text:
    VAN SLAMBROOK v. LITTLE’S ESTATE.
    1. Estates of Decedents—Claim for Services—Instructions.
    In a proceeding to enforce a claim against a decedent’s estate for services rendered by claimant while a member of decedent’s family, it was not error to instruct the jury that, to authorize a recovery, it was not necessary to show that a contract was entered into on a particular day, on the one part to perform services and on the other part to pay for the services performed, but that it was sufficient if it appeared that the services were performed by claimant in the expectation that they were to be paid for, and that decedent received the benefit of such services expecting to pay for them.
    2. Receipt—Contradiction by Parol.
    A receipt purporting to be in full for all demands may be shown by parol to have been given solely to induce the wife of the person named therein to join in a conveyance of land to the person signing the receipt, and with the understanding that it should not affect the state of the account between the parties.

      Error to Macomb; Tucker, J.
    Submitted April 2, 1901.
    Decided June 4, 1901.
    Albert Van Slambrook presented a claim against the estate of David W. Little, deceased, for services rendered. The claim was allowed by the probate court, and defendant appealed to the circuit, where claimant again prevailed. Defendant brings error.
    Affirmed.

      T. M. Crocker and Floyd F. Andrews, for appellant.

      Byron B. Erskine, for appellee.
   Long, J.

This claim is presented by Albert Van Slam-brook, who seeks to recover against the Little estate for services rendered by him to Mr. Little in his lifetime, from the year 1883 until the spring of 1888, a period of about five years. The amount claimed is $500.

Mr. Little was an uncle of the claimant, who had some trouble with his father in the fall of 1882, and went to Mr. Little’s house to live under an arrangement by which he was to be paid for his services. He became of age in the spring of 1888, and about this time went to live with a family, by the name of Miller. It is the claim of claimant that he and Miller soon after this made an arrangement to buy of deceased a certain 40-acre piece of land for $1,700, each to pay $50 down, and each to give a separate mortgage of $800 for the unpaid balance of $1,600; that this was done with the understanding that the $500 due claim, ant for services to Mr. Little was to be applied on the mortgage signed by claimant, but not until after the death of Mr. Little. The reason given for not allowing the $500 at the time of purchase was that deceased claimed that his wife would not sign the deed if she knew this $500 was to be allowed. It is claimed that no deduction was ever made from the mortgage.

On the other hand, it is claimed by the estate that no arrangement was ever made for compensation to claimant other than such as he would receive by being boarded and clothed as a member of the family; that he was permitted to go on the Lakes in the summer time; that no arrangement was ever made to make a deduction from the mortgage for the services claimed; that, on the day the two mortgages were given, claimant gave a receipt to deceased, which stated, “Received of D. W. Little one dollar and other considerations in full for all services, labor of any kind, performed for him up to this date; ” that by the giving of this receipt a settlement was had of everything up to the date of the giving of the mortgages; and that no arrangement was ever made to pay claimant anything after the death of deceased.

It was the claim of claimant that this receipt was given upon a distinct understanding between himself and deceased, for the sole purpose of satisfying Mr. Little’s wife; that it was not to be taken into consideration between himself and Mr. Little as a settlement of their matters, and that, notwithstanding the receipt, Mr. Little was still, as between themselves, owing claimant for five years’ services, that was to be paid by a deduction from the $800 mortgage; that afterwards the arrangement was made that the $500 was to be paid at Mr. Little’s death.

These questions of fact were all submitted to the jury under proper instructions, as follows:

“The,first question for you to determine is, Did the claimant perform any services for the deceased, and, if so, when? Second. Was it mutually understood and agreed that those services were to be paid for by the deceased ? ”

Certain special questions were also submitted to the jury, and answered, as follows:

“1. Do you find from the evidence in this case that an express contract or agreement was ever made by David W. Little in his lifetime to pay claimant for his services rendered ?

“A. Yes.

“2. If any express contract or agreement be found to have existed, was payment to be made when claimant was of age ?

“A. Yes.

“3. Do you find from the evidence in this case that any contract or agreement was ever made by Little with claimant whereby he expected and did promise to pay him for his services in addition to the compensation he obtained by living in his family until he was 21 years of age ?

“A. Yes.

“4. If any contract or agreement be found to have been made, was payment to be made at the death of the deceased ?

tfA. Yes.”

Counsel for defendant requested the court to charge:

“Claims of this nature and character are not favored by courts, and you are instructed that the claim for services under a contract for five years, between the fall of 1882 and the 1st of March, 1888, has not been shown to-have been done under a contract that would enable the claimant to recover for such services. ” ■

We think the court was not in error in refusing this request. There is some evidence tending to show a con-, tract for the payment of such services.

It is claimed by defendant’s counsel that the court erred in charging the jury as follows:

“ It is not necessary in this class of cases to show that, at a given time before the rendition of the services, an oral contract was entered into on a particular day, on the one part to work and perform services, and on the other part to pay for the services so performed, in order to-authorize a recovery; but you must be satisfied, by a fair preponderance of the evidence, that it was distinctly understood by both these parties that the claimant was to-work for his uncle, Mr. Little, and that Mr. Little was to pay for the work performed or done; that is, you must find that whatever services, if any, were performed by claimant were performed by him in the expectation that the services were to be paid for, and that, on the other hand, Mr. Little, the deceased, received the benefit of such services expecting to pay for them.”

We think the court was not in error in this part of the charge.

Error is also assigned on the following portion:

‘ ‘ If you are satisfied that the receipt was given under the circumstances I have detailed, as claimed by claimant, then, notwithstanding the fact of its appearing to cut off from claimant any right to recover, you will cast aside the receipt, and give him such damages as you may, under the instructions I have given you, determine he is entitled to. ”

All the facts and circumstances surrounding the giving of this receipt were fully detailed by the witnesses. It was the claim of claimant that at the time the mortgages were given, and the agreement made to apply the $500 on one of the $800 mortgages, Mr. Little stated that his wife would refuse to sign the deed of the lands for which it was given unless the claimant gave the receipt; that the giving of the receipt was to make no difference as to the amount of his services; and that the amount was fixed at $500, to be paid at Mr. Little’s death. The court, in its charge to the jury, fully submitted these questions, and, in addition thereto, special questions were submitted to the jury, which they answered, in favor of claimant, that the $500 was to be paid at the death of Mr. Little.

We have examined all the assignments of error in the case, and are satisfied that it went to the jury on a full and 'fair charge by the trial court.

One question is raised upon the ruling of the court in the admission of the testimony of witnesses Rivard and Ryman. We are satisfied that the court committed no error in admitting this testimony.

The judgment must be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    WHITING v. VILLAGE OF NEW BALTIMORE.
    Municipal Corporations — Railway Franchises — Deposit — Liquidated Damages.
    A provision in a franchise granted by a village for an electric road, requiring the grantee to deposit with the village clerk a certified check for $2,000, the same to be returned to the grantee on the completion of the road within the time provided, otherwise to be cashed and the proceeds turned into the village treasury, will, in view of the difficulty in estimating the damages resulting to the public from a breach of the .contract by the grantee, be construed as stipulating the damages for such breach, rather than as prescribing a penalty; and this notwithstanding other franchises granted at about the same time contained no such provision.
    Error to Macomb; Atkinson, J., presiding.
    Submitted April 3, 1901.
    Decided June 4, 1901.

      Assumpsit by Frederick1 W. Whiting, trustee, against the village of New Baltimore, for money had and received. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Silas B. Spier and Robert F. Fldredge, for appellant.

      Bowen, Douglas & Whiting, for appellee'.
   Long, J.

This is an action of assumpsit to recover the sum of $2,000 deposited by the plaintiff’s assignor with the defendant upon the grant of a franchise -to construct a certain electric railroad through said village. The case was tried by the court without a jury, and findings of fact and law made by the court, and upon which judgment was rendered for the above amount in favor of plaintiff, with interest from the commencement of suit.

