose of selling goods handled or manufactured by Jones Bros, of New York. It rents a building in Ishpeming, Mich., in the front part of which it conducts a retail store. In the back part of the building and in the basement it conducts what is called a solicitors’ department, in which it handles tea, coffee, soap, baking powders, spices, toilet preparations, etc.; the first four articles constituting its principal business. * * *
“The company had nine solicitors, each having his own territory to cover. * * *
“To trace the particular transactions complained of: It appears that on June 6th or 7th the respondent took orders from various parties in Munising for certain articles, including teas, coffees, toilet creams, etc. The orders were noted by respondent on an order book, which he retained for his own use, and which he did not turn in to the store, but which, under his contract, was the property of the company. Thereafter, and about ten days or two weeks later, he turned in to the Ishpeming manager a commission bill of his orders; such commission bill being a statement in the aggregate of the goods he would need to fill the orders he had taken. The amounts of the separate customers’ orders or the customers’ names were not reported to the manager nor sent to the company. The orders taken in June were for July delivery. * * *
“In the course of the conduct of the business at Ishpeming, the solicitors’ department is filled with goods upon the arrival of freight from New York. Directly thereafter the solicitors’ orders are filled, so that the stock is greatly depleted. Sometimes the department runs out of certain articles, but at no time is it entirely empty. There are always some tea and coffee on hand, and frequently other articles. Some time prior to June the manager, anticipating a fair sale of toilet creams, ordered an amount thereof, and such creams were on hand in the solicitors’ department in June, when respondent took his order, and two cans of toilet cream were included in respondent’s July delivery in Munising; the orders for them having been taken in June. So far as can be traced, no articles included in respondent’s June orders and July delivery at Munising were in the State when the orders were taken, except the two cans of toilet cream.
“It thus appears that the manager did not order from Brooklyn upon the direct basis of the solicitor’s orders, but merely' estimated the amount which he thought would be necessary to fill such solicitors’ 'orders during the week the goods would arrive from New York; and because of error in his estimates he sometimes had goods left over, which remained and were included in subsequent solicitors’ orders. The surplus goods do not seem to have been transferred to the retail department. The estimated amount of goods left over each week after filling the orders was not shown. * * *
“The principal contention of respondent is that he was engaged in interstate commerce, and the ordinance is unconstitutional as far as it affects such acts. It appears, however, that the respondent took orders for some goods which were within the State when the order was taken, which had been shipped into the State without previous order therefor, and which were being held in the State for the purpose of sale to the public. As to such goods, the respondent and his employer were engaged in intrastate commerce. Bacon v. Illinois, 227 U. S. 504 (33 Sup. Ct. 299, 18 L. R. A. [N. S.] 134, note); 19 Cyc. p. 1231; E. S. Lange Medical Co. v. Brace, 186 Mich. 453 (152 N. W. 1026); Neyens v. Worthington, 150 Mich. 580 (114 N. W. 404); Imperial Curtain Co. v. Jacob, 163 Mich. 72 (127 N. W. 772).
“Where part of the transaction is purely an act of interstate commerce, still the State power over the separable internal part of the matter is unaffected. 7 Cyc. p. 441, and note. The respondent was therefore guilty of peddling within the provisions of the ordinance.
“Counsel have urged a .determination of the question of the general character of the business of respondent’s. principal, shown above, as to being intra or inter state commerce, for future guidance; but as the determination of this question is not necessary to the decision of this case, and the full texts of the authorities cited are not available to the court at this time, a discussion rather in the nature of dicta than of adjudication would be all that could be attempted.”

The court took the case under consideration, and on the 24th day of January, 1916, he found defendant guilty, and sentenced him to pay a fine of $10 and costs, amounting to $12, within 24 hours, and, in default of the payment of the said fine and costs, that he be confined to the county jail until such fine and costs are paid, not exceeding 30 days.

