author: Brooke, C. J.

text:
    MARTINDALE v. LOBDELL-EMERY MANUFACTURING CO.
    1. Principal and Agent — Contracts—Agent’s Authority — Logs and Logging.
    Where plaintiff contracted with defendant to cut and haul logs at a specified price, agreeing to do the work according to instructions, evidence that defendant’s woods superintendent, who had on previous occasions assumed to direct the performance of similar contracts with defendant’s consent, instructed the plaintiff to deck the logs at an agreed extra compensation, immediate shipment being impossible because of a shortage of cars, the trial court was warranted in submitting to the jury the question of the extent of the agent’s authority.
    2. Same — Contracts—Agent’s Authority — Extra Compensation —Pleading—Instructions.
    The court properly instructed the jury that plaintiff was entitled to recover, under the common counts, the value of the extra services performed, if they should determine that defendant’s agent was acting within the scope of his authority in instructing plaintiff to perform them.
    3. Contracts — Oral Contract — Statute oe Frauds — Written Contract — Logs and Logging.
    Where plaintiff sued to recover one-half of the scaler’s wages, alleged to have been paid by him pursuant to an oral contract with defendant that each should pay one-half, positive testimony by plaintiff that said contract was made subsequent to the written contract, 'the record as a whole sustaining this contention, he was properly allowed to recover, notwithstanding defendant's denial of any such arrangement at any time.
    4. Same — Logs and Logging — Breach op Contract — Damages.
    Where defendant’s logging contract gave it the right to stop the work if it was not being done properly and satisfactorily, and defendant stopped the cutting, claiming that plaintiff already had more logs cut than he could haul to the landing, in an action for damages for breach of contract and consequent loss of profits, the court properly instructed the jury that if an honest, fair-minded lumberman of ordinary intelligence, experience, and prudence would not have believed that the plaintiff, under the circumstances then existing, could haul the logs before the contract date expired, then plaintiff could not recover, but that if be bad not been stopped be could bave completed tbe contract of cutting and hauling, be could recover the difference between tbe contract price and tbe cost of putting in such logs as be could cut and haul.
    Error to Montmorency; Emerick, J.
    Submitted June 25, 1915.
    (Docket No. 70.)
    Decided December 22, 1915.
    Assumpsit by Grant E. Martindale against the Lob-dell-Emery Manufacturing Company, a Michigan corporation, for damages for breach of contract. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Henry, Henry & Henry, for appellant.

      Elmer G. Smith (Joseph H. Cobb, of counsel), for appellee.
    Originally the relations between the parties to this action were set forth in two separate contracts, as follows:
    “This agreement, made and entered into this 15th day of July, A. D. 1911, by and between the Lobdell . & Churchill Manufacturing Company of Onaway, Michigan, party of the first part, and Grant E. Martin-dale, of Onaway, Michigan, party of the second part, witnesseth:
    “The second party agrees to lumber, cut, remove and deliver on the conditions and terms hereinafter mentioned, a part or all of the timber now growing, standing, lying and being on the following lands: Section 32, township 31 north, range 1 west, Otsego county, Michigan.' * * *
    “It is further understood and agreed that all of the timber is to be cut low on the stump and in the most economical manner for the saving of the timber, and from such portions of the section and in such kinds of timber and in such quantities as the first party may direct from time to time.
    “The second party further agrees that the work shall# be done in a good workmanlike manner and that the instructions as to the manner in which this work shall be done shall be lived up to and carried out by the second party in all its details, and all the balance of the logs not specified above shall be cut in the standard lengths, from 8 to 16 feet.
    “It is further understood and agreed that all logs are to be delivered free on \ oard cars on the McGraw Branch of the Michigan Central Railroad, assorted as follows: All hemlock to be loaded by itself for distinct shipment. All basswood to be loaded by itself for distinct shipment. All elm to be loaded by itself for distinct shipment, if called for.
    “An assortment in loading maple, beech and birch, if found necessary later by the first party.
    “It is understood and agreed, further, that said party of the second part is to receive from the first party a price of $4.50 per M., log scale, and the .official scale of the Michigan Central Railroad Co. shall be accepted as the final scale.
    “It is understood and agreed, further, that the terms of settlement shall be as follows: Payment to be made to the party of the second part by the party of the first part on the 15th day of each month for all stock delivered during each previous month.
    “The second party agrees to commence operation immediately and to commence shipping logs about the 5th or the 10th of August.
    “And the second party further agrees and understands that should this work not be done satisfactorily to the first party, they, the first party, have the option of terminating this contract at any time,
    “This contract shall be in force for só long a time as the work is done satisfactorily to the party of the first part, as stated above.
    “By E. J. Lobdell, President.
    “G. E. Martindale.
    “Witnesses:
    “G. E. Trimm.
    “M. E. Cruse.”
    “Memorandum of agreement entered into this 9th day of September, A. D. 1912,. between the Lobdell & Churchill Manufacturing Company, of Onaway, Michigan, party of the first part, and Grant Martindale, of Onaway, Michigan, witnesseth:
    “The said party of the second part is to log, cui, remove and clean all of the dead hemlock timber now lying, being, growing, or standing, which is marked and stamped to the boundaries on the outside of the burnt and dead wood timber on the following described land, which is included; hemlock timber blown over or lying flat throughout the lands as described herein. * * *
    “Second party agrees to cut all of the above timber low on the stump and to take the trees and logs clean from the smallest to largest in exact accordance with instructions given by the Island Mill Lumber Company, of Alpena, Michigan. The same to be cut in as economical manner as possible by the first party and the second party agrees to cut the hardwood logs as far as possible into fifteen-foot lengths, all logs which will make clear and clean logs.
    “The second party further agrees that all work shall be done in a good and workmanlike manner and to the entire satisfaction of the first party. It is fully understood and agreed between the first and second parties that should any part of this work not be properly done by the second party the first party has the right to stop the work and the second party agrees to vacate the premises at once without recourse, upon settlement being made for all work done in exact accordance with this contract and any timber which has been so cut by the second party not in exact accordance with the above instructions and contract, a reasonable price shall be deducted for cleaning up of said lands and for the work done in cutting such timber.
    “It is further agreed that the delivery of all the above-mentioned timber and logs shall be made before April 1, 1913.
    “The second party further agrees to furnish the first party with an accurate time sheet of men’s names and time worked each week and a settlement shall be made for all labor performed on the premises delivering logs for the second party on the last Saturday of each and every month, and it is further agreed and understood that the party of the first part shall pay to the second party for all logs delivered on the banks of the river at Rea’s Landing and Hunt creek the sum of $4.00 per thousand feet, Scribner’s rule, merchantable scale, and that payment shall be made for all work done the last Saturday of each and every month as follows: $2.50 shall be paid for all logs delivered or skidded and the roads made to them, and the balance of $1.50 is to be paid when the logs are delivered at Rea’s Landing and Hunt creek.
    “It is further understood and agreed that the second party shall have the balance of lumbering of hemlock timber on the above-described lands provided the prices for hemlock timber continue favorable and the railroad switch is put in to this timber, as talked and agreed to between the Boyne City, Gaylord & Alpena Railway Company.
    “And it is further understood and agreed that the second party shall have the lumber, hard and soft wood timber, at such time as first party shall desire to have same delivered to be manufactured at Onaway, Michigan, into their various manufactured products.
    “The above price is to include any decking that maybe required.
    “On each and every car loaded the second party is to furnish party of the first part with the number of each and every log on same.
    “The Lobdell & Churchill Mfg. Co.,
    “By E. J. Lobdell, Pres.
    “G. E. Martindale.
    “Witnesses:
    “D. Bertrand.”
    Prior to the execution of either contract the plaintiff had performed two or more lumbering contracts for the defendant under oral agreements. Before the first of the contracts in question was. executed the plaintiff went over the ground to be lumbered with Mr. A. H. Blanchard, who was woods superintendent for the defendant company, and at whose request the first contract was. made. Subsequently Mr. Lobdell, president of the defendant company, Mr. Blanchard, and the plaintiff met in the office of the defendant cornpany where, after a conversation, the first contract was executed. Plaintiff seems to have immediately prepared for operations, and started the shipment of timber under the contract early in August, 1911. There is no doubt that it was contemplated between the parties that the operation should be carried on as a “hot-logging” operation. That is. to say, it was expected that the trees would be cut down, immediately thereafter “swamped,” “skidded,” and hauled to the Mc-Graw Branch for loading, where they were to be immediately loaded upon cars furnished by the railroad company for the purpose of transportation to Bay City, where the defendant had contracts of sale covering the product. From early in August to about the 8th day of January, the Michigan Central Railroad Company supplied sufficient cars to permit the operation to proceed under the “hot-logging” practice. From that time forward the cars were not furnished in adequate numbers by the railroad company. When this situation arose, the plaintiff and Mr. Blanchard, defendant’s woods superintendent, went to Bay City, and there interviewed the railway officials for the purpose of securing adequate car service. This, however, they were unable to accomplish. Whereupon, it is undisputed on the record that Blanchard directed plaintiff to continue the operations and deck all logs at the branch where they were to be loaded, and where they should lie until cars should be furnished later. In carrying out these instructions, plaintiff built 1,000 feet of extra side track, and thereafter decked about 1,500,000 feet of logs. These were not all decked at the same time, plaintiff loading from day to day such cars as were furnished with logs as they came from the cutting grounds. For extra labor in building the side track and decking these logs plaintiff claimed the sum of $750, being 50 cents per thousand. The record discloses that the value of the extra services performed in this behalf was from $1 to $1.50 per thousand, but plaintiff and Blanchard agreed that the compensation should be 50 cents per thousand. Blanchard, defendant’s woods superintendent, as well as plaintiff, testified to this agreement. While defendant does not deny the making of this agreement between Blanchard and plaintiff, it does deny the authority of Blanchard to act as its agent and bind it.
    A second controversy, arising under the first contract, involves the question of the payment of the wages of a scaler. The total amount paid by the plaintiff as the wages of a scaler was $700, one-half of which, $350, plaintiff claimed from defendant. Touching this item, it was the claim of the plaintiff that after the first contract was entered into it was agreed between himself and Mr. Blanchard, in the presence of Mr. Lobdell, who consented to the arrangement, that a scaler should be employed, mutually satisfactory to the parties, whose scale should be used as a check upon the scaler of the Michigan Central Railway, and that the wages of said scaler should be borne one-half by each party to the contract. This arrangement, testified to by plaintiff and Mr. Blanchard, was denied by Mr. Lobdell.
    The third item of plaintiff’s claim arises under the second contract, and grows out of the fact that on February 4th defendant ordered plaintiff to discontinue cutting on a portion of the so-called Montmorency contract. It is plaintiff’s claim in this regard that he had built roads to the timber to be lumbered under the contract, and that he could have lumbered some 600,000 or 700,000 feet more timber had he not been unlawfully ordered to discontinue that operation. Plaintiff claims that by reason of defendant’s unlawful act in ordering him to stop he lost a prospective profit of $1,200.