It will not be necessary to set out here the ordinance in full referred to by the court below in his findings. Section 5 of the so-called “ Dyar Ordinance ” reads: ■

“This franchise shall be void'unless the said grantee, his heirs or assigns, shall, in writing filed with the city-clerk of said village within ten days from the date hereof, accept the same and agree to its terms and conditions, and shall further, within thirty days after such acceptance, deposit with the clerk of said village a certified check payable to the village treasurer of said village in amount the sum of $2,000, which said check shall be returned to said grantee, or to his order, upon the completion of said railway within the time herein provided for, and, in case of a default of the construction of said road within the time provided, shall be collected, and the proceeds thereof placed in the village treasury in such fund or funds as the board of trustees of said village may at that time direct.”

Section 6 provides:

“Said grantee shall fully construct said railway, and equip the same with cars, and shall commence the operation of said railway by the regular running of cars thereon on or before the 30th day of November, A. D. 1897; otherwise this instrument and ordinance shall be null and void at the option of said board of trustees.”

By another section the village reserved the right to grant to others similar rights and franchises on the same streets. ■

Certain amendments to the findings of fact and law were presented by counsel for defendant and refused by the court. Defendant excepted to such refusal, and also to the findings -made. The principal question for consideration is whether, under the facts, this $2,000 is to be treated as liquidated damages or as a penalty.

It is contended by counsel for plaintiff that there is nothing in the record which shows that the idea of compensation entered into the minds of the parties at any time throughout the negotiations; rather, that the record is full of circumstances which show that the parties utterly disregarded any theory of compensation; that this is evidenced by the following facts: That, five days after this franchise was granted, the so-called “Tucker Franchise ” was given; that this franchise was almost exactly like the Dyar franchise, and given for the same purpose; that, though the same possibility of damaging the village existed, no mention was made by the parties as to any sum for compensating the village in case that road was not completed under its franchise; that in November following a second Tucker franchise was granted, substantially like the other two, in which the sum of $500, instead of $2; 000, was named. It is argued that, if the village officers considered that the village would be damaged $2,000 by the failure of Mr. Dyar to construct and operate his road by November 30th of the same year, why did they not consider it would incur a like amount of damage by the failure of Mr. Tucker to complete his road, as the two later franchises were nearly identical with the Dyar franchise? Counsel also claim that the fact that the franchise itself was forfeited by failure to operate the road within the time mentioned left the parties in exactly the same condition as they were before; that nothing was done, no streets torn up, no poles or ties strewn about to discommode travelers, no grading or anything else done which in the slightest degree would cost the village any money.

On the other hand, it is argued that this village, containing a population of more than 1,000 inhabitants, without railway facilities, saw the necessity of building the-road; that other electric roads had failed of completion, and the authorities desired to make certain that the Dyar' proposition would be carried out. Counsel sought to have the court find, in their amended findings presented, that it ■was the understanding and intention of the members of the village council, at the time of giving the franchise toDyar, that the sum of $2,000 represented by said certified check should become the absolute property of the village in case the grantee should default in the construction of said railroad within the time specified, and that Dyar, at the time he deposited the check with defendant, understood and intended that he should lose to said defendant the said $2,000 in case he failed to construct said road within the time stipulated therefor in the franchise, and also that the defendant village and its inhabitants have been deprived of the benefits, if any, which would have accrued to it and them had Dyar constructed his road as contemplated by himself, and as required by the terms of the franchise.

The law permits parties to make such contracts, and, under certain circumstances, to ascertain and fix by the contract the amount of damages for failure to perform. The inquiry in the present case is, Have the parties in fact fixed and determined such damages ? It appears that the village officers were desirous of having such a road constructed. The inhabitants wanted a connecting road with other roads leading to Detroit and other cities. Mr. Dyar sought a franchise through the village, and proposed to build, equip, and complete a road within the specified time. He was offered á franchise by the village with the provisions as set forth in section 5, and accepted it, complying with the terms as to depositing the check for $2,000. By the terms of that section, he was to have this check returned to him only on condition that he completed tho road within the time specified. The granting of this ordinance and the acceptance by Mr. Dyar was a binding contract upon both parties, by which Dyar was to have the right to build the road through the village and charge tolls within certain limits, and, if he completed the road within the time limited, was to have his check returned to him. It follows that, unless he did complete the road within the time specified, his check was not to be returned,, but was to become the property of the village. He never entered upon the construction of the road. There is no doubt about the terms of the contract. Both parties entered into it with full understanding of the obligations of each. As was said in Union Street R. Co. v. Saginaw Circuit Judge, 113 Mich. 694 (71 N. W. 1073):

“ Both parties entered into it with a full understanding that the situation now existing might arise, wherein the relator either could not or would not pay the amounts which from time to time it agreed to pay. * * * Can one party to a contract be relieved from its performance because he is unable to perform, and the other still be bound? To so hold would be to introduce a new element in determining contractual rights. Tho universal rule is that he who fails to perform, from whatever Gause, must suffer the consequences which he has agreed to suffer. * * * In this case the city is proceeding in exact accordance with the terms of its contract, and it requires no citation of authorities to show that, when a party is proceeding in exact accordance with the terms of its contract, courts of equity will not interfere by their restraining process. * * * It [the railway company] attempts to read into its contract that inability to pay shall relieve it from performance. This would result in making a contract in plain violation of the ono made by the parties. This courts cannot do.”

The contract in the present case is plain and unambiguous. It fixes the condition upon the happening of which Mr. Dyar was to have his check returned; and yet counsel for plaintiff insist that the circumstances surrounding the making of the contract are such that this court must inevitably determine that the money deposited was understood by the parties to be by way of security for performance, instead of damages which the parties themselves had agreed upon if plaintiff failed to perform the contract. It is undoubtedly true that the intention of the parties is the governing consideration. This intention is so plainly and unequivocally stated in the contract itself that it would be of no aid in construing it to take into consideration the surrounding circumstances. The fact that other franchises were granted to other parties with a less deposit of money, or with no deposit at all, is of no importance here, in determining what the parties intended in this particular instance. The parties are bound by the contract made; and one of the questions is, Did they, as shown by the contract, ascertain and determine the amount of damages which should be paid for a breach of its conditions? It is ope of that class of cases where the damages for a breach are impossible to be estimated with certainty by reference to any pecuniary standard. In such cases the parties themselves, being more intimately acquainted with all the peculiar circumstances, may compute and agree upon the actual or probable damages. This subject is fully discussed by Mr. Justice Christiancy in Jaquith v. Hudson, 5 Mich. 123. It was there said by him:

“There are great numbers of cases where, from the nature of the contract and the subject-matter of the stipulation for the breach of • which the sim is provided, it is apparent to the court that the actual damages for a breach are uncertain in their nature, difficult to be ascertained, or impossible to be estimated with certainty by reference to any-pecuniary standard, and where the parties themselves are more intimately acquainted with all the peculiar circumstances, and therefore better able to compute the actual or probable damages than courts or juries from any evidence which can be brought before them. In all such' cases the law permits the parties to ascertain for themselves, and to provide in the contract itself, the amount of. the damages which shall be paid for the breach. In permitting this, the law does not lose sight of the principle of compensation, which is the law of the contract, but merely adopts the computation or estimate of the damages made by the parties as being the best and most certain modo of ascertaining the actual damage, or what sum will amount to a just compensation.”

The rules laid down by Justice Christiancy for determining whether such damages may be treated as liquidated damages are fully sustained by the text writers on the subject: 1 Sedg. Dam. § 416; 1 Suth. Dam. pp. 491, 492. The same rule is also laid down in Eureka Light & Ice Co. v. City of Eureka, 5 Kan. App. 669 (48 Pac. 935); Nilson v. Town of Jonesboro, 57 Ark. 168 (20 S. W. 1093); City of Indianola v. Railway Co., 56 Tex. 594; Peekskill, etc., R. Co. v. Village of Peekskill, 21 App. Div. 94 (47 N. Y. Supp. 305 ). It may be conceded that the village, in its corporate capacity, suffered no damages by failure to build the road; buf the contract was made by the corporate officers for and in the interests of the inhabitants, and for such damages they could and did agree with Mr. Dyar. Upon this question, see Clark v. Barnard, 108 U. S. 436, 459 (2 Sup. Ct. 878); Nilson v. Town of Jonesboro, 57 Ark. 168 (20 S. W. 1093).