The case is not here upon exceptions before sentence, but is here upon writ of error. We quote from the brief of respondent:

“It is the contention of the defendant: (1) That if all of the goods for which orders were taken were outside of the State of Michigan when said orders were taken, the defendant was clearly engaged in interstate commerce. (2) That the fact that only 2 cans of toilet cream, of the value of 25 cents each, out of total deliveries of $66.75, were within the‘State of Michigan when the orders for said goods were taken, does not change the character of the business of the defendant, so as to bring him within the provisions of said Ordinance No. 14, for the reason that it is the principal character of the business, and not the exception, which should determine the question of whether or not the defendant was engaged in interstate commerce on the day of his arrest.”

If defendant may sell 2 cans of toilet cream,, may he sell 50 cans without violating the ordinance? It is not seriously contended that, as to the sales of the toilet cream, it was interstate commerce. We think the authorities cited by the circuit judge clearly show as to those sales they were intrastate commerce, and they made defendant guilty as charged, and it is wholly unnecessary to a disposition of the case to discuss the status of the other sales, and especially so as sentence has been pronounced and presumably, from lapse of time, been met.

We can do no less upon the record than to affirm the judgment, and the other feature of the cáse becomes a moot question which we decline to consider. Howe v. Doyle, 187 Mich. 655 (154 N. W. 62); Carlson v. Wyman, 189 Mich. 402 (155 N. W. 418); Schouwink v. Ferguson, 191 Mich. 284 (157 N. W. 726).

Judgment is affirmed.

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


text:
    LAMB v. LAMB.
    Husband and Wife — Antenuptial Agreement — Execution.
    Evidence in a cause involving the execution by complainant widow of an antenuptial release in all property possessed ' by her husband, who also agreed to a like settlement, held, to be sufficient to sustain the signing of the contract with full understanding of its contents by the wife.
    Appeal from Lenawee; Hart, J.
    Submitted June 22, 1916.
    (Docket No. 14.)
    Decided July 21, 1916.
    Bill by Elizabeth Lamb against Edward R. Lamb, executor of the last will and testament of John Lamb, deceased, and others, to be allowed to file her election, as widow, to take under the statute rather than under the terms of said will. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Fellows & Chandler, for complainant.

      Baldwin, Alexander & Russell and D. B. Hayes, for defendants.
   Moore, J.

The complainant was married to John M. Lamb on the 12th day of January, 1896. Both had previously been married. The first husband of complainant was a brother of her second husband. The complainant had one child .by her former marriage, and John M. Lamb had six children by his former marriage, who are the defendants. The complainant at the time of the hearing, June, 1915, was 83 years old. John M. Lamb died in September, 1912, and was then 85 years of age. At the time of the marriage the complainant was the owner of a farm of 107 acres, worth from $50 to $60 an acre. John M. Lamb at the time of the marriage had a farm, which was called “Dover Farm,” on which he lived, consisting of 156 acres, and considerable other property, but just how much at that time does not appear. John M. Lamb made a will, which bears date November 8,' 1904, and it was admitted to probate in November, 1912. The will so far as is material here bequeaths to the complainant $500 and $2,000 worth of Globe Fence stock which was worthless at the time of Mr. Lamb’s death. The inventory of the estate shows the value to be $93,780.87. Claims amounting to $8,556.06 were allowed. The $500 legacy was paid to complainant. July 25, 1914, complainant filed a‘petition with the ,probate court containing these words:

“I further .represent that I am of the age of 82 years, and that the family of said deceased, dependent upon said estate for support, consists of petitioner, his widow. ' I, therefore, pray that all statutory allowances may be assigned to me, and that I may be allowed the sum of $3,000 for the support and maintenance of myself during the settlement of said estate.”

The executor consented to the allowance as prayed, and it was made and promptly paid. On the 12th day of August, 1914, the complainant filed her bill in this cause, charging that she was induced, by the representations and promises of the defendants that she should have the use of the house and lot and a liberal support, not to seek advice and learn her rights in the matter of this estate, and thus file her election to take under the statute, and not under the will, until the time had gone by within which she could do so. She asks a decree’which will permit her to file her election to take under the statute, and which shall estop the defendants from asserting in the probate court that she has waived her right to file her election to take under the statute. • The defendants filed an answer, denying any fraud, and setting up as a bar of the widow to any rights under the statute, an antenuptial agreement. The complainant filed her replication under oath, denying the execution of this agreement. The paper claimed to be an antenuptial agreement reads as follows:

“Whittier, California.
“This agreement entered into the fourth day of January, 1896, betwixt J. M. Lamb of the township of Dover, county of Lenawee and State of Michigan, of the first part, and Elizabeth E. Lamb, of the township of Rollin and county and State aforesaid, of the second part: Witness that the parties named in the above contract mutually and firmly agree that they will not, in no case, claim any property belonging to each other, before death, or any portion of each other’s estate after the death of either one.
“J. Mills Lamb.
“Elizabeth E. Lamb.”