      A second dispute arose between the parties growing out of the second contract. That contract provides:
    “$2.50 shall be paid for all logs delivered or skidded and the roads made to them, and the balance of $1.50 is to be paid when the logs are delivered at Rea’s Landing and Hunt creek.”
    Early in the performance of this contract a dispute arose between plaintiff and defendant as to the location of Rea’s Landing. It was the contention of plaintiff that Rea’s Landing was located upon the river about a mile and a half above Hunt creek, whereas the defendant claimed that it was located at a place called the “spout,” very close to Hunt creek. Defendant held back a part of the contract price, thus compelling plaintiff to deliver the logs where defendant ■claims Rea’s Landing was. This necessitated the watering and driving of the logs from the place where plaintiff had banked them on the river to the point claimed as Rea’s Landing by defendant. For the extra services plaintiff demanded the sum of $500.00.
    Plaintiff made four other claims against defendant under the two contracts, but as these were not submitted to the jury by the trial court, they may be disregarded.
    Plaintiff’s original bill of particulars was as follows:
    1911-1912. Building 1,000 feet railroad track, clearing ground for decking and decking 1,-500,000 feet logs at 50 cents per M........... $750 00
    1911-1912. Sorting 300,000 feet beech logs...... 50 00
    1911-1912. % scaler’s wages 14 mo. at $50...... 350 00
    1911-1912. Delay caused by not having sufficient cars................................... 250- 00
    1911-1912. Cutting 44,000 feet logs at $4.50 per M....................................... 198 00
    1911-1912. Going over grounds a second time.. 44 00
    Later an amended bill was filed in which the following items were claimed:

      Damage for profits on 6,000,000 feet hemlock at $2.00 per thousand..........................$1,200 00
    Driving logs................................. 500 00
    Defendant pleaded the general issue, and gave notices of set-off and recoupment, the general tenor of which was that the plaintiff had carelessly and incompetently. performed the contract to defendant’s damage, the items of defendant’s demand being as follows:
    1912. To damages account of logs left undelivered under contract of September, 1912... $269 49
    To improper cutting of logs, same being cut too long and too short.................... 1,000 00
    To balance of maple, beech and elm logs and standing trees left in woods on Otsego job.. 600 00
    $1,869 49
    After an exhaustive trial of the issues so framed, plaintiff recovered a judgment in the sum'of $1,580.42, which defendant now reviews in this court by writ of error.
   Brooke, C. J.

(after stating the facts). The first item upon which the jury was permitted to pass was the sum of $750, the price agreed upon between Blanchard and plaintiff to be paid for the building of the 1,000 feet of side track, and the decking of the logs caused by the failure of the railroad company to furnish sufficient cars to permit plaintiff to conduct the operation after January 8th as a “hot-logging” proposition, which it is clear was the method of handling the job contemplated by the parties at the time the contract was made. As pointed out in the statement of facts, Blanchard, defendant’s woods superintendent, testified to the fact of making the agreement for the extra compensation exactly in accordance with the claim of plaintiff. On behalf of defendant it is urged that Blanchard was without authority, under the evidence, to modify the contract imposing an additional liability upon it. The contract provides:

“The second party further agrees that the work shall be done in a good workmanlike manner and that the instructions as to the manner in which this work shall be done shall be lived up to and carried out by thq second party in all its details.”

There can be no doubt under this section of the contract that the defendant, through its woods superintendent Blanchard, the contingency of the shortage of cars having arisen, ordered plaintiff to continue the operation and deck the logs at the siding. It should be borne in mind that the operation in question was being carried on in timber which had been injured by fire, and that it was necessary to have it cut and marketed speedily in order to prevent serious depreciation and loss. The authority of Blanchard to meet the exigency and to order a change in the method of the operation being unquestioned, it seems to us that plaintiff would have a clear right to recover the value of the extra services performed, under the common counts in his declaration, and under the uncontradicted testimony as to the value of such services contained in the record. Upon this question the court, charged in part:

“And I charge you further, gentlemen, that if what Mr. Martindale claims for that service, that is to say, one-half dollar a thousand for 1,500,000 feet — if these services were fairly and reasonably worth that sum, he would be entitled to recover this sum of $750, which is his first claim in this case. Otherwise not.
“If you do not find that Mr. Blanchard had this authority, which I have spoken of, to oversee, supervise, manage, and control the outside operations in the woods of this concern, then Mr. Martindale hasn’t a look-in on that claim. But if he had, then I charge you equally as the law that he had a right to make this arrangement, which he says he made, to have Mr. Martindale put this excess of logs into these skidways and thereafter load them out. And if he promised that he should be paid for those services, then Mr. Martindale would be entitled to recover what those services — that is, the extra cost in loading out the skidded logs — what it was fairly and reasonably worth. He claims $750. It is for you to say whether he is entitled to that sum.”

The first paragraph quoted above would seem to permit a recovery on the quantum meruit. The second predicates the plaintiff’s right to recover upon the authority of Mr. Blanchard to fix the value of the extra services and bind his principal to pay the agreed sum. As indicated, we believe the first paragraph above quoted states the law applicable to the case, but we are further of the opinion that no error was committed by the court in submitting the question of Blanchard’s agency to the jury under the testimony contained in the record. From Blanchard’s testimony it fairly appears, we think, that he had, on various occasions during the period of his service with defendant, assumed to direct the performance of similar contracts, and that his principal, the defendant, had recognized his authority so to do. The testimony of plaintiff and Blanchard as to the method of doing business and as to the exercise of authority by Blanchard in this as well as in other similar contracts was, in our opinion, quite sufficient to carry to the jury the question as to whether Blanchard had authority to agree to pay the extra compensation. Marx v. King, 162 Mich. 258 (127 N. W. 841).

With reference to the second item of plaintiff’s claim, one-half the scaler’s wages, it seems to be defendant’s contention that the oral agreement to divide the expense testified to by Blanchard and plaintiff was made prior to the execution of the written contract, which provides that:

“The official scale of the Michigan Central Railroad Company shall be accepted as final.”

Plaintiff himself clearly testified that the arrangement was made subsequent to the execution of the contract, and we think a fair consideration of the entire record leads to the conclusion that the weight of the testimony is to that effect. Mr. Lobdell himself flatly denied the making of any such arrangement at any time.

As to the third item of plaintiff’s damages arising from the closing down of the so-called Montmorency operation, defendant claims that it was acting within its legal rights in so doing in order to insure the delivery of ah the logs then cut to the piling grounds designated in the contract before the snow should vanish in the spring. Counsel for defendant say:

“The defendant’s position, for the reasons indicated above, and to insure the delivery of the logs already decked, was- simply that Martindale should stop cutting any more timber until he had hauled this 1,500,-000 feet which was decked, and that he should use his dray haul force in hastening the delivery of these sleigh haul logs.”