We think the court below was in error in entering judgment for the plaintiff. That judgment must be reversed, and a judgment entered here in favor of the defendant, with costs of both courts.

The other Justices concurred.


author: Montgomery, C. J.

text:
    FIX v. SOLEAU.
    Appeal—Review—Weight of Evidence.
    The decree below, entered on a consideration of conflicting testimony taken in open court, was affirmed.
    Appeal from Monroe; Kinne, J.
    Submitted April 4, 1901.
    Decided June 4, 1901.
    Bill by John B. Fix, guardian of Catherine Kibbee, an incompetent, against Josephine Soleau and Lynott Blood-good, to set aside a discharge of mortgage and to foreclose the mortgage. From a decree denying the prayer of the bill, complainant appeals.
    Affirmed.

      O. A. Golden (O’Brien O’Donnell, of counsel), for complainant.

      E. R. Gilday and George M. Landon, for defendants.
   Montgomery, C. J.

The bill in this case is the usual one for the foreclosure of a mortgage, with this exception: It is alleged that appellee Soleau, by misrepresentation, obtained possession of the mortgage and note, and caused a discharge to be made and recorded, which discharge was fraudulently antedated, or was procured by undue influence and fraud practiced upon the mortgagee, who was mentally incompetent at the time of its pretended execution. Interest is claimed from January 1, 1895. The prayer of the bill is that the discharge may be set aside, and for accounting, etc. The answer of appellee Soleau claims that interest has been paid in full to April 1, 1899, and that the board and care of complainant’s ward since that date more than pays the interest which has since accrued ; denies having obtained noié and mortgage, which .were demanded and given to her mother, complainant’s present ward, by whom they were subsequently returned to complainant; admits placing the discharge upon record, •and alleges that it was made on the day of its date, and delivered, and denies fraud, undue influence, and mental incompetency charged; alleges that it was made for the purpose of dividing her property, and .with the expectation of receiving the interest during her lifetime, and with directions not to place the same on record, to secure her own peace. The circuit judge, with the assent of the defendants (one a subsequent incumbrancer)’, declared a lien in favor of complainant’s ward for the amount of the interest that would become due on the mortgage during the lifetime of Mrs. Kibbee, but declined to set aside the ■discharge.

The questions involved are questions of fact, and there is a very sharp conflict in the' testimony. It is a case in which the advantage which the circuit judge had in judging the credibility of witnesses was of great value in determining the question of fact, and, while a careful reading of the testimony has raised some possible doubts as to the correctness of his conclusion, we are all agreed that the evidence may be said to fairly preponderate in favor of the defendants.

The decree of the court below will be affirmed.

The other Justices concurred.


author: Grant, J.

text:
    BAILEY v. TOMPKINS.
    Schools and School Districts—Orders—Guaranty op School Oppicers.

       Where an order purports upon Its face to be issued by a school district, and is signed by the school officers in the ordinary place for signatures, and at the left, in fine print, are the words, “Issued by authority of officers of- said district, and payment guaranteed,” and a space left underneath for the signatures of the guarantors, held:

      1. That the purchaser took the order subject to the authority of the school district to issue.
    2. That such school officers are not liable as guarantors.
    Error to Newaygo; Palmer, J.
    Submitted April 16, 1901.
    Decided June 4, 1901.

      Assumpsit by John Bailey against Isaac Tompkins and Mason Norton to recover the amount of a school order. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.
    This is an action of assumpsit, brought in justice’s court.. The declaration was upon the common counts, and, as shown by the return of the justice, is as follows:
    “The plaintiff declared orally on the common counts, and avers that the school order filed in this cause was duly-assigned by the Educational Association to the plaintiff, John Bailey, for a valuable consideration.”
    The order reads:
    “ State op Michigan, $37.50
    “ County of Newaygo.
    “Town of Norwich, Dist. 5, Oct. 21st, 1897. “Assessor of district 5, township of Norwich, Oct. .20,' 1898, will pay to the Educational Association, or bearer, the sum of thirty-seven and 50-100 dollars, out of any fund belonging to said district, for Complete Encyclopedia of Modern School Methods, illustrated, comprising reading, grammar, writing, arithmetic, business course, history, geographical, maps, and automatic case.
    “Issued by authority of officers of said district, and payment guaranteed by
    “ Isaac Tompkins. u Mason Norton.”
    Upon appeal the circuit court directed a verdict for the defendants. The order was obtained by two traveling • agents of the Educational Association, who, after obtaining the order, immediately transferred it to the plaintiff. Defendant Tompkins was the director of the district, and Norton the moderator. It was conceded upon the trial that the order was void as to the school district, and that the defendants had no authority to buy the books or issue the order, but plaintiff seeks to hold the defendants both as makers and as guarantors. Nothing was said to defendant Tompkins by the agents as to his personal liability. Defendant Norton raised some question as to his personal liability, and was informed by the agents that he was not liable. Both defendants informed these agents that they had no authority to buy the books. The agents pretended to read from the law, showing them that they had authority, and finally persuaded them to sign the order. Neither signed with any idea that he was personally responsible or was guaranteeing the payment of the order.

      E. L. Gray, for appellant.

      George Luton, for appellees.

       Head-notes by Grant, J.

   Grant, J.

(after stating .the facts). 1. The order upon its face was the obligation of the school district, and not that of the defendants, who signed as officers. Plaintiff’s main argument seems' to be that the defendants were “guilty of gross carelessness in signing the order, and thus putting it in the power of wrong-doers to commit a wrong or a -fraud which must result in a loss to themselves or to some innocent third person.” This is not a case for the application of that rule. The order, upon its face, purports to be issued by authority of the school district. It is like the bonds of a municipality, which the purchaser takes subject to the authority of the municipality to issue. The officers who sign such orders or bonds are not liable in an action of assumpsit, for they have not personally promised to pay the debt. If they are guilty of any fraud in connection therewith, they can only be held liable in another form of action.

2. There is nothing upon the face of the order to indicate to plaintiff that payment was guaranteed by the defendants. The defendants signed the order in the usual place, at the right hand, opposite the words “School Officers.” At the left are the words, “ Issued by authority of officers of said district, and payment guaranteed by”— It was conceded that the officers had no authority to issue the order, and, as against the district, it is void.- They evidently did not sign the order as guarantors, or upon any idea that they were individually liable. The guaranty was placed at the left of the order, leaving a .place underneath for the signatures of those who might sign as guarantors. It is a fair inference that the order was printed with the fraudulent intent to mislead the signers of it in believing that they were acting only in an official capacity, and at the same time enabling the agents of the Educational Association, in disposing of the order, to represent that the officers were individually liable.

We think the court properly directed a verdict, and the judgment is affirmed.

The other Justices concurred.


text:
    SOMERS v. LOOSE.
    Farm Lease — Re-entry by Landlord — Lessee’s Right to Crops—Offer of Evidence.

       Under a lease of farm land for the sole purpose of raising crops, the land had no buildings, was inclosed by fences, and was occupied by the lessee to put in the crops. The lease contained no express covenants as to husbandry. The lessor claimed to have repaired the fences, and forbade the lessee to take off the crops. The lessee harvested the crops, and the lessor replevied them. Held:

    1. That the repairing of the fences by the landlord did not justify the conclusion that he had taken possession.
    2. Where there are no express covenants as to husbandry, the clause providing for re-entry "does not apply to the implied covenants.
    3. A denial by the lessor of the lessee’s right to harvest the crops does not show that the lessor had taken possession.
    4. Under the circumstances of the case, a statement made by counsel to the court, in the absence of the jury, that he wished to show certain things, was not as complete as it should have been.
    Error to Missaukee; Chittenden, J.
    Submitted April 17, 1901.
    Decided June 4, 1901.
    Replevin by George Somers against Neil E. Loose. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    Plaintiff, by a written lease, let to defendant three' small pieces of land—one of ten acres, and the other two of three each—for one year and three months from the 9th day of May. There were no buildings upon the land. A crop of corn was to be followed by a crop of wheat. Plaintiff was to have as rent one-third of all the produce raised, except the hay, of which he was to have one-half. The wheat was to be put in not later than August 15th. The lease .contained no covenants as to husbandry, but contained the usual re-entry clause for conditions broken. Defendant failed to sow the wheat at the time specified. Plaintiff sowed grass seed upon the wheat land. The wheat was a failure, and was not harvested at the usual time, and the wheat and hay were harvested together by defendant about the middle of August, and were placed in two stacks. Plaintiff, claiming that the lease had been violated, and that he was entitled to and had taken possession of the land prior to the cutting of the hay and wheat, brought replevin for the two stacks. The court directed a verdict for the defendant on the ground that plaintiff had given no notice to quit, had taken no steps . to declare the lease forfeited, and had not taken absolute possession.