The hearing was in open court. After hearing the testimony and the arguments of counsel the trial judge stated in writing:

"I. The court finds in this case that the complainant, Elizabeth Lamb, executed Exhibit 1 with a full understanding of its contents, and with a knowledge that it would bar her rights in and to her husband’s estate after his death.
“II. The court further finds that the allegation in the bill of complaint, claiming that the complainant neglected to file her election to take under the law within the year, was not due to any active or passive fraud of the defendants, but was brought about by her recognizing and believing that Exhibit 1 gave her no rights in her husband’s estate, except so far as he might have done so by his last will and testament. The court finds that the $500 legacy paid to her under the will was paid before the expiration of the year in which she had a right to make an election.
“III. For these reasons, the bill of complaint in this cause is hereby dismissed, without costs to either party.”

From a decree dismissing the bill of complaint the case is brought here by appeal.

Learned counsel have prepared long and able briefs, citing at length the law which they claim is applicable to the case. We think the pivotal question is one of fact, namely, Was the antenuptial agreement understandingly made?

On the cross-examination the complainant testified in part:

“Before my marriage to John M. Lamb I had been living in Bollin, this county. I was the widow of William Lamb, a brother of John M. I have known John M. Lamb a good many years before my marriage to him. When he was a young man both of the Lamb brothers and the whole family lived near us. My husband and myself frequently visited with John M. Lamb’s people.
“Q. You knew that John M. Lamb was a man of considerable means before you married him?
“A. I knew he had a home where he could take me. I would not marry any man without knowing that he had a place to take me, a home for me. I knew that Mr. Lamb was in fair circumstances, not wealthy. I had a home of my own at that time, a farm of about 106 acres.”

It is true that she denied the execution of the writing we have quoted, but the testimony is overwhelming that she executed the paper and executed it understanding^.

It would profit no one to recite the testimony at length. Here were two people upwards of 60 years of age, one a widow with one child and property worth $6,000 or more, and a widower with six children who had considerably more property than the widow. They had known each other for years, and knew about each other’s families. They were about to be married. The ■ record is very persuasive that the paper was understanding^ made. This court has had occasion to discuss the law applicable to the situation disclosed here. See Hockenberry v. Donovan, 170 Mich. 370 (136 N. W. 389), and the authorities cited therein.

The decree is affirmed, with costs to defendant.

Stone, C. J., and Kuhn, Ostrander, Steere, Brooke, and Person, JJ., concurred. Bird, J., did not sit.


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    FAUNCE v. WEXFORD COUNTY.
    Schools and School Districts — County School Commissioner— Salary — Cities—Municipal Corporations.
    The regularly elected county school commissioner of the county of Wexford, holding a second term of office beginning in 1907 and expiring in 1911, received a Salary of $1,000 annually. Upon his re-election to the office in 1911, his salary remained the same. There were at the commencement of the term 1907-1911 125 schoolrooms in the county, including Cadillac, and during the succeeding term 175 school rooms. Cadillac was not incorporated as a city of the fourth class, and acted under a special legislative charter, which remained in force until 1914, when a home rule charter was adopted. Under Act No. 148, Pub. Acts 1905, providing that the commissioner’s salary should not be less than $1,500, where 175 rooms were under his supervision, held, that since the city was governed by the local act constituting its special charter, its schoolrooms should not be counted in fixing the amount of his salary and he was not entitled to a greater sum than that fixed by the board of supervisors, i. e., $1,000.
    Case-made from Wexford; Lamb, J.
    Submitted June 22, 1916.
    (Docket No. 66.)
    Decided July 21, 1916.
    William H. Faunce presented two claims for salary as commissioner of schools of Wexford county to the board of supervisors of said county. The claims were disallowed by said board, and claimant appealed to the circuit court, where the appeals were tried in one case without a jury. Judgment for defendant. Plaintiff brings case-made.
    Affirmed.