Upon this point the learned trial judge instructed the jury as follows:

“If you find from the evidence, gentlemen, in this case, by a fair weight and preponderance, that if Grant Martindale had not been stopped by the defendant, that he could have hauled out his sleigh haul logs, and also could have cut and, put in this quantity of dead hemlock which he was using for his dray haul; that if he had not been stopped he could have completed the job on both kinds of timber — then I charge you that he would be entitled to such damages as I shall instruct you in a few moments. But, on the other hand, gentlemen, and from the different standpoint, I charge you expressly that if an honest, fair-minded lumberman, of ordinary intelligence, experience, and prudence, would not have believed that the plaintiff, under the circumstances then existing, could put his sleigh haul logs then on skids to the river before April 1, 1913, and"also put in the remaining dray haul timber, and that the defendant did not so believe, then the •defendant had the right to instruct the plaintiff to stop cutting dray haul logs and use his force to get all the logs ready cut to the river before cutting any more logs of either kind.
“Now, gentlemen, if under these instructions you find that the plaintiff would be entitled to recover damages for being prevented from continuing his operation in cutting and hauling the dray haul logs, I must tell you what you might award him. It is the claim of the plaintiff, and he has given evidence tending to show that state of facts, that before this time he had constructed all necessary or useful roads for the purpose of taking out the remaining standing, dead hemlock timber, standing and lying dead hemlock timber on section 28; that there was a quantity of that of about 600,000 feet; that he had built all necessary roads and landings; and that he could have done that work for $2 per thousand feet. The contract price was $4 a thousand, and he claims to recover, as the measure of damage, $2 a thousand, or the difference between the cost of putting in the logs and the contract price; and I charge you, gentlemen of the jury, that if you believe he is entitled to recover under these instructions which I have just stated to you and repeated, that that would be the measure of his damage. Not $2 necessarily — I do not say $2. It is for you to say, first, how much timber there was there that he could have put in before the 1st of April. Not just 600,000 because he says so, unless you are convinced from the evidence that that is true — but he could recover the difference between the cost of putting in such timber as he could and would have put in and the contract price. That would be the measure of damages.”

This instruction we think correctly states the law applicable to the facts. Atkinson v. Morse, 63 Mich. 276 (29 N. W. 711).

The last item involves a pure question of fact, and was submitted to the jury under appropriate instructions.

The judgment is affirmed.

Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


source: Caselaw Access Project

license: Public Domain

text:
    BROOKS v. PARKS.
    .1. Wills — Husband and Wife — Heirs—Descent and Distribution — Devise to Child, Remainder to Heirs.
    In a devise of property to one of the daughters of testatrix, remainder to her children, and the remaining property to another daughter, remainder 'to her heirs, and in the event of the death of the grandchildren or any of them, before the time for receiving his or her share, the same should pass to the brothers and sisters, to be equally divided between them, and in case all the children of one daughter should die their shares to go to the children of the other daughter, the word heirs as applied to the second daughter, should be understood as intending the legal heirs of the devisee.
    2. Same — Words and Phrases.
    In its legal and technical sense, the word heir is understood as designating the persons appointed by law to succeed in case of intestacy. Wherever the word is employed by a testatrix unaccompanied by qualifying or explanatory expressions, it must be allowed the meaning the law gives it and those only will come within the class thus described who would take under the intestate laws.

      3. Same — Construction.
    A husband is the beir of bis wife under tbe intestate statutes. By tbe provisions of tbe foregoing will, tbe bus-band of tbe second daughter mentioned in tbe will took one-balf tbe estate left by bis wife, their son having died before becoming seised of bis share. The use of tbe word heirs as to tbe one daughter, and children as to tbe other, indicated tbe intent of tbe testatrix that tbe property should descend differently.
    Appeal from Oakland; Smith, J.
    Submitted June 23, 1915.
    (Docket No. 69.)
    Decided December 22, 1915.
    Bill by Eugene Brooks against Austin R. Parks and others for the construction of the will of Polly Robinson, deceased. From a decree for defendants, complainant appeals.
    Reversed.

      Perry & Lynch (John H. Patterson, of counsel), for complainant.

      Glenn C. Gillespie and Andrew L. Moore, for defendants Edgar A. Parks and Polly E. Bray.
   Brooke, C. J.

Complainant files his bill of complaint in this cause for the purpose of securing a construction of the will of Polly Robinson, deceased. The will was made October 5, 1881, and admitted to probate March 4, 1889. At the time the will was made, 'and at the time of her death, the testatrix had two daughters, Anna E. Parks and Martha J. Brooks, and no other children. She had four grandchildren, all of whom survived — Austin R. Parks, Edgar A. Parks, and Polly E. Bray, children of Anna E. Parks, and Francis E. Brooks, the only child of Martha J. Brooks, and this complainant, her husband. Her daughter Anna E. Parks died February 26,1903, and her daughter Martha J. Brooks died March 25, 1914. Francis E. Brooks, son of Martha J. Brooks, died before his mother, on December 5, 1907. The other three grandchildren are still living and are defendants in this case. Complainant has acted as administrator of the estate, with the will annexed, for upwards of 20 years. Upon the death of Anna E. Parks in 1903, a partial distribution of the estate was had. Upon the death of Martha. J. Brooks, in March, 1914, it became necessary to distribute the residue thereof, and the question arises as to how said residue shall be distributed.

The twelfth and thirteenth paragraphs of the will are as follows:

“12. After the legacies and bequests hereinbefore mentioned are disposed of, settled and paid, I give and bequeath all of the remainder of my personal and real estate which I now have or may hereafter acquire as follows, to wit: The use of one-half thereof I give and bequeath to my daughter, Anna E. Parks during her lifetime and after her decease I give and bequeath the said one-half of my said property to her children to be divided equally among them. I give and bequeath the use of the remaining half of all my said property to my daughter, Martha J. Brooks during her lifetime and after her decease I give and bequeath the said remaining half of my said property to her heirs.
“13. I hereby order and direct that in case of the death of any of my grandchildren before the time of receiving his or her share of my property as above specified, the share belonging to such deceased child or children shall belong to the brothers and sisters of such deceased child to be equally divided between them, and in case all of the children of one of my said daughters shall die before the time of receiving their share of said property then I order and direct that the said shares shall be given to the children of the other daughter to be equally divided between them.”

Complainant shows that as administrator he has in his hands the sum of $18,098.58 to be distributed. He claims that under the final section of the twelfth clause of the will, he, being one of the heirs of Martha J. Brooks, is entitled to .one-half of said sum. It is the contention of the defendants, on the other hand, that the thirteenth clause limits the operation of the twelfth clause and clearly indicates an intention on the part of the testatrix to have the entire residue of the personal estate, devised by section 12, descend to her grandchildren, the children of one or the other of her daughters. From a decree sustaining this view, complainant has appealed.

In the late case of Beck’s Estate, 225 Pa. 578 (74 Atl. 607), it is said:

“In its legal and technical sense the word ‘heir’ is understood as designating the persons appointed by law to succeed in case of intestacy, and, wherever the word occurs in a will unaccompanied by qualifying or explanatory expressions, it must be allowed the meaning the law gives it, and those only will come within the class thus described who would take under the intestate laws. And where qualifying expressions are relied on to give other than technical meaning, these must be so direct and unequivocal as to imperatively require such interpretation” — citing Criswell’s Appeal, 41 Pa. 288, and Eby’s Appeal, 50 Pa. 311.

In the case of Gerard v. Ives, 78 Conn. 485 (62 Atl. 607), the clause of the will under consideration was as¡ follows:

“* * * One-fourth part to Henry White, Esq., of New Haven, in trust and confidence that he will annually pay over the rents, issues, interest, and profits thereof to Eunice Louise Beecher, wife of George H. Beecher, my niece, during her natural life; and then and after her decease, I give, devise, and bequeath the said fourth part to her lawful heirs forever.”

The court there said:

“The plaintiff claims that the words ‘her lawful heirs,’ as used in the above quotation, should be held to mean either ‘children’ of Mrs. Beecher, or the lawful heirs of Mrs. Beecher, living at the death of Mrs. Maltby (the testatrix). This claim is not tenable. In its primary and technical meaning in our law, the word ‘heirs’ is used to express the . relation of persons to some deceased ancestor; and when it is used in a will, as here, to point out legatees or devisees, its primary legal meaning should be given to it unless it is clearly shown by legitimate evidence that the testator used it in a different sense. This is the settled rule of construction in this State” — citing Gold v. Judson, 21 Conn. 616; Rand v. Butler, 48 Conn. 293; Leake v. Watson, 60 Conn. 498 (21 Atl. 1075); Ruggles v. Randall, 70 Conn. 44 (38 Atl. 885).

