text:
    HUTTON v. SHERRARD.
    1. Principal and Agent — Sales —Vendor and Purchaser — Agent’s Right to Buy on Own Account — Brokers.'
    As a general rule the agent who has property in his hands for sale may not purchdse it, but the rule is not applicable to a real estate agent having authority to sell a parcel of ' real property, for a stated price and to retain all that he could secure in addition thereto as his fee or commission.
    2. Brokers. — Principal and Agent — Vendor and Purchaser.
    The broker will not be allowed to purchase property where he has a duty to perform that is inconsistent or in conflict with the relation of purchaser.

    3. Same — Good Faith — Dissatisfaction—Contracts.
    The principal who' has reserved the right to approve all' contracts made by his real estate broker, in selling lots of a subdivision, upon an arrangement to have all the broker could secure above a fixed price for the lots, must exercise his right of disapproval honestly and in good faith: the dissatisfaction must not be pretended or in bad faith.
    4. Same.
    And the owner of the lots could not refuse to sell to the agent as a purchaser, without any ground to be dissatisfied with the financial standing of the proposed vendees, who referred to their banks for their standing, refusing to furnish a financial statement, but offering to pledge their equity in other contracts made for the sale of defendants’ lots and worth about $10,000, as security for the price named in the contracts.
    Appeal from Wayne; Codd, J.
    Submitted November 25, 1913.
    (Docket No. 25.)
    Decided December 19, 1914.
    Rehearing denied April 28, 1915. .
    . Bill by George E. Hutton and another against Charlotte Berry Sherrard and others for specific performanee of a contract. From a decree for defendants, complainants appeal.
    Reversed.

      Beaumont, Smith & Harris, for complainants.

      Angell, Boynton, McMillan, Bodman & Turner, for defendants.

       As to the right of a broker to purchase real estate listed with him for sale, see note in 20 L. R. A. (N. S.) 1158.

   Bird, J.

In June, 1905, complainants entered into an agreement with. Joseph Berry of' Detroit, whereby they were to act as his, selling agents, for a period of two years, of certain lots owned by him in Fairview village. Certain preliminary work was necessary to get the lots ready for the market, and it was stipulated that complainants should look after this work, such as grading roads, planting trees, and constructing sidewalks, the cost of which was to be borne by Mr. Berry. The cost of advertising and selling and making collections on deferred payments was to be borne by complainants. Lots were to be sold for cash or on contract. A minimum sale price was fixed at $28.50 per front foot for Jefferson avenue lots, and $200 each for all other lots, plus the cost of the sidewalk appurtenant thereto. The compensation of complainants was stipulated to be all they might realize on a sale over and above the minimum selling price. A down payment of $25 was to be made on all lots sold on contract, and all contracts were to be subject to the approval of Mr. Berry. The preliminary work was carried on by complainants, and the sale of the lots was progressing when Mr. Berry died in 1907. A new contract was then made with the heirs and administrator of Mr. Berry’s estate on substantially the same terms as the original one, save an increase in -the minimum selling price of the Jefferson avenue property to $36.50 per front foot, and an increase to $310 for the other lots. This contract expired on January 1, 1910. On December 31, 1909, complainants tendered to defendants $300 as the down payment on 12 lots remaining unsold, with themselves named as the purchasers, and demanded the execution and acceptance of the contracts. Defendants refused to approve and execute them, and this bill is filed to compel such execution. They justify their refusal upon the grounds:

(1) That complainants, as selling agents, had no legal right to sell the lots to themselves.

(2) As all contracts were subject to the approval of defendants, they had a right to disapprove of any contract tendered without assigning any reason for their refusal.

1. It is a general rule of law that an agent for the selling of property may not sell it to himself. McNutt v. Dix, 83 Mich. 328 (47 N. W. 212, 10 L. R. A. 660); Green v. Knoch, 92 Mich. 26 (52 N. W. 80). The reason why public policy has so decreed is to prevent the selfish interest of. the agent from coming in conflict with his duty to his principal. In all transactions where the agent’s loyalty is liable to be affected by his selfish interest, the general rule will apply even though no fraud is practiced. McKay v. Williams, 67 Mich. 547 (35 N. W. 159, 11 Am. St. Rep. 597). Measured by this test, is the transaction before us one to which the rule should be applied? The minimum price fixed in the contract belongs to the principal. If a sale is made, the principal is entitled to the minimum sum, plus the cost of the sidewalk, and nothing more. The agent’s diligence in securing the best price obtainable therefor is no benefit to defendants beyond the minimum price. Whether a lot sells for $1 or $100 in excess of the minimum price, the result is the same to, the principalhe neither gains nor loses by the transaction. This differs* widely from a contract which fixes a minimum selling price and a percentage commission. In such a case the principal profits by any price in excess of the minimum, whereas, in the case before us, he profits nothing beyond the minimum price.

Warvelle, in his work on Vendors (vol. 1 [2d Ed.] §226), in discussing-this subject, has the following to say:

’“In accordance with the foregoing rule it has been held' that an agent cannot become the purchaser of property confided to his care, and that a purchase made under such circumstances carries fraud upon its face. But this, perhaps, is carrying the application of the rule to extreme lengths; for the true spirit and meaning of the rule is that the agent shall not so act toward the subject of the agency for his own benefit as to work injury to his principal. He will not, therefore, be allowed to purchase where he has a duty to perform which is inconsistent with the character of purchaser, nor to speculate for his private gain with the subject-matter committed to his care. This may be regarded as the true extent of the rule; and an agent placing himself beyond it may lawfully contract with his principal with relation to the property.”

The case of Synnott v. Shaughnessy, 2 Idaho (Hasb.), 122 (7 Pac. 82), is in point. In this case a similar contract was involved and the same question was raised as to its validity. The court said:

“He [the agent] was at perfect liberty to get all he could above $2,000. He could, with perfect propriety, become the purchaser himself.”

We are of the opinion that, inasmuch as the record shows that the purchase of the property by complainants would be in no wise inconsistent with their duty as agents of the defendants, they had a right to purchase the lots on their own account.

2. The complainants contend that defendants’ refusal to approve the contracts was equivocal, arbitrary and not a good faith refusal. The defendants take the position in this court that their refusal is sufficient without assigning any reason therefor, and in support thereof, cite the familiar case of Wood Mowing Machine Co. v. Smith, 50 Mich. 565 (15 N. W. 906, 45 Am. Rep. 57). The reserved right of approval in the contract involves the judgment of the defendants, and therefore appears to fall within the doctrine of that case. But it is said that, even in cases falling within that rule, the right must be exercised honestly and in good faith. The dissatisfaction must be actual and not feigned, real and not merely pretended. 9 Cyc. p. 624; Isbell v. Anderson Carriage Co., 170 Mich. 304 (136 N. W. 457). It is also said in Hartford Sorghum Manfg. Co. v. Brush, 43 Vt. 528, that if the purchaser is in fact satisfied, but fraudulently and in bad faith declares that he is not, the condition is performed. The question, therefore, presented is. whether we can say on.the face of this'record that bad faith was the basis of defendants’ refusal to approve the contracts.

The obvious purpose of this undertaking was to dispose of the lots on the subdivision at a satisfactory price. And the only apparent object of reserving the right to approve the contracts was to pass upon the financial responsibility of those desiring to purchase. When complainants tendered the contracts in question for approval, defendants replied requesting a financial statement of complainants. In response to this request complainants refused to make a written statement, but instead referred defendants to their bankers, indicating who they were, and made the following offer of security:

“You hold now, land contracts of various parties, wherein our equity at this date, according to our record, amounts to $10,374.77.
“If at any time we should default in making any payment of principal or interest on any of the contracts submitted by us to you on the 30th ultimo, you are hereby authorized to apply upon any such contract in default, enough of the moneys collected by you from time to time, for us, to satisfy such default in payment, and this authority is to be a continuing one until one-half of the principal and all accrued interest is paid upon the contracts so submitted to you.”