      F. 0. Gaffney, for appellant.

      U. 8. Albertson, for appellee.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). The case was determined upon the plaintiff’s proofs, the defendant introducing no evidence. Plaintiff testified that, when the “property was in condition to cut and harvest, he was entitled to and was in possession of the same, and attempted to cut it, but was prevented by the defendant, who did cut it, and put it in two stacks,” and rested. He did not testify in what manner he was prevented. • Upon cross-examination he was shown the written lease, and admitted its execution, and the possession of defendant under it; admitted he gave no notice to quit or intention to forfeit the lease, except that he told defendant “he couldn’t have it” (the crop of wheat and hay). On redirect examination plaintiff’s counsel was proceeding with the examination of plaintiff as to what was done under the lease, when the court asked counsel what was the object of such testimony, to which the counsel replied, “To show that defendant had broken the covenants of the lease. ” Counsel further stated that it was his idea that plaintiff, upon showing a breach of the covenants by the defendant, had a right to enter and take possession of the wheat and hay.

“The Court: Do you offer to show that he took possession after this corn crop—

“Mr. Gaffney: No, your honor. But this is only one of the many violations of the covenants mentioned in the lease.”

The jury were then allowed to retire—a very good practice—while the attorneys argued the question of law. During the argument, plaintiff’s attorney stated to the court:

“We wish to show that defendant allowed the fences to become out of repair, so that the plaintiff went upon the land and fixed the fences; that plaintiff had different talks with the defendant, in which defendant was denied the right to go upon the land; and that defendant recognized that he had no right to that crop of grass.”

■ In one part of his brief counsel for plaintiff says that this land w;as not actually occupied by either party. If plaintiff in the court below had tendered this testimony with the view to show a mutual abandonment of the premises, a different question would have been presented. But the sole claim of plaintiff in the court below was that the defendant had violated the covenants of the lease, and that therefore the plaintiff was entitled to re-enter, and did re-enter by repairing the fences. No other acts of .possession were shown.

Where the sole possession of leased property is evidenced by fences, and, under the terms of the lease, the lessee is entitled to possession and has put in crops, the mere fact that the landlord has repaired the fences is not sufficient to justify the conclusion that he has retaken possession. There being no express covenants as to husbandry, the clause in regard to re-entry does not apply to. the implied covenants. Hough v. Brown, 104 Mich. 109 (62 N. W. 143). A denial by the plaintiff of defendant’s right to harvest the crop would not show that plaintiff had taken possession. Whether it would tend to show possession would depend upon wbat was said, and tbe circumstances under which the language was used. We do not think the offer was as complete as the circumstances required. Plaintiff should have stated the testimony upon which he relied as a denial of 'the right, and as a recognition of plaintiff’s right to the crop. Both denial and recognition must depend upon the conversation between the parties, and all that plaintiff could do would be to testify to the conversation, leaving it to the court or jury to-draw the conclusion therefrom.

Judgment affirmed.

The other Justices concurred.


text:
    BANKS v. ALLEN.
    Deeds—Description—Mistake—Reformation—Quieting Title— Laches—Vendor and Purchaser—Constructive Notice.
    By mistake a conveyance of 20 acres of land described the premises as half of a 40-acre subdivision, without specifying which half. The grapt-ee, however, was put in possession of the south half, which the grantor owned, the north half belonging to others. The same omission occurred in a mortgage afterwards given by the grantee to complainant. The mortgage was foreclosed by advertisement, complainant becoming the purchaser. Fifteen years after the execution of the mortgage, complainant filed a bill to reform the several conveyances and to quiet his title. Held, that he was entitled to the relief prayed as against those claiming under a subsequent conveyance from the original grantor, who took while-complainant was in possession, and were therefore chargeable with notice of his rights.
    Appeal from Oceana; Russell, J.
    Submitted April 19, 1901.
    Decided June 4, 1901.
    Bill by Henry Olay Banks against Dan Allen, Mary E. Osmun, and Herman Boyd to reform certain conveyances and to quiet title. From a decree dismissing the bill, complainant appeals.
    Reversed.

      George 8. Lovelace (N. J. Brown, of counsel), for complainant.

      Hartiuick & Foote (C. W. Sessions, of counsel), for defendants
   Long, J.

Bill to reform a deed and quiet title to certain lands in Oceana county. The complainant resides at Elgin, 111., and claims to own the lands in controversy here in fee. The bill sets out that he is the owner of the N. E. {: of the S. W. {-, and the S. $ of the S. E. i of the N. W. \, of section 35, town 13 N, range 18 W., and other lands, in Oceana county, this State; that the N. of the S. E. ^ of the N. W. J of said section became the property of one Christopher Rager in 1873, and has since been owned and occupied by him and his heirs; that in 1875 the S. -J- of the S. E. J of the N. W. J became the property of one Amos H. Armitage and others, and prior to the year 1881 became the sole property of said Armitage and his wife; that, in the year 1881, Armitage and wife conveyed all the property above described to one Hachnel, but in said deed of conveyance the word ‘ ‘ south ’’ was omitted, so the description read, ‘ ‘ half of the southeast quarter of said northwest quarterthat Hachnel was put into possession of the S. \ of the S. E. i of the N. W. i under said deed, and so remained in possession until the 10th day of November, 1895; that on the 18th day of March, 1881, Hachnel and wife esecuted a mortgage to Armitage and wife, covering the lands, but in the mort-gage the word “south” was again omitted from the description; that in December, 1881, the mortgage was assigned by Armitage and wife to William Banks, and by him assigned to Henry Clay Banks, the complainant here; that this mortgage was afterwards foreclosed by advertisement, and in the description the word “south” was again omitted; that on the 14th day of October, 1895, the complainant obtained judgment against Hachnel in the circuit court for restitution of the premises, including,the S. \ of the S. E. i of the N. W. \ of said section 35; that on said trial Hanson & Hanson and Brown & Lovelace were his attorneys, acting for and in his behalf, but that Brown & Lovelace had the control of his case, and that Hartwick & Eoote acted as attorneys for the defendant, Haphnel; that, upon the trial of said cause, he, as plaintiff, introduced testimony identifying the lands owned by Hachnel, and occupied by him, and intended to be covered by said mortgage, among which was the S. \ of the S. E. ^ of the N. W. ^ of section 35, together with other lands; that, after the rendition of the judgment, he paid his said attorneys in full for all services, and discharged them from any further participation in said cause, and that they thereafter had no authority to act further therein; but that on March 5, 1898, said Hanson & Hanson, by John D. S. Hanson, a member of said firm, pretending to act as his attorneys, entered into a stipulation with the attorneys of Hachnel to change the record of said judgment, by which there was excepted from said judgment, by an interlineation therein, the S. of the S. E. of N. W. \ of said section 35; that this was done without' the knowledge, consent, or authority-of complainant; that on October 22, 1895, Hartwick, the attorney as aforesaid of said Hachnel^ obtained from Armitage and wife, and also from Hachnel and wife, quitclaim deeds of the S. of S. E. i of N. W. ^ of said section 35, with full knowledge of the rights of complainant in said premises; that thereafter said Hart-wick conveyed said premises so deeded to him by Armitage' and wife and Hachnel and wife to the defendant Mary E. Osmun, who conveyed the same to defendant Herman Boyd; that these defendants now claim to own or to have some interest in said premises; that on April 27, 1898, the defendant Dan Allen, acting under some supposed authority or claim by reason of the change in said judgment-entry, or by some paper lease from Herman Boyd, attempted to enter upon said lands, and now threatens to enter thereon, and forcibly deprive 'the complainant of his possession. The prayer of the bill is that the description in the deed from Armitage and wife to Hachnel may be reformed and corrected, together with the description in the mortgage and sheriff’s deed, and that the several conveyances obtained by Hartwick from Armitage and Hachnel may be decreed to have inured to the benefit of complainant. The record contains an affidavit made by John D. S. Hanson, which is made a part of the bill, in which he says that he signed the stipulation, above referred to, to correct the judgment, under a misapprehension of the facts.