In the case of Smith v. Winsor, 239 Ill. 567 (88 N. E. 482), it is held that the word “heirs” in a will may mean children, and it may mean some other class of heirs, not including all, where the context of the entire will plainly shows such purpose.

That the complainant under the laws of this State was an heir to his wife, Martha J. Brooks, is not open to question. Lyons v. Yerex, 100 Mich. 214 (58 N. W. 1112, 43 Am. St. Rep. 452); Turner v. Burr, 141 Mich. 106 (104 N. W. 379); and Menard v. Campbell, 180 Mich. 583 (147 N. W. 556). As such heir, there being no children, complainant would inherit one-half of the estate left by his wife. Act No. 331, Pub. Acts 1905, and Act No. 286, Pub. Acts 1909.

The fact that Martha J. Brooks possessed only a life interest in the property devised is of no consequence. Complainant, as to the property in question, does not inherit from his wife. He is entitled to take simply because he is designated in the will of the testatrix as one to whom the property shall go upon the expiration of the life estate. It is strongly urged on behalf of defendants that a contrary intention on the part of the testatrix is to be gathered from a consideration of the whole instrument. With this view we are unable to agree. The fact that the testatrix in the same clause devised the remainder in one-half to the children of her daughter Anna E. Parks, and the remainder in the other one-half to the heirs of her daughter Martha J. Brooks, in our opinion, dearly indicates an intention upon her part to have the several remainders descend differently. Her determination to so dispose of the remainders may have been induced by the fact that, while her daughter Anna E. Parks had three children, her daughter Martha J. Brooks had but one child.

Nor do we think the language of the thirteenth dause modifies that contained in the twelfth clause. In effect, that dause provides that, upon the death of any of the grandchildren, his or her share of the property “as above specified” shall be disposed of among the other children. The words “as above specified” clearly refer to foregoing provisions of the will, and, so far as it affects the question under consideration, to section 12 of the will. What share “as above specified” would go to Francis E. Brooks, the only child of Martha J. Brooks? Had he outlived his mother, the question then would have arisen between himself and his father, both of whom would have been heirs of Martha J. Brooks and entitled to take the remainder under the plain language of the closing lines of section twelve. Francis E. Brooks having predeceased his mother, his share “as above specified” must go to his cousins, the defendants herein. But his father, the complainant, coming within the designation as an heir of Martha J. Brooks, is entitled to his distributive share under the language of the section under consideration.

The decree of the court below is reversed, and a decree will be entered in this court upon the footings of this opinion.

Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


author: - Person, J.

text:
    CULLEY v. CULLEY.
    1. Divorce — Cruelty—Evidence,
    Testimony pro and con in a suit for divorce tending to show a miserly disposition on the part of the husband, and harsh or cruel treatment, held, to warrant a decree for the complainant wife.
    2. Same — Presumptions—Witnesses.
    Where the questions involved in a suit for divorce are questions of fact and the witnesses are greatly at variance as to the circumstances, the opportunity to observe their hearing and manner upon the witness stand is of great importance, and before reversing a decree the Supreme Court must be fully persuaded that it would necessarily have reached a different conclusion had it occupied the position of the court appealed from and been favored with all the advantages of that court for judging rightly.
    Appeal from Jackson; Parkinson, J.
    Submitted June 8, 1915.
    (Docket No. 1.)
    Decided December 22, 1915.
    Bill by Estella Culley against James Culley for divorce. , From a decree for complainant, defendant appeals.
    Affirmed.

      Forrest C. Badgley and James J. Noon, for complainant.

      Wilson & Cobb, for defendant.
   - Person, J.

The parties to this suit for divorce were married in the year 1886, and have one child, a son, who was. about 23 years old when the bill of complaint was filed. The defendant is a farmer, and owned a small farm at the time of the marriage. Since then he has several times exchanged farms, or sold and purchased anew, each time getting a larger and better one, until he now owns upwards of 200 acres, and has considerable personal property, with money in the bank.

The charges against the defendant, made by the wife in her bill of complaint, are, in substance, that he yet is, and ever has been, miserly in his conduct; that he has refused, or failed, to properly furnish her with the conveniences of life; that he has caused her to work beyond her strength, and that he has treated her otherwise in a harsh and cruel manner. She avers that he has never furnished her with more than one dollar in money since their marriage, and, as further illustrating the character of his treatment, that he has never bought for her any article of clothing, except upon one occasion when he brought her a second-hand pair of shoes that had cost him 50 cents. She also alleges that at various times he has called her “a damned bitch;” and that, prior to her leaving him, he had not spoken to her during a period of about 8 years.

In his answer the defendant either explicitly denies each charge made by complainant, or makes an explanation showing that the fault was with her. He avers that he not only gave to the complainant money from time to time, but that she had the privilege of purchasing what she wished upon his credit. He charges that she has not only been insolent and insulting in her talk and conduct, but vulgar in her language and actions for the purpose of annoying and humiliating him; and that for years she has neglected her home and absented herself therefrom at times when her services were the most needed; and he closes his answer with the statement:

“That he has for years been insulted, imposed upon and abused by the complainant, all of which he has borne without complaint, avoiding, so far as he was able to do so, everything calculated to arouse her disposition.”

A considerable time was occupied by the hearing, and a large amount of testimony was taken. The circuit judge filed a lengthy opinion, in which he stated in detail his findings of fact, and his reasons therefor. The complainant was given a decree of divorce with alimony, and the defendant appeals to this court.

It is very evident that the contradictory testimony of the parties goes, either upon the one side or the other, or upon both sides, beyond mere mistake, or exaggeration. It is not possible that the particular allegations and denials can all be the result of merely faulty, memories. But out of the matters in dispute we think that certain facts are established.

The defendant is undoubtedly of a very close and miserly disposition. He testified:

“When I was around to my work niy clothes would get ragged; didn’t pay attention to them. When they wore out so they couldn’t stay on I would put on some more, and kept right on working. I haven’t bought so very many clothes. The suit I have got on now I have had about 12 years. It isn’t worn out.”

The court inquired about his recipe for making clothes last, and his answer was:

“Don’t put them on, and you won’t wear them out.”

And when asked where he got the overcoat he was then wearing, he said:

“I got it of Fred Gilman; bought it second-hand. I gave him $4 for it. This makes the third winter I have worn it.”

This economy by defendant in the matter of his own wearing apparel is not referred to as constituting a serious offense, although the wife complains that it was a source of humiliation to her. A proper economy is always a virtue. But there is some ground for inferring that the disposition of mind which has led defendant to such excessive saving in the matter of his own clothing, has very likely also led him to demand the same economy from his wife and' child, not only as to their clothing, but in all other things. It lends some countenance to the wife’s charges.

She testifies:

“I told him he would have to get the groceries. I would have to go to the store for them, and I went to Thomas Pulver and told him when he wanted his pay he would have to notify Mr. Gulley. I told defendant the groceries were being bought at Pulver’s and he would have to pay for them. He said he would not pay for the groceries. Í could get groceries the best way I could. He had no money to pay for groceries. To get them with my own money. I told him I had no money to get them with. I continued to buy groceries on credit; had them charged to defendant.”

The defendant admits that there was some trouble over the groceries. He says:

“She hadn’t said anything to me about buying goods at Pulver’s store before going there. I first heard of it by Pulver’s notifying me. Wrote me saying there was a bill or account there. I had never heard of it. I talked with her about it. Said I thought it was a poor way for her to run an account down there and_ I would rather pay for things as I went along. She said she was going to have groceries and I would have to pay for them and I did.”

He claims that he was always willing to furnish groceries and to pay for them, but we are satisfied that there must have been grounds for the wife’s complaint in this respect. These seems to be no apparent reason why she should have bought groceries on credit, against his objection, if he was willing to, and did, furnish money for that purpose. He says that he paid for the groceries which she bought on credit, because he supposed he had to.

He admits that he and complainant went for a long period of time without speaking with each other; and there was more than one such period of silence. He says that he refrained from talking to her, because she would not talk with him. A Mrs. Morton testifies-that she worked in defendant’s family for about 15 weeks at one time when the complainant was ill in bed and under the doctor’s care; and this witness says that the defendant never went into complainant’s room during the entire period, nor made any inquiry as to complainant’s condition. We are led to believe that the complainant had grounds for complaining of cruel treatment.

We have mentioned but few of the many charges and countercharges made by the parties on the witness stand, and have not attempted to state the results of the proofs in full. The complainant unquestionably had her faults, and was not without blame. We are satisfied, however, that the greater fault was with the defendant, and that his indifference, not only to his wife’s comfort, but to her rights, was largely the cause of such conduct on her part as he complains of, so far as it took place. He says that he is in doubt whether her mind is right at all times. If he is in good faith about this, it makes his course all the more questionable and should excuse many of the things charged against her, if those things really occurred.