The defendants being unmoved by this information and offer of security, the complainants filed this bill of complaint. In their answer the defendants deny they based their refusal on the financial irresponsibility of the complainants. That portion of their answer reads:

“They admit that before refusing to accept said payment on said contracts, they asked for a financial statement showing the responsibility of Messrs. Hutton, Tigchon & Nall, and that such statement was not exhibited to them, but show that their refusal to enter into said agreements was not based upon the financial irresponsibility of the proposed purchaser, but was within their rights as defined by said agreement.”

Later, at the hearing, Mr. Hoyt, who represented the administrator, testified that:

“At the time we declined to make these contracts, we questioned their financial responsibility. We did not get to a point of passing on it because we were not furnished the information for which we asked. Our position in part was that, not having been furnished that financial statement, we would not sell to them. The other part was that they had no right, no legal right, to make this contract for themselves under the sales agreement that we had with them.”

In view of this testimony we must assume that defendants based their refusal to approve the contracts in part, upon the financial irresponsibility of the complainants. In order to meet this objection, complainants referred defendants to their bankers in the city of Detroit, and to further satisfy their misgivings, they offered to permit defendants to retain their equity in lots already sold, amounting to upwards of $10,000, as it was collected, and apply it upon the purchase price of the lots in question. Defendants made no reply to the offer of security, and refrained from making any inquiry of complainants’ bankers. And they say in their testimony that they did not pass upon complainants’ financial responsibility because they were not furnished the information requested. We think it can hardly be said to be consistent with good faith to question a business man’s financial standing, and when it is met by a reference to his banker and an offer of security to ignore the offer of security and refuse to investigate when the avenue leading to the desired information is open. Such conduct would not pass current in the business world as good faith, and we cannot accept it as such. But it is said that the defendants deny they were referred to complainants’ bankers. If we consider this denial as conclusive, the fact still remains that the administrator had at its command all the avenues of information concerning the financial standing of business men about town that a large trust company usually has, and had its desire been to learn the financial standing of these complainants, we cannot believe it would have been very long without the desired information.

Another phase of the testimony which has influenced us in reaching a conclusion on the question of good faith is the fact that complainants have been permitted to become the owners of several defaulted contracts for lots on the subdivision with the knowledge and consent of the defendants. Why their financial ability should be questioned in one case and not in another of like kind is a discrimination not easily understood.

Complainants charge in their brief that defendants were moved to withhold their approval of the contracts because of the enormous increase in the value of the lots since the contract of agency was made. Whatever may have been the motive for their refusal, we are satisfied that their dealings lacked the candor and good faith which their agreement with the complainants demanded of them. For this reason the decree of the trial court must be reversed, and one entered in harmony with these conclusions. The complainants will recover their costs in both courts.

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


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    HAZZARD v. CONSOLIDATED COAL CO.
    1. Master and Servant — Negligence — Mines — Saee Place — Electricity — Uninsulated Wires.
    Plaintiff, who was employed in defendant’s mine as a loader and had started to leave the mine through a passageway in which was a track for the hauling of cars of coal, suddenly encountered a team and car; somewhat startled by the encounter he stepped to the south side of the track 'and came in contact with aii uninsulated- portion of a wire carrying an electric current, received a shock and fell in the path of the car: he suffered- injuries for which he commenced an action. Defendant’s electrician testified that because of the pressure of other work he had been unable to complete the work of protecting the wires at this point with boards as the remaining electrical wiring was protected. Held, that the question of defendant’s negligence presented an issue for the jury.
    2. Same — Fellow-Servant.
    Failure of the electrician to cover the wires with protecting boards at this place was the negligence of an alter ego of the employer, who could not escape liability under the fellow-servant rule, notwithstanding that he was supplied with sufficient boards and materials to perform the work.

      3. Same — Temporary Place.
    Nor was 'the place a temporary one in the process of construction and to he made safé so as to relieve the defendant of liability to provide for the safety of its employees.
    4. Same — Contributory Negligence — Adopting More Dangerous oF Two Methods.
    It could not be found as matter of law that the' plaintiff was chargeable with contributory negligence for turning to the dangerous side of the track in the sudden excitement of unexpectedly meeting the car and team, although the opposite side was safe, nor eould the court say that defendant, not being responsible for his fright, was not responsible for its consequences.
    5. Same — Due Care — Directing Verdict.
    The issues whether the plaintiff should have seen or heard the approaching vehicle sooner, whether he should have waited until the current was turned off before he started to leave, and whether he should have used another passageway, were properly left as questions of fact for the jury.
    6. Same — -Assumed Risk.
    Where plaintiff testified that he did not know of the gap in the protection for the wires, the question whether the danger was obvious and should have been known to him depended bn the opportunity that he had previously had for observing the situation, the distance thereof from a light, and whether the cap light carried by him was sufficient to disclose the conditions and surrounding circumstances, and ’was for the jury; he assumed only the risks of which' he knew or ought to have known.
    Error to Saginaw; Kendrick, J.
    Submitted November 26, 1913.
    (Docket No. 32.)
    Decided December 19, 1914.
    Case by Robert Hazzard against the Consolidated Coal Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Humphrey, Grant & Humphrey, for appellant.

      Miles J. Purcell and Fred L. Travers, for appellee.
   Bird, J.

In October, 1911, the defendant operated the Shiawassee coal mine, in Saginaw county. Electric currents were conveyed by means of wires from the surface into the mine and along the passageways to the mining machinery, lights, and pumps. The wires were fastened on the side wall near the ceiling of the passageways. The passageway leading from the shaft to the point of mining was nearly a mile in length, was about 5 feet wide, and 5 feet in height. Down this passage a track was laid, over which cars filled with coal were hauled to the shaft. Mules were used to haul the cars from the point of loading for about 600 feet, where they were then taken by the motor to the shaft. In going to and from their work, the men working in the mine went through this passageway. On the afternoon of October 12th the plaintiff, who was doing the work of a loader, having finished his work, started for the shaft through this passageway. He had not gone far, when he suddenly came upon a mule team returning with empty cars, and, being somewhat startled, he stepped off the track to allow them to pass. The narrowness of the passageway compelled him to hug the side wall, and in so doing his head came in contact with a section of the electric wire which had no insulation, with the result that he received a shock, and was thereby thrown forward onto the mules and in front of the moving cars, and injured..

The negligence complained of and relied upon was the failure of defendant to furnish him a safe place in which to work, in that it failed to insulate its wires at the point where he came in contact with them. Judgment passed for the plaintiff, and defendant assigns several errors thereon. The assignments of error raise the questions:

(1) Whether there was any actionable negligence upon the part of the defendant.

(2) Whether plaintiff was guilty of contributory negligence.

(3) Whether the injury was within the risk which plaintiff assumed by his contract of employment.

1. The relation of employer and employee, which existed between the plaintiff and defendant, raised a legal duty upon the part of the defendant to furnish plaintiff with a reasonably safe place in which to work, and this duty carried with it the obligation to see that the passageway through the mine leading to and from plaintiff’s work was reasonably safe. It is charged that defendant failed in this duty because it failed to insulate the wires at the point where plaintiff came in contact with them. It appears to have been admitted upon the trial that at that point there was a gap in the-boards which afforded protection against the wires. The assistant electrician testified it was a part of his duty to supply the gap, but that he had failed to do so by reason of the pressure of work elsewhere. The defendant /Caused the wires to be placed in the passageway. It recognized the fact that they were a dangerous agency, by adopting a policy of covering them. It also knew that the men traveled the passageway in going to and from their work. These facts, with other facts shown, were sufficient to carry the question of defendant’s negligence to the jury. But it is argued that the duty of covering the wires was delegated to the electrician, and that, as the proofs showed, he had an ample supply of boards to cover them, his failure to do so was his fault — the fault of a fellow-servant of plaintiff — and not the fault of the defendant. It was within the defendant’s right to delegate the authority to the electrician, but it could not do so in such a manner as-to relieve itself of liability, because the safety of a “permanent place” was involved. Van Dusen v. Letellier, 78 Mich. 492 (44 N. W. 572); Brown v. Gilchrist, 80 Mich. 56 (45 N. W. 82, 20 Am. St. Rep. 496); McDonald v. Railroad Co., 132 Mich. 372 (93 N. W. 1041, 102 Am. St. Rep. 426); Charron v. Carbide Co., 151 Mich. 687 (115 N. W. 718); Danula v. Mining Co., 166 Mich. 350 (130 N. W. 604).