      William H. Yearnd, for appellant.

      Ray E. Bostick, for appellee.
   Moore, J.

The facts are not in dispute. Upon the request in writing of the plaintiff before judgment, the court made the following findings of fact and law in said cause, to wit:

“At the regular election held in April, 1903, the plaintiff, William H. Faunce, was duly elected to the office of county school commissioner of the county of Wexford; that he duly qualified and took the office July 1, 1903; that his term expired June 30, 1907; and that during said term he received the salary as fixed by the statute then in force.
“In April, 1907, the plaintiff was again elected to said office of county school commissioner, and duly qualified for the same; that his term of office expired June 30, 1911; and that during said term he received the sum of $1,000 per annum as salary for his services.
“Again in April, 1911, he was elected to said office, duly qualified for the same, commenced said term, July 1, 1911, and which term expired June 30, 1915, and that during said term he received the sum of $1,000 per annum as salary for his services.
“At the time the salary was fixed and determined by the board of supervisors' for the term commencing July 1, 1907, and expiring June 30, 1911, there were over 125 schoolrooms in said county, including the rooms in the schools of the city of Cadillac, and that at the time the salary was fixed and determined by the board of supervisors for the term commencing July 1, 1911, and expiring June 30, 1915, there were over 175 schoolrooms in said county, including the rooms in the Cadillac schools and the parochial schools at Cadillac and Mesick.
“At the October session of the board of supervisors for said county for the year 1905, the plaintiff called attention to the change in the law and requested the board of supervisors to increase the salary accordingly, but that no increase was made, and that the salary was fixed at $1,000, being the minimum salary for counties having 100 schoolrooms under the jurisdiction of the county school commissioner, and not including the rooms in the Cadillac schools.
“It is conceded and found by the court that the services rendered by the plaintiff in the discharge of the duties of the office of county commissioner were duly performed.
“At the April session of the board of supervisors in the year 1915 the plaintiff presented his claim of $1,683.36 alleged to be due him for services performed as county school commissioner from August 1, 1911, to April 1, 1915, claiming that he had not received the minimum salary as provided by the statute applicable during the term beginning July 1, 1911, and ending June 30, 1915, up to April 1, 1915. After a hearing the claim was disallowed by the board.
“At the October session of the board of supervisors for the year 1915 the plaintiff presented a claim for $1,200 to the board of supervisors, being the amount alleged to be due him as compensation for services performed from July 1, 1907, to June 30, 1911, on the claim that he had not been paid the minimum salary as provided by the statute applicable during that period. This claim was disallowed by the board. By stipulation the two claims are heard as one in this court.
“It is admitted that at an election duly held in the city of Cadillac, in said county and State, on the 12th day of November, 1895, pursuant to the provisions of section 1 of chapter 33 of Act No. 215 of the Public Acts of 1895, it was regularly and legally determined that the city of Cadillac should not become reincorporated under the general law governing cities of the fourth class, being Act No. 215 of the Public Acts of 1895.
“It is also admitted that since the 1st day of March, 1914, the city of Cadillac has been governed by a charter adopted under the so-called 'Home Rule Law’ of 1909 (Act No. 279, Pub. Acts 1909 [1 Comp. Laws 1915, § 3304 et seq.]), which said charter was regularly and legally adopted at an election held in said city on the 9th day of December, 1913.
“It must also be conceded as a fact that from and after the 22d day of May, 1895, up to the 1st day of March, 1914, the city of Cadillac was governed under and by virtue of the act reincorporating it, being Act No. 429 of the Local Acts of the legislative session of 1895, approved and becoming operative on May 22, 1895, and that by the terms of this local act so much of Act No. 178 of the Session Laws of 1873 as was not modified or superseded by the express provisions of said local act was embodied in and became a part of said charter of said city of Cadillac.