We cannot help but attach considerable importance to the testimony of the son. In many things he corroborates the testimony of the mother. He was subjected to a severe cross-examination, which led him into some inconsistencies; but, upon the whole, we are impressed with the belief that he intended to be truthful and fair.

The letters written by complainant are not to be justified, but we look upon them more as the utterances of an excited woman, trying to counteract what she believed were unfair methods on the part of the defendant, than as any attempt to tamper with witnesses. Taking the whole record together, they should not bar her right to relief.

In cases of this kind, where the questions before the court are almost entirely as to the facts, and where the witnesses are so greatly at variance as to what has occurred, the opportunity to observe their bearing and manner upon the witness stand is very important, and, before reversing a decree, “the appellate tribunal ought to be fully persuaded that it must have reached a different conclusion had it occupied the position of the court appealed from and been favored with all the advantages of that court for judging rightly.” In this case we are satisfied that the circuit judge came to the right conclusion as to its important features.

The decree is affirmed, with costs to the complainant, including a solicitor’s fee of $100.

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

This case having been submitted on briefs, without oral argument, was reassigned after the death of Justice McAlvay.


text:
    FERLE v. CITY OF LANSING.
    1. Municipal Corporations — Contract — Officials — Fraud — Lansing Charter.
    Under the provisions of the charter of the city of Lansing, which prohibits any member of the city council from holding any office or position, or receiving any employment directly or indirectly connected with the government, and forbids any member of the council or person holding any elective or appointive office from being interested in any contract with the city, under a penalty of fine or imprisonment, a purchase of lumber by the board of public works from a corporation in which a member of the police and. fire commission was a stockholder, vice president and manager, was invalid and justified the lower court in entering a decree in chancery enjoining the payment of the' price.

      2. Same — Contracts—Corporations.
    Such transaction is not analogous to the furnishing of light and water to city officials and members of the council, which is in the nature of a privilege open to all the citizens or of a common benefit available upon an equality of terms.
    3. Same — Sales—Construction.
    The prohibition of the charter prevents the city from making purchases of a corporation of which any officer of the city or member of the council is an officer or stockholder,, a sale being a form of contract intended to be prohibited.
    4. Same.
    Although the charter provisions do not in terms make the contract or sale void, the imposition of the penalty has by implication a like effect.
    5. Same — Public Policy.
    A contract made void by the charter or by statute is incapable of ratification nor can a recovery upon it be permitted; the courts will leave the parties where it finds them.
    6. Same.
    And want of knowledge by the officer, of the execution or existence of the contract, is not conclusive; it is unenforceable whether he helped to procure it or not.
    Appeal from Ingham; Wiest, J.
    Submitted October 18, 1915.
    (Docket No. 151.)
    Decided December 22, 1915.
    Bill by Jacob Ferie against the city of Lansing and others for an injunction restraining the defendant city from paying a lumber bill. From a decree for complainant, defendant Rikerd Lumber Company appeals.
    Affirmed.

      Jason E. Nichols, for complainant.

      Joseph H. Dunnebacke, for defendant city of Lansing.

      Warner, Raudabaugh & Person and C. W. & W. S. Foster, for defendant Rikerd Lumber Co.
   Brooke, C. J.

The present charter of the city of Lansing, adopted by the electors in 1912, contains the following provision:

“Sec. 53. No member of the city council shall, during the period for which he was elected, be elected or appointed to, or be competent to hold any office or position oi receive any employment directly or indirectly connected with the government. No member of the city council nor any person holding any elective or appointive office under the city government shall be interested in any contract with the city, or be a bondsman or surety on any contract or bond given to the city. Any member of the city council or other officer violating the provisions of this section shall, upon conviction thereof, be fined not less than one hundred' nor more than five hundred dollars, or be imprisoned for not less than thirty days nor more than one year, or both such fine and imprisonment within the discretion of the court. The conviction of any alderman or official under this section shall operate in itself to forfeit his office.”

This suit is brought to enjoin the payment of a bill of $140.62 for lumber sold and delivered to the city by the Rikerd Lumber Company, a domestic corporation. It is the theory of the bill of complaint that the sale of the lumber was in violation of the charter provision, inasmuch as Hiram W. Rikerd, a stockholder of the lumber company and its vice president and manager, was also, at the time of the sale, an officer of the city, namely, a member of its board of police and fire commissioners. The lumber was purchased for the city by its superintendent of public works, and the purchase was made of an employee of the lumber company without the personal knowledge of Mr. Rikerd, who was also unaware of its delivery to the city. • The board of police and fire commissioners did not, nor did any of its members, have any official connection with the purchase; their department being entirely distinct and separate from the department of public works. It is conceded that the lumber was sold at a lower price than it could have been purchased for elsewhere. When the bill came before the common council of the city, complainant, who is a member thereof, as well as a taxpayer of the city, protested against its consideration; but a majority of the council thought otherwise, and voted that it be allowed. Thereupon this suit was begun, and was heard upon bill and answer, the facts being conceded. In the circuit court a decree was entered declaring the transaction void, and perpetually enjoining payment for the lumber. The city attorney files a brief asking that the decree be affirmed.

The first question discussed by counsel is whether, under this charter, one department of the city government may make purchases of a corporation when an officer in another and distinct department is also an officer or a stockholder, or both, 01 such selling corporation. The determination of this question does not depend upon the rules of public policy alone, as developed and applied by the courts in the absence of a controlling statute. The provision of the charter is broader than those rules, as usually applied; and, while both are founded upon the same general principles, the charter itself is the declaration of the public policy of the city. By its terms it prohibits every contract made by the city, in which any officer thereof, or member of its common council, has a private interest, and it is immaterial whether such official, or his department, has any part in the making of the contract, or could have. The electors had a right to include such a provision in their charter, and it should not and cannot be narrowed by judicial construction. Provisions as broad are not uncommon in statutes and in the charters of municipalities, and their increasing breadth and scope come from experience, and a conviction that purity of government must be carefully maintained. It is urged that so sweeping a prohibition, if construed according to its terms, will operate to deter business men from accepting office. This is an argument to be addressed-" to the electors themselves, rather than to the courts; but the electors undoubtedly believed that enough good men could be found to administer the government of the city after excluding those who expected or desired contracts with it. It is also argued that such construction of the charter will prevent city officials and members of its council from taking their water supply and electric lighting from the city. But this is. not so. While the relation between the city and the consumer of water and lighting furnished by it is a contract relation, it is more in the nature of a common benefit or privilege, open to all citizens upon the same terms, and not within the meaning or purpose of the charter prohibition.

It is true that this prohibition in the charter prevents the city from making purchases of a corporation of which any officer of the city, or member of its council, is an officer or stockholder. This was determined, on principle, in Consolidated Coal Co. v. Board of Trustees, 164 Mich. 235 (129 N. W. 193). A sale is a contract, and a form of contract in which the evil sought to be remedied by the charter is most frequently apparent. And, as said in Hardy v. Mayor and Council of Gainesville, 121 Ga. 327 (48 S. E. 921):

“A stockholder in a private corporation clearly has an interest in its contracts; and if the city cannot make a contract with the officer himself, it cannot make it with a corporation in which such officer is a stockholder.”

The charter does not, in so many words, saj that a contract made by the city shall be void if any member of the council or city official is interested in it; but it is void, nevertheless, inasmuch as the charter imposes a penalty for the making of such a contract.

“A statute which imposes a penalty upon an act by implication ordinarily prohibits such act. A penalty usually implies a prohibition, although there are no prohibitory words in the statute.” Elliott on Contracts, § 666.

See, also, In re Reidy’s Estate, 164 Mich. 167 (129 N. W. 196); Case v. Johnson, 91 Ind. 477; Bishop on Contracts (2d Ed.), § 471; Dillon on Municipal Corporations (5th Ed.), § 778, and cases cited.

And a contract made void by charter or by statute cannot be ratified — there is nothing to ratify — nor can any recovery be had upon it. The courts will leave the parties as it finds them; and if it is a contract of sale, an action cannot be maintained for the value of goods delivered under it. Consolidated Coal Co. v. Board of Trustees, supra; Milford Borough v. Water Co., 124 Pa. 610 (17 Atl. 185, 3 L. R. A. 122); Berka v. Woodward, 125 Cal. 119 (57 Pac. 777, 45 L. R. A. 420, 73 Am. St. Rep. 31); City of Ensley v. Hollingsworth & Co., 170 Ala. 396 (54 South. 95); Nunemacher v. City of Louisville, 98 Ky. 334 (32 S. W. 1091). Nor will the courts inquire whether the terms of the contract are fair or unfair. The purpose of the prohibition is not only to prevent fraud, but to cut off the opportunity for practicing it.

There can be no doubt that Mr. Rikerd was an officer of the city. The board of police and fire commissioners, in exercising control over the police and fire departments of the city, is performing very important governmental functions. And the fact that Mr. Rikerd cannot be charged personally with having violated the charter, inasmuch as he had no knowledge of the sale or delivery of the lumber, does not determine the case. Every contract with the city is made void when a member of the common council or an officer of the city has an interest in it, whether such member of the council or city official has or has not, himself, been guilty of procuring the contract.