2. Several reasons are assigned why plaintiff was guilty of contributory negligence as a matter of law. One of these reasons is that plaintiff should have stepped to the north side of the track, instead of the south side, to permit the mules to pass, because he was aware that on the north side there was more room and no wires. The plaintiff testified that he came upon the mules so suddenly that he became excited, and he appears to have followed his first impulse to avoid them by stepping to the south side. Recognizing, as we do, that one in a startled moment is not always able to exercise his best judgment in behalf of his own safety, we cannot say as a matter of law that he was guilty of contributory negligence. His conduct on that occasion, with all the attendant circumstances, must be referred to the usual test, namely, whether he did that thing which the ordinarily prudent and careful man would have done under similar circumstances.

It is further urged in this connection that, inasmuch as defendant was not responsible for plaintiff’s fright, it is not liable for the consequences. Had plaintiff stepped aside and suffered injury solely by reason of the narrowness of the passageway, this argument would have more force. The position of plaintiff, however, is that, notwithstanding his fright and the proximity of the car to the side wall, he would have escaped injury, had he not come in contact with the exposed wire. The uncovered wire was counted upon as being the proximate cause of his injuries.

The further questions as to whether, in the exercise of ordinary care, plaintiff should have seen and heard the mules sooner, whether he should have refrained from leaving the mine until the current was turned off, and whether he should have used another passageway, were questions which were all within the province of the jury, and the trial court was in no error in submitting them for their consideration.

3. Did plaintiff assume the risk? The risks which plaintiff assumed when he became an employee of defendant were those of which he actually knew, or of which he ought to have known. Balhoff v. Railroad Co., 106 Mich. 606 (65 N. W. 592); Bradburn v. Railroad Co., 134 Mich. 575 (96 N. W. 929). The plaintiff gave evidence that he was not aware of the gap in the insulation of the wire. As to whether the danger was obvious, and therefore should have been known to him, would depend upon the opportunity he had had for observing it, whether it was near or far from one of the 16-candle incandescent lights distributed every 150 feet through the passageway, whether the light carried on his cap would enable him to observe it, and whether his failure to observe it was due to his inattention and indifference. These considerations made this question one for the jury.

We find no reversible error in the remaining assignments of error.

The judgment will be affirmed.

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


text:
    McCONNELL v. HARRELL & NICHOLSON CO.
    1. Sales — Contracts — Meeting of Minds — Offer and Acceptance.
    In an action for breach of a contract to take a quantity of ice, a series of letters in which the defendant asked for rates on ice, saying it could probably store 10 cars at a time, to which communication defendant replied, receiving another tentative note and following with an interview, whereupon defendant wrote that it had determined to handle the ice provided it cost not to exceed 90 cents a ton, and would “be willing to enter into a contract to take a minimum of 2,000 tons with the privilege of 5,000 tons,” advising plaintiff that it would be difficult to estimate how much the defendant would need, but to put himself in position to furnish the maximum, was a valid offer, and being answered by a letter of plaintiff that he would accept the proposition of 90 cents per ton and would order lumber at once to put up the icehouse, suggesting that the contract be put in written form, where plaintiff afterwards delivered about 100 tons of ice on the contract, sustained a judgment for its breach.
    2. Same — Intent.
    Whether the correspondence constituted a completed contract or were steps in negotiations leading up to one, was a question of the intention of the parties.
    3. Same.
    Although the suggestion made by plaintiff that the contract be put in written form tended to impair his claim that the agreement was complete, the suggestion on his part could be construed into a mere desire to have the terms put in a more formal shape and did not prove that a further agreement in writing was necessary to bind the parties.
    4. Same — Damages—New Trial.

      Held, also, that the verdict was excessive and did not allow a sufficient sum for shrinkage and should be reduced from $3,100 to $2,500.

      Error to Wayne; Van Zile, J.
    Submitted November 25, 1913.
    (Docket No. 78.)
    Decided December 19, 1914.
    Assumpsit by Edward J. McConnell against Harrell & Nicholson Company for breach of contract. Judgment for plaintiff. Defendant brings error.
    Reduced and affirmed.

      Henry B. Graves, for appellant.

      Albert McClatchey, for appellee.
   Bird, J.

Plaintiff seeks compensation in this suit for defendants refusal to accept and pay for certain ice which he claims it contracted for to be delivered in the year 1910. In the year 1909 plaintiff was engaged in the business of farming and putting up ice at or near Waterford, a short distance from the city of Detroit. In November of that year he claims to have entered into a contract with defendant to furnish it ice to supply its retail trade in the city of Detroit. Letters which passed between the parties are relied upon to establish an enforceable contract. On October 20, 1909, defendant wrote plaintiff as follows:

“Mr. E. J. McConnell, Mgr.,
“Waterford, Mich.
“Dear Sirs:
“Am in receipt of your letter relative to lake ice. Kindly advise me your rate, R. R. facilities, etc. We may decide to handle ice next year and have been looking for a good product. We can arrange to store probably 10 cars at time. It will be necessary to get to' rock bottom in order to enable us to handle and make a fair return for our labor.
“Yours truly,
“Harrell & Hoffman Co.,
“Per O. Harrell.”

Eight days thereafter the defendant again wrote plaintiff:

“Mr. E. J. McConnell,
“Waterford, Mich.
“Dear Sir:
“Your letter 27th reed, to-day. I shall be up to see you one day the coming week and look over the situation. Kindly advise by return mail when it will be convenient for you to meet me, etc. I could phone you if you have connection with Detroit.
“Yours truly,
“Harrell & Hoffman Co.
“Harrell."

Following these letters, the parties had several interviews, in which they discussed the subject-matter of the contract, and on November 16th defendant addressed to plaintiff the following letter:

“Mr. E. J. McConnell,
“Waterford, Mich.
“Dear Sir:
“After going over the situation carefully, we have decided to handle ice provided it will not cost us to exceed 90c, per ton 2,000 f. o. b. cars Waterford, and will be willing to enter into a contract to take a minimum of 2,000 tons with privilege of 5,000 tons. You will readily understand that being a brand-new proposition with us it is difficult to estimate probable ton-’ nage; however, you will put yourself in position to furnish us up to the maximum, and it won’t take long after the ice season begins for us to determine our approximate requirements, thus giving you time enough to take on additional business required to get rid of the harvest. Our desire will be to hook up with you for our supply from year to year and be assured we will get our requirements without seeking new source of supply. We have, we might say, made a success in our present time with strong competition and without an iceman within two miles of us we fail to see why we should not find an outlet for a goodly tonnage of ice each season and a steady business the year round.
“We shall expend $600 to try it out next year and will add as it grows.
“Awaiting your acceptance and wishes as to further arrangements, we are,
“Yours truly,
“Harrell & Hoffman Co.,
“0. Harrell, Prest. Mgr.”

To this letter plaintiff replied, accepting the defendant’s proposition. He retained no copy of his letter, but, after laying the proper foundation, was permitted by the court to show the contents of it, which were as follows:

“I accept your proposition of 90c. per ton f. o. b. Waterford. I will go right at once and, order my lumber to put up my icehouse and get ready for you and build them.”

He also stated in the letter that “we would have a written contract drawn up when I come in.”