“Conclusions of Law.
“The question naturally arises whether the expression, ‘operating under a general charter,’ as used in the statute, refers to the basic law of a municipality or to the general law providing for the establishment and operation of graded schools in the cities and villages throughout the State not organized by virtue of special acts of the legislature. * * *
“So far as is important in this case, the charter of the city of Cadillac from May 22, 1895, to March 1, 1914, was Local Act No. 429 of the Local Acts of the legislature for the year 1895, by which the city of Cadillac was reincorporated, and which act by specific reference embodied as a part thereof so much of Act No. 178 of the Public Acts of 1873 as was not modified or superseded by the express provisions of said local act. It must be conceded, then, that so far as Local Act No. 429 modified and superseded Act No. 178 the charter of the city of Cadillac is special. The act of reincorporation itself is by its terms special. It can hardly be conceived how the charter can be held general for some purposes and special as to others, when all are covered by the same instrument and what it is specifically made to include as a part and parcel thereof. In my judgment it must be held to be all one thing or all tli© ©th©r
“Act No. 215 of the Public Acts of 1895, known as the fourth-class city law, repealed Act No. 178 of the Laws of 1873, and all other acts and parts of acts inconsistent with the provisions of said act. Section 1 of chapter 33 of said act excepted from the operation of said Act No. 215 all cities within the fourth-class city classification that came within its terms-and complied with the following proviso:
‘Provided, however, that whenever fifty or more of the qualified voters of any city of the fourth class, which has been incorporated under a special act of the legislature, shall file with the council thereof on or before the first day of November, in the year of our Lord one thousand eight hundred ninety-five, a petition praying that an election of the qualified voters of such city be called to determine the question as to whether such city shall remain incorporated under the special act under which it was incorporated and by which it is governed at the time of the filing of such petition, or whether it shall become subject to the provisions of this act, thereupon it shall be the duty of the council, within ten days after the filing of such petition, to call a special election of the qualified voters of such city to determine such question.’
“It will be noticed that the proviso applies solely to cities incorporated under special acts of legislature. The city of Cadillac, having been reincorporated by virtue of Local Act No. 429, came within the proviso. A petition was filed and an election held thereunder, the result of which was that the city voted to remain incorporated under the special act rather than to come under the provisions of the general law, known as the fourth-class city law, being Act No. 215 of the Public Acts of 1895.
“The charter of the city of Cadillac, as provided by said Local Act No. 429, specifically provided for the organization and operation of public schools in said city, including the examination of teachers and supervision of the schoolrooms and the teachers therein employed. In fact, by the terms of the city charter, the ‘public schools of the city of Cadillac’ is made and constituted a separate and distinct corporation, with its own charter or basic law.
“Whatever may be claimed to have been the status of the city charter prior to May 22, 1895, since that date the city schools must, in my judgment, be considered as having been governed under and by a special charter. If, then, the question at issue is to hinge upon whether the legislature had in mind a general charter, as distinguished from a special city charter, the schoolrooms in the city of Cadillac should not be included in the count. * * *
“While the minimum salary as fixed by the statute may be and doubtless is inadequate, when the importance of the work and the ability, both native and acquired, that go to make up a competent commissioner of schools, are considered, yet that is a matter for the legislative body of the county, and not for the court.
“From what has been said it follows that, interpreting the statute from either point of view, the plaintiff is not entitled to recover, and judgment is therefore directed for the defendant, but without costs.”