The decree is affirmed, with costs to the complainant.

Person, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
      In re WIGENT’S ESTATE. PARMALEE v. WIGENT’S ESTATE.
    1. Estates of Decedents — Services—Evidence—Value—Expert or Opinion Testimony.
    In a suit by one claiming to have performed services for decedent, opinion evidence to prove tbe value of claimant’s services was improperly rejected by the trial court; its weight was for the jury.
    2. Same — Note—Evidence.
    It was also improper to receive in evidence a note for $25 that claimant had given to decedent and that had been adjusted by the commissioners on claims and offered in evidence by defendant not as a set-off but for other purposes.
    3. Same — Implied Contract — Quantum Meruit.
    Where there was no evidence of an express contract entered into by and between decedent and her cousin, who cared for the latter in her last years, to pay for the services, for which he presented his claim against her estate, the trial court committed reversible error in not instructing the jury that a contract to pay therefor might he implied from the fact that the services were rendered by claimant and accepted by the decedent. Because of the remote-relationship between decedent and the claimant, no presumption arose that the services were rendered gratuitously.
    Error to Berrien; Bridgman, J.
    Submitted June 22, 1915.
    (Docket No. 97.)
    Decided December 22, 1915.
    Albert F. Parmalee presented his claim for services-against the estate of Fidelia Wigent, deceased, which, was not allowed by the commissioners on claims, and claimant appealed to the circuit court. Judgment for defendant of no cause of action. Claimant brings-' error.
    Reversed.

      John J. Sterling, for appellant.

      Gore & Harvey, for appellee.
    On October 31, 1912, one Fidelia Wigent of Watervliet, Mich., died testate. At the time of her death she was a little over 76 years of age. During the last 2 years of her life she had not enjoyed the best of health, and it was necessary that some one stay with her. In February, 1911, the plaintiff, a cousin of the deceased, and a man at that time about 70 years of age, commenced to live at the house of the deceased. It is nowhere conclusively shown in the record that he was invited to stay there, though such invitation may be inferred from the fact that he remained there until the death of Mrs. Wigent. While there he looked after the deceased as occasion required, and assisted as best he could with the household duties. During the 91 weeks prior to the death of Mrs. Wigent, the plaintiff was at the house continuously except on -Friday afternoons and Saturdays, when he went to Hartford to work at his profession as an optician.

      Upon her death the estate of Fidelia Wigent was admitted to probate, and commissioners of claims appointed. No provision, having been made in her will for compensation for the services rendered by thé plaintiff, he presented his claim to said commissioners in the sum of $637, that amount being $1 per day for the time he had been living at her house. The claim was not allowed by the commissioners, and an appeal was taken to the circuit court. Upon the trial in that court a verdict of no cause of action was rendered. Plaintiff now reviews his case in this court by writ of error.
    There are some 20 assignments of error which, in substance, may be classified as follows:
    (1) Error upon the refusal of the court to permit plaintiff to testify to matters equally within the knowledge of the deceased.
    (2) Refusal of the court to permit plaintiff and his witnesses to testify as to the value of the services rendered.
    (3) Error of the court in admitting a promissory note given by plaintiff to deceased.
    (4) Refusal of court to permit witness Burnside to relate conversation he had with plaintiff.
    (5) Errors assigned upon the charge of the court as given.
   Brooke, C. J.

(after stating the facts). It will be unnecessary to notice in detail each assignment of error. The first, we think, is without merit.

The assignments referred to in the second class above set forth are, in part at least, well taken. We can perceive no reason why the plaintiff should not have been permitted to give testimony as to what he considered his services to be worth. Nor is there any reason why his witnesses, after having qualified by showing their knowledge of what he did, should not have been permitted to give their several opinions as to the value of such services. The admissibility of such testimony is clear. Its probative force rests with the jury.

The third assignment of error- is based upon the ruling of the court admitting in evidence a promissory note for $25 made by the claimant in favor of the decedent, which had been adjusted by the commissioners on claims. In tendering it in evidence, counsel for the estate said:

“I offer this in evidence. I do not offer that as an offset against this claim, but I offer it for other purposes.”

Counsel for plaintiff objected to it, saying:

“We object to that on the ground that it is immaterial, irrelevant, and incompetent for any purpose. That they do not offer it as an offset against our claim, and it has been taken care of before the commissioners on claims.
“The Court: I don’t know that.
“Mr. Sterling: The record is here to show it.
“The Court: I see where it may be relevant.
“Mr. Sterling: The same matter relative to the things he purchased or that we claim he purchased.
“The Court: The objection is overruled.”

Whereupon the note was received in evidence. We are of opinion that the admission in evidence of this note was erroneous, although perhaps it cannot be said that it was prejudicial. However, upon the new trial we think it should be excluded.

The principal ground for reversal is based upon the voluntary charge of the court. That charge was in part as follows:

“Before the plaintiff, or rather the claimant, can recover there must be shown to you an agreement between the parties that this claimant was to be paid for his services, and there must be evidence that the services were to be paid for by the decedent. Not necessarily perhaps evidence that they came together and made a formal, what we call a formal agreement, but you must find there was an agreement that this woman was to pay this man for his services either, as the law says, an express or an implied agreement, and your verdict or your judgment must be based upon the evidence actually in the case as you have heard it here in the court. And you must further be able to find from the evidence what services plaintiff performed, and the value of such services actually performed by him and under all the evidence and circumstances in the case that there was an arrangement or agreement that he should be so paid.
“On the other hand, the defendant estate, so near as I can gather, claims that he lived there, perhaps had his board, with the understanding that all services that he rendered were to be gratuitous, that is, that he would not be paid for his services, and that the services so rendered were purely voluntary. •
“Now no one is bound to pay for volunteer services rendered under such circumstances which do not fairly indicate an expectation of reward.
“Now, if whatever services this gentleman, claimant, rendered, if any were rendered, were done and performed under circumstances justifying the belief that no charge was intended to be made there was no liability to pay. And if the relations of the parties, the nature of the services, and all the pertinent facts show that the plaintiff was not working for money, that there was no expectation of being paid, the plaintiff cannot recover. And it is necessary for a plaintiff in a suit of this kind to establish everything necessary to a recovery, that the plaintiff must show his right to recover by a fair preponderance of the evidence, must show the work that he did and its value, and to show what understanding the defendant had of the matter, and that she received a benefit of it.
“The matter is for you gentlemen to decide under the rules as I have given them to you. If you find that the claimant is entitled to recover you can allow such amount as in your judgment the services that he rendered were actually worth. If you find there was no •agreement and that the claimant did not intend to charge, your verdict will be against the claimant, that is, you find for the estate.”

After retiring for a time, the jury returned to court, when the following occurred:

“The Court: Gentlemen, I am advised that you wish the advice of the court upon some matters if it is a question of law.
“A Juror: Yes, sir.
“The Court: Have you agreed upon a verdict?
“A Juror: No; we have not agreed on a verdict. There is a little question, your honor, that we are undecided on and we wish a little instruction from you. The question is that: Can other evidence of an understanding or contract than written or verbal be considered by the jury in determining the claim? The sec-, ond is: May an implied agreement be considered by the jury?
“The Court: Upon that point you are to take all the facts and circumstances, the facts that appear in court before you, and from all those facts and circumstances determine whether there was or was not an implied agreement. Is that sufficient? You may take all the facts and circumstances. You may determine whether there was or was not an implied agreement.
“A Juror: It is not necessary that the contract be a written or verbal contract?
“The Court: That is a little difficult to answer. It is not necessary it should be a written contract, but there must have been an agreement between the parties, as I stated in my suggestion to you this morning; there must have been an agreement between the parties. There was no agreement in writing. Therefore it must have been verbal, but you have the right to determine whether or not there was such an agreement ■ — implied agreement — by considering all the facts and circumstances, and the testimony, and you must determine, as I said before, what substantially that agreement would be, and that you find what the man did, and what he agreed to do, and what substantially that implied agreement would mean.”

We are of opinion that this charge, taken as a whole, is properly subject to criticism. While the evidence fails to disclose an express verbal contract between the claimant and the decedent, under the authorities in this State, it is clear that such a contract may be presumed from the fact that the services were rendered by the claimant and were accepted by the decedent. In the early case of Sword v. Keith, 31 Mich. 247, at page 257, Mr. Justice Christiancy, speaking for the court, said:

“It is objected that there was no evidence tending to show any such promise on the part of Keith. For myself, I am inclined to think this objection well founded; but my brethren take a different view, and think the circumstances shown would authorize the inference that both parties acted upon the understanding that such services would continue to be rendered by Keith, and that this would be equivalent to a promise; and it cannot be denied that there is some force in this view of the case.”