In reliance on the letter of 'November 16th, and his reply thereto, the plaintiff claims he at once purchased lumber, erected his icehouse and in the winter following harvested over 5,000 tons of ice, 4,500 of which he placed in the icehouse, and the remainder — 600 or 700 tons — was left on the bank of the lake to be used in taking care of immediate deliveries. And he further claims that on February 22d he shipped the defendant five cars, approximately 100 tons of ice, to apply on his contract; that from time to time defendant made various excuses for not ordering any more ice, and finally, on June 10th, it advised him that no more ice would be accepted.

It is the claim of the defendant that whatever negotiations were had were simply preliminary to a contract, which was never entered into upon its part. It admits that it received the five cars of ice, but says that that shipment was an independent shipment, and had no reference whatever to any previous contract. The trial court submitted to the jury the question as to whether plaintiff wrote and mailed to defendant his letter of acceptance; also the question as to whether the five cars of ice were shipped by plaintiff in part performance of his claimed contract. They .were instructed that, if they found in the affirmative upon either one of those propositions, the contract would be a valid one.

The jury awarded the plaintiff a judgment of $3,600. A new trial was applied for, and upon the hearing thereof the judgment was reduced from $3,600 to $3,100. It was clear to the trial court that the jury had accepted plaintiff’s testimony that he had 4,000 tons in his house on June 10th, and had given him 90 cents per ton therefor, without making any deduction for loading the same on the cars at Waterford, which plaintiff admitted would cost 12% cents per ton. To compensate for this omission, the court ordered a new trial in the event plaintiff did not acquiesce in the. reduction. The defendant has removed the proceedings tó this court for review, and its assignments of error raise two questions:

(1) Do the letters establish a valid contract?
(2) Was the judgment rendered for a larger amount than the proofs would justify?

Whether these letters constitute a completed contract, or whether they were but steps in negotiations leading up to one, is a question of the intention of the parties. Gates v. Nelles, 62 Mich. 444 (29 N. W. 73); Wardell v. Williams, 62 Mich. 50 (28 N. W. 796, 4 Ann. St. Rep. 814); Central Bitulithic Paving Co. v. Village of Highland Park, 164 Mich. 223 (129 N. W. 46, Ann. Cas. 1912B, 719). In Mississippi, etc., Steamship Co. v. Swift, 86 Me. 259 (29 Atl. 1063, 41 Am. St. Rep. 545), which considers a like question, the following suggestions are made as an aid in determining the intention of the parties in such cases:

“In determining which view is entertained in any particular case, several circumstances may be helpful, as: Whether the contract is of that class which are usually found to be in writing; whether it is of such} nature as to need a formal writing for its full expression ; whether it has few or many details; whether the amount involved is large or small; whether it is a common or unusual contract; whether the negotiations themselves indicate that a written draft is contemplated as a final conclusion of the negotiations. If a written draft is proposed, suggested, or referred to during the negotiations, it is some evidence that the parties intended it to be the final closing of the contract.”

In order to be enforceable, this contract, under our statute, would have to be in writing. It was in writing. It had few details. The amount involved was not what would be regarded in the commercial world as a large amount. The contract would be considered an ordinary one. There is nothing in the contract which indicates that a written draft should be made before it became binding; in fact, the reverse of that is inferable from plaintiff’s statement in his letter of acceptance, wherein he stated that he will proceed at once to purchase his lumber and erect his icehouse. True, he suggests that the contract be put in writing. This makes against the plaintiff’s contention; but even this suggestion may be construed merely as a desire to have the terms of the contract put into more formal shape. Mississippi, etc., Steamship Co. v. Swift, supra. The question was already settled that the defendant would go into the ice business. The price at which it was willing to contract was stated to plaintiff. The amount of tonnage it would need was stated as definitely as the state of its trade would permit, and it was stated in one of the letters that ten cars could be stored at one time on its siding. There appears to have been nothing left to consider or to agree upon to make it a completed contract, and we are of the opinion, in view of the finding of the jury as to the letter of acceptance, that the contract was a completed one.

The judgment is further questioned because the jury had no basis for finding as large a verdict as they did. The plaintiff testified as to the dimensions of his icehouse. He further testified as to the weight of a cubic foot of ice. We are satisfied from a computation based upon his own figures that the capacity of his icehouse was not as great as' he estimated it. We are further convinced that there was not sufficient allowance made by the jury for the natural shrinkage of ice.

For these reasons we are of the opinion that the verdict should be reduced from $3,100 to $2,500. The plaintiff will be given 30 days after a remittitur is filed to elect to file his consent to a judgment of $2,500. Should such consent not be filed within that time, the judgment will be reversed, and a new trial ordered. Otherwise it will stand affirmed, with costs to defendant in any event.

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


text:
    PEABODY v. PEABODY.
    Divorce — Extreme Cruelty — Profanity.
    Testimony of the wife in a suit for divorce, corroborated only as to minor and unimportant matters, that the defendant used profane language, was inattentive when she was ill, used intoxicating liquors, complained about household expenses, and refused to accompany her to church, was insufficient to require the court to grant a divorce on the ground of extreme and repeated cruelty.
    Appeal from Ionia; Davis, J.
    Submitted January 15, 1914.
    (Docket No. 81.)
    Decided December 19, 1914.
    Bill by Florence E. Peabody against John W. Peabody for divorce. From a decree for defendant, complainant appeals.
    Affirmed.

      B. A. Hawley, for complainant.

      Scully & Davis, for defendant.
   Bird, J.

Having been denied a decree of divorce in the circuit court, complainant appeals to this court for relief. In her bill she charges defendant with extreme cruelty. The parties were married in December, 1904, and separated in June, 1910. During that time they lived upon defendant’s farm, a few miles distant from the city of Ionia. When they separated, complainant went to her mother’s home in Ionia, taking with her their only child, a boy of four years. Defendant remained on the farm. The extreme cruelty alleged consists principally of a free use of profanity, lack of attention at the time of her confinement, grumbling over household expenses, refusal to accompany her to church, staying out late nights, visiting houses of ill fame, using abusive and profane language to her, using intoxicating liquors, and, on one occasion, just prior to her leaving, with personal violence.

The complainant’s case in chief was not a strong one. Upon cross-examination, much of her direct testimony was explained and modified. As illustrative of this, she stated upon cross-examination that, while defendant grumbled about the household expenses, he always purchased what she requested, and that a credit was established by him at a store 2% miles away, from which she had authority to order supplies over the phone, and that on several occasions she did so, and the supplies were brought to her by some of the neighbors.

It appeared that, while defendant was disinclined to attend church, he opened the way for her to attend by furnishing her a driving horse and offering to care for the child. His staying out late nights was explained by the fact that he was a stock buyer, and loaded and shipped his cattle at night at the city of Ionia, several miles away. She had no knowledge of defendant’s visiting houses of ill fame, and she admitted that her charge was based upon the suspicion of herself and mother. The only instance that complainant knew of defendant’s intoxication was when he was confined to the house and suffering with blood poison in his arm. The doctor brought some whisky, and on one occasion he took too much of it and became intoxicated. She had seen him at other times when she thought he had been drinking. The extent to which complainant testified that he was addicted to the use of profanity was not corroborated by any other witnesses. The personal violence occurred while defendant was ill with blood poisoning. It was not serious. Her testimony shows- that he was not as attentive as he should have been during her confine-, ment, but at the time her mother was with her and had sole charge of her care.

Passing over defendant’s denials and explanations of her charges, and the testimony of her own witnesses, we think her own testimony falls short of making a case of extreme cruelty under the statute. Her witnesses corroborated her testimony in some of its phases, but not on any of the more serious charges. And it appears from her own testimony that defendant furnished her a comfortable home, dressed her in keeping with, their station in life, provided a good table, finished paying for her piano, which she had bought before marriage, and, aside from the things complained of, he was generally kind to her.