It is insisted the court erred in not counting the schoolrooms in the city of Cadillac. It is claimed by appellant that section 10 of Act No. 148 of the Public Acts of 1905 (2 Comp. Laws 1915, § 5885) should control the salary of the plaintiff during his term of office commencing July 1, 1907, and ending June 30, 1911. It provided in part:

“And not less than twelve hundred dollars where there are one hundred twenty-five schoolrooms under his supervision; and in no case shall such compensation exceed the sum of eighteen hundred dollars per annum: Provided, that in estimating the1 number of schoolrooms in any county all graded schools operating under a general charter shall be included.”

It is also claimed by appellant that section 10 of Act No. 247 of the Public Acts of 1909 (2 Comp. Laws 1915, § 5885) should determine the plaintiff’s salary during his term of office commencing July 1, 1911, and' ending June 30,1915. It provides:

“Not less than fifteen hundred dollars where there are one hundred and seventy-five schoolrooms under his supervision; and in no case shall such compensation exceed the sum of eighteen hundred dollars per annum: Provided, that in estimating the number of schoolrooms in any county all graded schools operating under a general charter shall be included.”

This language is not ambiguous, and we think it clearly justifies the board of supervisors ana the circuit judge in declining to count the schools of the city of Cadillac.

Judgment is affirmed, with costs to defendant.

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


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    PORTER v. LA RUE. In re BROWER’S ESTATE.
    1. Wills — Undue Influence — Evidence—Directed Verdict.
    In proceedings contesting a will on the ground of undue influence, the question is not so much a question of law as it is of fact, but where there was no competent evidence of undue influence it was not erroneous for the court to take the question from the jury.
    2. Same — Competency—Instructions.
    Where the court properly instructed the jury as to the degree of competency requisite to make a will, it was not objectionable to also charge that “the right to make a will is a sacred right, and ought not to be frittered away by imagination or uncertain testimony,” and it cannot be said that such language gave the impression to the jury that in the opinion of the court the evidence on the part of the contestant was purely imaginary and wholly uncertain.

    Error to Berrien; Bridgman, J.
    Submitted June 7, 1916.
    (Docket No. 26.)
    Decided July 21, 1916.
    Arthur Porter, as executor, presented for probate the last will and testament of Addie Porter Brower, deceased. The will was allowed in the probate court, and Thomas E. La Rue appealed to the circuit court. Judgment for proponent. Contestant brings error.
    Affirmed.

      Willard J. B any on and G. M. Valentine, for appellant.

      Will R. Stevens, for appellee.

      For authorities passing on the question of what constitutes competency or incompetency to make a will, see comprehensive note in 27 L. R. A. (N. S.) 2, and also note in 3 L. R. A. (N. S.) 172.

   Moore, J.

Early in 1915 Mrs. Brower, then about 55 years of age, made her will. She bequeathed to the Methodist Church $100, to each of five persons $100, to her son Thomas La Rue $200, and to her nephew $300. The probating of the will was contested by her son upon (1) the ground of undue influence, and (2) mental incompetency. The case was submitted to a jury, which found in favor of the will. The case is brought here by appeal.

The trial judge took the question of undue influence away from the jury. This is said to be error,’ counsel citing 40 Cyc. title “Wills,” p. 1170, Wilson v. Parker, 130 Mich. 638 (90 N. W. 682), and other authorities. This feature of the case is not so much a question of law as it is" of fact. We have examined this record with care, and do not find any competent evidence of undue influence. Clark v. Ulrich, 153 Mich. 695 (117 N. W. 329), and the cases cited therein; In re Shepard’s Estate, 161 Mich. 441 (126 N. W. 640); In re Woodworth’s Estate, 162 Mich. 683 (127 N. W. 808).

Complaint is made of that part of the charge reading as follows:

“Gentlemen of the jury, the right to make a will is a sacred right, that ought not to be frittered away by imagination or uncertain testimony. A man has a right to dispose of his property in any way he sees fit, give it to whom and where he pleases, even to the disregard, if he sees fit, of his own blood relatives. He has a right to make such a will, if he is mentally competent and knows what he is doing and is not unduly influenced.”

It is said this language gave the impression to the jury that in the opinion of the court the evidence on the part of the contestant was purely imaginary and wholly uncertain. Other portions of the charge were as follows:

“It is essential to the exercise of the power to make a will that the testatrix shall understand the nature of the act she is doing, and that she shall be able to comprehend and appreciate her relationship to others who might or ought to be the objects of her bounty, and that nothing shall so far influence her will in disposing of her property as to bring about a disposition of it, which, if her mind had been sound, would not have been made. * * * It is essential to the exercise of the power to make a will that the testatrix be able to comprehend and appreciate her relations to others who may or ought tó be the objects of her bounty, and that no disorder of the mind shall so far poison her affections and prevent her sense of right, or prevent the exercise of her natural faculties, as to render her incapable of such comprehension and appreciation, and to bring about a disposition of her property, which, if her mind had been sound, would not have been made.”