In the case of In re Williams’ Estate, 106 Mich. 490 (64 N. W. 490), it is said:

“Under all the facts and circumstances, the jury were justified in concluding that the services were performed in reliance upon the contract, and were accepted in recognition thereof. The proof does not rest alone in parol, but upon the subsequent conduct of the parties as well — performance on the one part, and acceptance on the other.”

See, also, Sammon v. Wood, 107 Mich. 506 (65 N. W. 529), and In re Abel’s Estate, 173 Mich. 93 (138 N. W. 325), where Mr. Justice Stone, speaking for the court, said:

“It is not essential to a recovery by a child for services rendered to a parent that a formal contract be established in relation thereto; but if the facts and circumstances attending the performance of the work and in its acceptance are sufficient to rebut the presumption that the services were gratuitous, and to authorize the inference that both parties acted under the understanding that they were to be paid for, the parent is liable.”

In all these cases the services were rendered by a child for a parent, where a presumption arises that the services were rendered gratuitously. No such presumption arises in the case at bar, because of the remote relationship between the claimant and the decedent. It is, of course, possible that the claimant rendered the services in question gratuitously. A careful examination of the record, however, fails to disclose any testimony bearing out this view.

The judgment is reversed, and a new trial ordered.

Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


author: Peeson, J.

text:
    CLINE v. STUDEBAKER CORPORATION.
    1. Master and Servant — Workmen’s Compensation — Evidence— Loss oe Eye.
    In a proceeding under the workmen’s compensation act for compensation to a servant of an automobile company for the loss of part of the sight in claimant’s right eye, evidence that the cause was a gonorrheal infection after getting a piece of steel in the eye, that the employee had not been affected with the disease, and that an attempt had been made to remove the steel by a fellow workman in the factory, by rolling back the eyelid on a match, that another employee removed the same, and that the eye was normal before the injury, held, to support the finding of facts of the Industrial Accident Board that the accident arose out of, or in the course of, his employment.
    2. Same — Compensation for Partial Loss of Eye.
    However, for the partial loss of the. sight of claimant’s eye, which could be minimized by the use of glasses, so that no diminution of earnings took place, and no impairment of Lis earning capacity appeared from the testimony, the hoard was not authorized to award compensation (section 10, Act No. 10,- Extra Session 1912), though without glasses he had only ten per cent, of normal vision hut fifty per cent, with them.
    Certiorari to the Industrial Accident Board.
    Submitted April 16, 1915.
    (Docket No. 146.)
    Decided December 22, 1915.
    Proceedings by Clarence L. Cline, under the workmen’s compensation act, against the Studebaker'Corporation and another for the partial loss of an eye. From the award entered, said corporation brings certiorari.
    Reversed.

      William D. Ellsworth, for claimant.

      Frederick J. Ward, for defendants.
   Peeson, J.

It is claimed in this case that the appellee was injured while working for the defendant manufacturing company, and that the result of such injury was the loss of his right eye. The insurance company carrying the risk and the injured employee entered into an agreement about a month later regarding compensation, of which the material part reads as follows:

“On the 2d day of March, 1913, about 5 o’clock in the morning, the injured was working on a rear axle with another employee. A piece of steel flew and struck injured in the eye. A gonorrheal infection set in, and the injured was obliged to quit work on the morning of March 4, 1913.
“The terms of the agreement follow: It is mutually agreed by and between the parties hereto that the average weekly wage of the injured at the time of the accident was $15 per week, and that the injured is to receive as compensation herein the sum of $7.50 per week, as provided for by the Michigan compensation act.”

This agreement was approved by the Industrial Accident Board, whereupon the insurance company paid to the appellee $66.25, and received his receipt as for a full settlement of compensation, subject, however, to the approval of the board. Subsequently, and on the 25th day of October, 1913, the appellee applied for further compensation, and a committee of arbitration was appointed, which decided that he was entitled to the sum of $7.50 per week for 100 weeks from date of the accident. The committee also found that there was due to the appellee at the time of their report the sum of $321.50, less the $66 already paid. Upon appeal to the Industrial Accident Board this decision of the committee of arbitration was affirmed, the board returning the fallowing findings of fact:

“The infection which destroyed the sight of the eye is not reasonably accounted for, except as coming through or resulting from the accident; the applicant himself being free from the disease. The infection may have come from the hands of Mr. Rood when he tried to roll the eyelid back with a match, or from the hands of the nightwatchman when he took a piece of steel from the eye. The eye was normal before the injury, and the inflammation which directly followed the injury caused the damage to the eye.”

The objections to the award argued in this court will be considered in their order:

1. That the loss of sight should not be attributed to the accident, but to a disease not in any way connected with the employment.

The fact that a piece of steel flew into claimant’s eye in the course of his employment seems fairly well established. His testimony is to that effect, and it is corroborated by his fellow workmen. But it is not shown that this flake of steel directly caused the subsequent impairment of vision; that, on the contrary, must be attributed to the gonorrheal infection. Such is the finding of the board, and the finding is in accordance with the agreement between the parties. Nor is it probable, from the testimony of the doctors, that the germ which caused the infection was upon the steel, itself. They state, however, that such a germ might get into the eye from a towel, from washing utensils, from the straps or rails of a street car, and in similar ways.

The burden is therefore, as insisted by counsel for defendants, upon the claimant to show by a preponderance of evidence that the infection arose out of and in the course of his employment, instead of at some other time and in some other way. In short, under the circumstances, it was for claimant to show that the infection was connected with the accidental entry of the steel into his eye. And in this behalf counsel cite McCoy v. Screw Co., 180 Mich. 454 (147 N. W. 572), where the relation between the infection and the employment was held not to have been established. In instances like the present, however, where the claimant-himself is personally free from the disease, it is hardly possible that the source of infection can be shown absolutely by direct evidence. Nor is that necessary.

“By a ‘preponderance of evidence’ is meant such evidence as, when weighed with that opposed-to it, has more convincing force, and from which it results that the greater probability is in favor of the party upon whom the burden rests.” Hoffman v. Loud, 111 Mich. 156 (69 N. W. 281).

As has been said, the claimant was himself personally free from the disease up to the time of the accident. Such was the testimony of the doctor who attended him, and the Industrial Accident Board has found it to be a fact; nor does counsel for defendants dispute the correctness of the finding. The gonorrheal germ must have come from some outside source. It must also have been received not later than the time of the accident to have developed into the condition found by the doctor two days afterwards, according to his testimony. These conditions, in connection with the fact, as shown, that an injured eye is more susceptible to the infection than a normal eye, and with the further fact that at once, after the accident, a fellow workman examined the eye, using for the purpose a match wrapped in a piece of cloth, create a considerable degree of probability that the germ got into the eye in the attempt to remove the steel. And this probability was sufficient to warrant the board in their finding that:

“The infection which destroyed the sight of the eye is not, reasonably accounted for except as coming through or resulting from the accident.”

See Sullivan v. Modern Brotherhood, 167 Mich. 524 (138 N. W. 486, 42 L. R. A. [N. S.] 140, Am. & Eng. Ann. Cas. 1913A, 1116).

If the germ was introduced in an attempt to remove the flake of steel from the eye, it was a direct consequence of the accident, and arose out of and in the course of the employment. The attempt to remove the particle of steel was a natural and necessary result of its entry into the eye; in fact, the proofs in this case seem to fairly establish the element that was lacking in the McCoy Case.

2. That the Industrial Accident Board acted without authority of law in allowing claimant $7.50 per week for the period of 100 weeks, even if the infection is found to have arisen out of and in the course of his employment.

The claimant was wholly incapacitated during a period of about 9 weeks, and for that he was paid $66.25, according to his receipt hereinbefore mentioned. He then resumed his work for the same company, in about the same line of employment, and at substantially the same wages he was receiving before the injury. He does not testify to any impairment of his ability to work, nor to any reduction in wages, because of the loss of eyesight; and it was determined by this court in Hirschkorn v. Desk Co., 184 Mich. 239 (150 N. W. 851), that the statute does not award compensation for the partial loss of an eye, except as measured by lessened earnings. Although there is no special finding upon the point, it is evident from the amount allowed that the Industrial Accident Board treated the injury as “the loss of an eye,” rather than as a partial loss, and that it made its allowance under the schedule of fixed liabilities contained in section 10 of the act (Act No. 10, Extra Session 1912). Unless, therefore, the award can be sustained on that theory, it must be held to have been unwarranted.

The eye was examined for loss of sight by two experts, who made their tests separately, and in different ways. One aimed to discover how much the claimant could see when using proper eyeglasses, and found that with their assistance he had one-half of his normal vision. -The other made his test without glasses, and says that the eye, unaided by artificial means, has lost 90 per cent, of its sight. Neither attempted the other’s test, so that the testimony of each stands unquestioned and withoút impeachment by anything in the record. The net result is that, when using proper glasses, the claimant has 50 per cent, of his sight, while without them he has only 10 per cent. The evidence will not permit of any different conclusion.