The record also shows that the defendant respected and loved his wife, and that, after she left his home, he, in company with .one of the neighbors, went to Ionia to her mother’s home to see her and induce her to return. When complainant’s mother saw them approaching the house, she informed defendant that he could not come in, and ordered and pushed him off the premises. The complainant, however, came out and talked with them in the street. The defendant expressed regret over their differences and begged her to return, but she replied that she would not do so. It appears that complainant’s mother was opposed to the marriage, and it is charged by counsel that she was “the fly in the ointment.” However this may be, a reading of the record convinces us that the mother was not very helpful in keeping the parties together. We are of the opinon that the chancellor arrived at the proper conclusion when he denied complainant the relief prayed for.

The decree may be affirmed. No costs will be allowed either party in this court.

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


text:
    HELBER v. SCHAIBLE.
    1. Contracts — Automobiles—Repairs.
    Where defendants sold an automobile to plaintiff, who returned it several times to be put in running order, without avail, in conformity with a warranty accompanying the purchase, and finally sent it back to give defendants a final opportunity to adjust it, when it was partly destroyed by fire in the garage of the defendants; and where the purchaser advised them that he would not pay for repairs, no contract would be implied to pay for repairs made on the machine to put it in order and repair the damage; and plaintiff could recover possession of the car in an action of replevin.
    2. Principal and Agent — Sales—Evidence oe Authority.
    Upon the statement of plaintiff’s father, through whom he had negotiated with defendants in purchasing the automobile, that the son would not pay for repair bills, the son being present at the time and concurring or acquiescing in the warning, the authority of the father to make the declaration sufficiently appeared to entitle the testimony to be considered in evidence.
    3. Same.
    Authority to negotiate for the purchase of the automobile would carry with it the authority to see that the buyer got what he contracted for.
    Error to Washtenaw; Kinne, J.
    Submitted June 8, 1914.
    (Docket No. 34.)
    Decided December 19, 1914.
    Replevin by James Helber against Theodore E. Schaible and another for an automobile. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Floyd E. Daggett, for appellants.

      John P. Kirk and Martin J, Cavanaugh (V. E. Van Amerigen, of counsel), for appellee.
   Bird, J.

In October, 1911, plaintiff purchased a Ford automobile of defendants, and paid $560 therefor, with a warranty that it was a “good car and would run all right.” The car soon developed motor trouble, and plaintiff returned it several times to defendants at their garage in Ypsilanti, to have the defect corrected. After several attempts to adjust it, it still worked badly, and complaint was again made to defendants. Defendant Schaible then requested plaintiff to return the car to their garage and give him one more chance to adjust it, and promised if he could not do so he would give him a new Ford car, or refund his money. On this occasion the car was in defendants’ garage for several days, and during the time a fire occurred in the garage and the car was damaged. Defendants at once advised plaintiff of the damage to his car, whereupon he went to Ypsilant and saw the defendants, and while there it was suggested by them that the repair expense would not be heavy to send it to the factory at Detroit to be repaired.

Plaintiff advised them that he would not pay for any repairs on the car; that he had bought a good car and had not yet got what he paid for. The car, however, was sent by the defendants with other damaged cars to the factory and repaired, and, when returned to Ypsilanti, plaintiff was notified that his car was in working order and that he could come and get it. When he went after it, he was informed that there was a repair bill against it for $203.85. Plaintiff refused to pay this amount and possession of it was denied him. He thereupon began this suit in replevin and recovered possession of it. The trial resulted in a judgment for plaintiff, and defendants assign error.

It was the contention of the defendants that the car was in their possession for the purpose only of making repairs, and that the fire which occurred in their garage was due to no fault or neglect of their own; therefore the loss was plaintiff’s loss, and not theirs, and that the repairs for putting the car in shape was a legal charge against the plaintiff.

On the other hand, the plaintiff contended that he bought the car with a warranty that it was a good car and would run all right; that the car was returned to the garage repeatedly, not for repairs, but to give the defendants an opportunity to make good their warranty; and that its final return was made under the promise of defendants to make good their warranty, and if they could not do so, they would furnish plaintiff with another car, or refund the money; and, further, that he advised the defendants after the fire that he would not pay for any repairs, and therefore was not liable for them. Under the conflicting claims of the parties, the trial court submitted the case to the jury, and, among other instructions, gave the following, which is assigned as error:

“Under the evidence in. this case the plaintiff is not obliged to pay for any repairs to said machine, unless you find from the evidence that there was an agreement or understanding on the part of Mr. Helber to pay for same.”

1. The principal assignment of error is based upon the refusal of the court to charge, as requested, that for the repairs made after the fire, in the absence of an express agreement, the law would imply a promise upon the part of plaintiff to pay what they were reasonably worth. The complaint is that the trial court not only refused to so charge, but did charge in substance that defendants could not recover for the repairs to the car unless they found that plaintiff had agreed to pay for them.

It is undoubtedly true that if plaintiff took his car to defendants’ garage to be repaired, and no agreement was made as to compensation, the law would imply a promise upon the part of plaintiff to pay what the repairs were reasonably worth. But that is not quite the situation presented by the testimony.

Even if it be conceded that the car was in the garage for repairs before the fire, after the fire it was optional with plaintiff whether or not he would have his car repaired, and, if defendants caused the car to be repaired at the factory in Detroit without any agreement upon plaintiff’s part to pay for it, they cannot recover for it. Under such circumstances, the law would raise no implied promise on the part of plaintiff to pay for repairs which he had never ordered, and to the payment of which he had expressly objected before they were made. We are of the opinion that the trial court properly instructed the jury as to this phase of the case.

2. Eugene Helber, father of plaintiff, testified, over defendants’ objection, that he informed defendants, when they suggested having the car repaired at the factory, that “they would pay no repair bill.” Error is assigned on the admission of this testimony, on the ground that there was no testimony showing that the witness had any authority to speak for the plaintiff. The testimony shows that the father carried on the negotiations with defendants, which resulted in the purchase of the car, and that they consulted with him about the repairs and when the car was damaged by fire, the father, and not plaintiff, was notified by them. It further appears that, when the father advised the defendants that they would pay no repair bill, the plaintiff was present and gave his tacit assent to the statement of the father. Under these circumstances, we think the authority of the father to make the statement in behalf of the plaintiff might reasonably be implied. The authority to negotiate for the purchase of the car would carry with it the authority to see that he got what he contracted for. 2 Cyc. p. 948; Ferguson v. Hemingway, 38 Mich. 159.

3. It appears that on the trial plaintiff objected to any recovery by the defendants for repairs because they had failed to file a certificate with the county clerk, in accordance with Act No. 101 of the Public Acts of 1907, relating to copartnerships. Inasmuch as this right was not denied to defendants by the trial court, we see no occasion to discuss it.

We find no error in the record, and the judgment will be affirmed.

Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. McAlvay, C. J., did not sit.


author: Ostrander, J.

text:
    GRAND RAPIDS & INDIANA RAILWAY CO. v. MICHIGAN RAILROAD COMMISSION.
    1. Railroads — Michigan Railroad Commission — Orders — Switching Privileges' — Contracts.
    In a proceeding before the railroad commission to compel a railroad corporation to provide switching facilities without requiring the agreement or consent of the person to be served to the imposition of unreasonable terms, as in other proceedings before the commission, unnecessary formality should be dispensed with; complaints should be considered with reference to the real substance of the issue presented. It should appear from the record what distinct issues are raised by the petition and proceedings.