The defendants Allen and Boyd answered the bill. In their answer they allege that the judgment of restitution referred to stands as the judgment of the court; that, at the time the stipulation was signed by Hanson, he stated to Hartwick that he had not received his pay from complainant; that Mary E. Osmun conveyed the premises by warranty deed to defendant Boyd in 1898, and that deed was duly recorded prior to the date of the filing of complainant’s bill; and the defendants claim the same benefit and advantage by their answer as- if they had pleaded or demurred to the bill. It is not alleged in the answer that they paid anything for the lands; and they do not deny in the answer that Hartwick knew of the claim of complainant at the time he took his deeds from Armitage and Hachnel. Defendant Osmun filed a disclaimer.

The complainant introduced testimony showing that the original order of the court was that complainant here was entitled to the restitution of the premises in controversy, but that, by reason of the stipulation, the entry was made excepting the land in controversy. A copy of the journal entry, as corrected under the stipulation, appears in the record. The last journal entry reads:

“In the above-named cause it is hereby stipulated by and between the parties * * * that the journal entry of the finding of the court in the above-entitled cause does not correctly record the finding of the court as made by the court, and, for the purpose of correcting said journal entry, it is hereby stipulated and agreed between the parties hereto that the said journal entry be changed so as to read as follows.”

Then follows the further order excepting the S. % °f the S. E. \ of the N.'W. of section 35. The first order made was put in evidence, showing that the described property was included in that order.

The testimony was taken in open court, and the complainant called as a witness in his behalf Mr. N. J. Brown, an attorney, who acted as attorney for him in the suit for possession of the lands. He testified that during the trial the complaint was corrected so as to read the S. ■&; that the amendment was made to correspond to the proofs of identification of the land as the S. i; and that the journal entry was made originally including those lands. The wife of William Banks testified that, after the summary proceedings, a deputy sheriff put herself and husband into possession of the whole land, including the land in controversy, and that they remained there as agents of the complainant up to the time of her husband’s death, since which she has been in possession as such agent. Testimony was also given by complainant tending to show that the land in controversy is of the value of about $700.

Mr. Hartwick was called as a witness for the defendants, and testified, substantially, that,- after the determination of the summary proceeding, he took á deed from Armitage and wife and one from Hachnel and wife; that he had a talk with William Banks in relation to procuring a title to this land; that he subsequently took the deeds; that William Banks agreed to pay him his fees in the summary proceeding as attorney for Mr. Hachnel; that after getting the deeds he wrote Banks, saying:

“In' regard to the 20 acres which we have during the past two years been negotiating about, I have found a party who will give me $50, and take a quitclaim deed of the same. I do not wish to complicate you in perfecting your title to the land, but must have my pay according to agreement. "You were to pay me my fees, which were $25, and release of claim for costs of the suit for possession of land. If you will send me within 10 days $26.50, and a receipt in full for said costs, I will execute and deliver to you a deed for said 20 acres. If you do not do this, I shall accept the $50 from the party referred to.”

• Witness testified that, some time after writing this letter, William Banks asked him to extend the time of payment, which he did, but that Banks never paid the costs as agreed, and that thereafter he discovered the mistake in the journal entry, and had it corrected; that he took the deeds in order to secure his pay as attorney for Hachnel ■ in the summary proceeding; that he thereafter sold the land to Mrs. Osmun, but that the negotiations for the sale were with her husband.

Defendant Boyd was not called as a witness, and there is no claim made by the answer, and no testimony showing, that he ever paid a dollar for the land. Mr. Osmun, the husband of defendant Mary E. Osmun, testified that, at the time of the foreclosure of the mortgage, he was the attorney for complainant, Banks, in the proceeding; that he did not discover the mistake in the description at that time, but that he was furnished with an abstract when he purchased the land for his wife. Defendant Allen claims to j^e tenant under Boyd.

The court below dismissed complainant’s bill, and complainant has appealed.

It is the claim of defendants that complainant has been guilty of such laches as to preclude his recovery; .that he knew of the mistake in the description more than 15 years ago, and has slept upon his rights all that time; that the mortgage contained no power to sell the-20 acres of land in dispute, and that as to that parcel the description in the mortgage was worthless and void; that the power of sale in the mortgage could not be reformed after it had been exhausted by sale of the premises and payment of the mortgage debt. It is further claimed that, so far as this parcel is concerned, the mortgage and sheriff’s deed are void, because of the uncertainty in the description.

This contention cannot be sustained. The court below was in error in dismissing complainant’s bill. The record shows conclusively ■ that, in the year 1881, Amos H. Armitage became the owner of the S. \ of the S. E. J of the N. W. i of section 35, the land in controversy here. He never owned the N. \ of that description, the title to which vested in one Rager in 1873, and, so far as the record shows, still remains in Rager. It is also conclusively shown that Armitage did own this S. i at the time he conveyed to Hachnel. It is evident from the whole record that there was a mutual mistake in describing the land in the deed from Armitage and wife to Hachnel, and also a mutual mistake in the description in the mortgage from Hachnel and wife to Armitage. The complainant claims title through the foreclosure of this mortgage. All the parties except defendant Boyd seem to have had more or less to do with the proceedings, either in the foreclosure of the mortgage or in the summary proceeding, where it was discovered that a mistake had been made in omitting the word “south” in the description. In the face of this, Hartwick procured quitclaim deeds from Armitage and Hachnel, and deeded to Mrs. Osmun, her husband making the arrangement for the purchase, he having acted as attorney for the complainant in the foreclosure of the mortgage. Mrs. Osmun disclaims any interest in the premises, and Boyd makes no claim that he ever paid a dollar for the land. He asserts in his answer, however, that, having taken a warranty deed from Mrs. Osmun, and' recorded the same, he is entitled to the premises against the complainant.

The case falls so squarely within the rule laid down im Taber v. Shattuck, 55 Mich. 370 (21 N. W. 371), that the citation of other authorities is quite unnecessary. In that case it appeared that there was a mistake in the description of the land conveyed, and the land was mortgaged by the wrong description. The complainant claimed title through this mortgage foreclosure. The defendant procured a quitclaim deed of the property, correctly describing the land, from complainant’s original grantor, and sought to set up her title. It appeared in that cáse, as in this, that the complainant had been put in possession of the land after purchasing the same at foreclosure sale. The court granted a decree quieting complainant’s title, holding that the deed procured from complainant’s grantor inured to the benefit of complainant. In the present case the complainant was in possession at the time the deed was made to Mrs. Osmun and from her to Boyd, and they cannot be said to have been innocent purchasers.

The decree of the court below must be reversed, and a decree entered here in favor of complainant, as prayed in his bill, with costs of both courts to complainant.

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


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    PEOPLE v. REETZ.
    Constitutional Law — Examination of Physicians — Police Power.

       Under the police power inherent in the State, the legislature ■ may enact reasonable regulations for the examination and registration of physicians, and the practice of medicine and surgery.

    Exceptions before judgment from Muskegon; Russell, J.
    Submitted May 7, 1901.
    Decided June 4, 1901.
    August G. Reetz was convicted of unlawfully practicing medicine.
    Affirmed.

      F. W. Cook (Burlingame & Belden, of counsel), for appellant.

      Charles B. Cross, Prosecuting Attorney, and George 8. Lovelace, Assistant Prosecuting Attorney, for the people.

       Head-note by Grant, J.

       For constitutionality of regulations as to practice of medicine, see note to Louisville Safety Vault & Trust Co. v. Louisville & Nashville H. Co., (Ky.) 14 L. R. A: 581.

   Grant, J.