The charge was much longer than what we have quoted, and was a correct statement of the law applicable to the case. The case was tried with care. We find no reversible error.

The judgment is affirmed, with costs to appellee.

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


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    MAHDER v. WAX.
    1. Appeal and Error — New Trial — Saving Questions eor Review —Exceptions.
    Where the trial court denied the motion for a new trial without filing his reasons therefor, and no exceptions were taken, the question is not open for review in this court. 3 Comp. Laws 1915, § 12635.

      2. Action — Assumpsit—Fraud—Joinder of Counts — Pleading— Election of Count.
    Where plaintiff complained of defendant in a plea of trespass on the case upon promises, his declaration containing four special counts and also all the common counts in assumpsit, he could not be required to elect upon which counts he sought a verdict because in the special counts he used the words fraud and deceit, as, under section 10421, 3 Comp. Laws, an action of assumpsit may be brought to recover damages caused by fraud or deceit.
    Error to Ottawa; Cross, J.
    Submitted June 23, 1916.
    (Docket No. 120.)
    Decided July 21, 1916.
    Assumpsit by Samuel Mahder against Joachim Wax for an amount due on the sale of certain land. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corie C. Coburn and Charles Misner, for appellant.

      Louis H. Osterhous, for appellee.
   Moore, J.

This case was commenced by the filing of a declaration containing four special counts and also all the common counts in assumpsit. The plaintiff claims the special counts were in assumpsit. The defendant ■ pleaded the general issue with notice that a settlement had been made and a receipt given and also gave notice of other defenses. The case was tried before a jury. Upon the trial plaintiff admitted the parties agreed upon a settlement of their differences and that a receipt was given, but insists it was on the defendant’s promise to pay the amount agreed upon the next day, which promise was never fulfilled. A motion was made that plaintiff be required to elect upon which counts he sought a verdict. This motion was overruled. The court stated fully to the jury the claims of the parties and charged them that the burden of proof was with the plaintiff, not only to establish his case affirmatively, but to explain the giving of the receipt. The testimony was very conflicting. The jury found a verdict in favor of the plaintiff in the sum of $575. A motion was made for a new trial and was overruled. The case is brought here by writ of error.

We will first take up the last assignment of error, which is that the court erred in not granting a new trial. The record does not show that the trial judge filed his reasons for denying the motion, nor does it show that exceptions were taken. The question is not open for review here on this record. See section 10504, 3 Comp. Laws (3 Comp. Laws 1915, § 12635); Hotchkiss v. Weinmann-Matthews Co., 175 Mich. 652 (141 N. W. 568), and authorities cited therein.

The most important assignment of error is stated by counsel as follows:

“ ‘The court erred in refusing to compel plaintiff to elect upon which counts he desired to proceed to trial and to go to the jury/ * * * Upon reading the declaration it is obvious there are actions ex contractu and ex delicto under the different counts. The law is well settled, in this State that a plaintiff cannot under one count seek to recover in assumpsit, and under another on a case of fraud. They cannot be joined. 1 Green’s Michigan Practice, p. 406· Dillon v. Craig, 168 Mich. 216 (132 N. W. 1041).”

A reading of the various counts does not lead us to the conclusion of counsel. It is true that plaintiff states what he claims to be the facts in the special counts and makes use of the words deceit and fraud, but he complains of the defendant in a plea of trespass on the case upon promises. We have a statutory provision reading:

“In all cases where, by the fraudulent representations or conduct of any person, an injury has been or shall be produced, either to the person, property or rights of another, for which an action on the case for fraud or deceit may by law be brought, an action of assumpsit may be brought to recover damages for such injury.” Section 10421, 3 Comp. Laws (3 Comp. Laws 1915, § 12350).

A decision quite in point is Case v. Rudolph Wurlitzer Co., 186 Mich. 81 (152 N. W. 977).

The other assignments of error have been examined, but do not call for discussion.

Judgment is affirmed, with costs to plaintiff.

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