      2. Same — Petition—Practice Before Railroad Commission.
    Though the petition filed with the commission praying for relief stated that it was the practice and regulation of the respondent to require the execution of a certain lease or agreement as a condition precedent to the construction and maintenance of a switch connection, and an examination of the contract so employed showed that it related to the construction of spur or side tracks and only the question whether the railroad company might impose certain condition before it proceeded to construct a side track to the premises of shippers, was involved, the issue will be considered as properly raised and disposed of by the commission, on a record indicating that the true question was presented before the railroad commission by the parties, and was determined by the order of that body.
    3. Same.
    An order of the railroad commission exceeded the statutory authority of the commission, which determined that a form of agreement employed by defendant railroad corporation relative to side tracks was invalid in that it provided for priority of right to use the side track when constructed by the railroad at the expense of the shipper, or when paid for by him thereafter, that the railroad might extend the track through his premises without permission, that the railroad might discontinue service upon breach of any of the conditions of the contract and might remove the track, that the shipper must route his freight over the lines of the railroad, assume all risk of fire, and maintain a specified clearance, where the judgment of the commission also specified that no such agreement should be employed and stated maximum terms that could be imposed on the shippers.
    4. Same — Carriers.
    If the duty to build private spur or side tracks was an absolute duty of the carrier no universal rule governing the terms and conditions under which the duty should be performed could be fixed; the reasonableness of any order requiring the railroad to perform that duty would always be open to question and the peculiar circumstances of each case would determine the reasonableness of the order.
    5. Same — Reotjlation or Practice.
    A practice or regulation of the railroad company is not made out by a showing that in every instance it required a certain agreement to be executed before it would perform its duty, and jurisdiction was not conferred on the commission by the averments of such complaint to enact a universal rule or regulation governing each case of side track construction.
    6. Same — Orders—Vaijdity.
    Whether a side track should be built and, if built, the relations that should be established between carrier and shipper are matters of private not public concern, unless the legislature has determined otherwise, and in -the absence of such legislation the practice in such cases is not under the control of the commission.
    7. Same — Statutes.
    Before the enactment of Act No. 300, Pub. Acts of 1909 (3 How. Stat. [2d Ed.] § 6524 et seq.), no duty was imposed by the legislature to construct side tracks for private shippers, and until the passage of such act, the carrier could determine the conditions under which it would construct or maintain private tracks, so that a complaint filed before the statute of 1909 went into effect would not be governed by the enactment.
    Appeal from Kent; Brown, J.
    Submitted June 15, 1914.
    (Docket No. 29.)
    Decided December 19, 1914.
    Bill by the Grand Rapids & Indiana Railway Company against the Michigan Railroad Commission for an injunction and other relief. From a decree for defendant, complainant appeals.
    Reversed.

      James H. Campbell, for complainant.

      Frank E. Robson and Henry Russell, for Michigan Central Railroad Co., intervener.

      Beaumont, Smith & Harris (Grant Fellows, Attorney General, of counsel), for defendant.
    In May, 1908, a voluntary association, called the Michigan Manufacturers’ Association, filed with the Michigan Railroad Commission a petition against the Grand Rapids & Indiana Railway Company, in which it is alleged that it is a practice and regulation of the said company to require the execution of a certain lease or. agreement (setting out a copy) as a condition precedent “to the construction and the maintenance of a switch connection with the private side track of any shipper tendering traffic for transportation that tjie practice or regulation is unreasonable, unjust, and discriminatory, and in violation of Act No. 312 of the Public Acts of 1907; that “the provisions of said lease contained in clauses 1, 2, 3 and 4 thereof are in violation of section 4 of said act, in that the enforcement thereof constitutes an unjust and unreasonable charge for the receiving, switching, and delivering of freight;” that the provisions of clause 6 “of said lease” are in violation of section 6 of said act, in that said clause—
    “Provides that, in case the second party to said lease, namely, the shipper, should fail to observe the provisions of said clause as to the shipments of freight over the lines of said railroad, described in said lease as the first party thereto, the said railroad.may terminate the lease, take possession of the premises, and refuse to maintain and operate switch connections over the tracks referred to in said lease; (6) in that the enforcement of the provisions of said clause constitute an unlawful discrimination against the shipper; (c) in that the switch connection to be constructed, maintained, and operated would, if constructed, maintained, and operated under the provisions of said clause, not be so constructed, maintained, and operated upon reasonable terms.”
    It is further alleged:
    “That the provisions of said lease are in violation of section 16 of said act, in that said lease provides for the charging or receiving of a greater or less compensation for the service rendered by the carrier than that prescribed in the public tariff or than it charges, demands, collects, and receives for a like and contemporaneous service in the transportation of like kind of tariff under substantially similar circumstances and conditions.”
    “That the provisions of said lease and of clauses 7 and 8 are in violation of section 6 of said act: (a,) In that the enforcement thereof is a discrimination against the shipper, otherwise described as the party of the second part in said lease; (6) in that a switch connection constructed, maintained, and operated under the provisions of said clause 3 would not be constructed, maintained, and operated upon reasonable terms, but Would so be constructed, maintained, and operated upon unreasonable terms; (e) in that, by the terms of said section 6, it is the duty of said railroad company to construct, maintain, and operate upon- reasonable terms a switch connection with any private side track, when such connection is reasonable, practicable, and can be put in with safety, and will furnish sufficient business to justify the construction and the maintenance of the same, and it is its further duty to furnish cars and to transport to the best of its ability any traffic tendered to, over, or from such private side tracks, whereas, said clauses 7 and 8 of said lease limit the liability of said railroad company in the performance of the duty above' referred to, wherefore the provisions of said clause are not unreasonable and void.”
    It is prayed:
    “That the said commission will proceed to the consideration and determination of the said complaint, and that said lease and the said practice and regulation shall be held to be unreasonable, unjust, discriminatory, and illegal, and that the said commission shall so determine, and shall likewise determine, and by its order shall fix, a reasonable regulation or practice to be observed and followed in the future in lieu thereof, and shall likewise order that the said Grand Rapids & Indiana Railway Company shall cease and desist from the said practice and regulation, and shall conform to the order of the commission and the regulation and practice in said order prescribed, and for such other and further relief as to the commission shall seem just.”
    The instrument, a purported copy of which is attached to this petition, is headed, “Side-Track Agreement.” An order was made for a hearing upon the petition, an answer was filed, hearing had, and September 30, 1909, a decision was rendered. The order of the commission, to which is attached a form of instrument headed “Side-Track Agreement,” proceeds as follows:
    “Complaint having been filed by the complainants herein alleging that the above-named defendants then had, in effect, certain unreasonable, unjust, and unlawful regulations and practices relative to side-track leases and agreements, and thereupon, investigation having been had thereon by this commission, in accordance with the statute in such case made and provided, and in the course of such investigation having had a hearing thereon, at which all parties in interest were heard, and the commission having then entered upon the consideration of the said side-track leases and agreements required by said defendants, and upon such investigation and careful consideration the commission having found the existing side-track leases and agreements contain unreasonable, unjust, and unlawful regulations and requirements: Now, therefore, for the reasons set forth in the opinion of the commission this day filed, it is hereby determined by this commission: That the existing side-track leases and agreements required by said defendants in this State contain unreasonable, unjust, and discriminatory provisions. That the regulations and practice of requiring the execution on the part of shippers of such side-track leases and agreements containing such unreasonable, unjust, and discriminatory provisions does exist, and that such practice is unreasonable, unjust, and discriminatory. That said defendants shall cease and desist from the regulation and practice of requiring the side-track leases and agreements as described in the said petition in this cause. That side-track agreements and leases executed after the date of this order shall not contain requirements in any way providing:
    “ (a) That the railroad company shall have priority of right to the use of the side track when constructed upon the shipper’s premises and at his expense, or when, after construction by the railroad company, it has been paid for by such shipper.

      “(b) That during the time such side track remains the property of the shipper the railroad company may extend same through the shipper’s premises without his permission.

      “(c) That the railroad may at its option, if the shipper fails to comply with the contract, discontinue the service and remove the track.

      “(d) That the shipper on whose premises and at whose sole expense the side track was constructed must route his freight over the operating railroad lines.

      “(e) That the shipper must assume risk of fire and release the railroad from all liability for loss or injury by fire.