Respondent was convicted of having practiced medicine without complying with Act No. 237 of the Public Acts of 1899, entitled “An act to provide for the examination, regulation, licensing, and registration of physicians and surgeons, and for the punishment of offenders against this act, and to repeal acts and parts of acts in conflict therewith.”

The first act passed by the legislature of this State to regulate the practice of medicine and surgery is Act No. 167, Pub. Acts 1883. This was amended by Act No. 268, Pub. Acts 1887. Then followed the act of 1899, covering the entire subject, and providing for a board of examiners. The act of 1899 is not different in principle from the other acts. If the act of 1883 was valid, then the act of 1899 is valid. Notwithstanding the former decision of this court in People v. Phippin, 70 Mich. 6 (37 N. W. 888), counsel again attack the constitutionality of this legislation. That case settled the question against the contention of the respondent. See, also, People v. Moorman, 86 Mich. 433 (49 N. W. 263). Counsel argue that such legislation is an interference with the inalienable right of a citizen when ill to employ anybody he chooses as his physician. This contention is not supported by authority or reason. The practice of medicine affects the public health, and it is clearly within the police power of the State to provide that those dealing with disease shall be amply qualified to do so, so far as human experience and education may qualify them. If this contention be adopted, then the law providing for the admission of attorneys to practice law is unconstitutional and void. This legislation has been almost universally srfstained by the courts of other States and the Supreme -Court of the United States. Among the cases are the following, which we cite without further comment: State v. Dent, 25 W. Va. 1, affirmed in Dent v. West Virginia, 129 U. S. 114 (9 Sup. Ct. 231); State v. Webster, 150 Ind. 607 (50 N. E. 750), and. authorities there •cited.

Conviction affirmed.

The other Justices concurred, i


author: Moore, J.

text:
    BROFFEE v. CITY OF GRAND RAPIDS.
    Municipal Corporations—Claims for Personal Injuries—Pre sentation to Council—Operation of Statute.
    Title 4, § 8, of the Grand, Rapids charter (Act No. 444, Local Acts 1895), requiring,, (Haims against the city for injuries sustained by reason qN'defective sidewalks, etc., to be presented to the commort'council within 60 days after the injury occurred, does not apply to claims for injuries received before such provision became operative.
    Error to superior court of Grand Rapids; Adsit, J., presiding.
    Submitted May 10, 1901.
    Decided June 4, 1901.
    Case by Bridget Broffee against the city of Grand Rapids for personal injuries. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.

      Lant K. Salsbury, for appellant.

      McKnight & McAllister, for appellee.
   Moore, J.

The following statement of facts is taken from the brief of appellant:

“The plaintiff recovered verdict and judgment for $2,253.75 -in a suit commenced on November 19, 1898, under the provisions o'f Act No. 364 of the Public Acts of 1887, entitled ‘ An act to provide for the recovery of damages for injuries caused or sustained by reason of defective public highways,, streets, bridges, sidewalks, cross-walks, or culverts’ (1 Comp. Laws, §§ 3441-3445). The plaintiff alleged in her declaration that she was injured by falling upon a defective sidewalk on Plainfield avenue, in the city of Grand Rapids, in the evening of May 30, 1895.

“By title 4, § 8, of the Revised Charter of Grand Rapids (Act No. 444, Local Acts 1895), which became operative May 37, 1895, it was provided that:

“‘If any claim for unliquidated damages against said city fox-injuries to persons or property by reason of any defect in sidewalks, streets, cross-walks, bridges, alleys, or other public places in said city, or in any action of tort against said city, such claimant shall present the same to the common council within sixty days after the injux-y or wrong occurx-ed; * * * and any such claim shall be void unless such claimant shall bring aix action against said city for such demand withiix a period of one year fx-om and after said council has had a reasonable time to investigate and pass upon such, claim, which time shall not exceed a period of thirty days.’

“ The plaintiff did not allege, nor did she seek to prove, that she had complied with the charter provision above mentioned. Upon the trial objection was made to the introduction of evidence under the declaration because of the lack of such an allegation. At the close of the trial the court was requested to instruct the jury that the plaintiff, having failed to show a presentation of her claim to the council within the 60 days limited by the charter therefor, could not recover. This request was denied, and the court instructed the jury that, if the plaintiff received the injury complained of before May 37, 1895, the law requiring the filing of the claim with the city clerk within 60 days did not apply, and that plaintiff might bring her action any time within six years from the time of the injury, if it happened before May 37, 1895.”

The court charged the jury, if the injury did not occur before May 37, 1895, plaintiff could not recover.

Some exceptions are alleged as to the admission of testimony, the charge of the court, and the argument of counsel. We do not think the court erred in relation to the admission of testimony. • The charge covered the questions involved in the case, and was even more favorable to the defendant than it was entitled to have it. We deem it necessary to discuss but one portion of the charge, which will be referred to later. A portion of the argument made by the counsel is not to be commended, but we cannot say it was so prejudicial as to make a reversal of the case essential. Battishill v. Humphreys, 64 Mich. 514 (38 N. W. 581).

The important question in the case is, Did the court err in holding that, if the injury occurred prior to the charter provision taking effect, the claimant was not bound to present her claim to the council before bringing suit ? It is' insisted plaintiff’s right of action was barred by her failure to present her claim. Counsel says:

The charter amendment of 1895, requiring the presentation of damage claims to the common council, dealt with the remedy only, and did not affect the right of action. It was the purpose of the amendment to allow the city authorities an opportunity to investigate the circumstances of the alleged injury before the evidence in the matter became lost, or obscured, or subject to distortion; and such a regulation is reasonable and valid. Selden v. Village of St. Johns, 114 Mich. 698 (72 N. W. 991); Davidson v. City of Muskegon, 111 Mich. 454 (69 N. W. 670); Mason v. City of Muskegon, 111 Mich. 687 (70 N. W. 332).”

A reference to these cases will show that the injury occurred after the charter provisions became law, and they are not controlling in this case. There is nothing in the provisions of the charter to indicate it was intended to be retroactive. If the contention of the counsel for the city is to prevail, persons having claims against the city would not be upon an equal footing. In the case at bar, if plaintiff s claim that she was injured on the 20th of May is true, she would have but 53 days after the law took effect in which to present her claim, while, if she had been injured 50 days earlier, she would have had but 3 days to present her claim, while persons receiving injuries after this charter provision became operative would have the full 60 days. We do not think the statute should be given a construction which shall lead to such results. The case is governed by Angell v. City of West Bay City, 117 Mich. 685 (76 N. W. 128), and cases there cited.

The judgment is affirmed.

The other Justices concurred.


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    LEETE v. RONEY.
    Private Alley—User—Evidence.
    A strip of land 15 feet wide liad been used as an alley for 25 years, and the buildings of the abutting property owners had been built substantially on the alley line. The city had graded and cleaned the alley for 20 years in the same manner as alleys acquired by statutory dedication, and had constructed a sewer thereon by authority of a deed referring to the land as a private alley. Defendant’s grantor had once given permission to erect a pole in the alley, which was erected without objection; but it was not shown to have interfered with the use of the alley. The land had always been assessed as private property. Held, in a suit by an abutting owner to enjoin the closing of the way, to show a private alley established by adverse user, which defendant could not close without the consent of other abutting owners.
    Appeal from Wayne; Frazer, J.
    Submitted November 14, 1900.
    Decided June 17, 1901.
    Bill by Thomas T. Leete, Jr., against William E. Roney to restrain the closing of an alley. From a decree for complainant, defendant appeals.
    Affirmed.

      Corliss, Andrus & Leete, for complainant.

      Charles W. Casgrain, for defendant.
   Montgomery, C. J.

This is a bill to restrain defendant from closing up his end of a strip of land which has been used as an alley for 25 years. Complainant’s land abuts on the alley, which is 15 feet wide. Barns and fences have been built substantially upon the line of this alley, and it has been used constantly and frequently by teams and vehicles passing to and from the premises, for carrying supplies into barns and sheds, and for removal of garbage, stable manure, etc. The city has graded and cleaned the alley for 20 years, and given it the same care as alleys dedicated by statutory dedication. The city has also constructed and maintained a lateral sewer in the alley by authority of a deed especially referring to the land as a private alley.