Under these circumstances it seems impossible to say that the injury has resulted in the loss of the eye. The use of glasses is a very ordinary occurrence, both by the young and the old. It is unnecessary to determine whether the loss of 90 per cent, of the sight is substantially the loss of the eye, because that is not the present case. Ninety per cent, of the sight is not lost when ic can be diminished to 50 per cent, by use of common appliances. And it is the duty of the sufferer to minimize the injury as much as he reasonably may. We cannot help but feel it unfortunate, however, that further tests of the eye were not made so as to exclude all possible chance of mistake in so important a matter.

The case of Hirschkorn v. Desk Co., supra, must be held as controlling in this one. The statute seems not to have provided compensation for the partial loss of an eye under the circumstances existing here. That case, however, had not been determined when this matter was before the Industrial Accident Board.

The award must be reversed and set aside.

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

This case, having been submitted on briefs, without oral argument, was reassigned after the death of Justice McAlvay.


author: Person, J.

text:
    FULLER v. METCALF.
    1. Landlord and Tenant — Set-off—Presumption.
    A tenant cannot plead an independent set-off in defense of an action brought by the landlord to dispossess him for nonpayment of rent; and no presumption of law can arise against the tenant for failure to insist upon such set-off as against the rent when it falls due.
    2. Same — Recoupment—Delay.
    Accordingly, it was erroneous to instruct the jury, on the trial of an action for rent, which the defense contended should be reduced by certain amounts expended for repairs or improvements that the plaintiff authorized the tenant to install, charging the cost to the former, that the failure of the defendant to insist on his set-off, when he paid the rent, raised a presumption, which was not conclusive, but which the jury had a right to consider, that all matters in difference between the parties werq settled when he made the payments. It was for the jury to say whether the delay should be treated as giving rise to an inference unfavorable to the defendant.
    3. Same — Evidence—Burden of Proof.
    The issue between the parties lay in whether or not plaintiff had authorized the defendant to make the repairs, and had promised to reimburse him. If the jury found for the defendant on this question, the delay in asserting the claim of the defense during a period of three years was not fatal to his right, but he had the burden o'f establishing his claim.
    Error to Kent; Perkins, J.
    Submitted June 18, 1915.
    (Docket No. 65.)
    Decided December 22, 1915.
    Assumpsit by Philo C. Fuller against Samuel H. Metcalf for use and occupation of certain premises. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Smedley & Linsey, for appellant.

      Hatch, McAllister & Raymond, for appellee.
   Person, J.

In May, 1910, an arrangement was made between the parties to this action whereby the plaintiff was to lease to the defendant a barn in the city of Grand Rapids. Before the term should begin the plaintiff was to make certain changes and repairs the better to fit the building for defendant’s business. Through a mutual expectation that the work would be completed so that the defendant might go into possession by the 1st day of July, he made payment of rent as from that date. It was agreed that the rent was to be at the rate of $50 per month during the first year, and thereafter at the rate of $60 per month.

The defendant continued to occupy the premises for about three years, making payments of rent monthly, at the agreed rates, down to April, 1913. The plaintiff then demanded an increase to $75 per month, which the defendant would not consent to. Some ill feeling arose as the result of this, demand and refusal, and defendant delivered back possession of the, barn to plaintiff on the 30th day of June of the year last mentioned. During April, May, and June following the attempted increase of rent, defendant sent his check to plaintiff each month at the old rate of $60 per month, but the checks were refused by the plaintiff and returned to defendant.

After the surrender of possession by defendant this action was brought for the three months’ rent, and defendant gave notice of set-off. On the trial the- set-off became the only question contested, inasmuch as the plaintiff conceded that he was entitled to recover only the $60 per month, and the defendant admitted that he was indebted to that extent. The defendant’s set-off, which thus became the real subject of the litigation, consisted mostly of a claim for improvements and repairs to the barn made by him after he had entered into possession. It also included the amount of one-half month’s rent which he thought ought to be •refunded to him, because, as he testified, the plaintiff did not complete the repairs which he was to make until about the middle of July of the first year, so as to give possession.

Upon the trial the defendant testified that plaintiff, who was then about to start on a business trip to New York, told him at the time of paying the first installment of rent to make such little changes and improvements to the building as he should find necessary, and that he (plaintiff) would settle for the same upon his return. He further testified that he made the changes and improvements in reliance upon such direction and promise, that he' afterwards called the plaintiff’s attention to the work he had done, and that the plaintiff neither made objections thereto nor questioned his liability for the same. The plaintiff, on the other hand, denied ever having given the defendant any authority to make any changes, or add any improvements to the barn, and denied ever having promised to pay for such work. He also testified that the defendant never called his attention to the fact that he had made such changes and improvements, and that he (the plaintiff) never acknowledged, either directly or indirectly, any liability to the defendant therefor.

Some of the items in defendant’s set-off were excluded by the trial judge from the consideration of the jury, as not coming within any promise of repayment shown in the case. The items finally submitted amounted to $105. By their verdict, however, the jury entirely rejected the claim of set-off, and allowed plaintiff the full amount of the rent, with interest. After instructing the jury that, as between landlord'and tenant, the landlord was not liable to the tenant for repairs made during the continuance of the tenancy, unless there was an express agreement between them that the landlord should pay for the same, the court proceeded with the following further instructions:

“Now, as to all of these matters, you are to take into consideration the fact that the defendant has paid his rent on or about the 1st day of the month during the entire period of three years without making or insisting upon his alleged set-off. That is not conclusive, however. It raises the presumption, which you have a right to consider, that all matters in difference between the parties were settled at the time he paid his rent, but it is not a conclusive presumption. You have a right to take into consideration the testimony as to the understanding and agreement between the parties and what was said and what caused the delay, if anything did cause the delay. But, ordinarily, the presumption arises under such circumstances that all matters are settled up between the parties when one or the other pays money to the other and afterwards claims that that payment was a qualified payment, and that there is still due the person making the payment money from the person to whom the payment was made. It is for you to determine under the evidence in the case as to whether these payments of rent from time to time indicate or establish the fact that all matters of difference between these parties were settled. If you find under the evidence and the circumstances of the case that they were settled, that would end the controversy, and your verdict would be for the plaintiff for the full amount claimed. If you find that they were not settled, and these items of set-off were reserved for future determination, then you will consider these items, excluding, however, the items I have called your attention to that are not proper items of set-off in this case.”

Counsel for defendant except to these instructions, and the instructions certainly were objectionable.

A tenant cannot plead an independent set-off in defense of an action brought by the landlord to dispossess him for nonpayment of rent; and no presumption of law can arise against the tenant for failure to insist upon such set-off as against the rent when it falls due. As was said in McSloy v. Ryan, 27 Mich. 110:

“The defendant offered evidence to show that complainant had not performed his covenants in the lease in regard to improvements and repairs. As these covenants were independent of the covenant to pay rent, and this proceeding was net one in which, even if the amount of the rent was in issue, there could be any deduction of offsets, or by way of recoupment, the court did not err in rejecting this evidence.”

The same rule is stated in 2 Tiffany on Landlord and Tenant, p. 1766, as follows:

“In a summary proceeding to recover possession on account of nonpayment of rent, .the tenant cannot assert that an offset or counterclaim exists in his favor to an amount sufficient to extinguish the claim for rent, whether the asserted claim on his part arises from a breach of covenant by the landlord or otherwise. It has been remarked that the object of the statute in providing an adequate and summary method of obtaining possession would be frustrated if the tenant could assert defenses of this character.”

It was wholly for the jury to determine whether, under all the circumstances, the defendant’s delay in asserting his claim against the plaintiff, if there was such delay, should be treated as giving rise to an inference unfavorable to the existence of such claim. But the delay could not, as matter of law, be held to create a presumption that the matters offered as set-off had been settled.

The burden was upon the defendant to prove that he had received authority from the plaintiff to make the repairs and improvements, and that plaintiff had promised to reimburse him therefor. These were the things that plaintiff denied, and here lay the issue. If it were found that the authority had been given and the promise made, then there was no claim by the plaintiff that the liability, once established, had ever been settled or waived by the defendant: It was improper to tell the jury, in substance, that even if the plaintiff did authorize the defendant to make the repairs and changes, and did promise to repay him for making them, it was still for them “to determine, under the évidence in the case, as to whether these payments of rent from time to time indicate or establish the fact that all matters of difference between these parties were settled.” The jury might well have understood that they were authorized to reject the items of set-off because the defendant had paid his rent without insisting upon a settlement, no matter how well those items had been established originally. This was more than a merely technical error.

The judgment is reversed and a new trial ordered.

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

This case, having been submitted on briefs, without oral argument, was reassigned after the death of Justice McAlvay.