      “(f) That the shipper maintain a clearance as to said side tracks to exceed 22 feet overhead and 6 feet from the rail on either side thereof.
    “That the provisions of the following agreement are prescribed as the maximum provisions that may be required by the railroad as preliminary to the construction or operation of side tracks after the date of this order, where such side tracks are to be constructed or where leases or agreements now in .existence may have expired.”
    The defendant railway company thereupon filed its bill in the circuit court for the county of Kent, in chancery, setting up the proceedings had before the Michigan Railroad Commission and its conclusions, asking for a decree adjudging the order of the said commission to be wholly nugatory and void, and for general relief. The bill was answered, and the court, upon the bill and answer and the testimony adduced before the said commission, made and entered a decree dismissing the bill, and, proceeding further, affirmed the order of the commission. From this decree the Grand Rapids & Indiana Railway Company has appealed. It submits for consideration and argues the following propositions:
    “(1) It is not the duty of a railroad company to build, maintain, and operate a private side track. The matter is one wholly of private contract.
    “(2) It is not within the police or any power of a State to require a railroad company to build, maintain, and operate a private side track not for any public use.
    “(3) The order of the Michigan Railroad Commission and its enforcement would deprive the railway company of its constitutional right of private contract respecting its property and the use thereof, and would deprive the company of its property without due process of law, and deny to it the equal protection of the laws, and would exceed the police power of the State, all in violation of the Constitution of the United States.
    “ (4) The provisions in the order which require, or have the effect of requiring, a railway common carrier to use its property, tracks, and facilities for a private side track and to maintain and keep it in repair as a switch connection between a private side track and industry and other railroads at its own expense, and without compensation or consideration, would deprive the railway company of its property without due process of law in violation of the national Constitution.
    “(5) The Michigan Railroad Commission had no jurisdiction of the subject-matter of the order.
    “(6) The order of the commission does not relate to the subject-matter of the complaint, and the complaint gave the commission no jurisdiction to make the order requiring the railway company to construct and operate a private side track.
    “(7) The provisions in the railway form of sidetrack agreement are lawful.
    “(8) The findings in the order of the commission that the provisions in the railway form of agreement are unreasonable, unjust, unlawful, and discriminatory, and that the requirement of an agreement according to that form is unreasonable, unjust, and discriminatory, are erroneous, and unwarranted by any evidence before the commission.
    “(9) The order is unjust and unreasonable: (a) In prohibiting the use of the railway form of agreement and in the agreement prescribed; (6) in precluding the fire clause; (e) in requiring that the railway company shall deliver and place on said side track, and take away therefrom promptly, all car load shipments billed to or by the shipper, and to make no charge therefor, and to maintain and keep in repair and operate the track for that purpose, and to take cars to and from the private side track for other competing railroads without charge, except the ordinary switching charge, all without any regard to the conditions or cost of the service; (d) in the requirement that the railway company shall maintain all such service and keep the side track in repair and operate it as long as the industries served by the side track are in operation; (e) in the requirement that the railway company shall not remove nor cease to render service over the side track or its connections even after purchase thereof by the railway company until the annual revenue for services on the side track shall be less than 10 per cent, upon the amount paid by the shipper for its construction.
    “(10) The order in its terms applies to interstate, as well as intrastate, shipments. In so far as it applies to interstate shipments, it is an unlawful interference with interstate commerce and the exclusive power of congress over that commerce. But the order must be construed and limited as applying only to cars in intrastate shipments wholly between points in Michigan.”
    It is made to appear that the Michigan Central Railroad Company and the Pere Marquette Railroad Company were in like manner, by the same petitioner, complained of, and that the action of the commission affected each of these companies. The order of the commission found in the record runs against all of them by name. Whether any company other than the complainant directly sought relief from the order by the action of a court does not appear, beyond this: It is stated in the brief that the order of the commission as to companies other than complainant abides the result of this suit. Briefs for the Michigan Central Railroad Company have been filed, in which is asserted want of jurisdiction of the commission over the subject-matter, with a discussion of the stipulations prohibited by the commission, and the further contention is made that the effect of the order is necessarily to burden and regulate interstate commerce.

       Upon the power to compel railroad to build or maintain side tracks for accommodation of shippers, see note in 28 L. R. A. (N. S.) 1013.

   Ostrander, J.

(after stating the facts). The Michigan Railroad Commission is a body possessing limited powers, to be ascertained by reference to the statute creating it. It may enforce its orders by application to the courts, and its orders are reviewable by the courts. In proceedings before it, unnecessary formality is, and should be, dispensed with, and complaints such as were made in the matters now before us ought to be considered, as the commission in its opinion says, with reference to “the real substance of the issue presented.”

But the necessity for distinct issues,, discoverable from the record which is made, is apparent, since it is by the record that the court must determine whether the jurisdiction of the commission has been exceeded. These observations are made here because it seems to us that the complaint which set the commission in motion is lacking in certainty; the real issue — the one determined by the commission — not being the one immediately suggested by reading the complaint.

Referring to the complaint, we find it states that “it is the practice and regulation” of the said railroad company, “to require the execution of a certain lease or agreement, a copy of which is hereto attached and marked ‘Exhibit A/ as a condition precedent to the construction and the maintenance of a switch connection with the private side track of any shipper tendering traffic for transportation,” and that the practice or regulation is unreasonable, unjust, discriminatory, and in violation of the act. Referring* to the act, it is found that the legislature has enjoined upon railroads the duty “upon application of any shipper tendering traffic for transportation” to construct, maintain, and operate upon reasonable terms a switch connection with any private side track, when such connection is reasonable, practicable, and can be put in with safety, and will furnish sufficient business to justify the construction and maintenance of the same. Section 6 (a). Reading the statute and that portion of the complaint referred to together, it would appear that the railroad company, instead of obeying the statute^ made it a practice to disobey it, and to refuse switch connections with private side tracks, unless an objectionable contract was first made with the shipper. No such complaint was considered by the commission. The form of agreement attached to the complaint indicates that no such issue was intended to be presented. The agreement relates entirely to the construction and maintenance of a side track by the railroad company to the plant of some person or corporation. When completed and executed, it would embody the terms upon which the railroad company undertook, upon request of the shipper, to construct and maintain a side track connecting with its line of road running to the plant or place of business of the shipper. The order of the commission relates, not at all to establishing switch connections with private side tracks, but wholly to side-track agreements and leases, and, attached to the order, is a form of agreement containing “the maximum provisions that may be required by the railroad as preliminary to the construction or operation of side tracks after the date of this order, where such side tracks are to be constructed or where leases or agreements now in existence may have expired.” The railroad company seems, however, not to have mistaken the question intended to be raised, as is indicated by the answer which was filed, and so we proceed to examine the arguments made for and against the validity of the order of the commission.