It is in evidence that one of defendant’s grantors, in 1887, granted permission to erect a pole in the alley, and that it was erected without permission being obtained from the board of public works under the ordinance, and no objection made. It does not appear that this interfered in any way with the use of the land as an alley. The land has always been assessed and taxed as private property. There is some testimony tending to show that the use of the land in dispute as an alley by one of the abutting owners was by parol license; but there is no such proof as to complainant, or any one under whom he holds.

We are of opinion that the proofs establish a continuous, notorious, and adverse user of the right of way over the land in dispute for the statutory period, at least as a private, if not a public, alley. See Campau v. City of Detroit, 104 Mich. 560 (62 N. W. 718).

The decree will be affirmed.

The other Justices concurred.


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    DOYLE v. TOLEDO, SAGINAW & MUSKEGON RAILWAY CO
    1. Railroads—Injury to Employe—Safe Place to Work.
    Where a switch track ran under the shed of a brickkiln, the railroad company, though not owning the shed, owed its employés the duty of seeing that it was in a reasonably safe condition, in default of. which it was liable to a brakeman for injuries sustained by the shed’s falling upon him while he was coupling cars thereunder.
    2. Same—Assumption of Risk.
    The doctrine of assumption of risk has no application to such a case, at least where the shed fell from its own weight.
    Error to Gratiot; Stone, J.
    Submitted January 10, 1901.
    Decided June 17, 1901.
    Case by James Doyle against the Toledo, Saginaw & Muskegon Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Watson & Chapman, for appellant.

      Geer & Williams (E. W. Meddaugh, of counsel), for appellee.
   Moore, J.

The plaintiff sued the defendant to recover for personal injuries received by him while in the employ of the defendant. The trial judge directed a verdict in favor of defendant. The case is brought here by writ of error.

The Sparta Brick & Tile Company is engaged near Sparta, and near the line of the defendant’s road, in making bricks and tile. Its kilns are under a center building, upwards of 200 feet long. This building consists of posts set in the ground, and extending above the ground about 16 feet, upon the top of which are plates. The roof boards extend from these plates to the center of the building, the highest point being midway between the rows of- posts. On each side of the center building, and extending its entire length, is a lean-to, about 13 feet wide. The sides of the building are open. The outside of the lean-to is made of tamarack posts, 6 to 8 inches in diameter, set in' the ground at intervals of 12 or 14 feet, and 12 feet high. On the tops of these posts plates are spiked. At frequent intervals rafters lead from the outside plates to the outside plates of the center building. The rafters are connected, with each other by strips, some of which are 2 inches by 4 inches, and some 4 inches by 4 inches. Upon the tops of these strips, inch boards, 16 feet long, were nailed, reaching from the plates on top of the 12-foot posts to the plates on the center building. The boards on the center building were loose, and, when the fires were started in the kilns, were removed from the center building, and slipped over on the roof of the lean-to. The defendant company built a siding into the lean-to from its track over, the land of the brick and tile company, which company loaded the cars from bricks which had been, taken from the kilns, and which were sometimes piled in the lean-to while awaiting shipment. When the cars were loaded, usually, when the brakes were loosened, they could easily be run outside of the building, where they were received by the defendant company; but sometimes it was necessary to go into the building for them. The building was erected by the brick and tile company, and, so far as it was kept in repair, was repaired by them; the railroad company exercising no control over the building.

The plaintiff was 25 years old. He had been a brakeman nearly, three years. He was in the employ of the defendant, and had made four trips over its road, in the capacity of a brakeman on a freight train. These trips took him near the building in question. On December 28, 1898, the main part of the train was left near the station, while the locomotive and a box car were backed upon the siding for the purpose of getting two flat cars that were under the lean-to. The plaintiff was instructed to make the coupling. While the train was moving slowly, he was attempting to remove the pin from a Jenney coupler, which was attached to the moving car, for the purpose of making the coupling when he should reach the cars under the shed. He had got but 8 to 18 feet into the shed, when a portion of the roof fell, and he ' received the injuries which are the cause of this litigation. It is his claim that it was the duty of the defendant to-furnish him a reasonably safe place to work, and to keep this building in a reasonably safe condition, and that, not having done it, the company was guilty of negligence which gave him a cause for action. The negligence is stated in the declaration as follows:

‘ ‘ Plaintiff alleges that said defendant wholly failed to maintain said building in a reasonably safe condition, or in reasonable repair, but it allowed said building to become old, rotten, and worn out; the roof and rafters thereof become weak, and in such a condition that they would separate from whatever substance or' thing they were attached to; that said building had stood so long, and was in such a condition, that it was rickety, and was liable at any minute to fall from its own weight, and it not being of sufficient strength to hold itself together, which condition was apparent to any one upon any reasonable examination of the same; and this plaintiff alleges that it was the duty of said defendant to have examined said building, and to have ascertained its condition, but that said defendant wholly failed and neglected to make any such examination.”

The testimony offered by the plaintiff was to the effect that the building was not properly constructed in the first place, that it was old and weak, and that its condition was apparent to any one who would examine it, and that, about two years before the accident occurred, a portion of the roof had fallen. On the part of the defendant the testimony was to the effect that the building was well built, and was of the same character of construction usual for buildings erected for the purpose for which this was used. The testimony showed that, when the portion of the roof fell about two years before the accident, its falling was occasioned by a heavy fall of snow coming upon a portion of the roof which was a part of an extension then in process of construction, before the posts and rafters were permanently in place; that the building had been in constant use by the employés of the brick and tile company, and that there was nothing in its appearance to indicate to any one there was any danger of its, falling. The lean-to was built to keep the rain off the side of the kiln, and from the bricks piled under the lean-to, and to protect the men when loading the cars. The shed was so low the locomotive could not be run under it. If refrigerator or furniture cars were run under it, they would hit against the rafters and boards, and a like result had occurred once or twice from the end of a brake rod on a high car hitting the roof. The evidence shows that, the roof had been struck a week or two before the accident, but the injury had been repaired, and the roof left in perfect condition. It is not shown how the accident occurred, unless it is disclosed by the answer of Mr. Warner on the cross-examination as to what made the roof tumble, when he said, “ I don’t know of any reason, unless there had been an excessive weight of snow, or they struck it with their , cars when they came in, as they had done before; ” or the testimony of the fireman, who gave the signal to stop when the roof fell, that he saw Mr. Doyle coming out of the shed holding his left hand, apparently dazed, and that he was covered with snow.

Counsel for the plaintiff say:

“ When the servant in Michigan accepts service from a master, there is a contract between him and the master that the master will furnish him with a reasonably safe place in which to work, and it is a duty that the master cannot shirk or charge to others than himself by contract, bargain, or any sleight of hand performance;” citing Morton v. Railroad Co., 81 Mich. 423 (46 N. W. 111); Van Dusen v. Letellier, 78 Mich. 492 (44 N. W. 572); Johnson v. Spear, 76 Mich. 139 (42 N. W. 1092, 15 Am. St. Rep. 298); Adams v. Iron Cliffs Co., 78 Mich. 271 (44 N. W. 270, 18 Am. St. Rep. 441); Hunn v. Railroad, Co., 78 Mich. 513 (44 N. W. 502, 7 L. R. A. 500); Harrison v. Railroad Co., 79 Mich. 409 (44 N. W. 1034, 19 Am. St. Rep. 180, 7 L. R. A. 623); Brown v. Gilchrist, 80 Mich. 56 (45 N. W. 82, 20 Am. St. Rep. 496); Balhoff v. Railroad Co., 106 Mich. 606 (65 N. W. 592).

We have no doubt this proposition is fully sustained by the rulings of this court. Counsel say the same doctrine applies when a railroad company is using property belonging to another company or to some one else; citing 1 Shear. & R. Neg. § 196; Wabash, etc., R. Co. v. Peyton, 106 Ill. 534 (46 Am. Rep. 705); Stetler v. Railway Co., 46 Wis. 497 (1 N. W. 112); Id., 49 Wis. 609 (6 N. W. 303); and other cases.