The commission found: First, that it was a practice and regulation of the railroad company to exact from those requesting the building and maintenance of side tracks an agreement or contract; second, that “the existing side-track leases and agreements required by said defendants in this State contain unreasonable, unjust, and discriminatory provisions,” and that the regulation and practice of requiring them is unreasonable, unjust, and discriminatory, and it determined that defendants cease and desist from the regulation and practice of requiring such agreements “as described in the said petition in this cause,” and that “side-track agreements and leases executed after the date of this order shall not contain requirements in any way providing” — enumerating provisions found to be unreasonable, unjust, and discriminatory. In effect, the commission decided, not that railroad companies shall construct and maintain side tracks in any case, not that construction and maintenance may not rest upon agreement, but that, if they do decide to agree to construct and maintain them, they — and this, of course, includes the shipper and railroad — may not agree to certain things. And the order is universal, applying to every case, whatever the circumstances of the case may be. In my opinion, the validity of the order must be denied,

1. If the duty to build, maintain, and operate so-called private spur or side tracks was an absolute duty of the railroad company, no universal rule governing the conditions and circumstances under which the duty should be performed could be made. The reasonableness of an order requiring the performance of such a duty would be always open to question, and, manifestly, in each case, the peculiar circumstances would determine the question of the reasonableness of the order. Oregon Railroad & Navigation Co. v. Fairchild, 224 U. S. 510, 528, et seq. (32 Sup. Ct. 535, 540). It is true, and has been already stated, that the order in question does not require the railroad company to build or maintain or operate any track. The order was made, however, in contemplation of the fact that shippers desire side tracks to be constructed, and that railroad companies accede to the desire and build side tracks. The right to build at all is denied, unless the order be complied with. This is a practical denial of a hearing in each case, if one is desired, and a prejudgment of rights. *

“Since the decision in Wisconsin, etc., Railroad v. Jacobson, 179 U. S. 287 [21 Sup. Ct. 115], there can be no doubt of the power of a State, acting through an administrative body, to require railroad companies to make track connection. But manifestly that does not mean that a commission may compel them to build branch lines, so as to connect roads lying at a distance from each other; nor does it mean that they may be required to make connections at every point where their tracks come close together in city, town, and country, regardless of the amount of business to be done, or the number of persons who may utilize the connection, if built. The question in each case must be determined in the light of all the facts, and with a just regard to the advantage to be derived by the public and the expense to be incurred by the carrier. For while the question of expense must always be considered (Chicago, etc., Railroad v. Tompkins, 176 U. S. 167, 174 [20 Sup. Ct. 336]), the weight to be given that fact depends somewhat on the character of the facilities sought. If the order involves the use of property needed in the discharge of those duties which the carrier is bound to perform, then, upon proof of the necessity, the order will be granted, even though ‘the furnishing of such necessary facilities may occasion an incidental, pecuniary loss/ But even then the matter of expense is ‘an important criteria to be taken into view in determining the reasonableness of the order,' Atlantic Coast Line Railroad v. North Carolina Commission, 206 U. S. 1, 27 [27 Sup. Ct. 585, 11 Am. & Eng. Ann. Cas. 398]; Missouri Pacific Ry. v. Kansas, 216 U. S. 262 [30 Sup. Ct. 330]. Where, however, the proceeding is brought to compel a carrier to furnish a facility not included within its absolute duties, the question of expense is of more controlling importance. In determining the reasonableness of such an order, the court must consider all the facts — the places and persons interested, the volume of business to be affected, the saving in time and expense to the shipper, as against the cost and loss to the carrier. On a consideration of such and similar facts the question of public necessity and the reasonableness of the order must be determined. This was done in Wisconsin, etc., Railroad v. Jacobson, in which, for the first time, it was decided that a State commission might compel two competing interstate roads to connect their tracks.

“It appeared on an examination of the facts in that case that on one of the lines there was an immense supply of wood, for which there was a great demand at points on the other, where there was none, and that if the connecting track was installed, there would be a saving-in time and freight on this large volume of business. It also appeared that many cattle were raised on one line, for which there were important markets on the other, and that without the track connections these cattle would have to be hauled over a much longer route, with a resulting loss in weight and value. The advantage to the public was so great that the order requiring the track connection was sustained, in spite of the fact that one of the roads was thereby deprived of the revenue which it would otherwise have received for the longer haul. But the court said (179 U. S. 301 [21 Sup. Ct. 1115]), that:

“ ‘In so deciding we do not at all mean to bold that under no circumstances could a judgment enforcing track connection between two railroad corporations be a violation of the constitutional rights of one or the other, or possibly of both such corporations. It would depend upon the facts surrounding the cases in regard to which the judgment was given. The reasonableness of the judgment with reference to the facts concerning each case must be a material, if not a controlling, factor upon the question of its validity. A statute, or a regulation provided for therein, is frequently valid, or the reverse, according as the fact may be, whether it is a reasonable or an unreasonable exercise of legislative power over the subject-matter involved. And in many eases questions of degree are the controlling ones by which to determine the validity, or the reverse, of legislative action.’ ”

Oregon Railroad & Navigation Co. v. Fairchild, supra.

The language quoted relates to a requirement that a track connection be established between railroads, but the reasoning is pertinent here.

The universality of the rule established by the order of the commission condemns it.

2. Assuming, what is doubtful, that the complainant railroad company in every case, no matter what the circumstances surrounding it, would refuse to make agreements other than the one found to be objectionable, a practice or regulation within the meaning of the act is not thereby made out. This sufficiently appears from a reading of the act and the particular context wherever these terms are used. For example, in section 22 (a) it is provided that:

“Upon complaint of any person, firm or corporation * * * that any regulation or practice whatsoever affecting the transportation of persons or property, or any service in connection therewith, are in any respect unreasonable or unjust, * * * the commission may notify the railroad complained of that complaint has been made, and * * * may proceed to investigate the same. * * * ”

If a side track is constructed, and cars are moved over it, the transportation of persons and property may be affected. Whether a side track shall be built, and, if built, the relations which shall be established by agreement between the railroad constructing it and the private shipper, are not usually, if ever, in the absence of legislation, matters of public concern. By section 14 of the act the commission is given control over private side tracks in so far as the same are used by common carriers, and innumerable cases may be conceived in which it might be called upon, within its powers, to exercise such control. But a practice of the railroads to build and maintain side tracks only by an arrangement of its own and the shippers’ private rights is not, in the absence of legislation, a practice to be controlled by the commission.

3. What the commission did was, not to administer, but enact, a law. The legislature alone can impose upon railroads the duty to construct private side tracks. When the complaint was made, it had imposed no such duty. Having the right to construct or refuse to construct or maintain a particular track, the complainant had the right to impose the terms upon which it would construct and maintain it. This is settled beyond doubt by our own decisions and those rendered in other jurisdictions. Mann v. Railroad Co., 135 Mich. 210 (97 N. W. 721). This right the order of the commission would take away.

Without entering upon an examination of many interesting phases of the subject-matter discussed in the briefs, we are content to rest decision upon the points above stated; the more so because the legislature, after the complaint was made to the commission, and before the decision of the commission was handed down, imposed upon railroads, in terms, the duty to build spur tracks to and to and upon the grounds of shippers upon certain terms and subject to certain contingencies. The enactment (Act No. 300, Pub. Acts 1909, § 6, subd. “5”) reads:

“Every railroad shall provide a reasonable, adequate and suitable spur track to and to and upon the grounds of any mill, elevator, storehouse, warehouse, dock, wharf, pier, manufacturing establishment, lumber yard, coal dock or other industry or enterprise, wherever such spur track does not necessarily exceed two miles in length and is practically indispensable to the successful operation of any such industry or enterprise, and shall connect such spur track with its main track and operate the same in connection therewith: Provided, that such railroad may require the person or persons, firm, corporation or association primarily to be served thereby, to pay the legitimate cost and expense of acquiring by condemnation or purchase where necessary the rights of way for such spur track, and of constructing the same, in Which case the total estimated cost thereof shall be deposited with the railroad before the railroad shall be required to incur any expense whatever therefor. No railroad shall, however, be required to provide a spur track where it is unusually unsafe and dangerous: Provided, that in the event of the failure of said shipper and the said railroad to agree, the necessity for, reasonableness of, and practical safety of such spur track and connection and the operation thereof shall be decided by the said Michigan Railroad Commission upon complaint and hearing as provided in section twenty-two of this act.”

This act was called to the attention of the commission by the answer of the railroad* We need not now inquire whether this legislation may be sustained. Assuming it to be valid, the duties of the commission are pointed out with, respect to disagreements between the railroad and a shipper in a particular case. If the legislation shall be held to be invalid, it is nevertheless an expression of legislative opinion that the commission had theretofore no such powers as were assumed in the matter at bar.

The decree of the circuit court is reversed, and a decree will be entered in this court in accordance with the prayer of the bill.

McAlvay, C. J., and Stone, Moore, and Steere, JJ., concurred. Brooke, Kuhn, and Bird, JJ., did not sit.