It is insisted by defendant that an examination of these cases shows the defects resulting in the injury related to the roadbed itself, or to the train or its equipments, and for that reason do not apply to the cáse at bar. If the principle determined by these cases is to control, we think it cannot be said that the duty of the company to maintain a safe place for its employés to work is discharged if it leaves a structure over its tracks in so unsafe a condition as to imperil the safety of an employé whose duty it is while employed to pass under it. Was it, then, the duty of the company to its employés to see that this place where it built its track, and where it sent its employé to work, was reasonably safe ? In Ross v. Township of Ionia, 104 Mich. 320 (62 N. W. 401), it was held, in effect, that, in building an approach to a bridge, the township authorities may not ignore surroundings, but are bound to exercise such caution as existing circumstances suggest. If the duty of maintaining this spur was a duty which the company owed to its employés, it will not do to say that this duty was performed by building a track which had no defects in itself, if there was that above the track which endangered the safety of the employé. The rule is established by the weight of authority that, when a railroad company runs its trains over tracks owned by another, the company is bound to see that the tracks are in a safe condition. Stetler v. Railway Co., 46 Wis. 497 (1 N. W. 112); Little Rock, etc., R. Co. v. Cagle, 53 Ark. 347 (14 S. W. 89); Wisconsin Central R. Co. v. Ross, 142 Ill. 9 (31 N. E. 412, 34 Am. St. Rep. 49); Murray v. Railroad Co., 66 Conn. 512 (34 Atl. 506, 32 L. R. A. 539). See, also, Spaulding v. Granite Co., 159 Mass. 587 (34 N. E. 1134).

It is urged by counsel that, though they have not been able to find a case just like this, applying the principles announced in Pahlan v. Railway Co., 122 Mich. 232 (81 N. W. 103), to this case, it justified the judge in directing a verdict in favor of defendant; counsel citing, also, Carolan v. Southern Pacific Co., 84 Eed. 84. The Pahlan Case was determined upon the assumption of risk by the employé, who had knowledge of like conditions along the way of the company. The opinion of Justice Hooker recognized that the company was bound to furnish a reasonably safe place to work. Nor is the case of Carolan v. Southern Pacific Co., 84 Fed. 84, in point. In that case the question was whether the company was liable to an employé for injuries received by him because of the improper piling of boxes or freight on a wharf adjacent to defendant’s track. The condition which caused the injury to plaintiff arose, not through an unsafe condition of the premises, but because of an improper use made of premises in proper condition, of which the plaintiff had notice. In the present case the plaintiff cannot be said to have assumed the risk that the building into which the company ran its track was liable to fall down upon him while in the performance of his duties. It is not a case in which the structure could be avoided, as in the Pahlan Case. If in any case an employé has a right to rely upon the performance of the duty to provide a safe place, it would seem that he may do so when he is called upon to pass under a building, to the extent, at least, of assuming that the building will not fall upon him by its own weight.

We think the case was one that should have been left to-the jury under proper instructions from the court.

Judgment is reversed, and a new trial granted.

Montgomery, C. J., and Grant, J., concurred with Moore, J. Long, J., concurred in the result. Hooker, J., did not sit.


text:
    BELLOWS v. BUTLER.
    1. Trespass—Cutting Timber—Agency—Question eor Jury.
    Where, in. trespass for cutting and removing timber, defendant claimed to have acted as agent of the owner, and with a view to saving the timber from destruction, and to have credited the owner with its value, but it did not conclusively appear that he was authorized to cut the timber, either expressly or as incident to his agency, it was error to direct a verdict in his favor.
    2. Statute oe Limitations—Pleading.
    The statute of limitations must be specially pleaded to be available as a defense.
    Error to Benzie; Chittenden, J.
    Submitted January 11, 1901.
    Decided June 17, 1901.
    Trespass by Elwin Bellows and Adelbert Bellows, co-partners as Bellows Brothers, against Digby B. Butler, for cutting timber. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Reversed.

      George Whitbeck and Smurthiuaite & Fowler, for appellants.

      D. G. F. Warner and Pratt & Davis, for appellee.
   Long, J.

It appears that Louis 0. Medbury was the owner, in his lifetime, of about 1,077 acres of timber land. in Benzie county. He died June 2, 1892, leaving surviving him his widow and several children, all of whom were of age except one, who was represented by her mother, as guardian, in the conveyances hereinafter mentioned. Samuel Medbury, a son of Louis O. Medbury, represented the heirs in a sale of the lands made December 7, 1899, to the plaintiffs in this suit, the consideration for the deed being $9,800. At and before the time of making the deed, it appears that some trespasses had been committed upon certain of the lands conveyed, and, either on the same day or a few days afterwards, the heirs executed a writing to the plaintiffs which recited that:

“ Whereas, a large amount of timber lying and growing upon the said lands [describing them] has been cut, taken, and carried away by persons unknown to said grantors, and without the knowledge and consent of said grantors, the legal heirs and representatives of said estate, and by the cutting, taking, and carrying away of said timber the said unknown persons have committed trespasses upon said lands: Therefore, as one of the conditions for the sale of the above-described lands to said Bellows Brothers, we, the legal heirs and representatives of said estate, do hereby sell, assign, and transfer to said Bellows Brothers all of our rights and interests in and to such action of trespass, or any other action for damages by reason of the cutting and carrying away of said timber prior to the said sale of the said lands that we, as the owners of said lands, have or might have against the said unknown persons.”

After the execution of these papers, the plaintiffs, in December, 1899, commenced this action of trespass against the defendant, alleging trespasses to have been committed on, to wit, the 30th day of December, 1897, and on divers days and times between said date and the 7th day of December, 1899. Trespass is alleged to have been upon the S. W. i of the N. E. £, the E. * of the N. E. i, and the S. E. i of section 29, in township 26 N., of range 15 W., Benzie county; and it is alleged that the timber taken was of the value of $2,500. Another count is added to the declaration, charging that the defendant, with force and arms, willfully cut and carried off said timber, and also alleging that under the provisions of section 11204, 3 Comp. Laws, the defendant forfeited to the plaintiffs, the owners of the premises, three times the amount of damage sustained by them. The defendant pleaded the general issue, solely. On the trial of the cause the plaintiffs introduced the deed in evidence, and also the paper writing conveying to them the right of action for the trespass. They also introduced testimony which we think tends to show that the defendant did commit some of the trespasses complained of, and removed some of the timber from the lands conveyed. At the close of the testimony, the court directed verdict in favor of the defendant. Plaintiffs bring error.

But two questions are presented by counsel for plaintiffs:

1. Was there some evidence tending to show that the trespasses were committed and timber taken away, for the value of which the defendant may be charged ?

2. Were the plaintiffs, under the pleadings in the case, barred from proving the taking of timber prior to two years before commencement of suit ?

1. The theory of the defendant on the trial was that he was the agent of the Medbury estate, and looking after the interests of that estate in the lands, and took the timber with the knowledge of Samuel Medbury; that a part of the timber was dead and down timber, and in danger of destruction by fire and decay; that where he took green timber it was so scattered about among the dead timber that in case of fire it would also be in danger of destruction; that when he took timber he credited the amount to the estate; that when he sold bark he credited the stumpage at what he got for it. The amount to be credited does not appear to have been agreed upon between the parties, nor does it appear that the estate authorized the taking of the timber. The value of the timber taken was a question to be determined by the jury. If defendant entered upon the land and removed the timber, it was a trespass, unless it was shown that it was done by the consent of the owner, or that, under the circumstances of his agency, he had the right to remove it. The court, we think, was in error in taking the case from the jury.

2. The plea was the general issue, and it is contended by counsel for plaintiffs that the defendant could not claim the benefit of the statute of limitations unless the same was pleaded. Section 9729, 3 Comp. Laws, provides:

‘ ‘All actions for trespass upon land, or for assault and battery, or for false imprisonment, and all actions for slanderous words and for libels, shall be commenced within two years next after the cause of action shall accrue, and not afterwards.”

This statute could be taken advantage of only by plea. Shank v. Woodworth, 111 Mich. 642 (70 N. W. 140); Whitworth v. Pelton, 81 Mich. 101 (45 N. W. 500).

For these errors, the judgment must be reversed, and a new trial ordered.

The other Justices concurred.